IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 6, 2002 Session

RONALD G. MOORE v. AVERITT EXPRESS, INC., ET AL.

Direct Appeal from the Circuit Court for Davidson County

No. 00C-2626 Thomas W. Brothers, Judge

No. M2001-02502-COA-R3-CV - Filed October 11, 2002

Plaintiff was a former state employee and newly hired employee of Averitt when he was terminated

by Averitt due to statements he made alleging illegal conduct of state officials. Plaintiff made the

statements to the press prior to being hired by Averitt. Plaintiff filed suit alleging statutory and

common law retaliatory discharge. The trial court dismissed the action. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS and HOLLY K.

LILLARD, J.J., joined.

Clint W. Watkins, Brentwood, Tennessee, for the appellant, Ronald G. Moore.

C. Eric Stevens and James P. Daniel, Nashville, Tennessee, for the appellees, Averitt Express, Inc.

and Averitt Air Charter, Inc.

OPINION

The facts as recited in Mr. Moore’s complaint and relevant to our review of this cause of

action are undisputed. Plaintiff Ronald Moore is a retired Air Force Colonel who worked as a pilot

for the State of Tennessee from April of 1999 until he resigned in October of 1999. On January 12,

2000, Mr. Moore gave a taped interview to Channel 2 News in which he alleged that state officials

were using state aircraft for personal use. The interview aired on February 16 and 17, 2000, as part

of a report on government spending.

During January of 2000, Mr. Moore also completed the application and interview process for

a position as a pilot with Averitt Express, Inc. and Averitt Air Charter, Inc. (“Averitt”). On January

17, he accepted a position as a pilot with Averitt. Mr. Moore’s first flight for Averitt was scheduled

for February 17, the night the second segment of the taped interview was televised. This flight was

canceled. On February 18, Averitt terminated Mr. Moore.
1Mr. Moore characterizes the judgment of the trial court as a dismissal pursuant to Tenn. R. Civ. P. 12.02(6).

Averitt characterizes the judgment as a rule 56 award of summary judgment. The trial court characterizes its judgment

as granting Averitt’s motion to reconsider or vacate the court’s previous dismissal of Averitt’s motion to dismiss, and

orders Mr. Moore’s claim dismissed. Since the facts in this case are undisputed, and since the judgment of the trial court

and the issues for review here rest entirely on issues of law, our review of the court’s judgment on this issue is de novo

with no presumption of correctness in either case. Upon review of the procedural history and the court’s order, we are

satisfied that the court granted Averitt’s motion to dismiss and review the cause accordingly.

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In its termination letter to Mr. Moore, Averitt raised confidentiality concerns as its reasons

for termination. Averitt emphasized that its clients expected confidential services, and stated its

belief that Mr. Moore’s televised interview would “jeopardize the company’s relationships with both

current and potential future clients.” Averitt stated, “You have publicly discussed what our clients

would consider to be private matters if it pertained to them ... Clients preferring privacy will not

want to see that their pilot was the one publicly discussing earlier flights.”

Mr. Moore filed suit against Averitt in September of 2000, alleging that Averitt terminated

him in violation of the Public Protection Act as codified at Tenn. Code Ann. § 50-1-304,

Tennessee’s “whistle-blower” statute. Mr. Moore additionally asserted a cause of action for common

law retaliatory discharge. The trial court found that Mr. Moore failed to meet the criteria required

for either a common law or statutory retaliatory discharge action and dismissed the cause.1 This

appeal followed. 

Issues Presented

The issues presented by Mr. Moore for review by this Court are:

I. Did the conduct of state officials that Mr. Moore reported to the

citizenry of Tennessee, through the news media, constitute a felony

under Tennessee law, the public reporting of which served the interest

of the public?

II. Did the trial court [err] by dismissing Mr. Moore’s common law retaliatory

discharge claim?

(A) Did Moore’s termination violate a clear and

unambiguous pubic policy of the State of Tennessee?

(B) Did the fact that Mr. Moore’s public reporting of

unlawful activity occurred prior to his being employed

by Averitt, serve to defeat [his] common law

retaliatory discharge claim?

III. Did the trial court [err] in dismissing Moore’s retaliatory discharge claim

under Tenn. Code Ann. § 50-1-304?
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Averitt raises the following additional issues:

I. Whether the plaintiff may rely, for purposes of this appeal, on the mere

allegations in his amended complaint which were not supported before the

court below in compliance with rule 56.06, Tennessee Rules of Civil

Procedure?

