R. ALLAN EDGAR, Chief Judge, District
I. Introduction
Plaintiff David A. Goldberg filed this action in the Circuit Court of Hamilton County, Tennessee, on October 8, 2001, against defendants Media General, Inc.; Media General Broadcasting, Inc.; and WDEF News 12 ("Media General") [Court File No. 1]. He alleges that Media General wrongfully terminated him from his position as News Director at WDEF because of his opposition to sexual harassment in violation of the Tennessee Human Rights Act, TENN. CODE ANN. §§ 4-21-101-903, and the Tennessee Public Protection Act, TENN. CODE ANN. § 50-1-304. The action was properly removed to this Court from the Circuit Court of Hamilton County, Tennessee, on October 29, 2001. Defendants answered the plaintiff's complaint on November 30, 2001 [Court File No. 3].
Thereafter on February 15, 2002, plaintiff's motion to amend his complaint was granted [Court File No. 5]. On March 6, 2002, plaintiff amended his complaint to add an allegation that he was terminated by defendants in retaliation for his opposition to their sexual discrimination and sexual harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3 [Court File No. 6]. Defendants filed their answer to the plaintiff's amended complaint on April 1, 2002. [Court File No. 8].
On April 30, 2002, defendants moved for summary judgment on plaintiff's claims under the Tennessee Human Rights Act, TENN. CODE ANN. § 4-1-301, and the Tennessee Public Protection Act, TENN. CODE ANN. § 50-1-304. [Court File No. 18]. Plaintiff filed his response to defendants' motion for a summary judgment on May 30, 2003. [Court File No. 24].
The defendants' motion for a summary judgment is now ripe for review.
II. Background
Media General owns and operates WDEF, Channel 12, the CBS television network affiliate in Chattanooga, Tennessee. The station is managed by a General Manager. At the time of plaintiff's employment with WDEF, the General Manager was Jim Grimes. In July 1999, Jim Grimes was terminated by Media General. Ms. Catherine A. Gugerty was named as the replacement General Manager at WDEF in August 1999; and, she assumed her duties with the station on or about September 20, 1999.
WDEF had a number of department managers who reported to Ms. Gugerty as General Manager. In addition to plaintiff, who held the position as News Director, the other department managers who reported to Ms. Gugerty, were Mr. Richard McClain, Chief Engineer; Mr. Barry Cammon, Production Manager; Ms. Doris Ellis, Community Affairs and Programming Director; Mr. Joe Cooper, General Sales Manager; Mr. Michael Newberry, Business Manager; and Mr. Chris Friedrichs, Marketing Director.
Plaintiff began his employment at Media General as News Director at WDEF in December 1998. At that time, December 10, 1998, plaintiff signed an employment contract for a three-year term of employment ending December 9, 2001. Under the terms of that agreement, Media General had the option of providing notice to plaintiff at least 60 days prior to each anniversary date of its intent to terminate the agreement without cause.
It is alleged that on Friday, July 16, 1999, Ms. Faith Logan, an administrative assistant in the News and CommunityAffairs Department, approached plaintiff about a complaint of sexual harassment against Jim Grimes, WDEF's General Manager. The initial conversation between plaintiff and Ms. Logan occurred on a Friday; and Ms. Logan did not report to work on the following Monday and Tuesday. The following day, Wednesday, July 21, 1999, Mr. Logan told plaintiff that something had to be done about her complaints against General Manager Grimes. Shortly thereafter, and while plaintiff was deciding the appropriate way to report the situation to Media General, plaintiff was approached by Doris Ellis and Chris Friedrichs who asked him what he was going to do about the situation. Plaintiff, Doris Ellis, Chris Friedrichs, and Barry Cameron went into a private office and placed a telephone call to Media General's Corporate Human Resource Department in Tampa, Florida, to advise the company of Ms. Logan's complaint. The person they spoke to at Media General, Debbie Mobley, called back and indicated that she only wished to deal with plaintiff concerning Faith Logan's complaints [Court File No. 20, Goldberg Affidavit, p. 85].
On July 21, 1999, Media General's Director of Human Resources conducted a telephone interview with Ms. Logan concerning her complaints against General Manager Grimes. The following day, Rick Roberts, Media General Broadcasting, Inc's Vice President of Human Resources, traveled to Chattanooga, spoke with witnesses and terminated Mr. Grimes. At some point during the day, Mr. Roberts told plaintiff that he "appreciated [plaintiff] making the call." [Court File No. 20, Goldberg affidavit, p. 87]. Goldberg stated that he responded to Rick Roberts by asking why Jim Grimes had been permitted to investigate himself concerning an earlier charge of sexual harassment that was made against him. Id. Plaintiff stated that Rick Roberts denied that that had happened and the atmosphere became very tense. Id.
When Ms. Gugerty assumed the duties as General Manager of WDEF, plaintiff began to keep a journal on his computer. He maintained this journal throughout the remainder of his employment at WDEF. On October 15, 1999, plaintiff's journal states:
The parties have submitted a significant quantity of documentary evidence — affidavits, portions of depositions, memoranda, and hard copies of e-mails — either in support of or in response to the defendants' motion for a summary judgment. For the sake of clarity and conciseness, it is simply not possible to summarize all of the aforementioned evidence in detail in this memorandum.
The evidence deemed relevant to the resolution of the defendants' motion for a summary judgment, will be discussed either in this summary of the evidence or in the analysis of the merits of the defendants' summary judgment motion, which is set forth below. However, all of the evidence submitted by the parties, regardless of whether or not it is discussed in detail in this memorandum, has been reviewed and considered by the Court in resolving defendants' motion for a summary judgment.
. . . and I were in a meeting with Cathy discussing the new format. Several things jump out.
1) Cathy has never asked my opinion or Johnathan's on the new format even though it was conceived in the news department . . .
Observation: Cathy is rude. She does not listen, and more than one department head has mentioned it to me. She says she is here to listen, but has not had one discussion with a manager since she has been here. She says the consultants are "news saavy." Mark Toney was in several days ago, and basically did his number saying nothing we do is right. Not one positive thing was said. . . .
