FILED

May 19, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

EVELENE N. STEIN, ) Filed: May 19, 1997

)

Plaintiff/Appellant ) Hon. Hamilton V. Gayden

) Judge

Vs. )

) DAVIDSON COUNTY

DAVIDSON HOTEL COMPANY, )

) Supreme Court

Defendant/Appellee. ) No. 01-S01-9610-CV-00202

)

FOR PLAINTIFF/APPELLANT FOR DEFENDANT/APPELLEE:

Patricia A. Montgomery John S. Hicks,

WESTLAKE & MARSDEN, P.C. Stephen H. Biller

Nashville, Tennessee Katherine A. Brown

BAKER, DONELSON, BEARMAN & 

CALDWELL

Nashville, Tennessee

O P I N I O N

TRIAL COURT AND

COURT OF APPEALS

AFFIRMED. DROWOTA, J. 

The plaintiff, Evelene N. Stein, a private employee, was terminated from
1Hereina fter “Dav idson.”

2Oral arguments were heard in this case on April 8, 1997, in Union City, Obion County, as

part of this C ourt’s S.C .A.L.E.S. (Supreme Court Advancing Legal Education for Students ) project. 

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her position of banquet captain at the Holiday Inn Crown Plaza which is owned by

defendant, Davidson Hotel Company,1 a private employer, because she tested

positive on a random drug test. Stein brought suit against Davidson alleging

seven grounds for relief. Davidson filed a motion to dismiss for failure to state a

claim and the trial court granted the motion with respect to five of the seven claims

alleged by Stein. The Court of Appeals affirmed the trial court’s judgment.

We granted this appeal to determine whether Stein has stated a cause of

action for wrongful discharge. We conclude that no clear mandate of public policy

is violated when a private employer dismisses a terminable-at-will employee who

tests positive on a random drug test. Therefore, we affirm the judgment of the

Court of Appeals upholding the trial court’s dismissal of Stein’s claim for wrongful

discharge.2

BACKGROUND

Stein began working at the Holiday Inn Crowne Plaza on June 6, 1989,

when it was owned by Flautt Properties, Inc. Stein had no written contract and 

was a terminable-at-will employee. In September of 1990, Flautt sold the hotel to

Davidson. Stein continued to work at the hotel after the sale. In February of

1992, Davidson instituted a drug and alcohol testing program. The program

included pre-employment testing, reasonable suspicion testing, after accident

testing, and random drug testing. Prior to instituting the program, Davidson
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required all employees to sign a consent and release form. According to Stein’s

allegations, any employee refusing to sign the consent and release form would

have been terminated. Stein does not contend that she refused to sign the

consent form, but she alleges that she signed the form only because of the

perceived threat of termination.

In October of 1994, Davidson advised Stein, who was employed in the

position of banquet captain, that she had been selected for a random drug test. 

Stein went to Roche Biomedical Laboratories, Inc. and provided a sample for

urinalysis. Joe Dietz, Stein’s immediate supervisor, thereafter informed her that

she had tested positive for drug use, but she was not advised of the drugs

detected or any other information about the positive result. Later that day, Stein

met with other Davidson managers. She denied using illegal drugs and asked that

she be given an opportunity to refute and disprove the positive test result. Stein

wanted to employ another laboratory to test a different urine sample. Davidson

declined to approve Stein’s suggestion, but instead offered to have Roche re-test

Stein’s original urine sample. Stein refused that offer. Thereafter, Davidson

terminated Stein’s employment as a result of the positive drug test.

On January 9, 1995, Stein filed this action against Davidson. Her complaint 

alleged several causes of action including: (1) wrongful discharge in violation of

public policy; (2) tortious invasion of privacy; (3) breach of an implied employment

contract; (4) breach of an implied covenant of good faith and fair dealing; (5)

negligence on the part of Davidson; (6) negligent infliction of emotional distress

and outrageous conduct; and (7) failure to pay Stein earned vacation time. On
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March 7, 1995, Davidson filed a “Motion to Dismiss or for Summary Judgment.”

