ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Christine Wooley commenced this action against Madison County, Tennessee, her former employer, and Lacy Bond, individually and in his official capacity as Clerk of Madison County Juvenile Court, in the Circuit Court of Madison County, Tennessee on October 30, 2000. 1 On July 17, 2001, defendants removed this case to federal court. Wooley asserts a cause of action under 42 U.S.C. § 1983 for violation of her rights under the First Amendment to the United States Constitution. Wooley also alleges that defendants violated her right to freedom of speech under article I, section 19 of the Tennessee Constitution. In addition, Wooley brings state law claims under the Public Protection Act, Tenn.Code Ann. § 50-1-304, for retaliatory discharge, and under Tenn. Code Ann. § 47-50-109, for procurement of a breach of contract, and asserts common law claims of retaliatory discharge and tortious interference with at-will employment. Wooley seeks compensatory damages, back pay, reinstatement or front pay, punitive damages, attorneys’ fees, and costs. The court now considers defendants’ motion for summary judgment tin all of Wooley’s claims.
The following facts are undisputed except where otherwise noted. On April 11, 1990, pursuant to Madison County’s Private Acts of 1990, chapter 212, the office of Madison County Juvenile Court Clerk was created by Madison County’s legislative body. (Bond Aff. ¶ 3.) During all times relevant to this lawsuit, Bond was the Madison County Juvenile Court Clerk. Id. ¶ 4. Upon being named the Madison County Juvenile Court Clerk, Bond took the oath of office as prescribed by Tennessee law. Id. Bond states that since taking this oath of office, he has never violated the oath. Id. ¶ 5. As Juvenile Court Clerk, Bond has supervisory power over the employees of the Madison County Juvenile Court Clerk’s office, including his sister, Auzelda Bond, and his niece, Vivian Cum-berlander. Id. ¶ 6. As Juvenile Court Clerk, Bond has the power to hire and fire these employees. Id.
Wooley was employed by Madison County as an at-will employee in the Madison County Juvenile Court Clerk’s Office from September 1991 to July 31, 2000. (Bond Aff. ¶ 10.) Upon her employment with the Juvenile Court Clerk’s Office, Wooley was given a copy of the Madison County Em
Wooley states that, in 1999, she observed that some employees of the Juvenile Court Clerk’s Office, including Auzel-da Bond and Cumberlander,' were being-granted more paid sick leave days and/or paid annual leave days than they had earned and accrued. (Wooley Aff. ¶ 8.) In contrast, Bond avers that he never granted absences with pay in violation of the Madison County-Employee Handbook or in violation of state law. (Bond Aff. ¶ 12.) In July or August 1999, Wooley avers that she complained to County Personnel Director Carolyn Ross about defendants’ allegedly improper pay practices, but no remedial action was taken. Id. ¶ 10.. In early 2000, Wooley obtained a copy of a one page list prepared by Robert Nichols, the accountant for the Juvenile Court Clerk’s Office, which displayed the annual leave days and sick leave days accrued and used by employees of the Juvenile Court Clerk’s Office. Id. ¶ 12, Ex. 1. Wooley states that the list verified her observations that defendants were paying certain employees for more sick leave days and/or annual leave days than these employees had actually earned and accrued. Id. ¶ 13.
Specifically, wooley claims that the list revealed that defendants- had paid Cum-berlander (Bond’s niece) for eighty days more sick leave than she had earned and accrued and had paid Auzelda Bond (Bond’s sister) for forty-one days more sick leave than she had earned and accrued. Id. ¶ 14, Ex. 1. Wooley also asserts that the list revealed that defendants had paid employee JoAnn Harris for forty-nine more days more sick leave than she had earned and accrued. Id.
In March 2000, Wooley complained to Madison County Commissioner Jimmy Arnold about defendants’ allegedly improper pay practices and showed him the list. Id. ¶ 19. Wooley avers that Arnold then contacted other County Commissioners, including Linda Long, a County Commissioner who served on the Madison County Commission’s Board of Personnel. Id. On May 11, 2000, Wooley prepared a letter documenting her complaint about defendants’ allegedly illegal pay practices. Id. ¶ 20, Ex. 6. Wooley avers that Long then contacted Bond and questioned him about defendants’ pay practices, but Bond responded that it was none of Long’s business. Id. ¶ 21.
