Whistleblowers refusing to remain silent or participate in illegal activities on the part of the employers often question whether they should proceed with a Tennessee Public Protection Act (TPPA) under T. C. A. § 50-1-304 or common law retaliatory discharge claim. The answer is it depends. If you are a government employee of a governmental entity or subdivision thereof as defined in the Tennessee Governmental Tort Liability Act (T. C. A. § 29-20-201) then you are limited to prosecuting a cause of action under the Tennessee Public Protection Act. At the time the law was promulgated as a statute, the definition of employer did not include governmental entities. The legislature subsequently amended the statute to include the following to include governmental entities:
T. C. A. § 50-1-304(a)(2)(A)
The state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
The Tennessee Governmental Tort Liability Act (GTLA) does not include retaliatory discharge as an exception to qualified immunity from suit. There are enumerated exceptions prescribed in the GTLA that include what types of claims a citizen or employee can proceed upon. Such include common law torts or property damage.
If you are an employee of a private employer then you may proceed with either or both the TPPA or common law retaliatory discharge claim. To establish a retaliatory discharge claim under the Tennessee Public Protection Act (TPPA), a plaintiff must prove that (1) he was an employee; (2) he refused to participate in, or to remain silent about, illegal activities; (3) he was terminated by his employer; and (4) there is an exclusive causal relationship between the plaintiff’s refusal to participate in or remain silent about illegal activities and his termination. The Whistleblower Act is cumulative to, and does not preempt, the common law tort remedy for retaliatory discharge claims when the employee was discharged for reporting illegal or unethical conduct. There is no evidence that the legislature intended to abrogate a common law cause of action as held by the Tennessee Supreme Court in Guy v. Mutual of Omaha Ins. Co.79 S.W.3d 528.
Under both the whistleblowing statute and the common law, the plaintiff bringing a claim for retaliatory discharge must assert that his or her whistleblowing activity serves a public purpose that should be protected. An action for retaliatory discharge recognizes “[t]hat, in limited circumstances, certain well-defined, unambiguous principles of public policy confer upon employees implicit rights which must not be circumscribed or chilled by the potential of termination.” See Stein v. Davidson Hotel, 945 S.W.2d 714, 716-717 (Tenn. 1997) An employee prosecuting common law retaliatory discharge must prove the following four elements:
1. Plaintiff was in at-will employment relationship with Defendant(s).
2. Plaintiff was discharged.
3. The substantial factor and/or reason for his discharge was the attempted exercise of a statutory or constitutional right, or for any other reason that violated a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision.
4. Plaintiff’s exercise of protected rights or compliance with a clear public policy was a substantial factor in Defendant(s) decision to terminate and/or discharge him.
There is a major factor distinguishing the separate causes of actions and threshold an employee must prove. In a TPPA claim, the “sole” factor for discharge must be the retaliation as a motivating factor. In a common law retaliation claim, employee’s whistleblowing activity must only be a “substantial” factor for his discharge. Clearly the common law retaliation claim paves a much easier path for employee to meet a prima facie burden. However, a TPPA claim offers the opportunity for attorney’s fees and costs which is not prescribed in the precedent creating the common law retaliation claim.
About Roland
