Gore v. Chardonnay Dialysis, Inc.

Filing 37

ORDER: Deft's 25 Motion for Summary Judgment is DENIED. Signed by Senior Judge John T. Nixon on 8/16/12. (rd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KIMBERLY GORE,

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Plaintiff,
v.
CHARDONNAY DIALYSIS, INC.,
Defendant.

No. 3:11-cv-00808
Judge Nixon
Magistrate Judge Bryant
JURY DEMAND

ORDER
Pending before the Court is Defendant Chardonnay Dialysis, Inc.’s Motion for Summary
Judgment (“Motion”) (Doc. No. 25), filed along with a Memorandum in Support (Doc. No. 251), a Concise Statement of Undisputed Facts (Doc. No. 27), and multiple exhibits (Doc. Nos. 281 to 28-13). Plaintiff Kimberly Gore has filed a Response in Opposition (Doc. No. 32-1), along
with a Response to Defendant’s Concise Statement of Undisputed Facts (Doc. No. 32-5), a
Statement of Additional Material Facts (Doc. No. 33-1), and multiple exhibits (Doc. Nos. 32-2 to
32-4 & 33-2 to 33-4). Defendant has filed a Reply (Doc. No. 34), along with a Response to
Plaintiff’s Statement of Additional Material Facts (Doc. No. 35). For the reasons given herein,
Defendant’s Motion is DENIED.

I.

BACKGROUND
A. Factual History1
Defendant is a dialysis company based in Danville, Illinois. Defendant supplies dialysis

services to inmates in state and federal prisons throughout the United States, including the
1

The facts in this section are undisputed and taken from Plaintiff’s Response to Defendant’s Concise Statement of
Undisputed Facts (Doc. No. 32-5) and Defendant’s Response to Plaintiff’s Statement of Additional Material Facts
(Doc. No. 35), unless otherwise noted.

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DeBerry Special Needs Facility (“DeBerry”) in Nashville, Tennessee, previously known as the
Tennessee Hospital for the Criminally Insane. Plaintiff served as a Clinical Nurse Manager at
DeBerry from approximately September 6, 2001 to August 2, 2010. During her employment at
DeBerry, Plaintiff generally received positive evaluations and feedback regarding her work. Her
“major duties” as Clinical Nurse Manager included maintaining a professional demeanor at all
times, maintaining open communications with Tennessee’s Department of Correction (“TDOC”
or “DOC”) and Defendant’s management and staff, and reporting any incidents that were “out of
the norm” to Regional Director Stacy Vice.
On August 2, 2010, Plaintiff was terminated in person at DeBerry by Ms. Vice and
Nicole Vandevander, Defendant’s National Clinic Manager. This lawsuit concerns a series of
incidents that occurred in the months prior to her termination, which the Court summarizes in the
following two subsections.
1. Discovery of Substance on June 21, 2010
The first set of events relevant to this lawsuit began on Monday, June 21, 2010, when
Plaintiff smelled and observed a substance in a cabinet under a sink within the dialysis unit.
Plaintiff feared at that time that the substance was black mold; however, she was not qualified to
determine what the substance was. Plaintiff reported her discovery of the substance to
Defendant’s National Technical Director, Martin Geer. Mr. Geer told Plaintiff that he would
report the substance to the appropriate individual with Defendant, which Mr. Geer did. He also
encouraged and directed Plaintiff to bring the problem to the attention of appropriate officials at
DeBerry, telling Plaintiff to go “to the powers in charge” and “find out . . . what they’re going to
do about this.” Plaintiff replied to Mr. Geer that she could approach Sergeant Darrell Thomas
about the situation; Mr. Geer indicated that he thought that was a good idea. Plaintiff told Mr.

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Thomas about the substance, and Mr. Thomas then informed DeBerry’s Chief Sanitation Officer,
Charles Branson, about the substance. Mr. Branson appeared at the dialysis unit in less than an
hour.
Mr. Branson’s first job with TDOC was as a first-level correctional officer, and, to
become a sanitation officer, Mr. Branson completed an eight-hour training session on “general
cleaning practices,” but received no training in Occupational Safety and Health Administration
(“OSHA”) procedures or collecting mold samples. Mr. Branson immediately “determined” that
the substance was a combination of dirt, rust, and calcium, and not black mold. Mr. Branson
testified that he made this determination based on “life experience” and “living on [his] own and
repairing [his] own plumbing.” Mr. Branson also testified that he was “pretty much a glorified
janitor” and that his impression of his role in this situation was that there was “a mess” and it
was his job to “come clean it up.”
Plaintiff testified that, on the evening of June 21, 2010, the day on which she discovered
the substance, she prevented two employees, Bob Duke and Melinda Davidson, from entering
the clinic, as a result of her conversation with Mr. Geer. The DeBerry dialysis unit did not treat
patients on Tuesdays and Thursdays, so no treatments were cancelled or needed to be cancelled
on June 22 or June 24, 2010.
Subsequent to Mr. Branson observing the substance, Health Services Administrator Tim
McConnell, Assistant Health Services Administrator Tammy Farley, and Physicians’ Assistant
David Sehorn (who had undergraduate degrees in Chemistry and Biology as well as a Masters
Degree in Biology) all concluded that the substance was some combination of dirt, rust, calcium,
and leaking from a p-trap that had built up under the sink, not black mold. Mr. McConnell,
whose background is in hospital administration, testified that he believed the substance to be

