Tennessee Wrongful Discharge Attorney Who Will Fight For Your Rights!
I. What is a "Wrongful Discharge"?
Numerous employees are fired unfairly, but not all of these firings create the basis for a wrongful discharge lawsuit. Employers can act unfairly, vindictively, arbitrarily, and/or stupidly in firing an employee, but that doesn’t mean there is a cause of action for wrongful discharge. Whether a cause of action for wrongful discharge exists depends upon the employer’s reason for firing the employee, and whether by statute or case law, a termination based on such a reason, is illegal. Of course, most employers usually don’t admit that they fired an employee for an illegal reason, but sometimes they do make this type of admission. Other times, the real, illegal reason is clear upon a thorough review of the facts. In evaluating these cases, the question usually becomes, what is the real reason for the employee’s termination? And, is it an illegal reason? If so, then legal recourse may be possible.
Please consider allowing the wrongful discharge law firm of Burkhalter, Rayson & Associates, P.C. evaluate your case. If we take your case, we only get paid if you get a recovery.
What we look for in evaluating a potential case is: “What is the real reason for the termination?” We are not looking for the reason given by the employer, but we are interested in the real reason for the termination, and importantly, is the real reason an illegal reason? It is also important to realize that the illegal reason does not have to be the only factor motivating an employer’s actions. The illegal reason has to be only a substantial factor, or a motivating factor in the termination decision.
Corporations can only act through people, and sometimes managerial or supervisory employees act stupidly, ignorantly, and/or illegally. Sometimes supervisory employees or managerial employees allow their arrogance or biases to cloud their judgment, and other times, they receive faulty advice, or are blinded by vindictiveness or greed, or by a misguided sense of loyalty to their corporate employer. As a result, unfortunately, good employees oftentimes end up being fired for illegal reasons.
Skilled Wrongful Discharge Lawyer Who Takes The Tough Cases and Wins!
The effect of a job termination on an individual and their families can be devastating. Some examples of illegal reasons include, but are not limited to, firing the employee because the employee is pregnant, or because the employee took FMLA leave, or because the employee complained of sexual harassment, or because the employee complained of discrimination, or because the employee complained of unsafe working conditions, or because the employee had jury duty, or because the employee had military service, or because the employee was injured on the job and filed a workers’ compensation claim, or because the employee or employee’s close relative is disabled, or because the employee is older and the employer wants younger employees, or because the employee is African American, Hispanic, Muslim, or some other race, or because the employee is female, or because the employee has refused to violate the law, or because the employee has refused to go along with or has blown the whistle on the employer’s illegal activity. There are numerous, numerous, numerous other illegal reasons for a termination - too numerous to cover here.
In determining whether legal recourse is possible, the big question, of course, is whether there is evidence of a connection between the illegal reason and the employee’s termination. Being able to prove the reason for the termination as given by the employer is trumped up is a step in the right direction, but typically, there needs to be other proof such as direct evidence or circumstantial evidence that would establish that the real reason for the termination is the illegal reason. For example, circumstantial evidence in a pregnancy discrimination case would be the employee is fired for a trumped up reason the same day or shortly after she informed the employer she was pregnant, or that the employer started treating her differently (in a bad way) after she told the employer she was pregnant. In a military firing case, circumstantial evidence could be that the employee is fired the same day (or shortly after) he or she turns in orders to report for duty or is otherwise given a hard time because of having to go on military duty. In a race discrimination case, circumstantial evidence could include facts establishing that the employer treats African Americans different (worse or more harshly) than Caucasians, there exists an atmosphere of discrimination, supervisory employees make racial remarks, the employer engaged in a practice and pattern of discrimination, the employer ignored prior complaints of discrimination, the employer engaged in prior acts of discrimination, the employer has discriminated against other African Americans and/or the employer fires African Americans and replaces them with Caucasians. Similar types of circumstantial evidence may apply in an age discrimination case, a sex discrimination case, a reverse discrimination case, etc. In a worker’s compensation retaliation case, circumstantial evidence could include evidence that the employer refused to file the worker’s compensation claim, or fought the claim, or regarded the claim as fraudulent, or accused the employee of manufacturing a worker’s compensation claim in order to “milk the system”, fired other employees who filed claims, threatened the employee as a result of the claim, etc. Again, there are numerous, numerous, numerous ways to prove discrimination and/or wrongful termination—too numerous to list here.
II. What is the "Employee at Will" Doctrine?
Many states, including Tennessee, recognize what is called the "Employee at Will" Doctrine. Essentially, this Doctrine is supposed to stand for the proposition that an employer may fire an employee (who does not have a contract) at any time, for any reason - good reason, bad reason, or no reason. As stated by the Tennessee Supreme Court:
"Under long-established Tennessee law, an employee-at-will can be discharged without breach of contract for good cause, bad cause or no cause at all." Clanton v. Cain-Sloan Comp., 677 S.W.2d 441 (Tenn. 1984).