The trial court granted Davidson’s motion to dismiss for failure to state a claim as

to counts one, two, three, five, and six on June 9, 1995. With respect to the fourth

claim, the trial court took the matter under advisement, and with respect to count

seven, the trial court, after reviewing affidavits submitted by the parties, concluded

that there was a genuine issue of material fact and denied the motion for

summary judgment. The trial court concluded, pursuant to Rule 54.02, Tenn. R.

Civ. P., that there were no just reasons for delay, and certified that the order was

final for purposes of appeal.

Stein appealed the trial court’s dismissal of her wrongful discharge and

tortious invasion of privacy claims. The Court of Appeals affirmed the trial court’s

dismissal of both claims. Thereafter, we granted this appeal to consider whether

Stein has stated a cause of action for wrongful discharge. In resolving this

question, we must determine whether dismissal of a terminable-at-will employee

for testing positive on a random drug test violates a clear mandate of public policy.

STANDARD OF REVIEW

A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a

claim upon which relief can be granted tests only the legal sufficiency of the

complaint, not the strength of a plaintiff’s proof. Such a motion admits the truth of

all relevant and material averments contained in the complaint, but asserts that

such facts do not constitute a cause of action. In considering a motion to dismiss,

courts should construe the complaint liberally in favor of the plaintiff, taking all
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allegations of fact as true, and deny the motion unless it appears that the plaintiff

can prove no set of facts in support of her claim that would entitle her to relief. 

Cook v. Spinnakers of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In

considering this appeal from the trial court’s grant of the defendant’s motion to

dismiss, we take all allegations of fact in the plaintiff’s complaint as true, and

review the lower courts’ legal conclusions de novo with no presumption of

correctness. Tenn. R. App. P. 13(d); Owens v. Truckstops of America, 915

S.W.2d 420, 424 (Tenn. 1996); Cook, supra.

RETALIATORY OR WRONGFUL DISCHARGE

The doctrine of employment-at-wilI is a long standing rule in this State

which recognizes the concomitant right of either the employer or the employee to

terminate the employment relationship at any time, for good cause, bad cause, or

no cause at all, without being guilty of a legal wrong. Harney v. Meadowbrook

Nursing Center, 784 S.W.2d 921, 922 (Tenn. 1990); Watson v. Cleveland Chair

Co., 789 S.W.2d 538 (Tenn. 1989). Both by statute and case law in this and other

states, however, some restrictions have been imposed upon the right of an

employer to terminate an at-will employee. In Tennessee an employee-at-will

generally may not be discharged for attempting to exercise a statutory or

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

which is evidenced by an unambiguous constitutional, statutory, or regulatory

provision. See e.g., Mason v. Seaton, ___ S.W.2d ___ (Tenn. 1997); Conatser v.

Clarksville Coca-Cola, 920 S.W.2d 646 (Tenn. 1995); Reynolds v. Ozark Motor

Lines, Inc., 887 S.W.2d 822 (Tenn. 1994); Anderson v. Standard Register Co.,
3

To maintain this delicate balance, this Court has emphasized that the exception to the

employment-at-will doctrine must be narrowly applied and not be permitted to consume the general

rule. Chism, 762 S.W .2d at 556 . 

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857 S.W.2d 555 (Tenn. 1993); Hodges v. S.C. Toof & Co., 833 S.W.2d 896

(Tenn. 1992); Chism v. Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988);

Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984).

This cause of action for retaliatory or wrongful discharge, which was first

recognized by this Court in Clanton, supra, strikes the balance between the

employment-at-will doctrine and rights granted employees under well-defined

expressions of public policy. Anderson, 857 S.W.2d at 556. The employment-atwill doctrine recognizes that employers need freedom to make their own business

judgments without interference from the courts. Mason, ___ S.W.2d at ___ “[A]n

employer’s ability to make and act upon independent assessments of an

employee’s abilities and job performance as well as business needs is essential to

the free-enterprise system.“ Clifford v. Cactus Drilling Corp., 353 N.W.2d 469,

474 (Mich. 1984). In contrast, the action for retaliatory or wrongful discharge

recognizes that, in limited circumstances,3 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. See Chism v. Mid-South

Milling Co, 762 S.W.2d 552, 555-57 (Tenn. 1988)(citing examples). Therefore,

the tort action of retaliatory or wrongful discharge is available to employees

discharged as a consequence of an employer’s violation of a clearly expressed

public policy. Reynolds, 887 S.W.2d at 823; Hodges, 833 S.W.2d at 899.

This Court has explained its role with respect to discerning public policy as
4See e.g. Hennessy v. Coastal Eagle Point Oil Co., 609 A.2d 11, 17-19 (N.J. 1992).

5

Tho ugh we ha ve ex am ined a nd studied authority fro m o ther s tates , to pre vail on her c laim ,

Stein mu st point to a clearly defin ed Tennessee pu blic po licy whic h was viola ted by her d ism issal.

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follows:

This Court can know nothing of public policy

except from the constitution and the laws, and the

course of administration and decision. It has no

legislative powers. It cannot amend or modify any

legislative acts. It cannot examine questions as

expedient or inexpedient, or as politic or impolitic. 

Considerations of that sort must, in general, be

addressed to the legislature. Questions of policy

determined there are concluded here.

 

There are cases, it is true, in which arguments

drawn from public policy must have large influence; but

these are cases in which the course of legislation and

administration do not leave any doubt upon the

question what public policy is, and in which what would

otherwise be obscure or of doubtful interpretation, may

be cleared and resolved by reference to what is

already received and established.

Watson, 789 S.W.2d at 540, (quoting Nashville Ry. & Light Co. v. Lawson, 144

Tenn. 78, 91, 229 S.W. 741 (1920). This Court does not engage in hypothetical

guessing to fashion public policy. Unlike other jurisdictions,4 Tennessee courts do

not, in the context of wrongful discharge actions, attempt to discern public policy

from the common law. See e.g., Reynolds, 887 S.W.2d at 823. Therefore, to

prevail in this appeal, Stein must point to a clear mandate of public policy,5

evidenced by an unambiguous constitutional, statutory, or regulatory provision,

which Davidson violated when it discharged her for testing positive on a random

drug test. Id.

Stein argues that Davidson’s dismissal of her contravenes her right to
6See e.g. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384,

103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executive’s Association, 489 U.S. 602, 109 S.Ct.

1402, 103 L.Ed.2d 639 (19 89).

7 See e.g. Conn . Gen. Stat. § 31-51 t to -51aa (1 992); Iow a Cod e Ann. § 730.5 (W est 199 3). 

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privacy evidenced by Article I, Sections 7 and 8 of the Tennessee Constitution. In

support of her claim, Stein also relies upon decisions6 of the United States

Supreme Court which address random drug testing of government employees,

and statutes7 from other states relating to random drug testing of private

employees. Davidson responds that constitutional provisions protect citizens from

abusive and intrusive government action but do not control relationships between

private individuals, including employer - employee relationships. Secondly,

Davidson argues that, in Tennessee, there is no well-defined public policy

evidenced by an unambiguous constitutional, statutory, or regulatory provision

which precludes employers from dismissing at-will employees who test positive for

drug usage on a random drug test.

Initially, we address Stein’s contention that the constitutional right of privacy

represents a clear public policy which prohibits a private employer from

terminating employees who test positive for drug use. It is well-settled that

constitutional guarantees restrain government conduct and generally do not

restrain the conduct of private individuals. State v. Hudson, 849 S.W.2d 309, 311

(Tenn. 1993); Freshwater v. State, 2 Tenn. Crim. App. 314, 320, 453 S.W.2d 446,

449 (1969); see also, Borse v. Peace Goods Shop, Inc., 963 F.2d 611, 620 (3d

Cir. 1992); Gilmore v. Enogex, Inc., 878 P.2d 360, 365 (Ok. 1994); Roe v. Quality

Transportation Services, 838 P.2d 128, 130 (Wash. App. Div. 3 1992); but see

Luck v. Southern Pac. Trans. Co., 267 Cal. Rptr. 618, 627 (1990) (ballot
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arguments showed that constitutional provision applied to both business and

governmental activities). Contrary to Stein’s claim, therefore, the state

constitutional guarantee of privacy is not a source of public policy which restricts

the right of private employers to discharge terminable-at-will employees who test

positive on random drug tests. The United States Supreme Court decisions upon

which Stein relies are not applicable to this appeal. Those decisions involved

random drug testing of public employees by government actors; therefore,

constitutional principles of privacy and search and seizure were implicated. Since

this appeal involves a private employer/employee relationship, those important

constitutional considerations are not at issue. 

Moreover, we have not discovered a statutory or regulatory provision which

represents a well-defined public policy that is contravened by employers

discharging at-will employees who test positive for drug use on random drug tests. 

There is certainly no statutory provision expressly prohibiting an employer from

discharging an employee who has tested positive on a random drug test. Unlike

some other state statutes upon which Stein relies, Tennessee has not enacted a

comprehensive statutory scheme to govern random drug testing by private

employers. As the Court of Appeals recognized, existing Tennessee statutes

which relate to random drug testing in other contexts appear to favor the practice. 

The Legislature has specifically authorized drug testing for public high school

students and the security personnel employed by the Department of Corrections

and Youth Development. Tenn. Code Ann. § 49-6-4213 (1996); Tenn Code Ann.

§ 41-1-122 (1990 & Supp. 1996). Moreover, in 1995, the General Assembly

enacted a statute which provides that private sector employees who left their most
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recent job “either to avoid taking a drug or alcohol screening test, or after receiving

a positive result to a drug or alcohol screening test” are not entitled to

unemployment compensation. Tenn. Code Ann. § 50-7-302(a)(9) (Supp. 1996). 

Though not directly addressing random drug testing of private employees, the

most straightforward expression of public policy with respect to dismissing

employees for drug use was contained within a statute enacted on May 13, 1996,

following the release of the Court of Appeals’ decision in this case. In that statute

the General Assembly declared:

It is the intent of the General Assembly to promote drug-free

workplaces in order that employers in the state be afforded the

opportunity to maximize their levels of productivity, enhance their

competitive positions in the market place and reach their desired

levels of success without experiencing the costs, delays and

tragedies associated with work-related accidents resulting from drug

abuse by employees. It is further the intent of the General Assembly

that drug abuse be discouraged and that employees who choose to

engage in drug abuse face the risk of unemployment and the

forfeiture of workers’ compensation benefits.

Tenn. Code Ann. § 50-9-101(a) (1996 Supp.) (emphasis added). Considering this

unambiguous pronouncement and other relevant statutory provisions, we find no

well-defined public policy which is violated by a private employer discharging an

at-will employee who tests positive for drug use on a random drug test. Gilmore,

supra.

CONCLUSION

Stein has failed to identify a clear public policy, evidenced by an

unambiguous constitutional, statutory, or regulatory provision, that was violated by

her dismissal for testing positive for drug use on a random drug test. Therefore,

she has failed to allege an essential element of her claim for wrongful discharge. 
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Accordingly, we affirm the Court of Appeals’ judgment upholding the trial court’s

dismissal of Stein’s claim. This cause is remanded to the trial court for further

proceedings consistent with this decision.

_____________________________________

Frank F. Drowota, III

Justice

Concur:

Birch, C.J.,

Anderson, Reid, Holder, JJ.