II. Whether the trial court properly granted summary judgment, dismissing

Moore’s common law retaliatory discharge claim.

III. Whether the trial court properly granted summary judgment,

dismissing Moore’s retaliatory discharge claim under Tenn. Code

Ann. § 50-1-304.

Standard of Review

The issues raised by this appeal are issues of law. Our review of issues of law is de novo,

with no presumption of correctness attached to the judgment of the trial court. Tenn. R. App. P.

13(d); Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000). A rule 12.02(6), Tenn. R. Civ. P.,

motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint itself. Cook

v. Spinnakers of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The grounds for such a motion

is that the allegations of the complaint, if considered true, are not sufficient to constitute a cause of

action as a matter of law. Id. A motion to dismiss should only be granted if “it appears that the

plaintiff can establish no facts supporting the claim that would warrant relief.” Doe v. Sundquist,

2 S.W.3d 919, 922 (Tenn. 1999). Accordingly, no presumption of correctness attaches to a trial

court’s ruling on a motion to dismiss. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.

1997).

When interpreting a legislative provision, this Court’s primary objective is to effectuate the

purpose of the legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000). Insofar as possible,

the intent of the legislature should be determined by the natural and ordinary meaning of the words

used, and not by a construction that is forced or which limits or extends the meaning. Id. Likewise,

the Court must seek to ascertain the intended scope, neither extending nor restricting that intended

by the legislature. State v. Morrow, 75 S.W.3d 919, 921 (Tenn. 2002) (citing State v. Sliger, 846

S.W.2d 262, 263 (Tenn. 1993)). Our interpretation must not render any part of a legislative act

“inoperative, superfluous, void or insignificant.” Id. (citing Tidwell v. Collins, 522 S.W.2d 674,

676-77 (Tenn. 1975)). Rather, we seek to give effect to the legislature’s over-arching purpose.

Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 151 (Tenn. Ct. App. 2001). In so doing,

we must interpret the statute involved reasonably, bearing in mind its objective, the harm it seeks
2

Illegal activities are defined as: “activities which are in violation of the criminal or civil code of this state or

the United States or any regulation intended to protect the public health, safety or welfare.” Tenn. Code Ann. § 50-1-

304(c) (1999).

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to avoid, and the purposes it seeks to promote. Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 345

(Tenn. Ct. App. 1997).

Retaliatory Discharge

Tennessee recognizes both a common law tort and a statutory cause of action for retaliatory

discharge. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 531 (Tenn. 2002). In order to

succeed on a common law retaliatory discharge cause of action, the claimant must demonstrate that

his whistle-blowing activity was a substantial factor in his termination. Id. The common law cause

of action requires proof of (1) an employment-at-will relationship; (2) discharge of the employee;

(3) “the reason for the discharge was that the employee attempted to exercise a statutory or

constitutional right, or for any other reason which violates a clear public policy evidenced by an

unambiguous constitutional, statutory, or regulatory provision.” Crews v. Buckman Labs. Int’l,

78 S.W.3d 852, 862 (Tenn. 2002). Under Tenn. Code Ann. § 50-1-304, Tennessee’s “whistleblower” statute enacted in 1990, a claimant must prove that he was discharged solely for refusing

to participate in, or for refusing to remain silent about, illegal activities.2 Tenn. Code Ann. § 50-1-

304 (a)(1999).

The current case presents a set of unique facts. Assuming arguendo that Mr. Moore was

discharged as a result of the statements he made to the press, and further assuming that the

statements concerned activities which he believed in good faith to be illegal, can a cause of action

be sustained where: (1) the activities reported were not those of the employer who discharged him?

(2) the activities were not reported to either internal management, a law enforcement agency, or a

regulatory agency, but to the press? and (3) the employee was not employed by the employer who

discharged him at the time the activities were reported? The Tennessee Supreme Court appears to

have answered the first question in the affirmative, at least insofar as the statutory cause of action

is invoked, remarking in a footnote in Guy:

Nowhere in the plain language of the statute is it specified that the employer must

have committed the illegal activities about which the plaintiff reported. Indeed, to

so limit the scope of the statute would frustrate the statute’s purpose to protect

“actions which enhance the enforcement of our laws or expose unsafe conditions, or

otherwise serve some singularly public purpose.” 

