FILED

June 2, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MITCHELL L. DARNALL, )

)

Plaintiff/Appellant, )

) Williamson Circuit

VS. ) No. I-95381

)

A+ HOMECARE, INC. and ) Appeal No.

JAMES BRADLEY SMITH, ) 01A01-9807-CV-00347

)

Defendants/Appellees. )

CONCURRING OPINION

The court has correctly affirmed the summary judgment dismissing Mr.

Darnall’s Tenn. Code Ann. § 50-1-304 (Supp. 1998) claim. Even though I concur

with the court’s decision, I have prepared this separate opinion to state my

understanding of the elements of a Tenn. Code Ann. § 50-1-304 claim. I find this

restatement necessary because of the Western Section’s reliance on Johnson v. St.

Francis Hosp., Inc., 759 S.W.2d 925 (Tenn. Ct. App. 1988) in Merryman v. Central

Parking Sys., Inc., No. 01A01-9203-CH-00076, 1992 WL 330404 (Tenn. Ct. App.

Nov. 13, 1992) (No Tenn. R. App. P. 11 application filed). 

Prior to the enactment of Tenn. Code Ann. § 50-1-304, the Tennessee Supreme

Court recognized a limited exception to the “employment at will” doctrine for certain

types of retaliatory discharges. See 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). In 1988, the

Western Section panel of this court held that there were four elements to a commonlaw retaliatory discharge claim and that the fourth element was that there must be “an

exclusive causal relationship between the plaintiff’s actions and the defendant’s

actions.” Johnson v. St. Francis Hosp., Inc., 759 S.W.2d at 928.
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See Act of March 29, 1990, ch. 771, 1990 Tenn. Pub. Acts 256, codified as amended at

Tenn. Code Ann. § 50-1-304 (Supp. 1998)

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Several years later, a Middle Section panel of this court questioned whether the

Western Section’s formulation of the fourth element of the retaliatory discharge cause

of action was consistent with the "substantial factor" formulation in Chism v. MidSouth Milling Co. See Anderson v. Standard Register Co., No. 01A01-9102-CV00035, 1992 WL 63421, at *5-6 (Tenn. Ct. App. Apr. 1, 1992), perm. app. granted

(Tenn. June 29, 1992). When it reviewed the case, the Tennessee Supreme Court

revisited the elements of retaliatory discharge claims involving employees who had

been discharged after seeking workers’ compensation benefits. The Court adhered

to the "substantial factor" formulation in Chism v. Mid-South Milling Co. and held

that the fourth element was that “the claim for workers’ compensation benefits was

a substantial factor in the employer’s motivation to terminate the employee’s

employment.” Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn.

1993). 

The Tennessee Supreme Court’s “substantial factor” formulation was more

favorable to employees than the Western Section’s “exclusive causal relationship”

formulation. Thus, the legal effect of Anderson v. Standard Register Co. was to

reverse the formulation of the fourth element of common-law retaliatory discharge

causes of action in Johnson v. St. Francis Hosp., Inc. and to replace it with the

“substantial factor” formulation in Anderson v. Standard Register Co. for all

recognized common-law retaliatory discharge causes of action. 

Even as the Tennessee Supreme Court recognized a common-law cause of

action for retaliatory discharge, it expressed reluctance about establishing

Tennessee’s public policy in this area. See Watson v. Cleveland Chair Co., 789

S.W.2d 538, 544 (Tenn. 1989). The Tennessee General Assembly responded by

enacting the Public Protection Act of 19901 which codified the cause of action for

retaliatory discharge. The General Assembly did not explicitly spell out the elements

of the new statutory cause of action in Tenn. Code Ann. § 50-1-304. While the

legislative history indicates that the statute embodies the first three judicially

formulated elements of the cause of action, the language of the statute indicates that
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the General Assembly departed from the fourth element - the “substantial factor”

element - originally adopted in Chism v. Mid-South Milling Co. 

Tenn. Code Ann. § 50-1-304(a) states that “[n]o employee shall be discharged

or terminated solely for refusing to participate in, or for refusing to remain silent

about, illegal activities.” The General Assembly’s choice of the term “solely” means

that an employee can prevail with a Tenn. Code Ann. § 50-1-304 claim only if he or

she can prove that his or her refusal to participate in or to remain silent about illegal

activities was the only reason for the termination. If the employer can articulate any

other reason for the termination, the employee’s claim will fail. Thus, the statutory

standard in Tenn. Code Ann. § 50-1-304 is more deferential to the employer than the

“substantial factor” standard adopted by the Tennessee Supreme Court in Chism v.

Mid-South Milling Co. and Anderson v. Standard Register Co.

On this court’s first occasion to discuss the elements of a cause of action under

Tenn. Code Ann. § 50-1-304, a Western Section panel held that the four elements of

a claim under Tenn. Code Ann. § 50-1-304 were the same as the four elements that

had been adopted in Johnson v. St. Francis Hosp., Inc. Thus, the panel stated that the

fourth element of a Tenn. Code Ann. § 50-1-304 claim was that there must be “an

exclusive causal relationship between the plaintiff’s refusal to participate in or to

remain silent about illegal activities and the employer’s termination of the employee.”

See Merryman v. Central Parking Sys., Inc., 1992 WL 330404, at * 6. 

The Western Section’s return to its “exclusive causal relationship” formulation

for the fourth element of claims under Tenn. Code Ann. § 50-1-304 is an unwarranted

departure from the statutory text. Because we must enforce plain and unambiguous

statutory language as written,see Hawks v. City of Westmoreland, 960 S.W.2d 10, 16

(Tenn. 1997), I would hold that the fourth element of a Tenn. Code Ann. § 50-1-304

claim is that the employee was discharged solely for refusing to participate in or to

remain silent about illegal activities. Thus, as I understand them, the four elements

of a cause of action under Tenn. Code Ann. § 50-1-304 are as follows:

(1) the plaintiff must be an employee of the defendant;
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(2) the plaintiff must have refused to participate in or to

remain silent about illegal activities attributable to the

defendant;

(3) the defendant must have discharged the plaintiff; and

(4) the defendant must have discharged the plaintiff solely for

the plaintiff’s refusal to participate in or to remain silent

about illegal activities attributable to the defendant.

One might argue that Merryman’s “exclusive causal relationship” formulation

is the functional equivalent of the language of Tenn. Code Ann. § 50-1-304(a).

However, adopting the exact language of the statute is more faithful to the statutory

text. It will also avoid future pointless litigation over whether there is a difference

between establishing that an employee was discharged “solely for refusing to

participate in, or for refusing to remain silent about, illegal activity” and that there is

an”exclusive causal relationship” between the employee’s discharge and his or her

refusal to participate in or remain silent about illegal activities.

A party may obtain a summary judgment by affirmatively demonstrating that

the nonmoving party will be unable to prove an essential element of its case. See

Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn. 1993); Brenner v. Textron Aerostructures,

874 S.W.2d 579, 584 (Tenn. Ct. App. 1993). In this case, A+ Homecare, Inc. has

presented evidence concerning Mr. Darnall's conduct, other than his discussion with

the outside auditors, that would warrant his termination. Accordingly, A+ Homecare

has demonstrated that Mr. Darnall will be unable to prove an essential element of his

case -- that he was terminated solely because he discussed the company's financial

transactions with the outside auditors.

____________________________

WILLIAM C. KOCH, JR., JUDGE