# FILED

June 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MITCHELL L. DARNALL, ) ) Plaintiff/Appell

ant, )

) Williamson Circuit VS. ) No. I-95381 ) A+ HOMECAR

E, INC. and ) Appeal No. JAMES BRADLEY SMITH, ) 01A01-9807-CV-00347 ) Defendants/Appel

lees. )


## CONCURRING OPIN

ION

The c ourt has correctly affirmed the summ ary judgment dismissin

g Mr

. Darnall’s Tenn. Code Ann.§ 50-1-304 (Supp. 199 8) claim. Even th ough I concur withthe court’s decision , I have prepare d this separate opinio

n t o state my understanding

of the elem ents of a Tenn. Co de Ann. § 50-1-304 cl

aim. I find this restatement

necessary because

of the Western Se

ction ’s relianc e on Johnson v. St. FrancisHosp., Inc ., 759 S.W.2d 925 (T enn. Ct. App. 1988) in Merryman v. Cen tral Parking Sys., Inc. , No. 01A01-9203-CH -00076 , 1992 WL 330404 (Te nn. Ct. App. Nov. 13, 1992) (No Tenn. R. App . P. 11 application fil ed).

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

ed exception to

the “employment at w

ill” doctrine

for certain types of retaliatory disch arges. 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 19 88, the Western Section

panel of this court held that there we re four elements t

o a commonlaw retaliatory discha

rge claim and that the fourth element was that there must be “an exclusive causal relationship

between the plainti

ff’s actions and the

defend an t’s actions.” Johnson v. St. Francis Hosp., Inc. , 759 S.W.2d at 92 8.1 See Actof March 29, 1990, ch. 771, 1990 Tenn. Pub. Acts 256, codified as amended a t Tenn. Code Ann. § 50-1-304 (Supp. 1998) -2- Several years later, a M

iddle Section panel of this court questione d whether the Western Section’s formulation of the fourth element of the retaliat ory discharge cause of ac tion was consistent w

ith the "substantial f

actor" formulatio

n in Chism v. MidSouth Milling Co. See Anderson v. Standard R egister 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’ compens ation benefits. The Court adhered to t he "s ubstantial factor" formulation in Chism v. Mid-Sout h Milling Co. and held that the fourth elem

ent was that “the cla

im for workers’ c

ompensation benefits

was
asubstantial factor in the employer’s mo tivation to terminate

the emplo y ee’s emp loyment.” Anderson v. Standard R egister Co. , 857 S.W.2d 555, 558 (Tenn

. 1993).

The Tennessee Suprem e Court’ s “substantial factor” formulation was more f avorable to employees than the

Western Section’ s “exclusive causal relatio nship ” formulation. Thus, the

legal effect of Anderson v. Standard R egister Co. was to
reverse the formulation of t

he fourth element of

common-law reta

liatory dischar ge
causes of action in Johnson v. St. Francis Hosp., I nc . and to replace it

with the “substantial factor” formula tion i n Anderson v. Standard R egister Co. for all recognized common-l aw retaliatory discha rge causes of action.

Even as the Tennessee Suprem e Court recognized a co mmon-law cause o f actionfor retaliatory di scharge, it expressed reluctance ab out establishing Tennessee’s public policy in this area. See Watson v. Clev eland Chair Co. , 789 S.W.2d 538, 544 (Tenn. 1989 ). The Tennesse e General Assemb ly responded by enacting the P ubli c Protection Act o f 1990 1 which codified the cause of action for retaliatory discharge. The G eneral Assembly di

d not explicitly

spell out the elements of the new statutory c ause of action in Te nn. Code Ann . § 50-1-30 4. While the legislative

history indicates that the stat ute embodies the first t hree judicially formulated elements of the cause of act ion, the language of the statute indicates that-3-

the General Assembl

y departed from the

fourth element - th

e “substantial fac

to r ” element - originall

y adopted in Chism v. Mid-Sout h Milling Co.

Tenn. Code Ann. § 50-1-304(a) states that “[n]o employee shall be discharged
or terminate d solely for refusing to par ticipate in, or for

refusing to remain silent about, illegal activities.” The General Assembly’s choice of the term “solely” means that an employee can pre

vail with a Tenn. Code

Ann. § 50-1-304 cla

im only if he or she can prove that his or

her refusal to par

ticipate in or to remain

silent about illegal activities was the only reason for t he termination. If the employer can ar ticulate any otherreason for the ter

mination, the

employee’s claim w

ill fail. Thus, the statutory standard in Tenn. Code Ann. § 50-1-304 is more def erential to the emp

loyer than the “substantial factor” standard adopted by the Tenn

essee Supreme Court in Chism v. Mid-South Milling Co. and Anderson v. Standard R egister Co.

On this court’s first oc

casion to discuss the elements of a cause of action under Tenn. Code Ann. § 50-1-304 , aWestern Section pa nel held that the four

elements of a claim under Ten

n. 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 sta ted that the fourth element o f a Tenn. Code Ann. § 50-1-304 claim was that there must be “an exclusive causal relationship between the plaintiff’ s refu sal to participate i n or to remain silent about illegal a

ctiviti es and the employer’s termination of the em ployee.” See Merryman v. Central Parking Sys., Inc. , 1992 WL 330404, at * 6

.
The Western Section’ s return to its “excl usive causal relat

io nship ” formulation for the fourth

element of claims under Tenn. Code Ann. § 50-1-304 is anunwarranted departure from the statutory text. Because w e must enforce plai

n andunambiguous statutory language as writte n, see Hawks v. Cit

y of Westmoreland

, 960 S.W.2d 10,

16 (Tenn. 1997), I would hold that the fou rth element of a T

enn. Code Ann. § 50- 1-304 claim is that the employee was di scharged solely for refusing to partici

pate in or to remain silent about illegal a

ctivities. Thus,

as I understand them, th

e four elements of a cause of actio

n under Tenn. Code

Ann. § 50-1-304 are

as follows:
(1) the plaintiff must be an employee of the de

fendant;-4- (2) the plaintiff must have refused to participate in or t o rema in silent about illegal a ctivities attributa

ble to t h e defendant; (3) the defendant must ha ve discharged the pla

intiff; and (4) the defendant must have discharged the plaintiff solely for th e p laintiff’s refusa

l to participate in or

to remain silent about illegal activit

ies attributable to t

he defendant. One might argue

that Merryman’s “exclusive causal relationship” form ulation is the functional equiv

alen t of the language of Tenn. Code Ann. § 50-1-304(a). However, adopting the exact language of the statu te is more faithful to the statutory text. It will also avoid future pointless litigation over whether there is a difference between establishing that an employ ee was discharged “solely for refusi

ng to participate

in, or for refusing to remain silent about, illega l activity” and that t

here is an”exclusiv e cau sal relationship” between the employee’s discharge and his or her refusal to partici

pate in or remain si

lent about illegal ac

tivities.

A party may obtain a summary judgment by affirmatively demonstrating that the nonmoving party will be un able to prove an esse ntial 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, In c. has presented evidence concerning Mr. D arnall's conduct, other than his discussi

on with the outside auditors, tha

t would warrant

his termination. Accordingly, A+ Homecare has demonstrated that Mr. Darnall w ill be unable to prove

an essential eleme

nt of his
case -- that he was terminated solely because he discussed the company's financial transactions with th

e outside auditors.

____________________________

WILLIAM C. KOCH, JR., JUDGE