Guy, 79 S.W.3d at 536 (emphasis in the original)(quoting Wagner v. City of Globe, 722 P.2d 250,

257 (Ariz. 1986)). As to the third circumstance, we now answer No. As this resolution of this issue

is dispositive to this case, we leave consideration of the second issue for another day. 
3

A retaliatory discharge action may be maintained where an at-will employee is discharged for reporting what

he in good faith believes is illegal activity. Mason, 942 S.W.2d at 472. 

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The retaliatory discharge cause of action provides an exception to the employment-at-will

doctrine, a doctrine which is firmly and historically embedded in this state. Id. at 535. An

employee-at-will may be terminated for good cause, bad cause, or for no cause at all. Id.; see also,

Mason v. Seaton, 942 S.W.2d 470,474 (Tenn. 1997). In 1984, the supreme court restricted the

application of the employment-at-will doctrine in situations where an employee was terminated in

contravention of a well-established public policy. Id. (citing Clanton v. Cain Sloan, 677 S.W.2d

441, 444-45 (Tenn. 1984)). InChism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn. 1988),

the court recognized a cause of action where an at-will employee was discharged for refusing to

remain silent about illegal activities. The objective of the exception was, and remains, to sanction

employers who terminate employees in retaliation for the employee’s refusal to assist in the

perpetuation of illegal activities or activities which contravene a clear, certain, unambiguous public

policy of this state as “evidenced by an unambiguous constitutional, statutory or regulatory

provision,” whether such assistance be by active participation or by silence. Id. The purpose of the

cause of action is to “encourage the employee to protect the public interest.” Crews v. Buckman

Labs, Int’l, 78 S.W.3d 852, 860 (Tenn. 2002). Tennessee Code Annotated § 50-1-304 evidences

the public policy of this state that at-will employees may not be discharged solely for reporting

activities which violate the laws, regulations and rules of this state or the United States. Mason, 942

S.W.2d at 475. This exception to the employment-at-will doctrine is a narrow one, however, and

is applicable only in “limited circumstances, [where] certain well-defined, unambiguous principles

of public policy confer upon employees implicit rights which must not be circumscribed or chilled

by the potential of termination.” Stein v. Davidson Hotel, 945 S.W.2d 714, 717 (Tenn. 1997).

Inherent in the underlying philosophy of the retaliatory discharge cause of action is that atwill employees should not be placed in the moral, ethical and legal dilemma of being forced to

choose between reporting illegal activities and keeping their jobs. See Griggs v. Coca-Cola

Employees’ Credit Union, 909 F. Supp. 1059, 1064 (E.D. Tenn. 1995); Henderson v. Corrections

Corp. of America, 918 F. Supp. 204, 210 (E.D. Tenn 1996); Merryman v. Central Parking Sys.,

No. 01A01-9203-CH-00076, 1992 Tenn. App LEXIS 935 at *17 (Tenn. Ct. App. Nov. 13, 1992).

Thus the threat of dismissal must be contemporaneous with the decision to report the illegal

activities. Id.; see also, Crews, 78 S.W.3d at 860 (recognizing that an employee may “choose” to

remain silent about an illegal activity, even when he thereby violates a mandatory ethical duty to

report it, when faced with the possibility of discharge). Such a threat does not need to be explicitly

enunciated, and a cause of action may be sustained notwithstanding the absence of an affirmative

directive of the employer to remain silent about illegal activities. Mason, 942 S.W.2d 470, 474

(Tenn. 1997). 

Mr. Moore undisputedly was not faced with the possibility of discharge when he decided to

report what he alleges were illegal activities of his former employer.3 It is undisputed that Mr.

Moore was not an employee of Averitt on January 12, 2000, when he reported his observations to

the press. While we are not insensitive to the close proximity of events in this case, and assuming
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arguendo that making statements to the news media may be considered reporting perceived

illegalities, we decline to extend this narrowly crafted exception to the employment-at-will doctrine

to a situation where there was no potential of discharge when the report was made. In order to

maintain an action for retaliatory discharge, the plaintiff must be in the class of people the common

law tort and the statute were designed to protect. He must have been an at-will employee faced with

the choice of reporting an illegality, thereby running the risk of being discharged as a retaliatory

result, or remaining silent, thereby keeping his job at the expense of the public interest.

In light of the foregoing, the judgment of the trial court dismissing the cause of action is

affirmed. The remaining issues are therefore pretermitted. Costs of this appeal are taxed to the

appellant, Ronald G. Moore, and his surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE