# FILED

May 19, 1997 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

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 Katherin e 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, w as terminated from1 Hereina fter “Dav idson.”

2 Oral arguments were heard in thi s case on April8, 1997, i n Union City , Obion County , as part of this C ourt’s S.C .A.L.E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project. -2- her position of banquet captain a t the Holiday Inn Crow

n Plaza which is ow

ned by defend ant, David son Hotel Company, 1 a private employer, because she tested positive on a random drug test. Stein brought suit against Davidson al leging seven grounds for reli ef. Davidson filed a motion to di smiss for failure to state a claim and the

trial cour

t granted th e motion with respect t o five of the s

even claim s alleged by Stein. The Cou rt of Appeals affirmed the trial cour t’s judgment.

We granted this appeal to determine whether Stein has stated a cause of action for wrongful discharge. We conclude th at no clear mandate of public policy is violated when a pr

ivate employer dismis

ses a terminable-at-wi ll employee who tests positive on a rando m drug test. Therefore, we a ffirm the judgment of the Court of Appeals upholding the t rial court’s dismiss al of Stein’s claim for wr ongful discharge. 2

BACKGROUND Stein began working

at the Holiday Inn Cro

wne Plaza on June 6, 1989, when it was owned by Flautt Properties, Inc. Stein had no writt en contract and was a terminable-at-w

ill employee. In September of 1990, Flautt sold the hotel to Davidson. Stein continue d 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 suspici on testing, after accident testing, and random drug te sting. Prior to ins

tituting the program, Davidson-3-

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 sig n the consent form, but she alleges th at she signed the form only because of the perceived threat of terminati on.

In October of 1994, Davidson adv ised Stein, who was employed in the position of banquet captain, that she had been selected for a random drug test. Stein went to Roche Biomedi cal Laboratories, Inc. and pr ovided a sample for urinalysis. Joe Di etz, Stein’s immediate super visor, thereafter informed her that she had tested positive for drug u se, but she was not advised of the d rugs detected or any other information about the positive result. Late r that day, Stein met with other Davidson managers. She denied using illegal drugs and as ked that she be given an opportunity to refute and disprove the positive test result. Stein wanted to employ another l aboratory to test a different ur ine sample. Davidson declined to approve Stein’s suggestion, but instead offered to have Roche re-test Stein’s original ur

ine sample. Stein refused that offer. Ther eafter, Davidson terminated Stein’s employment as a result of the positiv e drug test.
On January 9, 1995, Stein file d this action against Da vidson. Her complaint alleged several caus

es of action including: (1) wrongful discharg e in violation of public policy; (2)

tortious invasion of pri vacy; (3) breach of an implied employment contract; (4) breach of an impl ied covenant of good faith and fair d ealing; (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-4-

March 7, 1995, Davidson filed a “Motion to Dismis s or for Summary Judgment.” The trial court granted Davidson’s motion to dismi ss for failure to state a clai m as to counts one, two, three, fiv e, and six on June 9, 1995. With respect to the fourth claim, the trial court t

ook the matter under advisement,and with respect to count seven, the trial court , after reviewing affidavits submitted by the par ties, 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 w

ere no just reasons for delay , and certified that the order w as final for purposes of appeal.

Stein appealed the trial cour t’s dismissal of her w rongful discharge and tortious invasion of privacy claims. The Court of Appeals affirmed the trial court’s dismissal of both claims. There after, we granted this appeal to consider whether Stein has stated a cause of action for wrongful discharge. In resolving this question, we must determi ne whether dismissal of a te rminable-at-will employee for test ing positi ve on a rand om drug te st violate s a clear m andate o f public policy.

STANDARD OF REVIEW A Rule 12.02(6), Tenn. R. Ci v. P., motion to dismiss for failure to state a claim upon which reli ef can be granted tests only the legal sufficiency of the complaint, not the strength of a p laintiff’s proof. Such a motion admits the truth of all relevant and material averments contained in the c omplaint, 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-5-

allega tions of fact as t rue, and

deny th e motion

unless it appea rs that

the plai ntiff can prove no set of facts in suppor t of her claim that would enti tle 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 g rant of the defendant’s motion to dismiss, we take all allegations of fact in the plai ntiff’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
.