As a result of Wooley’s complaints, the Tennessee Bureau of Investigation (“TBI”) investigated whether defendants were paying employees of the Juvenile Court Clerk’s Office for more sick leave days than these employees had earned and accrued. Id. ¶ 22. During its investigation, the TBI interviewed Wooley in May 2000. Id. ¶¶ 22-23. Wooley also avers that, in June 2000, she expressed her complaint to Alex Leech, the Mayor of Madison County. Id. ¶ 24.
In July 2000, the budget of the Madison County Juvenile Court was cut by
On July 6, 2000 and July 11, 2000, Bond met with Wooley about the complaints regarding defendants’ pay practices. (Woo-ley Aff. ¶ 26; Bond Aff. ¶ 18.) Bond states that, during these meetings, when questioned about her role in the complaints, Wooley responded that she did not have any knowledge or involvement regarding the complaints. (Bond Aff. ¶ 18.) Wooley avers that during these meetings, Bond told her that once he “pinned in concrete” who made the complaints, he would fire that person. Id. ¶¶ 26-30. Jeremy Ballinger, a county employee and bailiff, avers that he witnessed the July 11, 2000 conversation between Bond and Woo-ley, including Bond’s threat of termination to Wooley. (Ballinger Aff. ¶¶ 4-8.) On the afternoon of July 11, 2000, Bond terminated Wooley’s employment. (Wooley Aff. ¶ 30.) Bond states that, when he terminated Wooley, he informed her that her termination was due to the Juvenile Court’s need to eliminate positions due to budget cuts. (Bond Aff. ¶ 19.) Wooley, however, denies that Bond mentioned the budget cut when he terminated her. (Wooley Aff. ¶ 30.) Wooley avers that, on July 12, 2000, Bond and County Personnel Director Carolyn Ross signed a-.County Individual Termination .Report stating only that Wooley was terminated because her “services were no longer needed.” Id. ¶ 31, Ex. 8.
Bond attests that he did, in fact, terminate Wooley due to lack of funds in the Madison County Juvenile Court budget. (Bond Aff. ¶ 20.) In contrast, Wooley claims that Bond terminated her solely because she' complained about defendants’ illegal pay practices with respect to sick leave and annual leave, and because she participated in the investigation regarding defendants’ pay practices conducted by the Tennessee Bureau of Investigation. (Woo-ley Aff. ¶¶ 27-30.)
Pursuant to the Madison County Employee Handbook, following her termination, Wooley had the right to appeal her termination, from the Juvenile Court Clerk’s Office. (Bond Aff. ¶ 22.) On July 12, 2000, Wooley received a letter from Bond advising her that she had the right to an appeals hearing. (Bond Aff. ¶ 23.) Wooley appealed her termination, and Bond, on appeal, affirmed his decision to terminate Wooley’s employment. (Bond Aff. ¶ 24.) After this appeal, Wooley had the right to file a civil lawsuit challenging her dismissal, which she exercised by filing this lawsuit. Id. ¶¶ 25-26.
Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment-as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment “bears the burden of clearly and convincingly establishing the nonexistence of any genuine issue of material fact, and the evidence as well
When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. A genuine issue for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc.,
The court first addresses Wooley’s First Amendment claim. To establish a
prima facie
case of First Amendment retaliation under 42 U.S.C. § 1983, a public employee must show both that her speech was constitutionally protected and that this protected speech was a substantial or motivating factor in her termination.
Jackson v. Leighton,
To establish that her speech was constitutionally protected, a plaintiff must show that she spoke on matters of public concern and that her interest in speaking was not outweighed by the defendants’ interest in promoting the efficient operation of the public service which they perform.
Connick v. Myers,
Courts must distinguish matters of public concern from internal office politics,
Jackson,
Viewing the record in the light most favorable to the plaintiff, the court finds that Wooley’s speech regarding defendants’ pay practices is a matter of public concern. Her complaints that Bond was granting employees more paid leave than they had earned went beyond internal office politics, as these allegations of corruption involved the mismanagement of public monies.