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“rust,” just “from looking at [the substance].” Ms. Farley, whose background is in nursing and
hospital administration, testified that she came to the conclusion that the substance was not black
mold because she had “looked” at the substance. Plaintiff was not aware that these three
individuals observed the substance or made any “conclusions” as to its organic make-up; she was
only aware of Mr. Branson’s observation and opinion.
The parties dispute whether any samples were taken of the substance. Plaintiff testified
that she provided three sterile culture Q-tips to Mr. Branson for the purposes of obtaining a
sample, and Mr. Thomas testified that he remembered Mr. Branson saying “let me just send it to
the lab or something just so you can be sure that it was just some rust on the pipes.” However,
Defendant disputes that any sterile samples were taken, and Mr. Branson denied that he ever
took samples of the substance, told Plaintiff that he would test samples of the substance, and that
he had a conversation with Plaintiff in which he refused to test samples of the substance.
Plaintiff, however, testified that on June 23, 2010, Mr. Branson told Plaintiff that samples of the
substance were on his desk, but he was not going to send them off. Plaintiff also testified that
she called Mr. Geer to tell him this information, and that he responded, “you need to find out
from somebody what’s going to be done . . . you need some confirmation that this is all okay.”
Mr. McConnell and Ms. Farley also denied that they took samples of the substance, and the two
of them, in addition to Mr. Branson, denied being aware of anyone else taking samples of the
substance.
Plaintiff alleges that she contacted Deputy Warden Debra Johnson and OSHA regarding
the substance, but she has no record of doing so. She testified that she called the Deputy Warden
and spoke to the Deputy Warden’s secretary, who responded, “Is this about the mold, your
complaints about the mold? . . . if this is about the mold, Mr. McConnell’s handling that.”

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Additionally, Plaintiff testified that she called OSHA and asked a woman “if she could send
them a sample, could she do something, just to confirm that this is a safe environment.” Plaintiff
testified that the woman at OSHA responded no. Plaintiff alleges that she informed Ms. Vice
and Mr. Geer that she contacted OSHA, but she has no record of having done so, and both Ms.
Vice and Mr. Geer deny that Plaintiff so informed them.
Plaintiff testified that Mr. McConnell told her that the cabinets where the substance was
originally seen had been scrubbed and bleached. However, Plaintiff testified that the odor she
encountered when she first discovered the substance had returned to the dialysis clinic after the
area had been scrubbed and bleached. Plaintiff testified that, sometime on June 23 or June 25,
2010, Mr. Branson came to the reverse osmosis room in the dialysis unit to see a substance on
the inside of the baseboards that looked like the substance Plaintiff had seen under the sink on
June 21, 2010. That same day, Plaintiff questioned Mr. McConnell about “a few things” related
to the substance in the reverse osmosis room; the parties dispute whether Plaintiff was satisfied
with his response. On Friday, June 25, 2010, Plaintiff sent a facsimile to Mr. Geer providing a
timeline and detailed explanation of the events regarding the substance she discovered in the
dialysis unit.
2. Reports Regarding Plaintiff’s Conduct
The second set of events relevant to this lawsuit arises out of an audit of Plaintiff’s unit
that Defendant scheduled for July 7, 2010. As a result of this audit, Defendant contends that it
received “a series of highly disturbing reports about [Plaintiff’s] unprofessional conduct within
her unit and her use of extremely poor judgment in certain managerial situations.” Plaintiff
disputes that she ever engaged in such conduct, though she admits that Defendant received such

