LARRY D. WILLIAMS
CITY OF BURNS
Session October 9, 2014
As Corrected July 10, 2015.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed and Case Remanded to the Circuit Court for Dickson County. Appeal by Permission fro the Court of Appeals, Middle Section, Circuit Court for Dickson County. No. 22CC-2008-CV-70. Robert E. Burch, Judge.
Stephen W. Elliott and Fetlework Balite-Panelo, Nashville, Tennessee, for the defendant/appellant, City of Burns, Tennessee.
Phillip L. Davidson, Brentwood, Tennessee, for the plaintiff/appellee, Larry D. Williams.
Justin S. Gilbert, Jackson, Tennessee; Wade B. Cowan, Nashville, Tennessee; Jennifer B. Morton and Maha M. Ayesh, Knoxville, Tennessee; William B. Ryan and Bryce W. Ashby, Memphis, Tennessee; and Douglas B. Janney, III, Nashville, Tennessee, for the amicus curiae, Tennessee Employment Lawyers Association.
HOLLY KIRBY, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and JEFFREY S. BIVINS, JJ., joined.
HOLLY KIRBY, J.
We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act, Tennessee Code Annotated section 50-1-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer " fix" a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer's employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief's authority with the other officers in the police department. We hold that the municipality's assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer's discharge, that he undermined the police chief's authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.
Factual and Procedural Background
By the time Plaintiff/Appellee Larry D. Williams (" Captain Williams" ) met Jerry D. Sumerour, Jr. (" Chief Sumerour" ), Captain Williams had worked in law enforcement for a number of years in several smaller communities in Tennessee. When they met, Chief Sumerour was employed by the Police Department of the City of Burns, Tennessee (" the Department" ), a small police department with just a few officers. The two men became friends. In 2007, Captain Williams began working for the Department as the captain detective. At all relevant times, Chief Sumerour was the Chief of Police for the Department, and Captain Williams was his second in command. Captain Williams and Chief Sumerour socialized together, and Captain Williams came to know Chief Sumerour's family.
On approximately March 20, 2008, Captain Williams drafted a memorandum for Chief Sumerour that set forth a new Department policy against " ticket fixing." The new policy stated that, once an officer in the field issues a traffic citation, the issuing officer is not permitted to cancel the ticket or convert it into a warning. Chief Sumerour approved the new policy, and Captain Williams' memorandum was sent to all of the City's police officers.
The next evening, Captain Williams was on duty. At around 10:00 p.m., he stopped a vehicle traveling on Highway 47 at sixty-three miles per hour in a thirty-mile-per-hour speed zone. The driver of the car, as it turned out, was Chief Sumerour's sixteen-year-old stepson, Cody. Once Captain Williams realized who the driver was, he immediately called Chief Sumerour. The Chief and his wife--Cody's mother--lived close by, so both immediately came to the scene. As Captain Williams was writing Cody's traffic citations, Chief Sumerour's wife became upset and protested loudly that Chief Sumerour should not permit Captain Williams to give her son a ticket. Eventually, Chief Sumerour and his wife returned to their vehicle and left the scene. Captain Williams issued Cody two traffic citations, one for speeding and the other for reckless driving.
Later that evening, Chief Sumerour called Captain Williams and asked him to come to the Chief's home and bring Cody's traffic citations with him. When Captain Williams arrived, Chief Sumerour walked out to his car. Citing pressure from his wife, Chief Sumerour asked Captain Williams to write " warning" on the traffic tickets and give the tickets to the Chief. Initially, Captain Williams refused, citing the new ticket-fixing policy and expressing concern that they both could lose their jobs for breaking the laws against ticket fixing. When Chief Sumerour persisted, Captain Williams took off his badge, placed it on the dashboard of the car, and asked if there would be repercussions if he refused. According to Chief Sumerour, he told Captain Williams that there would not be repercussions if he refused. Captain Williams relented and wrote " warning" on both tickets and handed them to the Chief.
The next day, a Saturday, Captain Williams was scheduled to go to the Department at 2:30 p.m. to go on duty. Chief Sumerour called Captain Williams and asked him to come by his residence on his way to the Department and pick up the traffic citations. Captain Williams did so.
