Under the Tennessee Public Protection Act (TPPA), also known as the “whistleblower statute,” it is unlawful to fire an employee “solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” Tennessee recognizes a counterpart common-law whistleblower claim that requires employees to show only that whistleblowing was a “substantial factor” in the termination decision. However, government employees may not bring a common-law claim—they must file whistleblower claims under the TPPA. In January 2019, the Tennessee Court of Appeals considered a TPPA claim by a Sevierville police officer.
Wendy Weinert worked as a police officer for the city of Sevierville. In September 2014, she complained that two other officers had sexually harassed her. The accused perpetrators weren’t disciplined because there was no corroborating evidence. Weinert filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC), but the EEOC dismissed the charge. In the meantime, she also alleged that two different police officers used excessive force against an arrestee during an incident that had taken place 18 months earlier. Captain Matthew Ayers investigated her complaint and found it lacked merit.
In June 2015, Weinert’s supervisors counseled her about a number of issues, including concerns about her avoiding dispatch calls, not backing up fellow officers, and committing safety violations. Weinert complained to Ayers that she was being unfairly singled out and was the victim of a “witch hunt.” Ayers called Weinert and her direct supervisors in for a meeting on July 1, 2015.
The meeting was heated, and at the end, Weinert announced she was resigning because of the “toxic environment.” She was told to think carefully about what she was doing, and her immediate supervisor, Sergeant Rebecca Cowan, assured her that she would have a clean slate if she remained on the force. Weinert told Cowan that her assurance “would mean something to me if I trusted you, but I don’t.”
According to Weinert, Ayers said he couldn’t accept her resignation unless it was in writing. She was allowed to take the rest of the day off and, after speaking with an attorney, decided she wouldn’t resign after all. When she returned to work, however, HR told her the chief of police had accepted her oral resignation. She responded that she wasn’t resigning but was told that it was too late and her employment was over.
Weinert sued Sevierville for retaliatory discharge under the TPPA. She argued she was fired in retaliation for blowing the whistle on sexual harassment and on fellow officers’ use of excessive force. After discovery (the pretrial exchange of evidence), the city requested summary judgment, arguing that even if the facts were construed in Weinert’s favor, her claims should be dismissed without a trial. The trial court granted the city’s request, and Weinert appealed.
The court of appeals upheld the trial court’s dismissal of Weinert’s claims. The court noted that a person asserting a claim under the TPPA must establish the following elements:
- The employment relationship was terminated.
- The former employee had refused to participate in or remain silent about illegal activity.
- The termination was solely the result of her whistleblowing activity.
The court recognized there was a factual dispute over whether Weinert resigned or was fired, and it found that her complaints about sexual harassment and excessive force invoked allegedly illegal activity. Therefore, the determinative issue was whether she had sufficient evidence to convince a jury that her complaints were the sole reason for her discharge.
The city came forward with plenty of evidence that it had legitimate reasons to fire Weinert for performance issues. Weinert acknowledged the legitimacy of several of those issues and admitted she shouldn’t have waited 18 months before making her excessive force accusation. Moreover, the court found it was reasonable for the city to terminate her employment after she stated she was resigning. Finally, her assertion that she didn’t trust her supervisor, Cowan, was grounds for termination.
Consequently, Weinert was required to show that the city’s explanations were a pretext (an excuse) for retaliation and that the true—and only—reason for her termination was her whistleblowing activity. To meet that burden, she argued that video footage of the alleged excessive force incident contradicted the city’s conclusion that no excessive force took place. She also argued that her personnel file didn’t document any reprimands before June 2015. The court found that was insufficient and no reasonable juror could conclude “that the sole reason for [her] termination was unlawful retaliation” by the city. Weinert v. City of Sevierville, No. E2018-00479-COA-R3-CV (Tenn. Ct. App., Jan. 23, 2019).
Weinert appears to have had a very weak case. She made a big mistake by announcing her resignation in the heat of the moment rather than waiting to cool off and reflect about her future. It’s interesting that the city initially attempted to talk her out of resigning. That certainly wasn’t consistent with an employer engaging in a “witch hunt” and trying to run an employee off.
This case illustrates the difficulty of filing a claim under the TPPA. Proving “sole cause” is really tough to do. When an employee admits to performance issues, it’s very hard to prove those issues didn’t play a role in the employer’s termination decision. If this case had gone to trial, the city could have argued to the jury that even if Weinert’s whistleblowing played a role in her termination, the decision was also attributable to her performance issues, her vocal distrust of her supervisor, and her assertion that she intended to resign.
Although the police department was in pretty good shape in this case, it sounds like it could have done a better job of documenting Weinert’s performance issues leading up to her termination. In hindsight, it probably wishes it had accepted her resignation on the spot rather than allowing her time to consult with an attorney.
This article originally appeared in the Tennessee Employment Law Letter by Butler Snow’s David L. Johnson.