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reports. In particular, Dwayne Phillips2 provided information to Ms. Vandevander and Ms. Vice
regarding Plaintiff. This included a memo prepared by Monique Parris-Taylor, a dietician, that
was given to Ms. Vice, which stated that Plaintiff “intentionally gave inmates the mis-impression
that Ms. Parris-Taylor had some say over inmates or otherwise undermined Ms. Parris-Taylor’s
role as the facility’s dietician”; Plaintiff admits that this language was in the memo, but disputes
the validity of these assertions. Defendant never counseled or asked Plaintiff about this incident
prior to her termination. Defendant maintains a practice and policy of counseling employees for
alleged complaints and problems, and had counseled Plaintiff on the only two write-ups that
existed in her personnel file, both of which occurred in 2004 and ceased to be an issue after that
year.
Additionally, Defendant cites to a particular incident involving Plaintiff, Ms. ParrisTaylor, and an inmate, Inmate Wolfe, who was apparently in possession of reading material
deemed contraband; the parties dispute nearly all of the details surrounding this incident and the
consequences of it, including a meeting that Plaintiff had with the Deputy Warden about the
incident. It is undisputed, however, that this meeting with the Deputy Warden did not result in
any disciplinary action and Plaintiff did not think it was an issue. Moreover, Ms. Vandevander
testified that she never asked Plaintiff about the incident with Inmate Wolfe.
Lastly, in late July of 2010, Ms. Davidson, a patient care technician for Defendant,
informed Ms. Vandevander that Plaintiff had made a variety of sexually inappropriate comments
to her; again, Plaintiff disputes the validity of these statements, but does not dispute that Ms.
Davidson so informed Ms. Vandevander. Ms. Vice testified that no one contacted Plaintiff about
Ms. Davidson’s complaints and that Ms. Davidson was the only person to have these complaints
2

The parties appear to dispute Mr. Phillips’s title and position with Defendant. (See Doc. No. 35 at 14.) Plaintiff
has alleged, however, that he served as either a Regional Manager or a Regional Director at the time of Plaintiff’s
employment with Defendant in her Statement of Additional Material Facts. (See id. at 11, 14.)

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about Plaintiff. Further, Ms. Vandevander testified that she never discussed Ms. Davidson’s
complaints with Plaintiff, and no documents were ever created by Defendant’s employees
regarding these complaints.
3. Testimony Regarding Plaintiff’s Termination
Though the parties dispute many of the issues regarding Plaintiff’s termination, they have
agreed to treat the testimony of several individuals regarding the termination as undisputed for
the purposes of this Motion. Accordingly, the Court briefly summarizes these facts here.
Ms. Vice testified that the decision to terminate Plaintiff was based collectively on
complaints made by Mr. Phillips, Mr. McConnell, Ms. Davidson, and Ms. Parris-Taylor. Mr.
McConnell testified, however, that he was never of the opinion that Plaintiff was a
“troublemaker” or a “loud-mouth,” and that he never complained to Defendant about Plaintiff
using the words “drama,” “troublemaker,” or “creating unsafe conditions.” Mr. McConnell also
testified that he was not aware of anything Plaintiff did while he was Health Services
Administrator that would fit the description of (1) “unprofessional conduct exacerbating tension
between inmates and the Department of Corrections staff and custody officers which could lead
to safety issues within our work environment”; (2) “not following the proper chain of
command[,] causing tensions between our Company, our Contractor and staff within the
Department of Corrections”; and (3) “as a Unit Manager, failure to exercise control of improper
communications in front of inmates within her unit.” Mr. McConnell further testified that he
was not aware of any complaints made to Defendant regarding Plaintiff by anyone, he did not
make any complaints to Defendant about Plaintiff, and no one told him that they had made
complaints to Defendant about Plaintiff. Lastly, Mr. McConnell testified that he was not aware
of any kind of tension or problems that Plaintiff may have had with any of her employees, he

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never received any information or complaint that Plaintiff had jeopardized the safety of any staff
or inmate in any way, and that he was not familiar with anything regarding Plaintiff that would
justify the correctional staff “walk[ing] her out of the facility, hav[ing] her surrender her ID
badge and issu[ing] a lock out preventing her return.”
Mr. Thomas testified that he never made any complaints about Plaintiff being dramatic
and that he was not aware of Plaintiff acting in any way that “would affect the safety of inmates
regarding this mold.” He further testified that he was not aware of any prison policy that
Plaintiff broke due to her handling of the situation with the substance in the dialysis clinic. Ms.
Farley testified that she never saw Plaintiff engage in any action or activity that could be
described as “(1) exacerbating tension between inmates and TDOC staff and custody officers
which could lead to safety issues; (2) not following the proper chain of command, causing
tension between our Company, our Contractor, and staff within the Department of Corrections;
and (3) failing to exercise control of improper communication in front of inmates within her
unit.” Ms. Farley further testified that she never made complaints to Defendant about Plaintiff
and never used the words “drama,” “troublemaker,” and “creating unsafe conditions” to describe
Plaintiff, nor did she hear anyone else use those terms to describe Plaintiff.
Ms. Vice, who conducted Plaintiff’s performance evaluations—the first of which she
conducted in 2006—testified that no one in management would have a better idea of Plaintiff’s
work habits than she did. Ms. Vice categorized Plaintiff’s 2006 work performance as
“outstanding” and stated in her evaluation that Plaintiff: “was wonderful to work with”; was an
“asset to [Defendant] as well as the patients she works with”; “has all the respect of all staff,
patients, [Defendant’s] personnel and DOC personnel”; and “is very good with running her unit
according to [Defendant’s] and DOC policies and procedures, and this in the day-to-day

