IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE …

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

August 28, 2014 Session

PHYLLIS LOUISE BIGE v. CITY OF ETOWAH

Appeal from the Circuit Court for McMinn County No. 2013-CV-200 J. Michael Sharp, Judge

No. 2014-00271-COA-R3-CV-FILED-DECEMBER 4, 2014

Phyllis Louise Bige, a former police officer with the City of Etowah, brought this retaliatory discharge action against the City, alleging that she was fired because of her failure to meet a quota for citations. Her claim was predicated on Tenn. Code Ann ? 39-16-516 (2014). The trial court granted defendant summary judgment, finding that an earlier judgment of the United States District Court dismissing plaintiff's federal claims ? including a claim that her substantive due process rights were violated because defendant required her to commit an illegal act ? collaterally estopped plaintiff from proceeding with her retaliatory discharge claim under Tenn. Code Ann. ? 50-1-304 (2014). We affirm the summary judgment of the trial court, but on different grounds. We hold that defendant demonstrated plaintiff's evidence is insufficient to establish a genuine issue of material fact as to two essential elements of her claim ? (1) that she refused to participate in an illegal activity, and (2) that defendant fired her solely because of her refusal to participate in an illegal activity. We affirm the grant of summary judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the Court, in which D. MICHAEL SWINEY and THOMAS R. FRIERSON, II, JJ., joined.

Christopher D. Markel and Wilson C. von Kessler, II, Chattanooga, Tennessee, for the appellant, Phyllis Louise Bige.

Nathan D. Rowell and Brian R. Bibb, Knoxville, Tennessee, for the appellee, City of Etowah.

OPINION

I.

Plaintiff was employed as an Etowah police officer from February 21, 2005, until her termination on May 18, 2011. By way of background, at the end of 2010, the chief of police resigned, and several officers applied for his position. A veteran police officer, Andy Shelfer, testified that the officers "took sides" in supporting their "own" candidates to replace the former chief. Eric Armstrong was named chief in February of 2011. It is undisputed (1) that Chief Armstrong was not the candidate that plaintiff had supported, and (2) that Chief Armstrong knew it. Shortly after becoming chief, he reorganized the chain of command to get rid of the rank of sergeant. Plaintiff and several others were returned to the rank of patrol officer, although plaintiff's salary and job description remained the same. Chief Armstrong selected Officer Bill Crawford to be plaintiff's supervisor. Plaintiff had previously trained Crawford.

On March 30, 2011, Chief Armstrong sent plaintiff an email warning her about her lack of citation writing activity during her shifts. The email stated as follows:

Phyllis,

You need to pick up your activity. It has been brought to my attention that you have only written a couple of tickets. Now I'm not saying you have a quota but we both know that you will see at least one violator in a 12 hour shift. I know what happened in the transition was difficult for you but it is time to put that behind you and look forward. I have confidence in your patrol abilities and I know you['re] capable of making excellent traffic stops and arrests.

I hope you don't take this email as "picking on" you and instead consider it my trying to encourage you. Like I said before, I have confidence in you and I know you can do excellent work.

On May 18, 2011, plaintiff showed up for work with a brace on her hand. Officer Crawford told her that he didn't think she should be working injured. He was not confident that plaintiff, in her injured condition, would be able to draw her gun. Uncomfortable with the idea of plaintiff working with her injury, Officer Crawford said he was going to send her home and have someone cover her shift. Plaintiff insisted she was able to work. That same day, Chief Armstrong called plaintiff into his office and told her she was fired. Officer

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Crawford was also present during the brief conversation. Plaintiff testified as follows regarding what happened:

[Officer Crawford] insisted that he was going to get someone to cover the shift. And I kept telling him, "No, no, no, I'm fine. I don't want to go home." And he got someone to cover the shift.

Then the next thing I knew, he said Eric Armstrong was coming in. . . . And Eric came in and terminated me.

Q. What was the reason given for termination?

A. He told me, he said, "I thought this was going to work out, but it's not. I'm terminating you." I said, "Eric, why? I haven't done anything." He said, "You don't write enough tickets. You got a poor attitude and you don't write tickets."