[Court File No. 20, Goldberg affidavit, exhibit 8]. The diary for March 7, 2000 states:
Cathy called me urgently into her office. She said, "The Chattanooga Fax is doing a story on Faith tomorrow. It is not a story. Faith is going to be upset." I said, "I can talk with her." Cathy responded by saying, "no you are not to say anything to her." I left.
Later she called me back in, and was even more adamant. She said, "it is Faith's sleazeball attorney who is pushing this, and your friend Arnold is persona non gratis here." . . .
Id. On March 8, 2000, the diary records:
In department head meeting Cathy brought up the Chattanooga Fax article on Faith's lawsuit against the station. Cathy said, "it is not a story, it nothing but tabloid, the issue is behind us. Some of you may disagree, but we need to move forward." . . .
I went to Cathy's office concerning . . . The conversation turned towards Faith. Cathy wanted to know what the talk in the newsroom was, and I responded by saying, "Dwuana said she had heard about it before she hit the door." Cathy responded by saying, "there is a lot of gossip and talk that comes from the newsroom." I responded and said, "I think it is throughout the station, not just the newsroom." Cathy said, "there has been almost complete turnover in the production department and the sales department would never be involved." I told her, "there is too much of this going on." Cathy then said, "I don't know who, and I interjected, "yesterday, Tammy Lewis had heard about the Fax story and went to Faith and said, is it true? And who is your attorney? Faith told Tammy and Tammy responded by saying, "it is about time somebody did something." Cathy responded by saying several things. The attorney for Faith is a sleaze bag, Chris Willis popped up in the story which lends to credibility to the story, and "you need to be careful, Faith is pathological." I said, "the original problem still exists and the achilles heel over this issue is Jim Grimes investigating himself." I went on to point out that I had brought counselors into my newsroom in Norfolk to deal with issues, yet nothing had been done here and it continues to be a cancer. Cathy responded by saying, "you are going to be put through a ringer on this one, and Faith will turn on you and everyone else." I said, "I am not sure what you mean," I said, "well apparently some department heads knew about this, and I said, I am aware of that, and I can tell you at least one that was. I said Doris Ellis was aware, and did nothing." Cathy said, "Doris has documented something different, and I said, I don't know about that, but others knew what was going on given Jim's investigation of himself." Cathy said, "I am telling you, you are going to be put through the ringer." Cathy then said, "I hear a lot, don't trust Faith, I heard things about you and your girlfriend."
Id. On March 14, 2000, the diary states:
Mike Newberry came to me following the sexual harassment seminar. Essentially, Mike said, "he does not trust Rick Roberts, he was friends with Jim and Rick knew what was going on." I said, "as far as I am concerned he did." He went on to say, "I (Mike) should have done something, but I could not afford to lose my job. Jim was good to me; he gave me a chance in a difficult situation. But, it is obvious that Rick knows more than he is saying, and must be protecting others." I agreed. He went on to say, "Cathy is trying to do the right thing, but she probably doesn't understand everything." I related to him her inability to listen, snapping at people, which he had "observed." . . .
Id. The final entry for October 10, 2000 states:
I have been released. Cathy released me today saying, "It is not just a fit." Nothing specific. I responded by saying, "When you walked into this building I felt there was a bulls eye on my chest for the phone call made about Jim Grimes." She said, "I am not aware of that." I went on to point the differences between the research that was recommended versus what we are doing now. Specifically, why was ARD making recommendations to WTVC and the same one to us? Our numbers were stronger a year ago, and all of a sudden we went in a different direction. Cathy said Parity does not win. I said, tell me one place in this country that there strategy worked, just one. It is not working in Birmingham? No response. She handed me a letter and I said I might respond in writing . . .
Id.
In November 1999, General Manager Gugerty completed a performance appraisal for plaintiff. [Court File No. 20, Affidavit of Catherine Gugerty, Exhibit 3]. In the performance appraisal, Mr. Gugerty commented that plaintiff had done an "[o]verall good job but need[ed] to be deadline conscious." Id. Ms. Gugerty also commented however, that plaintiff frequently brought up resources as a problem and he needed to work with and maximize the available resources; and, she also commented that plaintiff needed to improve at keeping other departments in the loop on newsroom projects and to be proactive on the projects in other departments which involved the newsroom. Id. Plaintiff received an overall rating of 3.13 which on the appraisal fell between a rating of 3 — meets expectations — and 4 — exceeds expectations. Id.
However, subsequent to the completion of the Performance Appraisal, Ms. Gugerty began experiencing problems with plaintiff's performance. On November 15, 1999, Ms. Gugerty sent plaintiff a memo outlining three problems with WDEF's nightly newscast and ordering him to "take immediate action on all three of these items." [Court File No. 20, Affidavit of Catherine Gugerty, Exhibit 4]. The following day, Ms. Gugerty sent a memo to plaintiff stating:
The more I though about your comment of "lack of resources" as the reason for last nights lack luster newscast the more disturbed I became. We are at full staff in a rating book and this should not be a problem . . . These pieces should not be shutting down the newsroom. I am concerned about scheduling and planning . . .
Id. On December 19, 1999, Ms. Gugerty wrote the following memo:
In response to an e-mail from David Goldberg regarding a comment on phone I called Rick McClain and David Goldberg along with Jerry Green into my office to discuss Nextel phones. Jerry gave me his overall opinion about the phone and I thanked him. After he left I told Rick and David I could not believe they would put an employee in such an awkward position, caught up between two department heads. I told them that such behavior was unacceptable. I asked them both to join me back in my office this afternoon prepared to tell me how this pettiness would stop and they would go forward together as a team. The three of us sat down in my office and talked for about a half an hour. I started the meeting by stating that it seemed they had both made up their minds on phone selection and neither was showing flexibility or being open minded during the process. I told them this meeting was not about what phone system we choose rather their constant arguing. David said he was frustrated by what he considered a lack of responsiveness to many of New's needs from engineering. David believes many of the problems they have in news with equipment are not dealt with in a timely fashion. Rick said he felt they were doing the best they could and many things had improved over the past year, that due to turnover it had been a building year for the engineering department. Rick also said he felt that news often jumped to conclusions without understanding the magnitude of engineering's role for all departments. I told them we had set up a forum for working these problems out (the daily ops meeting). I asked David to stay and excused Rick. I told David that he had to concentrate on the things within his control and that it was my job to oversee engineering not his. I further told him we had a lot of work to do with the news product, including upcoming focus groups and that's where I wanted his attention.
