TENNESSEE COURT OF APPEALS RULES
IN A CASE HANDLED BY
WEINTRAUB, STOCK & GRISHAM:
EMPLOYEE’S REFUSAL TO PERFORM WORK BECAUSE OF FEAR HE WILL BE VIOLATING STATE REGULATION WILL NOT GIVE RISE TO
RETALIATORY-DISCHARGE LAWSUIT.

Facts of the Case

            Plaintiff, Anthony Franklin (“Franklin”), was employed as an over-the-road truck driver by Defendant, a trucking company. Franklin was assigned as a full time driver for an important account.  The company explained to Franklin the importance of being on time with all loads for this account.  To this end, dedicated drivers for this account were prohibited from refusing to deliver a load.

            On December 2, 2001, Franklin reported to the account’s facility in Olive Branch, Mississippi.  Franklin picked up his truck and, in accordance with procedure, drove his truck to Memphis, Tennessee for fuel and inspection.  Franklin’s truck needed routine maintenance, so the dispatcher assigned a loaner truck to Franklin.  During Franklin’s check of the new truck, he discovered that the truck was without its International Registration Plan card (“IRP cab card”).  This card was issued by the state of Tennessee and listed all the states in which the vehicle was registered to operate.   According to Tennessee Department of Safety regulations, the original IRP cab card was required to be in the vehicle at all times.  The company made arrangements for Franklin to carry a photocopy of the IRP cab card, but Franklin refused to drive the truck with anything other than the original.  Franklin requested another truck.  When another truck could not be located, Franklin was taken off the assignment.

            On December 23, 2001, Franklin was terminated from his job.  Franklin sued the company for statutory and common law retaliatory discharge, alleging that he was terminated for refusing to violate a state safety regulation.  In March 2005, a jury awarded Franklin $51,878.00 in lost wages.  Jeff Weintraub and Greg Grisham tried the case, and Jeff handled the Oral Argument at the Court of Appeals.  The Court of Appeals reversed the judgment of the trial court. 

The Court’s Opinion

            In order to establish a retaliatory discharge, Franklin must prove (1) an employer-employee relationship; (2) that he was discharged; (3) the he was discharged for exercising a statutory or constitutional right that implicates a clear public policy; and (4) that the exercise of that right was a substantial factor in the termination.  The Court focused its analysis on whether the Tennessee Department of Safety Regulation that required the original IRP cab card to be in the truck rose to the level of a clear public policy. 

            The company provided Franklin with a copy of the IRP cab card.  While this copy may not be sufficient according to the Department of Safety, driving with the copy does not violate any criminal or civil code.  According to the Court, in order for refusal to comply with an employer’s directive to give rise to a retaliatory discharge, “the ‘illegal activity’ or violation by the employer must implicate important public policy concerns.”

            Here, the violation did not implicate an important public policy.  The copy of the cab card provided the same information as the original cab card.  Further, Franklin indicated that when he was previously detained for not possessing an IRP cab card, he was ultimately allowed to proceed with his delivery, upon the receipt of a fax of the card. 

            Importantly, the Court refused to adopt Franklin’s argument that any regulatory infraction by an employer can justify an employee’s refusal to perform his assigned duties.  Finding that the requirement of an original IRP cab card does not implicate a fundamental public policy in Tennessee, the Court of Appeals reversed the judgment of the circuit court. 

Tips for Employers

·         While business practices should fully comply with all state laws and regulations, only a violation of those Tennessee laws and regulations which implicate a clear public policy relating to health, safety, and/or public welfare should be actionable by a dismissed employee as a retaliatory discharge.

·         The Tennessee Public Protection Act protects employees from performing illegal activities at the behest of their employer.

·         Retaliatory discharge is applicable in only those circumstances where an employee is ordered to act in a manner not in conformance with an unambiguous public policy or risk being dismissed.

·         Not every regulatory infraction of an employer will give rise to retaliatory discharge actions by employees.  Those infractions that the court declares to be de minimus, such as the IRP cab car violation in this case, should not give rise to retaliatory discharge actions.