"The doctrine of employment at will has long been recognized by this state, with the concomitant right of either party to terminate such a relationship with or without cause." Chism v. Mid-South Milling Co. Inc., 762 S.W.2d 552, 555 (Tenn. 1988).
However, there are numerous exceptions to the "Employee at Will" Doctrine where employees who are fired have legal recourse. As stated above, it is not possible in this short paper to describe all exceptions to the Employee at Will Doctrine (some exceptions are listed above). Suffice it to say, there are numerous, numerous, numerous exceptions. As explained by the Tennessee Supreme Court: "both by statute and case law in this and other states some restrictions have been imposed upon the right of an employer to terminate an employee, usually for reasons of well-defined public policy. For example, in Tennessee any right to terminate an employee for service on a jury has been eliminated, and statutory sanctions for violation have been provided. ... There are restrictions upon employment or termination of persons for discriminatory reasons involving race, creed, color, sex, age, religion or national origin. ... There are similar restraints to prevent discrimination in the hiring and termination of handicapped persons." Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn. 1988). In fact, in my opinion, there are so many exceptions to the "Employee at Will" Doctrine that prudent employers cannot rely on the doctrine to provide much protection from suit. As a practical matter, the "Employee at Will" Doctrine is dead. I say, may it rest in peace!
III. Elements of a Cause of Action for Wrongful Discharge
Initially, the employee has the burden of producing circumstantial, direct, or statistical evidence from which the illegal reason, i.e., discrimination (or retaliation), may be inferred. Blackwell v. Sun Electric, 696 F.2d 1126 (6th Cir. 1983). As previously stated, there are many different types of evidence that can be utilized in proving discrimination including, but not limited to, evidence of disparate treatment and/or smoking gun admissions of discrimination (or retaliation) and/or admissions showing bias, etc.
Thereafter, the burden of production shifts to the employer to produce evidence that the employer's acts were the result of a legitimate reason, i.e., non-discriminatory (or non-retaliatory) reasons. --McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1084, 67 L.Ed.2d 207 (1981). Remember, under the Employee at Will Doctrine, it can be a good reason, a bad reason, a dumb reason, etc., just not an illegal reason.
In the event the jury finds that the employer met the burden of establishing a legitimate non-discriminatory (or non-retaliatory) reason for discharging the employee, then the burden again shifts to the employee to prove that the reasons articulated by the employer are pretextual (or a cover up). Courts have instructed us there are three ways in which an employee can demonstrate that the employer's articulated reasons are pretextual:
1. By showing that the reasons have no basis in fact;
2. If they have a basis in fact, by showing that they were not the actual factors motivating the adverse action; or
3. If they are factors, by showing that they are jointly insufficient to have motivated the adverse action. --Chappel v. GTE Products Corp., 803 F.2d 261 (6th Cir. 1986), cert. denied, 480 L.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987); and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Under well established case law, the jury's disbelief of the reasons for termination put forth by the employer (particularly if the disbelief is accompanied by a suspicion of untruthfulness) may, together with other evidence of retaliation/discrimination, suffice to show unlawful discrimination (retaliation). Rejection of the employer's proffered reasons for its actions will permit the jury, but not require the jury, to infer the ultimate fact of intentional discrimination/retaliation. Proof that the employer's explanation is unworthy of credence is a form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. --St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Reeves v. Sanderson Plumbing Products, Inc, 530 U.S. ____, 68 U.S.L.W. 4480 (2000). In other words, if the employee is able to demonstrate the employer is lying about the reason given for discharge, then this can go a long way in establishing a case, especially if there is other evidence there was an illegal reason. Also, if a jury believes the employer is lying, then it can get angry and anger usually translates into larger awards.
Examples of causes of action for wrongful discharge that were created by our state or federal legislatures would include the laws prohibiting various forms of discrimination, i.e., religion, disability, nationality, age, race, or sex discrimination, and laws prohibiting unlawful retaliation for engaging in certain types of protected conduct. For example, if a jury finds the Plaintiff’s membership in a protected class was a motivating factor in the Defendant’s adverse actions then the Plaintiff should win, even though other factors also motivated the employer’s actions. McDonnell Douglas Corp. v. Green, 411 US 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Brown v. East Mississippi Elec. Power Ass’n, 989 F.2d 858 (5th Cir. 1993), see also, 42 U.S.C.§2000e-2(m). Also, it is unlawful for an employer to retaliate against an employee who has opposed an unlawful employment practice, such as discrimination (or sexual harassment), or who has testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII. - - 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 2000e-3(a); Curl v. Revis, 740 F.2d 1323 (4th Cir. 1984). In other words, complaining in good-faith to your employer that you believe you have been sexually harassed or discriminated against could constitute "protected activity," and it would be unlawful for the employer to terminate the employee as a result thereof.