Id.
In a memo dated week of December 21, 1999, Ms Gugerty wrote:
Conversation with David regarding phones and engineering based on the e-mail he sent me on 12/16. David's very unhappy with phone selection. I told David that he has to let the phone thing go, that we have been over and over it and it is time to move on. I told David that he needs to concentrate on news not engineering. I repeated that he needs to control the things he can control and that is news. I reminded him that we have been through this same argument over and over and that I have put in the daily operation meetings and the hot sheet into place. David argued that engineering effects [sic] his department and that his managers complain too. I told him we have been addressing all issues brought to the table and he needed to support engineering. I once again reminded that there are nine engineers responsible for keeping us on the air 24 hours a day seven days a week as well as maintaining all equipment.
Id. In a memo dated January 24, 2000, Cathy Gugerty wrote:
I asked David if he had read Fred's review. He said he had. I asked him if he agreed with what was said. He told me he would have to go back and review it but that Fred was being hard on them. I told him that he should not defend the show until we sat down and watched it. I told him to find a copy of the tape and I would review it with both him and Jonathan.
After viewing the tape Jonathan agreed it was a bad show. David offered several excuses including lack of resources saying there was not enough edit time. I said it took someone as long to edit it incorrectly and [sic] it did correctly. I told David I agreed totally with Fred in his assessments and I wanted a system in place to correct these recurring problems. I also said that I do not believe he is giving his staff enough feedback and he needed to review the show with the staff and point out problems. I told David there has to be regular reviews with producers, reporters, editors, and photographers so they can learn from their mistakes. I also told David he must implement a producer critique for each show to be posted in the newsroom daily. David said there were operational issues that also needed to be discussed including equipment up keep. I told David this was not the meeting to discuss engineering or production problems. I told him we were talking about the basics, audio video linkage and stories that had a focus. I said if he was not regularly critiquing the shows and sharing problems with his staff nothing would improve. I again told David I was not satisfied that he was communicating expectations to the news staff and that is why I am ordering a critique be done everyday by producers and himself. The goal of the critique is not to criticize but to help people learn from mistakes as well as assign accountability.
Id. Also attached to Ms. Gugerty's affidavit is a January 24, 2000 memo from Fred Ertz of ASI Entertainment which reviewed one of WDEF's January newscasts. Overall, the memo is highly critical of the newscast.
Id.
A March 2, 2000 memo states:
Meeting with Fred Ertz regarding news format changes. (Present Chris Friedrichs, Jonathan Ryan, Fred Ertz and David Goldberg) David said before we start putting together the formats we should go back and review the research. I told him we were not here to review the research, that had been done, this meeting was about moving forward with the recommendations putting a new format together for the May book. David stood up to go and get the research I told him no, we are not reviewing the research. He told me he disagreed and I told him noted but the decision has been made we are moving forward. David said he wanted to know what would happen if the ratings came back (for February) and we had made gains. I said that we had already looked at how tied we were to Judge Judy and our initial gains in November were directly tied to Judge Judy. I said the focus groups were clear, that parity would not win for us in this market and we were going to move forward now.
Id.
A memo for the week of March 13, 2000 states:
Meeting discussing changes to format and equipment. David said he thought there needed to be a meeting regarding the re-launch of the station including a discussion of ratings expectations. I told David we had already been over this and we were moving forward. He asked what would happen if the February ratings came back and we were up. I told him that it did not matter even if they were great we were moving forward with the new formats. He told me he disagreed, we needed more discussion. I said, "David we are moving forward, the decision has been made, you have been overruled." I told him he needed to move forward and that I have been disappointed in the lack of his participation in taking us to the next level. I asked him if he thought the new format would fail. He said he didn't say that he just thinks there are a lot of considerations. I asked him again if he thought the new format would fail? He would not answer the direct question. I told him as News Director he needed to embrace the project and move forward. He said of course he would do that. He again expressed concerns over resources. I told him it was his job to be creative and realign the staff, to make it work . . .
Id.
The record contains two memos from March 30, 2000. The first details a conversation between Ms. Gugerty and several of the WDEF managers which ended with Ms. Gugerty becoming irritated with plaintiff. Id. The second states:
David came to my office about an hour later and said he knows I don't want to hear it but he talked to his producers and they did not know there was not a dedicated line in the truck for the fax machine. I asked if the producers knew what number they needed to dial to send a fax to the truck. He said yes. I said that's all they need to worry about, that the mechanics of how the fax is delivered is not their problem. He said yes it is, we need a procedure. I asked what he would write as a procedure, would he tell his producers they need to tell the truck operator to plug the A connector into the B connector on the back of the fax machine, I told him that was ridiculous, they needed to worry about the coverage. He said I missed his point. I told him he missed my point that we had already discussed the fax and phone problem, that I had already authorized a dedicated phone line and he needed to move on. He said I didn't understand what news has to go through and how engineering effects [sic] them. I told David to lead the news department. He said I was not letting him lead. I told him that I gave him the chance to lead and he did not. He said he knew how to lead and had been a news director for 20 years. I said you did not demonstrate to me that you could lead on Tuesday. At this point our voices were raised. He asked me why I was yelling. I told him that he pushed me over the edge, that we keep going over and over the same issues and it has to stop. He said I did not let him lead on Tuesday. I said "Did I make the decision to do a 4:00 news and 5:00 news? You bet I did. Would I make the same decision tomorrow? You bet I would" He said he felt like I did not have confidence in your ability to lead." He repeated that he knew how to lead, I told him then to do it. I told him I wanted his breaking news coverage plan in writing. He agreed.
Id.
In a lengthy memo dated April 20, 2000, Ms. Gugerty noted:
. . . David diverted answering by asking why I never answered his questions . . .
David repeatedly asked what I wanted.