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operations of the unit.” Ms. Vandevander testified that she was knowledgeable about Ms. Vice’s
performance reviews and did not have any problems with any of Ms. Vice’s reviews.
B. Procedural History
Plaintiff initiated this lawsuit in the Circuit Court for Davidson County on July 22, 2011.
(Doc. No. 1-1.) Plaintiff alleges that Defendant violated the Tennessee Department of Health
Rule 1200-08-32-.06(6)(b) (“Rule”), which requires that a dialysis clinic “be maintained in a
safe, clean and sanitary manner.” (Id. at 10 ¶¶ 99-101.) Plaintiff alleges that she was terminated
“solely due to her refusal to remain silent regarding” violation of the Rule. (Id. at 11 ¶¶ 102-04.)
Thus, Plaintiff pursues two claims against Defendant: first, a claim under the Tennessee Public
Protection Act (TPPA), Tenn. Code Ann. §50-1-304 (id. at 11 ¶¶ 93-953), and, second,
alternatively, a claim for common law retaliatory discharge (id. at 11 ¶¶ 96-97). Defendant
removed the case to federal court on August 23, 2011 on the basis of diversity jurisdiction.
(Doc. No. 1 at 2-3.)
On July 3, 2012, Defendant filed the pending Motion (Doc. No. 25), along with a
Memorandum in Support (Doc. No. 25-1), a Concise Statement of Undisputed Facts (Doc. No.
27), and multiple exhibits (Doc. Nos. 28-1 to 28-13). On August 3, 2012, Plaintiff filed a
Response in Opposition (Doc. No. 32-1), along with a Response to Defendant’s Concise
Statement of Undisputed Facts (Doc. No. 32-5), a Statement of Additional Material Facts (Doc.
No. 33-1), and multiple exhibits (Doc. Nos. 32-2 to 32-4 & 33-2 to 33-4). On August 9, 2012,
Defendant filed a Reply (Doc. No. 34), along with a Response to Plaintiff’s Statement of
Additional Material Facts (Doc. No. 35).
3

Plaintiff appears to have mis-numbered the paragraphs in her Complaint listing her two causes of action, as the
Factual Allegations portion of her Complaint ends on paragraph 104, whereas the following section, Count I, begins
at paragraph 93. (See Doc. No. 1-1 at 11.) Thus, while the Court here cites to the numbers utilized by Plaintiff in
the Causes of Action portion of her Complaint, it appears that the proper paragraph numbers for the two claims
would be paragraphs 105 to 107 and paragraphs 108 to 109, respectively.

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II.

LEGAL STANDARD
Summary judgment is rendered when “there is no genuine dispute as to any material fact

and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party must demonstrate that the non-moving party has failed to establish a necessary
element of that party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary
judgment will be granted if “the evidence is so one-sided that one party must prevail as a matter
of law.” Lexington-South Elkhorn Water Dist. v. City of Wilmore, 93 F.3d 230, 233 (6th Cir.
1996). The movant has the initial burden of informing the district court of the basis of the
summary judgment motion and identifying portions of the record which lack a genuine issue of
material fact to support the non-movant’s case. See Celotex, 477 U.S. at 323.
The non-moving party may not rest solely on the allegations in the complaint, but must
delineate specific evidence that shows there is a genuine issue for trial. See id. at 324. A “mere
possibility” of a factual dispute is not sufficient to withstand a properly supported motion for
summary judgment. Baird v. NHP Mill Creek Apartments, 94 F. App’x 328, 330-31 (6th Cir.
2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). A dispute about
a material fact is genuine if a reasonable factfinder could find for the non-moving party.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party asserting or denying that a fact is
genuinely disputed may support its position by (1) citing to particular parts of materials in the
record, (2) showing that the materials cited by the opposing party do not establish the absence or
presence of a genuine dispute, or (3) showing that an adverse party cannot produce admissible
evidence to support a fact. Fed. R. Civ. P. 56(c)(1).
All reasonable inferences are to be drawn in favor of the non-moving party and the
evidence of the non-movant is to be believed. Anderson, 477 U.S. at 255. “Credibility

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determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . on a motion for summary judgment.” Id. If the
court determines that a reasonable factfinder could not find for the non-moving party, summary
judgment must be granted. See Lexington-South Elkhorn Water Dist., 93 F.3d at 233.

III.