See, e.q., Chappel,
Since the court has found that Wooley’s complaints regarding defendants’ pay practices address a matter of public concern, it must consider whether defendants’ interest in maintaining an effective and efficient organization outweighs Woo-ley’s interest in her speech. In its motion for summary judgment, defendants assert that Wooley’s complaints “impaired the harmony among co-workers and had a detrimental impact on close working relationships with the clerk’s office.” (Defs.’ Mot. Summ.J. at 17). However, defendants do not specify how Wooley’s complaints to Madison County officials impacted the operation of the Juvenile Court Clerk’s Office, nor do they argue that their interest in effectively operating the Juvenile Court Clerk’s Office outweighed Wooley’s interest in her speech. 2 Thus, the court concludes that Wooley’s complaints regarding defendants’ pay practices are constitutionally protected.
The court now considers whether Wooley has established that her protected speech was a substantial or motivating factor in defendants’ decision to terminate her. Defendants deny that Wooley was
Wooley also alleges that defendants violated her right to petition the government for redress of grievances as guaranteed by the First Amendment. However, in her pleadings and in her opposition to defendants’ motion for summary judgment, Wooley fails to cite any facts in the record supporting this claim. Since Wooley has presented no evidence showing that defendants obstructed her access to state or federal court, the court grants defendants’ motion for summary judgment with respect to this claim.
Wooley also alleges a freedom of speech claim under article I, section 19 of the Tennessee Constitution. However, it is well established that Tennessee does not recognize an implied private cause of action for damages based upon violation of the Tennessee Constitution.
Bowden Bldg. Corp. v. Tennessee Real Estate Comm’n,
The court now turns to Wooley’s claim that she was terminated in retaliation for refusing to participate in and/or remain silent about illegal activities being committed at the Juvenile Court Clerk’s Office. Tennessee common law protects employees from being discharged for refusing to violate a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision.
Mason v. Seaton,
As an initial matter, defendants argue that Wooley cannot establish a claim of retaliatory discharge against Bond in his individual capacity because he was not her employer. The TPPA defines “employer” as “the state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity thereof.” Tenn. Code Ann. § 50-l-304(g)(2). Tennessee courts have explicitly held that supervisors, even if they have the exclusive authority to hire and fire employees, are not employers under the TPPA.
Baines v. Wilson County,
No. M2000-00830-COA-R3-CV,
With respect to the second element, defendants argue that Wooley has not shown that Madison County committed an illegal activity. The TPPA defines “illegal activities” as “activities which 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-l-304(e). An employee can satisfy the second element by showing that she had reasonable' cause to believe that her employer had violated a law, regulation, or rule.
Mason v. Seaton,
Wooley first argues that Madison County violated Tenn.Code Ann. §§ 5-23-101 through 5-23-112, which require that counties have written personnel policies. Specifically, Wooley asserts that, by granting employees more paid leave than they had earned or accrued, defendants violated § 5-23-104, which requires that each county have a base personnel policy addressing “whether employees are entitled to paid vacation or annual leave, sick leave, or other leave, ... and provisions for maintaining leave records.” However, the Madison County Employee Handbook (of which Wooley had a copy) states Madison County’s policies regarding sick leave, annual leave, and absence with pay in general. Although Wooley asserts that Bond violated Madison County’s personnel policies as stated in the Madison County Employee Handbook, she has presented no evidence that defendants violated Tenn. Code Ann. §§ 5-23-101 through 5-23-112 by failing to have base personnel policies governing paid leave. Thus, the court finds that Tenn.Code Ann. §§ 5-23-101 through 5-23-112 cannot serve as the basis of Wooley’s retaliatory discharge claim.
Wooley next argues that defendants violated Tenn.Code Ann. §§ 8-31-101 through 8-31-107, known as the Tennessee State Employees Uniform Nepotism Policy Act of 1980 (“the Nepotism Act”). The Nepotism Act provides that “no state employees who are relatives shall be placed within the same direct line of supervision whereby one (1) relative is responsible for supervising the job performance or work activities of another relative.” Tenn.Code Ann. § 8-31-103. Woo-ley contends that defendants violated the Nepotism Act by allowing Bond to directly supervise his sister. Defendants assert, however, and that court agrees, that since the Nepotism Act applies only to state employees, Bond, as an employee of Madison County, is not subject to its provisions. Thus, Wooley cannot use defendants’ alleged violation of the Nepotism Act to establish the second element of her prima facie case.
Wooley also contends that Bond violated Tenn.Code Ann. § 18-2-105. Tenn.Code Ann. § 18-2-105 provides the following:
Any clerk or clerk and master of any court who, without authority of law, shall use, loan or convert to the clerk’s or clerk and master’s own use, or otherwise dispose of, any money or property which may have come into the clerk’s or clerk and master’s hands in the clerk’s or clerk and master’s official capacity, commits a Class C felony.