Requirements for a "prima facie" case of unlawful retaliation, include:
a. The Plaintiff was an employee who engaged in a protected activity, such as opposing sex discrimination or opposing sexual harassment or opposing another form of discrimination;
b. An adverse action was taken against the Plaintiff; and
c. A causal connection existed between the protected activity and the adverse action. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984), cert. denied, 478 U.S. 1006, 106 S.C. 3298, 92 L.Ed.2d 712 (1986); EEOC V. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993).
There are numerous other Federal and State statutes and regulations that make it unlawful to terminate an employee in retaliation for engaging in different types of "protected activity." For example, Tennessee has a statute (TCA § 50-1-304) that makes it illegal to discharge an employee in retaliation for refusing to participate in or refusing to remain silent about illegal activities. Tennessee Wrongful Discharge, T.C.A. § 50-1-304, provides, in part:
No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities. As used in this section, "illegal activities" means 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. 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. There are also common law causes of action for wrongful discharge where public policy is implicated. For example, it is illegal in Tennessee to fire an employee in retaliation for refusing to violate the law or in retaliation for filing a workers’ compensation claim. In a public policy retaliatory discharge case, the employee must prove these elements:
A.) That the Plaintiff was an employee of the Defendant;
B.) That the Defendant discharged the Plaintiff;
C.) That the employer violated clear public policy in terminating the Plaintiff as evidenced by unambiguous statutory provisions; and
D.) That the employer’s violation of public policy was a "substantial factor" in the Plaintiff’s termination.
If the jury finds by a "preponderance of the evidence" that the employee has proven these essential claims, then it may return a verdict for the Plaintiff. Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992); Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).
The employee must prove these elements in a worker’s compensation retaliatory discharge case:
A.) That the Plaintiff was an employee of the Defendant;
B.) That the Plaintiff exercised rights to or made a claim for workers’ compensation;
C.) That the Defendant discharged the Plaintiff; and
D.) That the Plaintiff’s request for workers’ compensation was a "substantial factor" in Defendant’s discharge decision.
If the jury finds by a "preponderance of the evidence" that employee has proven these essential elements, then it may return a verdict for the employee. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Anderson v. Standard Register Co., 857 S.W.2d 555, 588 (Tenn. 1993). There are numerous other types of conduct, that by common law, could result in a public policy discharge case, for example, if an employee is fired because of their service in the national guard or due to their service on a jury.
IV. If You Believe You Have Been Wrongfully Fired
If you believe you have been wrongfully fired (or are going to be fired), you should contact an experienced employment lawyer as soon as possible (under ideal circumstances - before you are fired). You should be very careful about what you put in writing in any letter or memorandum or exit interview document to the employer. The best advice is not to put anything in writing unless your attorney first approves it.
V. Time Deadlines to File.
Important filing deadlines apply to employees who have been fired. It may be necessary to file a charge of discrimination and/or retaliation first with the state Human Rights Commission and/or EEOC prior to filing suit, but again, time filing deadlines apply. A competent employment attorney should be consulted immediately because these deadlines vary from state-to-state.
VI. Damages Available in Wrongful Discharge Suits. The damages available in wrongful discharge suits depend on the statute or cause of action relied upon. Generally, compensatory damages for back pay and emotional distress, and humiliation and embarrassment are available, and either reinstatement or front pay. Punitive damages or liquidated damages may also be available depending on the cause of action. Also, attorney fees and expenses may be assessed against the employer in most statutory based causes of action.
VII. Burkhalter, Rayson & Associates’ Criteria for Taking a Case.
We typically take these types of cases on a contingency fee basis, that is, no recovery, then no attorney fee. We examine the facts very carefully before we agree to accept a case. Situations vary, but factors we consider in deciding whether to accept a case usually include some combination of the following:
1. The real reason for the employee’s termination must be illegal;
2. There must be evidence showing a causal connection between the termination and the real illegal reason;
3. The employer must be a "large" employer, i.e., at least 75 employees;
4. There must be proof that the reason given by the employer for the termination is trumped up;
5. Other factors that can enter into our thought process include how long the employee worked at the company, the employee’s job performance, the employee’s disciplinary record (or lack thereof), evidence that the employer acted unfairly, vindictively or stupidly, and the amount of potential damages.
Please consider allowing Burkhalter, Rayson, and Associates, P.C. to evaluate your case today. We may be able to help you. If we accept your case, we will fight for your rights!