ANALYSIS
A. TPPA Claim
The TPPA “prohibits the discharge or termination of an employee for refusing to

participate in or for refusing to remain silent about illegal activities.” Harman v. Univ. of Tenn.,
353 S.W.3d 734, 735 (Tenn. 2011). A TPPA claim consists of the following four elements:
(1) the plaintiff’s status as defendant’s employee; (2) the plaintiff’s
refusal to participate in or remain silent about illegal activities; (3)
the defendant employer’s discharge or termination of the plaintiff;
and (4) an exclusive causal relationship between the plaintiff’s
refusal to participate in or remain silent about illegal activities and
the defendant employer’s discharge of the plaintiff.
Id. at 737. The parties do not dispute the first and third of these elements; only the second and
fourth of these elements are at issue in the present case.
In its Motion, Defendant argues that Plaintiff’s TPPA claim fails, first, because Plaintiff
cannot establish the second element of her claim because “there was never any toxic mold.”
(Doc. No. 25-1 at 7.) Citing to the depositions of Plaintiff, Mr. Branson, Mr. McConnell, Ms.
Farley, and Mr. Sehorn, Defendant argues that there is no definitive proof that the substance
about which Plaintiff complained was, in fact, toxic mold. (Id. at 7-11.) As further support for
its position, Defendant points to part of Plaintiff’s deposition testimony to argue that Plaintiff
“stopped having concern [sic] that the substance would cause harm to anyone” two days after she
first noticed it, when Mr. Branson told Plaintiff that the area was safe. (Id. at 9.) Additionally,

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Defendant argues that no “illegal activity” has occurred in this case, as a violation of the Rule is
insufficient to amount to “illegal activity” under the TPPA. (Id. at 11-14.) Specifically,
Defendant argues that Plaintiff “has not pointed to any civil or criminal sanctions to be placed
upon” Defendant for alleged violation of the Rule. (Id. at 13.)
Plaintiff first responds by arguing that “Defendant misstates the standard for satisfying
the second element of a claim for TPPA.” (Doc. No. 32-1 at 5.) Specifically, Plaintiff asserts
that she must only show that she had “reasonable cause to believe” that Defendant engaged in or
would engage in illegal activity, not that Defendant had in fact engaged in such activity. (Id.)
Further, Plaintiff cites to state court opinions justifying such a broad reading of TPPA on the
grounds that “one of the purposes of the statute is to root out illegal activity in the workplace,”
and thus “to only extend protection to those employees who have waited until illegal activity has
already been conducted and not also employees who seek to prevent illegal activity from taking
place defeats such a purpose.” (Id.) Accordingly, Plaintiff contends that she “is not required to
prove that the substance she discovered was in-fact toxic; she only has to show that she had a
reasonable cause to suspect that a law, regulation, or rule had been violated or would be
violated.” (Id.)
Plaintiff then argues that the opinions of Mr. Branson, Mr. McConnell, Ms. Farley, and
Mr. Sehorn regarding the composition of the substance she observed should not be considered
because their testimony is opinion testimony, which would require “scientific, technical, or other
specialized knowledge” under the Federal Rules of Evidence. (Id. at 5-6.) Plaintiff argues that
Defendant did not disclose these individuals, or any other individuals, as expert witnesses during
discovery, and thus it would be improper to rely on the testimony each of them gave regarding
the substance at issue in this case. (Id. at 6.) Additionally, Plaintiff asserts that she was unaware

12

that Mr. McConnell, Ms. Farley, and Mr. Sehorn viewed the substance, and she believed that Mr.
Branson was the only other person who had viewed the substance. (Id. at 7.) Plaintiff contends
that she knew that Mr. Branson did not send any samples of the substance to OSHA to be tested,
and, because he was the only person she was aware had stated the substance was not mold, she
was “certainly justified in maintaining reasonable cause to believe a law, regulation, or rule had
been violated or would be violated.” (Id. at 7-8.)
Next, Plaintiff disputes Defendant’s interpretation of Plaintiff’s testimony regarding the
cessation of her concern regarding the unknown substance. Plaintiff quotes her testimony and
argues that she “only states that she stopped having concerns about the odor itself,” not “about
whether the substance posted a harmful threat to patients and staff.” (Id. at 8.) Rather, Plaintiff
argues that she “never stopped having a concern about having the substance tested to determine
its identity” (id.), and recounts multiple communications she had with Mr. Geer and Mr.
Branson, among others, as well as efforts she made to reach OSHA or TOSHA directly (id. at 810). After these events, Plaintiff states that she felt that she was under “heightened scrutiny,”
and was informed a week later that an audit of her unit was going to be performed, which
surprised Plaintiff because the unit was not due for an audit until August or September. (Id. at
10.) Plaintiff contends that it was during this audit that Ms. Davidson first informed Ms. Vice
and Ms. Vandevander of the allegations Defendant raises in its Motion. (Id.)
As a final argument with respect to the “illegal activity” element of her TPPA claim,
Plaintiff argues that the Rule at issue is indeed a regulation that can serve as the basis for a
wrongful termination claim. (Id. at 10-12.) Plaintiff asserts that the Rule “is the creation of an
administrative body created by Tennessee law,” “[v]iolation of the [R]ule can result in the
suspension or revocation of the license required to operate the dialysis clinic,” and such a