Wooley asserts that Bond violated this code provision by using public monies from the Madison County budget to pay employees for unearned absences. Defendants argue that section 18-2-105 applies only to funds which are paid directly to the clerk, such as court costs, child support, and fines, and does not apply to funds that are derived from the budget of Madison County for the operation of the Juvenile Court. However, there is no case law interpreting section 18-2-105, and thus, nothing to support defendants’ restrictive interpretation. In contrast, the court reads the plain language of the code provision broadly and finds that the inclusive and unspecific designation of “any money or property which may have come into the clerk’s or clerk and master’s hands in the clerk’s or clerk and master’s official capacity” includes money taken from the budget of Madison County to fund the operation of the Juvenile Court.
Since the court finds that section 18-2-105 applies to the use of funds taken from the Madison County budget to fund operation of the Juvenile Court, it must now
Defendants argue that Wooley’s evidence does not establish a violation of section 18-2-105, since Bond had authority under the Madison County personnel policy, enacted pursuant to Tenn.Code Ann. §§ 5-23-101 through 5-23-112, to allow paid leave for good cause shown. Specifically, defendants point to the Madison County Employee Handbook, which states that “[ajbsence with pay may be granted by the Department Head only and it must be for good cause shown.” (Pl.’s Mem. in Opp. to Def.’s Mot.Summ.J.Ex. 6 at'll.) Defendants assert that, as a result of this language, Bond had the discretion to grant his employees paid leave even though it was unearned. The court, however, disagrees with defendants’ characterization of Madison County’s personnel, policy. In the paragraphs directly preceding the sentence quoted by defendants, the Madison County Employee Handbook states that “absence with pay is allowable to employees who, by their continuous service, have earned time off with pay within the limitations and conditions set out in the working rules for employees.” Id. Furthermore, the sections of the Madison County Employee Handbook governing sick leave and annual leave state the following: “[e]ach full time employee will accrue sick leave at the rate of one day per month”; “sick leave benefits will commence on the first day of each such absence and shall continue for as long as sick leave credit remains”; and “you [the employee] may take only that [annual leave] which you have accumulated.” Id. at 7-9. Reading the Madison County Employee Handbook as a whole, the court finds that, at the very least, there exists a question of fact as to whether Bond was authorized to grant Cumberlander eighty days more sick leave than she had earned and accrued and Auz-elda Bond forty-one days more sick leave than she had earned and accrued. Thus, the court finds that Wooley has created a genuine issue of material fact as to whether she has established the.second element of her prima facie case of retaliatory discharge by showing that Bond engaged in illegal activity in violation of Tenn.Code Ann. § 18-2-105.
As a fourth basis for the second element of her
prima facie
case, Wooley argues that Bond violated his oath of office mandated by Tenn.Code Ann. § 18-1-103, which states in relevant part: “Each clerk of a court must also, before entering on the duties of the office, take an oath to support the constitutions of the United States and of this state, and to execute the duties of the office without prejudice, partiality, or favor, to the best of the clerk’s skill and ability;.... ” Specifically, Wooley asserts that Bond violated his, oath of office by showing partiality and favor to his relatives in granting paid, unearned leave. Based on Wooley’s evidence that Bond paid his niece for eighty days more sick leave than she had earned and. accrued and his sister for forty-one days more of sick leave than she had earned and accrued, the court concludes that there exists a question of material fact as to whether Bond violated Tenn.Code Ann. § 18-1-103. Thus, Bond’s alleged violation of his oath of office can also servq as a basis for the
Since the parties do not dispute that Wooley was terminated, the court now considers whether Wooley has established the fourth element of her prima facie case — an exclusive causal relationship between her complaints about defendants’ allegedly illegal activities and her discharge. To establish that her complaints were the sole cause of her termination, Wooley offers evidence that, on July 6, 2000 and July 11, 2000, Bond threatened that once he determined for certain the identity of the employee who had complained about his granting of paid leave, he would terminate that individual. (Wooley Aff. ¶¶ 26-33; Ballinger Aff. ¶¶ 4-8.) Later on July 11, 2000, Bond terminated Wooley. (Bond Aff. ¶ 19.) Defendants argue that Wooley cannot establish that her complaints were the sole cause of her discharge since her termination was due to a budget cut of $35,000.00. However, given Wooley’s direct evidence, including the affidavit statements of a co-worker who witnessed the exchange between Bond and Wooley, that Bond terminated her because of her complaints about his pay practices, the court finds that there exists a question of fact as to whether Wooley’s complaints were the exclusive cause of her discharge.