I said I wanted him to move forward and do his job.
I then asked him what we [sic] wants.
He said he wanted to get everybody in a room and talk about all the things they do every day and the problems they face. I said we've been through this over and over. I told him we've talked to everyone and put forth a plan and it is his job to carry out the plan. He disagreed. People need to talk and I (Cathy) need to hear them. I told him our management styles are clashing. I do not believe we need to sit around and
philosophize and talk about things over and over, then vote on them with the entire news staff. I said a plan has been implemented, which he was a part of and I'm tired of his lack of buy-in and inability to move forward.
David says I've accused of him of that before. I told him he has never proved to me that he does buy in. He said producers just got formats two weeks ago. I told him that's his fault for not moving forward, I hold him responsible.
He again asked me what I want wanted from him. I asked him if he wanted to work here? He said if I don't want him why I don't just buy him out of his contract and he will leave. I told him I want him to do his job . . .
He accused me of not fostering teamwork by not involving news in meetings I was having with production. I told him it was none of his business when I met with production . . .
I told him we were moving forward and if needed I would document and give him written orders each step of the way but we were moving forward. . . .
Id.
Ms. Gugerty's memo dated April 20, 2000 states:
Chris [Hull, the senior news director] came to my office to discuss relaunch . . . He then said we [sic] was frustrated and said the thought had struck him that David Goldberg seemed to be doing everything possible to keep us from launching, making problems and creating extra work, that David was looking for ways to make the launch not work. I told Chris, I don't think that's true, that were all have a lot to do and everyone is under pressure. He said he hoped not too, but it seemed that David was putting unnecessary obstacles in the way.
Id.
On April 21, 2000, Ms. Gugerty sent plaintiff a memo regarding the previous night's forecast. The memo which was very negative in tone, states in pertinent part:
I would like in writing an explanation of why we were not ready to rehearse last night. I would like you to answer the following questions . . .
I met with you shortly after 9 am and told you the night before rehearsal was not acceptable, that it did not follow format . . .
After a second conversation yesterday at around 10:00 you asked me what I wanted, I said that I expected a full rehearsal tonight using the correct 11:00 format . . .
Id. The memo then set forth 11 specific questions which plaintiff was to answer.
Id.
Plaintiff did respond in writing to Ms. Gugerty's memo. On plaintiff's response, Ms. Gugerty made several handwritten comments including:
"It did not work, Things were not ready — we did not rehearse.
"Plenty of bays between noon and three poor scheduling, no organization."
"As stated before if production was given a list early in the day, you would have had what you needed."
Id.
Finally, Ms. Gugerty wrote to Bill Diaz, Rick Roberts, and Debbie Mobley at Media General recommending that defendants buy plaintiff out of his contract:
David Goldberg has become counter productive to the future growth of News 12. Media General has invested over $100,000 on research and in news consulting fees over the past year and a half. The research clearly states that the WDEF news product must be profoundly different from the competition to build an audience . . . For the following reasons I do not believe we can accomplish this with David as News Director:
. . . David has not bought into the new format. To move the WDEF News product forward I have had to rely on . . . Fred Ertz. Fred has been instrumental in setting up the new format. He has worked hard to foster a feeling of teamwork which I believe David has rejected . . . Forward progress has been made through the news staff's direct contact with Fred. David has initiated little change and only moved forward when given a directive. David's maintained throughout the process that we could not advance our format without the addition of staff and capitol outlay. During the process David frequently rejected ideas because of resources . . .
. . . David does not actively lead in the newsroom. He often concentrates on minutia, much of which is not controlled by the newsroom. David often takes the role of counselor versus manager. He tends to be theoretical and analytical not taking an active
role in day to day operation. His lack of buy in to the new format is negatively impacting staff. This is causing a rift between those who are buying into and executing the format and those who are threatened by it.
. . .
Deflecting — David will not take responsibility for what is within his control as News Director. Rather than deal with news coverage and content issues, he focuses on what he perceives as production or technical problems.
Id. Ms. Gugerty attached the e-mail and memos which are set forth above to her letter to Media General.
Id. III. Motion for Summary Judgment
Defendants move for a summary judgment on plaintiff's claims of retaliation under the Tennessee Human Rights Act ("THRA"), TENN. CODE ANN. § 4-1-301 and the Tennessee Public Protection Act ("TPPA"), TENN. CODEANN. § 50-1-304. [Court File No. 18]. Defendants first contend that plaintiff cannot establish a prima facie case of retaliation under the THRA because he cannot establish a "causal link" between his participation in reporting the allegations against Jim Grimes, the former General Manager of WDEF, and his termination some 15 months later. [Court File No. 19. pp. 10-11]. More specifically, defendants assert that plaintiff cannot establish the requisite causal connection between his action in reporting Ms. Logan's complaint of sexual harassment and his termination by Media General some 15 months later. Id. at 12.
Defendants next contend that plaintiff cannot make out a case of retaliatory discharge under the TPPA. Specifically, they assert that plaintiff cannot establish the requisite "exclusive causal relationship" between his alleged "whistle blower" activities in reporting Faith Logan's complaints of sexual harassment and his termination by the defendants required under the TPPA. [Court File No. 19, pp. 16-17].
Plaintiff has responded to defendants' motion for a summary judgment. He contends that there is evidence, when viewed in the light most favorable to him, as the non-moving party, which establishes that there is a genuine issue of material fact as to whether he has made out a prima facie case of retaliatory discharge.
A. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
B. Plaintiff's claims under the THRA
Defendants seek a summary judgment on plaintiff claims under the THRA. [Court File No. 18; Court File No. 19, pp. 10-16].
"The stated purpose and intent of the [THRA] is to provide for execution within Tennessee of the policies embodied in the federal civil rights laws." Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996) (citing TENN.CODEANN. § 4-21-101(a)(1)). Accordingly, the analysis of claims under the THRA is the same as is used under Title VII of the Federal Civil Rights Act. Id.
Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), "it is unlawful `for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].'" Clark County School Dist. v. Breeden, 532 U.S. 268, 269 (2001) (per curiam). In order to establish "a prima facie case of Title VII retaliation, a plaintiff must prove: (1) he engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activityand the adverse employment action." Ford v. General Motors Corp., 305 F.3d 545, 552-553 (6th Cir. 2002) (citing Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.), cert. denied, 498 U.S. 984, 111 S. Ct. 516 (1990)).
Moreover, under
McDonnell-Douglas Corporation v. Green, 411 U.S. 792,
93 S. Ct. 1817,
36 L.Ed. 2d 668 (1973), the plaintiff has the initial burden of establishing a prima facie case of discrimination. Plaintiff must establish facts, by a preponderance of the evidence, which if not explained, prove or give rise to an inference of unlawful discrimination. If the plaintiff successfully establishes a prima facie case, the burden is then upon the defendant to articulate a legitimate, nondiscriminatory reason or reasons for its actions.
McDonnell-Douglas Corporation v. Green, 411 U.S. at 802,
93 S. Ct. at 1824,
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253,
101 S. Ct. 1089, 1093,
67 L.Ed.2d 207 (1981);
Albemarle Paper Company v. Moody, 422 U.S. 405,
95 S. Ct. 2361,
45 L.Ed.2d 280 (1974). If defendant comes forward with such a reason, plaintiff may then attempt to establish that the nondiscriminatory reason articulated by the defendant was a mere pretext for the alleged discriminatory action.
Burdine, 450 U.S. at 256,
101 S. Ct. at 1095. However, the plaintiff at all times carries the ultimate burden of proving [retaliation]. Even though the burden of going forward with the evidence may shift between the plaintiff and the defendant, the burden of persuasion always remains with the plaintiff.
Haynes v. Miller, 669 F.2d 1125, 1126-1127 (6th Cir. 1982).
Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 374-75 (6th Cir. 1984).
Thus, "the prima facie case is not the final inquiry, but rather the first prong of analysis . . . [in] a motion for dismissal prior to trial." E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997). As the Supreme Court has noted: "By establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable `presumption that the employer unlawfully discriminated against' him." Id. (citing United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 714 (1983) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)), Rather:
[f]irst, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden [of production] shifts to the defendants "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 252-53,
101 S. Ct. at 1093 (emphasis added).
St. Mary's [Honor Center] v. Hicks, [
509 U.S. 502, 506-08,
113 S. Ct. 2742 (1993)] places the additional burden on Plaintiff that they
must prove not only that defendant's reason was a pretext, but that the real reason was discrimination.
St. Mary's, 509 U.S. at 511,
113 S. Ct. at 2749.
Avery, 104 F.3d at 862 (emphasis in original).
Based upon a detailed review of the record, the court concludes that plaintiff has not made out a prima facie case of retaliation under Title VII. In a recent decision, Warren v. Ohio Dep't of Public Safety, 24 Fed. Appx. 259, 2001 WL 1216979 (6th Cir. Oct. 3, 2001) (unpub.), the court noted that
Title VII prohibits an employer from retaliating against an employee who has "opposed" any practice by an employer made unlawful under Title VII. It also prohibits retaliation against an employee who has "participated" in any manner in an investigation under Title VII.
42 U.S.C. § 2000e-3(a). The two provisions are known as the opposition clause and the participation clause.
See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir.),
cert. denied, 531 U.S. 1052 (2000).
Id., 24 Fed. Appx. at 264, 2001 WL 1216979, at ** 3. With regard to the plaintiff's claims in
Warren, the court went on to state:
With respect to the . . . internal investigations, the district court found there was no protected activity under the participation clause because plaintiff did not participate in an EEOC proceeding. Plaintiff argues on appeal that internal investigations by an employer's EEO compliance office are protected activity under the participation clause. This Court has not directly addressed the question of whether participation in internal investigations constitutes protected activity under the participation clause. Other courts, however, have held that protected activity under the participation clause does not include participation in internal investigations.
See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000);
Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); and
Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990).
These decisions comport with the plain language of
42 U.S.C. § 2000e-3(a): "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter." (Emphasis added). They also are consistent with our decision in
Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989), where we stated that the purpose of the participation clause is "to protect access to the machinery available to seek redress for civil rights violations and to protect the operation of that machinery once it has been engaged." In
Booker, we examined the participation clause under Title VII in interpreting similar provisions under the Michigan Elliott Larsen Civil Rights Act. We concluded that the language must be read literally and, therefore, the instigation of
proceedings leading to the filing of a complaint or a charge, including a visit to a government agency to inquire about the filing [of] a charge, is a prerequisite to protection under the participation clause.
Id.
Id., 24 Fed. Appx. at 265;
2001 WL 1216979, at **4.
In this action, plaintiff's allegations of retaliation concern his reporting of Ms. Logan's allegations of sexual harassment against former WDEF General Manager Jim Grimes to his superiors at Media General and Media General's internal investigation by Rick Roberts, the Vice President of Human Resources for Media General Broadcasting, Inc. Mr. Roberts internal investigation of the situation led to Mr. Grimes' termination by the defendants.
Subsequently, in February 2000, Ms. Logan did bring a legal action against WDEF. However, other than an isolated comment by Ms. Gugerty to the effect that plaintiff was "going to be put through the ringer" because of Ms. Logan's legal action, plaintiff has made no allegation either that he assisted Ms. Logan and/or her attorney in the bringing of the legal action or that he assisted Ms. Logan and/or her attorney in the filing of a complaint with the EEOC.
Thus, all of plaintiff's allegations of retaliation center around an internal investigation of Ms. Logan's allegations against Mr. Grimes by the defendants. Accordingly, the Court entertains serious doubts as to whether plaintiff can establish a prima facie case of retaliation under Title VII based upon these facts.
However, in concluding that plaintiff has not made out a case of retaliation under Title VII, the Court also concludes that plaintiff has failed to show the requisite causal connection between his termination and the alleged protected activity, i.e., the reporting of former General Manger Grimes' alleged sexual harassment of Ms. Logan to Media General.