RETALIA

TORY OR WRONGFUL DISCHARGE The doctrine of employment-at-w ilI is a long standing

rule in this State which recognize

s the concomitant right of either the employer or the emplo yee to terminate the employment relati onship at any time, for good c ause, bad cause, or no cause at all, without being guilty of a legal wrong. Harney v. Meadow brook 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 c ase law in this and other states, however, some r estrictions have been i mposed 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 t o 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); Conatse r v. Clarksville Coca-Cola , 920 S.W.2d 646 (Tenn. 1995); Reynolds v. Ozar k Motor Lines, Inc. , 887 S.W.2d 822 (Tenn. 1994); Anderson v. Standard Reg ister Co. ,3 To maintain thi s delicat e balance, t his Court has emphasized that t he exception t o the employment-at-wi ll doct rine must be narr owly appl ied and not be permitted t

o consume the general rule. Chism , 762 S.W .2d at 556

. -6- 857 S.W.2d 555 (Tenn. 1993); Hodges v. S.C. Toof & Co. , 833 S.W.2d 896 (Tenn. 1992); Chism v. Mid-South M illing Co. , 762 S.W.2d 552 (Te nn. 1988); Clanton v. Cain-Sloan Co. , 677 S.W.2d 441 (Te nn. 1984).

This cause of action for retaliatory or wrongful discharge, which was first recognized by thi s Court in Clanton , supra , strikes the balance betw een the employment-at-will

doctrine and rights g ranted employees under we ll-defined expressions of public pol icy. Anderson , 857 S.W.2d at 556. The employment-atwill doctrine recognizes that employers need freedom to make their own business judgments without inter ference from the courts. Mason , ___ S.W.2d at ___ “[A]n employer’s ability

to make and act upon independent assess ments of an employee’s abilities an d job performance as well as business needs is essential to the free-enterprise system.“ Clifford v. Cactus Dri lling Corp. , 353 N.W.2d 469, 474 (Mich. 1984 ). In contrast, th e action for ret aliatory or wrongful d ischarge recognizes that, in limited circumstances, 3 certain well-defined, u nambiguous principles of public poli cy confer upon employees impl icit rights whi ch must not be circumscribed or chil led by the potential of termination. See Chism v. Mid-South Milling Co , 762 S.W.2d 552, 555-57 (Tenn. 1988)(citing ex amples). Therefore, the tort action of retaliator y or wrongful dis

charge is availabl e to employees discharged as a consequen ce of an employer’s viol ation of a clearly expr essed public policy. Reynolds , 887 S.W.2d at 823; Hodges , 833 S.W.2d at 899.

This Court has explained i ts role with respect

to discerning public policy as4 See 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 st udied auth ority fro m o ther s tates , to pre vail on her c laim , Stein mu st po int to a clear ly defin ed T enn ess ee pu blic po licy whic h wa s viola ted b y her d ism issa l. -7- follows: This Court can know nothing of public policy

except from the constitution and the laws, and the course of administration and deci sion. It has no legislative pow

ers. It cannot amend or modify an y legislative acts.It cannot examine questi ons as expedient or inexpedient , or as politic or impol itic. Considerations of that sort mus t, in general, be addressed to the legislature. Questions of policy determined there are concluded her e.
There are cases, it is tr ue, in which arguments drawn from public policy must have large influence;but these are cases in whic h the course of legislation and administration do not leav e 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, (quo ting Nashville Ry. & Light Co. v. Laws

on , 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 po licy from the common law. See e.g. , Reynolds , 887 S.W.2d at 823. Therefore, to prevail in this appe al, Stein must poin t to a clea r mandat e of pub lic policy, 5 evidenced by an unambiguous constitutional, statutory, or regulatory pr ovision, which Davidson v

iolated when it dischar

ged her for testing positive on a random drug test. Id

.
Stein argues that Davi dson’s dismissal of her contr avenes her right to6 See e.g. National Treasury Employees Uni on v. Von Raab , 489 U.S. 656, 109 S.Ct. 1384, 103 L.E d.2d 685 (1989); Skinner v. Rai lway Labor Executive’ s Associati on , 489 U.S . 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (19 89).