Since the court finds that Wooley has established a prima facie case of retaliatory discharge, the burden shifts to defendants to offer a legitimate reason for Wooley’s discharge. Defendants have satisfied this burden by asserting that Woo-ley’s discharge was due to the Madison County Juvenile Court’s lack of funds resulting from a $35,000.00 budget cut. In support of this explanation, Bond avers that he informed Wooley when she was terminated that her discharge was due to the Madison County Juvenile Court’s need to eliminate positions due to budget cuts. In addition, defendants point to the July 12, 2000 letter signed by Bond and County Personnel Director Carolyn Ross, which stated that Wooley had been terminated because “her services were no longer needed.” (Bond Aff. ¶ 19; Pl.’s Resp. to Defs.’ Mot.Summ.J.Ex. 8.)
Since defendants have presented a legitimate reason for Wooley’s discharge, Wooley must prove that defendants’ explanation is pretextual. To show pretext, Wooley avers that Bond did not tell her that her termination was due to a lack of funds at the termination. In addition, Wooley offers the same direct evidence she relied upon to establish exclusive causal connection — her and Ballinger’s affidavit statements that, on the day of Wooley’s discharge, Bond threatened her that he would terminate the employee who had complained about his pay practices once he was certain of that individual’s identity. Viewing the evidence in the light most favorable to Wooley, the court finds that there exists a question of fact as to whether defendants’ stated reason for Wooley’s discharge — a lack of funds due to a budget cut — was pretextual. Accordingly, the court denies defendants’ motion for summary judgment on Wooley’s common law and statutory retaliatory discharge claims against Madison County.
The court now turns to Woo-ley’s claim against Bond for tortious interference with at-will employment. Wooley contends that Bond tortiously interfered with her employment with Madison County by terminating her in retaliation for the complaints she had made about his pay and leave practices. An agent or employee may be held liable for tortious interference with at-will employment only if he is not acting within the scope of his duties and in furtherance of the interests of his employer.
Forrester v. Stockstill,
The court next addresses Woor ley’s claim for procurement of a breach of contract in violation of Tenn.Code Ann. § 47-50-109. Tenn.Code Ann. § 47-50-109 provides for an award of treble damages upon a clear showing that the defendant induced or procured the breach of contract.
Leemis v. Russell,
No. W1999 00352-COA-R3-CV,
In summary, the court grants defendants’ motion for summary judgment with respect to Wooley’s retaliatory discharge claims against Bond as well as her claims for violation of article 1, section 19 of the Tennessee Constitution, violation' of her right to petition the government for redress of grievances under the First Amendment, procurement of a breach of contract, and tortious interference with at-will employment. 4 The court denies defendants’ motion for summary judgment on Wooley’s First Amendment claims against both defendants and her claims against Madison County for retaliatory discharge under common law and Tenn.Code Ann. 50-1-304. . , .
IT IS SO ORDERED.
Notes
. Wooley filed an amended complaint on June 15, 2001, and a second amended complaint on July 10, 2001.
. Moreover, in their motion for summary judgment, defendants undermine any argument that defendants' interest in maintaining an efficient and effective organization outweighs Wooley’s interest in her speech by offering Bond's affidavit statements to establish that the cause of Wooley's termination was not her speech regarding defendants’ pay practices, but rather a lack of funds caused by a $35,000.00 budget cut. (Defs.' Mot. Summ.J. at 17.)
. To establish a common law claim of retaliatory discharge, the plaintiff must show that the employer violated a clear public policy in discharging an at-will employee.
Robins v. Flagship Airlines, Inc.,
. In their motion for summary judgment, defendants argue that Wooley cannot seek punitive damages against Madison County because of its status as a municipality. (Mem. in Supp. of Defs.’ Mot.Summ.J. at 13.), However, in its second amended complaint, Woo-ley states that, she seeks punitive damages only against Bond, in his individual capacity. (Sec.Am.Compl.HIÍ 49-52.)