First, a considerable amount of time passed between plaintiff's involvement in the alleged protected activity and his termination by Media General. Plaintiff reported Ms. Logan's allegations/complaints to Media General in a telephone conversation on July 21, 1999; and the following day, Rick Roberts traveled to Chattanooga, investigated the allegations and terminated Jim Grimes. Plaintiff was informed that defendants were going to buy out the remaining year of his contract on or about October 10, 2000, nearly fifteen months after he engaged in the allegedly protected activity of reporting Ms. Logan's complaints/allegations of sexual harassment to Media General.
In Haywood v. Lucent Technologies, Inc., 323 F.3d 524 (7th Cir. 2003), the court discussed a claim of retaliation. In Haywood, the plaintiff made allegations about Spencer Foote, a senior manager in the defendant's wireless organization. The Haywood court noted that plaintiff
was not terminated until a year after she informed Foote that she filed the complaint [with the EEOC]. This time period is far too long . . . to allow a reasonable fact-finder to infer that her termination was causally related to the filing of her complaint. See
Filipovic v. K R Express Sys., Inc., 176 F.3d 390 (7th Cir. 1999) (four months negates causal inference);
Davidson v. Midelfort Clinic, 133 F.3d 499 (7th Cir. 1998) (no causal inference where employee was terminated five months after filing EEOC complaint). While "temporal proximity is only evidence of causation, not a separate element of the prima facie case," here Haywood fails to bring forth any evidence that her termination was related to her complaint.
Haywood, 323 F.3d at 532.
See also Franzoni v. Hartmarx Corp., 300 F.3d 767 (7th Cir. 2002), in which the court stated:
We have previously held that it is difficult to infer causation based solely upon the timing of the relevant events. "That is to say, we have said that for there to exist a telling temporal sequence, the employer's adverse action should follow fairly soon after the employee's protected expression." In
Horwitz, we held that a six-month gap in time alone could not establish a causal connection. In the present case, as in
Horwitz, Franzoni was terminated from his job . . . six months after he filed his EEOC charges, and six months is too long to establish a causal link without more.
Id., 300 F.3d at 772-73 (citing
Horwitz v. Bd. of Ed. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 612 (7th Cir. 2001)) (internal citations omitted). See also
Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) ("The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an inference of retaliation.").
In this instance, defendants have produced a significant amount of documentary evidence establishing that the decision to terminate plaintiff's employment at WDEF was based upon performance issues. Specifically, the memos and e-mails from Ms. Gugerty show that plaintiff's working relationship with Ms. Gugerty had deteriorated and that she had become increasingly convinced that plaintiff had not accepted WDEF's efforts to change its news format. Rather, the documents, which have been summarized in detail in the preceding section, show that Ms. Gugerty became convinced that plaintiff was actually impeding the effort to change WDEF's news format. Moreover, the documents show that the tenor of the working relationship between plaintiff and Ms. Gugerty, his superior, had deteriorated to the point where it frequently became characterized by confrontations and raised voices between the two of them.
In attempting to rebut this documentaryevidence, plaintiff has presented isolated and ambiguous statements which are insubstantial or too far removed from his termination to rebut defendants' showing that they had a legitimate reason for terminating him. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 380 (6th Cir. 1993) ("[c]ase precedent clearly reflects that isolated and ambiguous statements . . . are too abstract, in addition to being irrelevant and prejudicial, to support a finding of . . . discrimination.") (citing Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989)). See also Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994) (same).
The Sixth Circuit "has adopted an `honest belief' rule with regard to an employer's proffered reason for discharging an employee." Kurincic v. Stein Inc., 30 Fed. Appx. 420, 425, 2002 WL 231417, at **3(6th Cir. 2002) (citing Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir. 1988)). Under the "honest belief" rule, "so long as an employer honestly believed in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be mistake or incorrect. Id. (citing Smith, 155 F.3d at 806). An employer has an "honest belief" in its reasons for discharging its employee when the employer "reasonably relied on the particularized facts then before it" and "made a reasonably informed and considered decision before taking an adverse employment action." Smith, 155 F.3d at 807.
Plaintiff asserts there is a genuine issue of material fact as to Media General's real reasons for his termination based upon certain statements made in the record. First, plaintiff points to Kathy Gugerty's statement concerning Faith Logan, that plaintiff was "going to be put through the ringer [sic]." However, plaintiff's own diary records that Ms. Gugerty stated: "you are going to be put through a ringer [sic] on this one, and Faith [Logan] will turn on you and everyone else." [Court File No. 20, March 8, 2000 diary entry].
Contrary to plaintiff's assertions about this statement, Ms. Gugerty's isolated statement, even when viewed in the light most favorable to him, does not appear to be a threat, even a veiled threat, to terminate him. Although the statement is an isolated and ambiguous one, at best, it appears to be a warning to plaintiff that Ms. Gugerty thought that Ms. Logan might potentially assert claims against him.
Ms. Gugerty has submitted an affidavit responding to plaintiff's allegations about her statement concerning Ms. Logan. That affidavit reads in pertinent part:
In February, 2000 a legal action was filed against WDEF by Ms. Faith Logan, Production Assistant in the News Department, who was the employee who had brought allegations of sexual harassment to Mr. Goldberg's attention in July 1999. Although Mr. Goldberg contends that I made the statement to him that he was going to be "put through the wringer" because of Ms. Logan, I have no recollection of making that statement. If I made the statement, it would have been in reference to the fact that all employees of the station would have to document and be very careful of what they said, and did, regarding Ms. Logan. I knew that it would be difficult having Ms. Logan working for us while she was also suing the station. I had also heard statements from other employees reporting comments made by Ms. Logan that were not complimentary of Mr. Goldberg and other managers. My statement was not intended to express any animosity towards Mr. Goldberg for his actions regarding Ms. Logan's complaint of sexual harassment.
[Court File No. 21, Gugerty Affidavit, ¶ 21].
Plaintiff also points to a statement from WDEF employee Mike Newberry. Plaintiff's diary for March 14, 2000 records this statement as:
Mike Newberry . . . went on to say, I (Mike) should have done something, but I could not afford to lose my job. Jim [Grimes] was good to me; he gave me a chance in a difficult situation . . . He went on to say, "Cathy [Gugerty] is trying to do the right thing, but she probably doesn't understand everything."