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suspension or revocation “is subject to judicial review in accordance with the Uniform
Administrative Proceedings Act” in state court. (Id. at 11.)
In its Reply, Defendant reiterates its position that Plaintiff cannot identify the occurrence
of any illegal activity because she “has failed to identify the law and policy that she contends
was violated when TDOC did not send a sample of the substance to an outside lab for testing.”
(Doc. No. 34 at 2.) Defendant asserts that Plaintiff “must do more than simply state that she had
reason to believe the actions were illegal.” (Id.) Additionally, Defendant argues that “[e]very
person [Plaintiff] notified either came to look at it themselves or notified the appropriate person
who could, and did, rectify the situation.” (Id. at 3.) As such, Defendant maintains that it “acted
responsibly and within the scope of the law.” (Id.) Finally, Defendant argues that Plaintiff has
shown “no evidence that she was asked to participate in any activity and that she refused,” a
necessary part of this element of her claim. (Id.)
For the purposes of the second element of a TPPA claim, the statute defines “illegal
activities” as “activities that are in violation of the criminal or civil code of this state or the
United States or any regulation intended to protect the public health, safety or welfare.” Tenn.
Code Ann. § 50-1-304(a)(3). The Tennessee Supreme Court has stated that the TPPA’s
“protection extends to employees who have reasonable cause to believe a law, regulation, or rule
has been violated or will be violated, and in good faith report it.” Mason v. Seaton, 942 S.W.2d
470, 472 (Tenn. 1997) (citation omitted). The “‘illegal activity’ or violation by the employer
must implicate important public policy concerns,” and thus an employee’s refusal to participate
in or remain silent about the illegal activity must “serve[] ‘a public purpose that should be
protected. So long as the employee’s actions . . . seek to further the public good, the decision to
expose illegal or unsafe practices should be encouraged.’” Williams v. Greater Chattanooga

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Pub. TV Corp., 349 S.W.3d 501, 515 (Tenn. Ct. App. 2011) (quoting Guy v. Mut. of Omaha Ins.
Co., 79 S.W.3d 528, 537 n.4 (Tenn. 2002)).
Before turning to whether Defendant has demonstrated that Plaintiff has failed to
establish the second element of her claim, the Court first addresses Defendant’s contention that
Plaintiff must show that Defendant in fact engaged in illegal activity. Defendant cites to several
cases to make such an argument. Defendant quotes Collins v. AmSouthBank, 241 S.W.3d 879,
885 (Tenn. Ct. App. 2007), for the following proposition: “Persons asserting either a statutory or
common-law whistleblowing claim must prove . . . that their employer violated a law or
regulation.” (Doc. No. 25-1 at 7.) However, when viewed in context, it becomes clear that the
Collins decision does not support the strict interpretation of the TPPA Defendant endorses. The
relevant portion of Collins reads as follows:
Persons asserting either a statutory or common-law whistleblowing
claim must prove more than that their employer violated a law or
regulation. They must prove that their efforts to bring to light an
illegal or unsafe practice furthered an important public policy
interest, rather than simply their personal interest. While they need
not report the suspected illegal activities directly to law or
regulatory enforcement officials, they must make a report to some
entity other than the person or persons who are engaging in the
allegedly illegal activities.
241 S.W.3d at 885 (citations omitted). Thus, not only does Defendant omit important parts of
the sentence it has quoted—words that, when reinserted, change the meaning of the sentence—
but, taken as a whole, the Tennessee Court of Appeals, in this part of the Collins decision,
appears to make an entirely different point altogether: that an employee’s “efforts to bring to
light an illegal or unsafe practice furthered an important public policy interest, rather than simply
their personal interest,” id.—not that there must be some actual violation of the law for a
plaintiff to establish a TPPA claim.

