THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S DAVID L. JOHNSON.
An individual may file a claim under Tennessee’s “whistleblower statute”—the Tennessee Public Protection Act (TPPA)—if she was fired solely for reporting or refusing to participate in illegal activity. Similar to federal law, the Tennessee Human Rights Act (THRA) prevents companies from discriminating against employees based on race, sex, nationality, religion, and other protected classes. Creating a hostile work environment is one form of discrimination.
Recently, the Tennessee Court of Appeals considered whether a Davidson County trial court erred in dismissing an employee’s TPPA and THRA claims on summary judgment (without a trial). Summary judgment is a legal tool designed to weed out complaints that don’t merit the time and expense of a jury trial. Under the exacting standard, an employer must show that even if the facts are construed in the employee’s favor, her claims should be dismissed. The court of appeals concluded the trial court erred by awarding summary judgment and that a jury trial was warranted.
Facts
Chris Whitney, an Asian American, worked for First Call Ambulance Service, LLC, as the ambulance fleet manager for its Nashville operation. He was responsible for making sure enough ambulances were available and providing service and maintenance. Whitney claims during his employment, his coworkers made inappropriate comments about his race. Among other conduct, he alleges he was called a “damn chink,” someone placed a sign on his office door suggesting he eats cats, he was told he looks like a terrorist, and someone asked how he’d be able to communicate with his relatives in North Korea during a time in which the Internet wasn’t operational in that country.
Whitney found himself at odds with upper management when he complained to it and to the state of Tennessee that First Call was running afoul of state safety regulations. At one point, the company’s CEO punched him in the face and grabbed him by the throat after Whitney threatened to “tell the truth” to the state. First Call retained an independent consulting firm to delve into the fleet management operations. After the consulting firm expressed concerns about Whitney’s job performance, First Call fired him.
Whitney sued First Call, claiming it violated the TPPA by firing him for blowing the whistle on its safety violations. He also claimed he was subjected to a hostile work environment based on his Asian background in violation of the THRA. The trial court dismissed his claims on summary judgment. It concluded he “has not presented evidence suggesting that the independent consultant’s report was not a basis for his termination, that the report was a sham, or that the report was in some way manipulated by First Call.” Although the court called the allegedly racist utterances “disgusting and offensive,” it found they were made over the course of four years and didn’t rise to the level of creating a hostile work environment.
Holding
On appeal, the court of appeals concluded the trial court got it wrong and didn’t properly construe the evidence in the light most favorable to Whitney. The appeals court found he came forward with enough evidence to convince a jury First Call violated both the TPPA and the THRA. As for his TPPA whistleblower claim, it found he had sufficient evidence that, if believed, could cause a reasonable person to determine the consultant’s report was a sham and was concocted to serve as a basis for ousting him. For instance, he claims the consultant blamed him for doing things upper management required him to do. Further, the report faulted him for managing a fleet with higher maintenance costs than the company’s Ohio operation, but he explained the Nashville fleet had more diesel vehicles and operated in more urban areas. Because “a reasonable person could conclude that the [consultant’s] report—and First Call’s reliance on it—have ‘no basis in fact’ or were ‘insufficient to motivate the adverse employment action.’”
The appeals court similarly concluded the trial court didn’t appropriately make inferences in Whitney’s favor when it dismissed his hostile work environment claim. Although the offensive utterances were made over the course of four years, most were made in the few months leading up to his termination. The court wrote, “while the trial court noted that ‘someone referred to [Whitney] as a ‘chink,’ this downplays the fact that [he] alleged the ‘someone’ was actually a person in upper-level management at First Call and that the full offensive statement was ‘if I catch the damn chink out there talking to the state inspector one more time, he’s going to regret it.’”
The court of appeals also found the trial court didn’t appropriately appreciate the humiliating nature of the alleged comments. Considering the totality of the evidence in full context and in the light most favorable to Whitney, the court determined a reasonable person could conclude the conduct was “sufficiently severe or pervasive to create a hostile work environment.” Therefore, it sent the case back to the trial court to conduct a jury trial on his whistleblower and hostile work environment claims. Whitney v. First Call Ambulance Serv., No. M2018-0115-COA-R3-CV (Tenn. Ct. App., Apr. 15, 2019).
Bottom line
It’s really hard to get summary judgment. An employer must show that—even assuming the former employee’s side of the story is true—no reasonable juror would determine the employer broke the law. Therefore, most employees who have a legitimate, fact-supported argument and get their ducks in a row may defeat a summary judgment request and allow a jury to resolve the dispute. In this case, Whitney seems to have had his ducks in a row to meet this low threshold.
Of course, just because Whitney won the battle doesn’t mean he’ll win the war. It’s a lot easier for him to survive summary judgment than to prove his claims at trial. At that point, he will bear the burden of proof. It will be challenging to prove his hostile work environment claims, particularly given that First Call apparently intends to show he never complained about the utterances and made race-tinged jokes himself. He will also need to prove his whistleblowing was the sole cause for his termination—a difficult burden to prove. The fact it appears to be undisputed that his supervisor slugged him in the face, however, should help him receive sympathy from the jury. I’m surprised that didn’t prompt him to quit on the spot because that could certainly qualify as constructive discharge.