[Court File No. 20]. Again this statement is isolated and ambiguous. In particular, Newberry's statement that Jim Grimes was good to him and gave him a chance in a difficult situation indicates that Newberry may have been reluctant to take an action which could have resulted in Grime's termination for reasons other than his concern about losing his job.
Plaintiff has also submitted the affidavit of Michelle Johnston, a former news anchor at WDEF in response to defendant's motion for a summary judgment [Court File No. 27]. Ms. Johnston's affidavit states in pertinent part:
III. I also knew of interactions between Ms. Gugerty and Mr. Goldberg. It was clear to me based on this knowledge that Ms. Gugerty was antagonistic toward Mr. Goldberg.
IV. I also believe that Mr. Goldberg was probably terminated by WDEF because he reported an incident involving Faith Logan and for his position on some of the issues in that case. In fact, before these incidents Ms. Gugerty's secretary Kimberly Ewbank, told me Ms. Gugerty did not like or get along with, or agree with Mr. Goldberg. She told me this in the context of many conversations after Ms. Gugerty took her post.
V. Although I also have litigation currently pending against WDEF . . .
Id.
Here, Ms. Johnston cites no specific evidence in support of her assertion that plaintiff "was probably" terminated by WDEF because he reported an incident involving Faith Logan; and, many of the statements in her affidavit are nothing more than hearsay. More importantly, as an anchor at the station, plaintiff would have been Ms. Johnston's superior, not vice versa. Thus, there is no indication from the face of the affidavit that Ms. Johnston played any role in the decision to terminate plaintiff. Indeed, Ms. Johnston admits in her affidavit that plaintiff as her superior at the television station "was involved in the process in which I was terminated by WDEF." Id. Moreover, Ms. Johnston's affidavit also provides a rationale for plaintiff's termination other than his reporting of Faith Logan's allegations against Jim Grimes; namely, that he and his superior did not get along and were not working well together.
Plaintiff also claims that after Faith Logan resigned from WDEF on or about June 15, 2000, Cathy Gugerty asked him to write a response to Ms. Logan's letter of resignation. Later, Ms. Gugerty apparently told plaintiff she had instead written a letter for him to sign. Plaintiff states that after he reviewed Ms. Gugerty's letter, Ms. Gugerty said, "I know some of this is stretching it, but her memo could come back to us later." [Court File No. 26, Plaintiff's Affidavit, p. 3]. Again this is an isolated and ambiguous incident. Further, if Mr. Gugerty asked plaintiff to sign a response to Ms. Logan's letter of resignation which Ms. Gugerty admitted was "stretching it," Ms. Gugerty hardly would have had a reason to antagonize plaintiff by terminating him, since he could have revealed that to Ms. Logan after his termination.
Plaintiff also asserts that when he was deposed in conjunction with Faith Logan's lawsuit in July 2000, he was asked by Media General's counsel whether he believed the contents of Cathy Gugerty's memo. Plaintiff replied that he did not; and he asserts that the tone and tenor of the deposition changed from that point onward. Id. Again, this is another isolated and ambiguous incident which does not provide causal connection. If the tone of Media General's counsel changed after plaintiff stated that he did not believe the contents of Cathy Gugerty's memo, it may have been for no other reason that Media General's counsel at that point thought he was dealing with a potentially hostile witness.
Finally, plaintiff claims that he was under the impression from Media General and WDEF that his termination had to be accomplished as a matter of progressive discipline, which was not done in this situation. [Court File No. 25, p. 9]. A copy of Media General Broadcast Group's Personnel Policies and Procedures Manual appears in the record. [Court File No. 28, exhibit 3]. The Personnel Policies and Procedures Manual does provide for progressive discipline. [Court File No. 28, exhibit 3, policy D-2]. However, policy E-3 states that "[i]f any of the policies in the manual are in conflict with any employment agreement, the provisions of the latter shall control as to those employees who are covered by such agreements. [Court File No. 28, exhibit 3, policy E-3].
Plaintiff did sign an employment agreement with defendants prior to his employment with WDEF; and that employment agreement appears in the record. [Court File No. 21, exhibit 2]. The agreement provides in relevant part that:
WDEF agrees to employ Goldberg and Goldberg agrees to be so employed for a three-year term of employment, commencing on 11/16/98 and terminating on 11/15/00. Notwithstanding the preceding sentence, however, WDEF shall have the right to terminate Goldberg
without cause and in WDEF's sole discretion (1) during the first 90 days of the three-year term, which shall be a probationary period, or (2) by giving Goldberg written notice at least 60 days prior to any anniversary date of this Agreement (in which case, Goldberg shall continue to provide services pursuant to this Agreement until that anniversary date). Upon the occurrence of either event described in the preceding sentence, Goldberg shall receive only such compensation as accrued prior to the effective date of the termination and nothing further.
Id., subsection III. A. (emphasis added). It is this provision of the employment agreement upon which WDEF relied in its termination of plaintiff. In addition the Employment agreement further provides in relevant part:
IX. GOLDBERG INFORMED AND VOLUNTARY SIGNATURE
Goldberg agrees that, prior to signing this Agreement, he has had a full and fair opportunity to review it carefully and to consult with his attorney.
Goldberg agrees that he signs this Agreement knowingly, voluntarily, and without duress or coercion. Further, in executing this Agreement, Goldberg agrees that he has not relied on any representation or any statement not set forth in this document.
. . .
XI. ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the parties concerning Goldberg's employment by WDEF. The Agreement and the provisions of this paragraph may not be changed or amended except by a subsequent Agreement in writing signed by both WDEF and Goldberg.
[Court File No. 21, exhibit 2, subsections IX and XI](emphasis in original).
Thus, whatever plaintiff's belief based upon his discussions with his superiors at WDEF and Media General, the employment agreement, which supersedes Media General's Personnel Policies and Procedures Manual, does not provide for progressive discipline in the event WDEF decided to terminate plaintiff in the 60 days prior to his anniversary date — which WDEF did in this instance.
Accordingly, the Court finds that plaintiff has failed to establish a prima facie case of retaliation under the THRA. Therefore, defendants' motion for a summary judgment [Court File No. 18] on plaintiff's claims of retaliation under the THRA is GRANTED. C. Plaintiff's Claims Under Title VII.