When he arrived at the station with the citations, Captain Williams noticed that the car belonging to the mayor for the City of Burns, Jeff Bishop (" Mayor Bishop" ), was parked out front. When he went inside, Captain Williams sought out Mayor Bishop and complained to him that Chief Sumerour had pressured him into " fixing" his stepson's traffic citations by converting them into warnings. He told the Mayor that he had not wanted to alter Cody's traffic tickets but was afraid that Chief Sumerour would fire him if he refused. Mayor Bishop told Captain Williams that Chief Sumerour had briefed him on the situation early that morning, but the Mayor offered no further response. After meeting with the Mayor, Captain Williams erased the " warning" notation on the tickets and placed them in Chief Sumerour's box for them to be filed with the juvenile court as actual citations.
Chief Sumerour said that, on Monday, he met with the Mayor, City Attorney Tim Potter, and an assistant district attorney about the incident. According to Chief Sumerour, they all advised him that both tickets should remain warnings, so the Chief wrote " warning" on the tickets a second time.
That same day, Captain Williams called Chief Sumerour and asked whether he had turned in Cody's traffic citations. Chief Sumerour responded " in a very firm tone and very unfriendly tone that they would remain warnings."
A few days later, on Thursday, March 27, 2008, Chief Sumerour informed Captain Williams that, by discussing the ticket-fixing incident with the Mayor, Captain Williams had violated the Department's rule on the chain of command. Chief Sumerour " wrote up" Captain Williams for this alleged infraction. He gave Captain Williams a copy of the police department's organizational chart, and underneath it he wrote: " Captain, I strongly suggest you learn this! No where [sic] do I see Mayor listed in your chain of command. If you go outside your chain of command again, you will be terminated."
Captain Williams went to Mayor Bishop's home to meet with him again. He told Mayor Bishop that Chief Sumerour had pressured him into altering the traffic citations, and that he believed that Chief Sumerour was " trying to get rid of [him] and fire [him] because of the tickets that were written." Mayor Bishop assured Captain Williams that he would not let that happen, and that he would have Chief Sumerour turn in the original traffic citations. After consulting with the City Attorney, Mayor Bishop contacted Chief Sumerour and told him that he had concluded that Cody's traffic tickets should not be warnings but should instead be turned in to the juvenile court as citations. Chief Sumerour told the Mayor that he disagreed.
Early the next morning, Mayor Bishop called Chief Sumerour and advised him that he had until noon that day to turn Cody's traffic tickets in to the juvenile court as citations. If Chief Sumerour did not do so, the Mayor said, he would be suspended. An hour later, the Mayor contacted Chief Sumerour and enhanced the threatened punishment to termination of the Chief's employment. This prompted Chief Sumerour to summon Captain Williams to his office and direct him to reissue new traffic citations to Cody, identical to the original ones. Captain Williams complied " under protest," and Chief Sumerour filed the new traffic citations in the juvenile court.
In the same time frame, Chief Sumerour issued Captain Williams a warning for not answering his department-issued cell phone while he was the on-call detective. Chief Sumerour also wrote up Captain Williams for violating a school-zone policy, but he later rescinded this write-up when it became evident that there had been no violation of the school-zone policy. Prior to the ticket-fixing incident, Chief Sumerour had never disciplined Captain Williams.
In an attempt to defuse the situation, Mayor Bishop asked Captain Williams to attend a meeting with the Mayor and Chief Sumerour. Captain Williams declined the Mayor's invitation, explaining that he felt that things between the Chief and him needed to " cool down" first. The Mayor did not insist that Captain Williams attend the meeting.
The meeting between the Mayor and Chief Sumerour took place on April 4, 2008, without Captain Williams present. Chief Sumerour would later claim that the Mayor told him in that meeting that Captain Williams refused to attend because he had lost respect for the Chief, did not trust the Chief, and thought the Chief " was a piece of crap and  needed to be fired."
Shortly after that, Chief Sumerour was told that Captain Williams had been discussing the ticket-fixing incident with the other three police officers in the Department. Chief Sumerour decided to solicit written statements from all three officers. All three written statements indicated that Chief Sumerour had asked for a written account of their discussions with Captain Williams regarding the ticket-fixing incident.
Officer Ed Richardson said in his statement that Captain Williams spoke to him about " the situation," but " at no time did Captain Williams ever belittle or put down the Chief." Officer Stephen Sullivan's statement recalled that Captain Williams " went into some details concerning the law side of the stop and asked my opinion on the stop." According to Officer Sullivan, Captain Williams asked Officer Sullivan if he would step into Captain Williams' position as captain if something were to happen to Chief Sumerour and Captain Williams were made police chief. Officer Sullivan's statement recited that Captain Williams commented that he " hoped that it didn't come to that."