Q. Okay.

A. So I said, "Are you sure this is what you want [to] do?" And he said, "Yes." And I -- he said, "Turn in your badge or whatever else belongs to the department and leave." So that's what I did.

Officer Crawford testified that he did not have a recollection of what was said at the meeting. Chief Armstrong similarly had trouble remembering the specifics of what was said, but stated generally that he fired plaintiff for "poor attitude, negative attitude and also poor work performance," as shown by her lack of activity and "deficiency in patrolling."

Chief Armstrong emailed plaintiff a termination letter on May 18, 2011, that stated as follows:

Dear Phyllis,

On March 30, 2011 I notified you via e-mail that you needed to pick up your activity while working. You and I spoke about the level of activity expected and that officers need to always be on the watch for suspected violators. Your level of activity for the month of April was well below expectations and standards. The City of Etowah Police Department does not need officers that

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are incapable or inefficient in their duties.

Upon taking over as Chief of Police, I spoke with you in detail about improving your attitude and demeanor while conducting yourself as a City of Etowah Police Officer. City Manager Gravely also spoke to you about your poor attitude and how it reflects negatively on the City of Etowah. In the March 30, 2011 e-mail I advised you to put the difficult transition behind you and to look forward.

When you reported for duty this evening for your 12 hour night shift I was informed you started complaining in a negative manner about your job. Officer Jeff Lynn reported that you complained about not receiving a new badge and having a piece of junk badge. Officer Lynn informed me that you stated there was a conspiracy against you. This is further proof of the bad attitude that will not be tolerated here.

Consequently, this letter serves as a written notice of employment termination and a copy will be placed in your permanent personnel file.

Plaintiff filed a complaint in the Chancery Court for McMinn County on September 21, 2011. She alleged that, by firing her, the City (1) impaired her vested contractual right to continued employment; (2) unconstitutionally took her property rights without just compensation; (3) violated her equal protection rights; and (4) wrongfully terminated her employment "in retaliation for [her] failure to write more traffic tickets in violation of T.C.A. ? 39-16-516." Because of the federal claims, defendant removed the case to the United States District Court for the Eastern District of Tennessee. In federal court, plaintiff added a claim for violation of her substantive due process rights under 42 U.S.C. ? 1983.

Following discovery, the federal district court granted defendant's motion for summary judgment on all federal claims. As will be discussed further below, the federal court held as a matter of law that defendant did not require plaintiff to violate Tenn. Code Ann. ? 39-16-516. The court dismissed all federal claims, declined to exercise supplemental jurisdiction over plaintiff's state law claims, and remanded the matter back to state court. By agreed order, the case was transferred to the trial court. Defendant again moved for summary judgment, arguing that "Plaintiff's claims are barred by the doctrine of collateral estoppel, and, in the alternative, the Plaintiff cannot establish the elements of any of her remaining state law causes of action at trial." The trial court granted summary judgment on

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all of the remaining claims, finding that "the doctrine of collateral estoppel applies in this case" and the rulings of the federal district court "collaterally estop each remaining state law claim." Plaintiff timely filed a notice of appeal.

II.

The only claim at issue on appeal is plaintiff's retaliatory discharge claim under the Tennessee Public Protection Act, Tenn. Code Ann. ? 50-1-304, often called "the Whistleblower Act." In her reply brief, plaintiff concedes that her claims for common law retaliatory discharge, breach of contract, and violation of the Tennessee Constitution, are "without merit."

The general issue before us is whether the trial court erred in granting summary judgment. Plaintiff phrases her issue as follows, quoted verbatim from her brief:

Whether the Trial Court erred in finding that [plaintiff] was collaterally estopped from claiming that she refused to participate in an illegal activity ? the writing of unwarranted tickets ? within the meaning of the Tennessee Retaliatory Discharge Statute, Tenn. Code Ann. ? 50-1-304, based upon the Federal Court order dismissing her Federal Court Claims and remanding her retaliatory discharge claim to the Trial Court.

III.

Because the complaint was filed after July 1, 2011, the effective date of Tenn. Code Ann. ? 20-16-101 (Supp. 2014), the statute applies to our analysis of summary judgment in this case. That statute provides:

In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or

(2) Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.

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