The Court notes that in assessing the issue of whether or not plaintiff made out a prima facie case, it may have assessed evidence which can be considered in other parts of the McDonnell Douglas framework. However, as the Tenth Circuit observed in Wells v. Colorado Dept. of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003):
We understand that by considering an employer's proffered reasons for taking adverse action in the causal-connection portion of the prima facie case, we are assessing pretext evidence that is typically considered in a later phase of the
McDonnel Douglas analysis. But we agree with the Third Circuit that evidence of pretext can be useful in multiple stages of a Title VII retaliation claim.
See Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3rd Cir. 2000). The
Farrell court wrote:
We recognize that by acknowledging that evidence in the causal chain can include more than demonstrative acts of antagonism or acts actually reflecting animus, we may possibly conflate the test for causation under the prima facie case with that for pretext. But perhaps that is inherent in the nature of the two questions being asked — which are quite similar. The question "Did her firing result from her rejection of his advance?" is not easily distinguishable from the question: "Was the explanation given for her firing the real reason?" Both should permit permissible inferences to be drawn in order to be answered. As our cases have recognized, almost in passing, evidence supporting the prima facie case is often helpful in the pretext stage and nothing about the
McDonnel Douglas formula requires us to ration the evidence between one stage or the other. It is enough to note that we will not limit the kinds of evidence that can be probative of a causal link any more than the courts have limited the type of evidence that can be used to demonstrate pretext.
Id. at 286 (internal citations omitted).
In this instance, defendants did not explicitly ask for a summary judgment on plaintiff's claims of retaliation under Title VII. However, defendants did explicitly ask for a summary judgment on plaintiff's claims under the THRA; and, as set forth in detail above, plaintiff's THRA claims of retaliation are analyzed using the same standards as applied to a claim of retaliation under Title VII. For the reasons discussed immediately above, the Court has concluded that defendants are entitled to a summary judgment on plaintiff's claims of retaliation under the THRA.
Accordingly, as these claims have been analyzed using the standards for a claim of retaliation applicable in Title VII, the Court concludes that despite defendants' failure to explicitly ask for a summary judgment on plaintiff's Title VII claims, considerations of judicial efficiency mandate that defendants motion for a summary judgment on plaintiff's claims of retaliation under the THRA be treated as a motion for a summary judgment on plaintiff's claims of retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2003e-2.
Therefore, for the reasons set forth in detail, immediately above, in the discussion of plaintiff's claims of retaliation under the THRA, defendants' motion for a summary judgment on plaintiff's claims of retaliation under Title VII [Court File No. 18] is GRANTED. D. Plaintiff's Claims Under the TPPA.
The specific issue is whether plaintiff's termination violated the TPPA, TENN. CODE ANN. § 50-1-304. The TPPA states in pertinent part:
50-1-304. Discharge for refusal to participate in or remain silent about illegal activities . . .
VI. No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about illegal activities.
. . .
(c) As used in this section, "illegal activities" means activities which are in violation of the criminal or civil code of this state of the United States or any regulation intended to protect the public health, safety or welfare.
(d)(1) Any employee terminated in violation of subsection (a) shall have a cause of action against the employer for retaliatory discharge and any other damages to which the employee may be entitled.
(d)(2) Any employee terminated in violation of subsection (a) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for retaliatory discharge for such actions shall be entitled to recover reasonable attorney fees and costs.
TENN. CODE ANN. § 50-1-304 (1999).
In Hill v. Perrigo of Tennessee, ___ S.W.2d ___, 2001 WL 694479 (Tenn.Ct.App. Jun. 21, 2001), the court noted that "[t]he four elements of a prima facie case under TENN. CODE ANN. § 50-1-304 are:
The plaintiff's status as an employee of the defendant;
(d) The plaintiff's refusal to participate in, or to remain silent about, illegal activities;
(e) The employer's discharge of the employee; and
(f) An exclusive causal relationship between the plaintiff's refusal to participate in or remain silent about illegal activities and the employer's termination of the employee.
Id., 2001 WL 694479, at *3 (citing
Spivey v. Sumner County, No. M2000-00771-COA-R3-CV,
2001 WL 459097, at *3 (Tenn.Ct.App. May 2, 2001);
Darnall v. Ak Homecare, Inc., No. 01-A-01-9807-CV-0034,
1999 WL 345225, at *5 (Tenn.Ct.App. June 2, 1999) (no TENN. R. APP. P. 11 application filed);
Hubrig v. Lockheed Martin Energy Sys., Ins., No. 03A01-9711-CV-00525,
1998 WL 240128, at *7 (Tenn.Ct.App. May 4, 1998) (perm. app. denied October 12, 1998);
Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1063 (E.D. Tenn. 1995).
Furthermore, "[i]t is now well-settled that an essential element of a claim under the whistleblower statute, TENN. CODE ANN. § 50-1-304, is a showing that the alleged "whistleblowing" was the sole cause of the termination." Id., 2001 WL 694479, at *5 (citing Darnall v. Ak Homecare, Inc., 1999 WL 459097).
As is discussed above, there is insufficient evidence in the record to establish a genuine issue of material fact as to whether there was a causal relationship between plaintiff's engaging in the alleged protected activity in reporting Ms. Logan's allegations to defendants and defendants decision to terminate him. Therefore, there is no genuine issue of material fact as to the fact that plaintiff's alleged protected activity in reporting Ms. Logan's allegations against Mr. Grimes to defendants was the sole factor in defendants' decision to terminate plaintiff.
Accordingly, defendants' motion for a summary judgment [Court File No. 18] as to plaintiff's claim of retaliatory discharge will be GRANTED.
A separate judgment will enter.
JUDGMENT
In accordance with the accompanying memorandum opinion, it is ORDERED that the defendants' motion for summary judgment [Court File No. 18] is GRANTED. The plaintiff's claims are DISMISSED WITH PREJUDICE. The defendants are entitled to JUDGMENT in their favor. Costs are awarded to the defendant. The Clerk of Court shall close the file.
ENTER.