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Neither does Defendant’s citation to Hood v. Tennessee Board of Regents, No. 3:040473, 2006 WL 2645197, at *8 (M.D. Tenn. Sept. 14, 2006), support Defendant’s argument. In
the portion of Hood cited by Defendant (see Doc. No. 25-1 at 7), this Court merely reiterated the
elements of a TPPA claim, citing to the statute itself:
The requirements for making a prima facie case are twofold. First,
the Plaintiffs must show that the activity they reported constituted
a violation of the “criminal code of this State or the United States
or any regulation intended to protect the public health, safety and
welfare.” Tenn. Code Ann. 50-1-304(b).
Id. As with Collins, the Court does not interpret this explanatory language as imposing a
requirement that Plaintiff show that Defendant has in fact violated any laws or regulations.
Lastly, Defendant, in its Reply, cites to Sanders v. Henry County, No. W2008-01832COA-R3-CV, 2009 WL 1065916, at *8 (Tenn. Ct. App. Apr. 21, 2009), for the proposition that
Plaintiff “must do more than simply state that she had reason to believe the actions were illegal.”
(Doc. No. 43 at 2.) Defendant summarized Sanders in a parenthetical as follows: “affirming
summary judgment granted for employer where plaintiff’s only assertions regarding alleged
illegal activity were that he thought the employer’s actions were wrong and court refused to
extend Mason to cover the plaintiff’s beliefs of wrongdoing.” (Id.) Defendant’s summary of
Sanders is not incorrect; however, Defendant glosses over important details that led the court to
that conclusion. The plaintiff in Sanders brought a TPPA claim on the grounds that he was
terminated for reporting to the county mayor that he had observed his supervisor viewing
pornography on an office computer. 2009 WL 1065916, at *1, 6. He pointed to an “unsigned,
undated ‘use agreement’” and argued that the agreement constituted a regulation for the purposes
of the TPPA. Id. at *7. The court dismissed this argument for several reasons, including that
there was no evidence that the agreement was used county-wide or in the office in which the

16

plaintiff was employed, there was nothing in the record to suggest that any of the parties signed
the agreement, and the plaintiff testified that he did not know of the document’s existence until
after his termination. Id. The court also noted that the plaintiff did “not claim that he was aware
of any law, regulation, or rule which he believed [his supervisor] was violating,” and refused to
find that Mason supported his view that simply believing that his supervisor’s “actions were
wrong” was sufficient for a TPPA claim. Id. at *8. Thus, Sanders does not support the idea that
there must be an actual violation of the law for an employee to pursue a TPPA claim; rather, the
case holds that the employee must do more than believe that the employer behaved wrongly in a
general sense.
The Court now turns to the question of whether the Rule cited by Plaintiff is a sufficient
basis for her TPPA claim. Defendant argues that it is not, as “regulations that are phrased as
‘aspirational goals’ and cannot be enforced in the same manner as a criminal or civil statute are
. . . not good candidates to constitute ‘illegal activity,’” and violation of the Rule does not result
in any civil or criminal sanctions. (Doc. No. 25-1 at 12-14.) In support of this argument,
Defendant cites to Drake v. Bio-Medical Applications of Tennessee, Inc., No. 11-2554-STA-cgc,
2012 U.S. Dist. LEXIS 40956 (W.D. Tenn. Mar. 26, 2012), arguing that the court in Drake
determined that the plaintiff’s TPPA claim was based on such an “aspirational goal,” and, as
such, did not involve illegal activity for the purposes of the TPPA. (Id. at 12.) In Drake,
however, the court explicitly noted that the Joint Commission’s National Patient Safety Goal
.01.01.01 was “not a statute or regulation,” but rather “an aspiration promulgated by an
independent non-profit organization.” 2012 U.S. Dist. LEXIS 40956, at *19. By contrast, the
Rule was promulgated by the Board for Licensing Health Care Facilities, part of the Tennessee
Department of Health (see Doc. No. 28-1 at 2), and violation of the Rule can result in suspension

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or revocation of a facility’s license, see Health Dept. Rule § 1200-08-32-.03(1)(b); (Doc. No. 281 at 10). Defendant’s arguments that other considerations come into play before the Board will
ultimately decide whether to revoke a facility’s license, and thus Defendant faced no criminal or
civil sanctions for its alleged violations (Doc. No. 25-1 at 14), are irrelevant, as it is clear that an
entity in violation of the Rule faces the threat of actual and severe consequences from state
regulators, and, as such, the Rule can in no way be considered a mere “aspirational goal.”
Moreover, the Court finds that the Rule satisfies the requirement that it must be “intended
to protect the public health, safety or welfare.” Tenn. Code Ann. § 50-1-304(a)(3). The Rule
reads as follows: “The physical environment of the clinic shall be maintained in a safe, clean and
sanitary manner. Any condition of the clinic site conducive to the harboring or breeding of
insects, rodents or other vermin shall be prohibited. Chemical substances shall not be stored
with or near food or medications.” Health Dept. Rule § 1200-08-32-.06(6)(b). Given that the
Rule concerns the cleanliness of renal dialysis clinics, the Court finds that it quite clearly “serves
‘a public purpose that should be protected’” and “‘further[s] the public good.’” Williams, 349
S.W.3d at 515 (quoting Guy, 79 S.W.3d at 537 n.4). In sum, the Court finds Defendant’s
arguments as to this point to be without merit; the Rule can serve as the basis for Plaintiff’s
TPPA claim.
On a related note, to the extent that Defendant briefly argues, in its Reply, that Plaintiff
has shown “no evidence that she was asked to participate in any activity and that she refused,” a
necessary part of this element of her claim (Doc. No. 34 at 3), the Court finds this argument to be
meritless. The Tennessee Supreme Court has explicitly stated that the TPPA’s second element
“does not require a showing that the employer instructed the employee to refrain from reporting
the illegal activity” in question. Mason, 942 S.W.2d at 476.