Officer Tase Sturgill's statement recited conversations indicating that Captain Williams had a decidedly negative attitude toward Chief Sumerour. Officer Sturgill recounted in his statement that Captain Williams said that he " no longer had any respect for Chief Sumerour," that he could not " salvage any respect for Chief Sumerour," and " that he had told the mayor that he would fire Chief Sumerour" for his involvement in the ticket-fixing incident. Recalling discussions that purportedly took place prior to the incident, Officer Sturgill asserted that Captain Williams had " always" told him that Chief Sumerour " wanted to fire [him], but [Captain Williams] talked him out of it . . . ."
Soon after he obtained the officers' statements, Chief Sumerour arranged to meet with Mayor Bishop and City Attorney Potter to inform them that he had decided to terminate Captain Williams' employment. Chief Sumerour later recounted in a written statement that he explained to the Mayor and the City Attorney " the importance of [Chief Sumerour] not losing control of [his] department and how important it [is] to maintain the respect of [his] patrolmen." His decision, Chief Sumerour said, was based on " all the information gathered the last few days and the statements" of the other police officers. Chief Sumerour emphasized: " Capt. Williams' comments concerning me over the last few days can not and will not be tolerated. I can not have an employee trying to sabatoge [sic] the entire department." Chief Sumerour noted in the statement that Mayor Bishop and the City Attorney supported his decision.
On April 9, 2008, nineteen days after Captain Williams issued the traffic citations to Cody, Chief Sumerour terminated Captain Williams' employment. The reason Chief Sumerour gave for the termination was insubordination by violating the Department's chain-of-command rules and by undermining the Chief's authority with the other police officers.
On May 2, 2008, Captain Williams filed this lawsuit in the Circuit Court for Dickson County against the City of Burns, asserting a claim of retaliatory discharge pursuant to the Tennessee Public Protection Act (" TPPA" ), Tennessee Code Annotated section 50-1-304. Captain Williams alleged in his complaint that the City wrongfully discharged him for " refusing to remain silent about the illegal actions of being forced to alter the citations issued to the Chief's stepson." He asserted that the termination of his employment was " for trumped up reasons in order to discredit him."
In October 2010, the trial court granted the City's motion for summary judgment. It held that Captain Williams had " failed to establish that the [City's] motivation for the discharge of [Captain Williams] was based solely on [Captain Williams'] refusal to participate in, or remain silent about, the alleged illegal activity." Captain Williams appealed.
On appeal, the City argued that the facts surrounding the ticket-fixing incident did not amount to illegal activity, and that, therefore, Captain Williams could not prove " refusal to participate in or remain silent about [any] illegal activity." Williams v. City of Burns, No. M2010-02428-COA-R3-CV, 2012 WL 504511, at *3 (Tenn. Ct.App. Feb. 15), perm. app. denied (Tenn. May 21, 2012). The City also argued that Captain Williams " could not credibly argue that his termination was solely because of his refusal to alter the citations," and it insisted that Chief Sumerour fired Captain Williams for " violation of policy and procedure and insubordination, namely, going outside the chain of command, openly criticizing and disagreeing with a police superior, and openly refusing to attend a meeting arranged by the Mayor to discuss their issues." Id. at *5 (quoting City's argument). The Court of Appeals easily concluded that ticket fixing was an " illegal activity" within the meaning of the TPPA. Id. at *3 (citing Tenn. Code Ann. § 55-10-204(a), which makes it illegal to cancel or solicit cancellation of a ticket, and Tenn. Code Ann. § 39-16-402(a)(1), which makes it illegal for a public servant to use his official power in an unauthorized way to obtain a personal benefit or harm another). The court also held that there were genuine issues of material fact regarding whether Captain Williams refused to alter the tickets or remain silent about the ticket fixing and regarding the actual motivation behind Captain Williams' discharge. Consequently, it reversed the trial court's grant of summary judgment and remanded for further proceedings. Id. at *7.
On August 30, 2012, the trial court conducted a bench trial in the matter. Both Captain Williams and Chief Sumerour testified at trial, giving substantially similar accounts of the facts. Officer Sturgill also testified, essentially to the same effect as the written statement he had given to Chief Sumerour. Captain Williams denied talking to Officer Sturgill about the incident and added, " I would never have talked to him about the events between me and Chief Sumerour."  The Mayor did not testily, but parts of his deposition were read into evidence. Eighteen exhibits were entered into evidence at trial, including ...