7 See e.g. Conn . Gen. S tat. § 31-51 t to -51aa (1 992); Iow a Cod e Ann. § 730.5 (W est 199 3). -8- privacy evidenc

ed by Article I, Secti ons 7 and 8 of the Tennessee Constitution . In support of her claim, Stein als o relies upon decisions 6 of the United States Supreme Court which address random drug testing of government employees, and statutes 7 from other states relating to random drug testing of pr ivate employees. Davidson r esponds that constitutional pr ovisions protect citizens from abusive and intrusiv

e government action but do not control relationships b etween private in dividuals , includi ng employe r - employe e relatio nships. S econdly, Davidson argues that, in Tennessee, there is no well-defined public policy evidenced by an unambiguous constitutional, statutory, or regulatory pr ovision which precludes employ ers from dismissing at-w ill employees who tes

t 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 pr

ohibits a private employ er from terminating employees w ho test positive for drug use. It is well-s

ettled that constitutional guarantees restrain government c onduct and generally do not restrain the conduct of priv ate individuals. State v. Hudson , 849 S.W.2d 309, 311 (Tenn. 1993); Freshwater v. Stat e , 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-9-

arguments showed that cons titutional provision applied to both business and governmental activi

ties). Contrary to

Stein’s claim, therefore, the state constitutional guarantee of pr ivacy is not a sour

ce of public policy w

hich restricts the right of private employers to discharge terminable-at-will employees who test positive on random drug tests. The United States Supreme C ourt decisions upon which Stein relies a re not applicable to this appeal. Those decisions inv olved random drug testing of publi c employees by gov ernment actors; therefore, constitutional principles of privacy and search and seizure were implicated. Since this appeal involves

a private employer/empl oyee relationship, those important constitutional considerati ons 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-w

ill employees who tes

t positive for drug us

e on random drug tests. There is certainly no s

tatutory provision

expressly prohibi

ting an employer from discharging an employee who has tested positive on a random drug test. Unlike some other state statutes upon w hich Stein relies, Tennessee has not enacted a comprehensive statutory scheme to govern random dr ug testing by pri

vate employers. As the Court of Appeals recognized, ex isting Tennessee statutes which relate to random dr ug testing in other contexts appear to favor the pr actice. The Legislature has specific ally authorized dr

ug testing for public hi gh school students and the security personnel employed by the Department of Corrections and Youth Development. Tenn. C ode Ann. § 49-6-4213 (1996); Tenn Code Ann. § 41-1-122 (1990 & Supp. 1996). Moreover, in 1995, the General Assem bly enacted a statute which provides that private sector employees who left their most-10-

recent job “either to av

oid taking a drug or a lcohol screening test, or after receiving a positive result to a drug or alcohol screeni ng test” are not entitled to unemployment compensation. Tenn. Code A nn. § 50-7-302(a)(9) (Supp . 1996). Though not directly addre ssing random drug testi ng of private employees,the most straightforward ex pression of public policy with respect to dismi ssing employees for drug use w as contained within a st atute enacted on May 13, 1996, following the release o

f the Court of Appeals’ decision i n this case. In that statute the General Assembly decl ared:

It is the intent of the General As sembly to promote drug-free workplaces in order

that employers in the stat e be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions i n the market place and reach thei r desired levels of success wi

thout experiencing the c osts, delays and tragedies associated w ith work-related ac

cidents resulting from dr ug abuse by employees. It is further the intent of the General Assembly that drug abuse be discouraged and that employees who cho ose to engage in drug abuse face the risk of unemployment

and the forfeiture of workers’ compensation benef its. Tenn. Code Ann. § 50-9-101(a) (1996 Supp.) (emp hasis added). Considering this unambiguous pronouncement and other r elevant statutory pr

ovisions, we find no well-defined public poli cy which is v iolated by a private employer discharging an at-will employee w

ho tests positive for drug use on a random drug test. Gilmore , supra
.

CONCLUSION Stein has failed to identify a c lear public policy,evidenced by an unambiguous constitutional, s tatutory, or regulat

ory provision, tha

t was violated by her dismissal for testing positive for drug use on a random drug test. Therefore, she has failed to allege an ess ential element of her claim for wrongful discharge.-11-

Accordingly, we affirm the Court of Appeals’ judgment upholding the trial court’s dismissal of Stein’s clai m. This cause is remanded to the tr ial court for further proceedings consistent w ith this decision.

_____________________________________ Frank F. Drowota, II I Justice Concur: Birch, C.J., Anderson, Reid, Holder, JJ.