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The question is now whether Defendant has established that there is no genuine dispute
of material fact as to whether Plaintiff had a “reasonable cause” to believe that Defendant was in
violation of the Rule. Id. at 472. The Court finds that Defendant has failed to do so. Plaintiff
has provided a great deal of testimony regarding her actions following the discovery of the
substance in question. Some of this testimony is disputed by Defendant, as other employees
have provided different versions of these events.4 However, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge . . . on a motion for summary judgment.” Anderson, 477 U.S. at
255. Accordingly, it would be inappropriate for the Court to determine, at this stage, whether
Plaintiff’s belief that Defendant was in violation of the Rule was “reasonable.” As such,
Defendant has failed to demonstrate that Plaintiff cannot, as a matter of law, establish this
element of her TPPA claim. Therefore, the Court finds that there is a genuine dispute of material
fact as to whether Plaintiff refused to participate in or remain silent about illegal activities under
the TPPA. See Harman, 353 S.W.3d at 737.
The Court notes that the parties have also provided extensive argument as to the fourth
element of Plaintiff’s TPPA claim. (See Doc. No. 25-1 at 16-25; Doc. No. 32-1 at 13-23; Doc.
No. 34 at 4-7.) Though the Court need not address these arguments about causation in detail, as
Defendant’s failure to meet its burden as to the second element is sufficient to deny the Motion
with respect to Plaintiff’s TPPA claim as a whole, the Court wishes to note that the parties rely
extensively on witness testimony to argue their positions as to this fourth element. As with the
4

To the extent that this testimony includes testimony from witnesses about the nature of the substance Plaintiff
discovered, the Court shares Plaintiff’s concerns that Defendant improperly relies on their testimony to definitively
establish the nature of that substance because they are not qualified experts. (See Doc. No. 32-1 at 5-6.) The Court
notes, however, that the disputes among the witnesses are not reserved to opinions about the nature of the substance;
rather, the parties provide differing accounts about the events following the discovery of the substance. Wholly
apart from the question of expert qualifications, therefore, the Court finds that such witness testimony would need to
be evaluated at trial, rendering summary judgment inappropriate in this case.

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second element, summary judgment would be inappropriate for this causal element, as such
witness testimony would need to be evaluated at trial. See Anderson, 477 U.S. at 255.
In sum, the Court finds that there is a genuine dispute of material fact as to whether
Plaintiff has established a TPPA claim. Accordingly, Defendant’s Motion is DENIED insofar as
it seeks dismissal of that claim as a matter of law.
B. Common Law Claim
A claim for common law retaliatory discharge in Tennessee contains four elements. To
succeed on such a claim, a plaintiff must show the following:
(1) that an employment-at-will relationship existed; (2) that the
employee was discharged; (3) that the reason for the discharge was
that the employee attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear
public policy evidenced by an unambiguous constitutional,
statutory, or regulatory provision; and (4) a substantial factor in the
employer’s decision to discharge the employee was the employee’s
exercise of protected rights or compliance with clear public policy.
Kinsler v. Berkline, LLC, 320 S.W.3d 796, 800 (Tenn. 2010) (citations omitted). As with
Plaintiff’s TPPA claim, the parties focus their arguments on the final two elements, those that
require a public policy violation and establishing causation between the employee’s conduct and
her termination. (See Doc. No. 25-1 at 14-16, 23-25; Doc. No. 32-1 at 12, 24-25.)
Judge Sharp has noted that the first three elements of a common law retaliatory discharge
claim—all but the causation element—are “identical” to the equivalent three elements of a TPPA
claim. Riddle v. First Tenn. Bank, No. 3:10-cv-0578, 2011 WL 4348298, at *11 (M.D. Tenn.
Sept. 16, 2011). Thus, the Court need not discuss the parties’ arguments in depth. The Court has
already determined that there is a genuine dispute of material fact as to the illegal activity
element of Plaintiff’s TPPA claim. Since that element is treated identically for the purposes of
Plaintiff’s common law claim, this reasoning also serves as grounds to find that there is a

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genuine dispute as to the third element of Plaintiff’s common law claim. Defendant’s Motion is,
therefore, DENIED insofar as it seeks dismissal of Plaintiff’s common law claim.

IV.

CONCLUSION
In light of the above analysis, Defendant’s Motion is DENIED.
It is so ORDERED.
Entered this ____16th ________ day of August, 2012.

________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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