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Whitney v. First Call Ambulance Service

Court of Appeals of Tennessee, Nashville

May 8, 2019

CHRIS WHITNEY
v.
FIRST CALL AMBULANCE SERVICE, ET AL.

          Session March 5, 2019

          Appeal from the Circuit Court for Davidson County No. 15C1241Thomas W. Brothers, Judge.

         This is an appeal from the trial court's grant of summary judgment dismissing a plaintiff-employee's THRA and TPPA claims against his employer. As to the employee's THRA claim, the trial court found that the evidence of harassment and discriminatory conduct was not so severe or pervasive so as to establish a hostile work environment. As to the employee's TPPA claim, the trial court found that the employer had a valid, non-discriminatory reason for termination. Additionally, the trial court found that the employee failed to establish that one of the entities was his employer for purpose of liability under either the THRA or the TPPA. Finding that the employee presented sufficient evidence to raise a genuine issue of disputed material fact with regard to his THRA and TPPA claims, we vacate the trial court's order as to these claims and remand the case to the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in part and Remanded

          R. Patrick Parker and Abigail M. Strader, Gallatin, Tennessee, for the appellant, Chris Whitney.

          First Call Ambulance Service, LLC, Appellee. [1]

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         Background and Procedural History

         In January 2011, First Call Ambulance Services ("First Call") hired Chris Whitney ("Plaintiff") as the ambulance fleet manager for the company's Tennessee and Virginia regions. Later that same year, First Call was acquired by EDG Partners, LLC ("EDG"). As fleet manager, Plaintiff performed maintenance on the ambulance fleets and ensured that enough ambulances were available for the daily schedule. Throughout his employment, Plaintiff made several complaints to members of First Call's upper-level management as well as state regulators regarding the company's failure to adhere to the relevant safety rules and regulations promulgated by the State of Tennessee. On one occasion, Plaintiff told Mike Ross, First Call's CEO, that he "was going to tell the truth" about First Call's violations. In response, Mr. Ross assaulted Plaintiff. According to First Call's Human Resources Manager, Nina Mothershed, Mr. Ross struck Plaintiff in the face and grabbed him by the throat. On February 10, 2015, Plaintiff was terminated from his employment with First Call.

         On March 31, 2015, Plaintiff filed a complaint in the Davidson County Circuit Court (the "trial court") against First Call and EDG (together, "Defendants"), alleging violations of the Tennessee Public Protection Act ("TPPA") and the Tennessee Human Rights Act ("THRA"). As to his TPPA claim, Plaintiff complained that he suffered continuous harassment and retaliation after he notified Defendants of safety violations regarding the ambulance fleets he oversaw. As to his THRA claim, Plaintiff complained that Defendants engaged in and condoned harassment and discriminatory conduct such that it created a hostile work environment. On May 7, 2015, EDG moved to dismiss Plaintiff's complaint, which the trial court denied on June 26, 2015.

         On December 13, 2017, Defendants together moved for summary judgment as to both claims for relief. As to Plaintiff's THRA claim, Defendants argued that Plaintiff could not establish a hostile work environment existed because he made jokes about his race himself. Moreover, Defendants argued that it is undisputed that Plaintiff failed to report any alleged harassment or discriminatory conduct, despite the existence of clear reporting policies. As to Plaintiff's TPPA claim, Defendants argued that Plaintiff could not show that he engaged in any protected activity and that, even if he could, he could not establish an exclusive causal connection between any alleged protected activity and his termination. In support of this argument, Defendants argued that they had multiple legitimate and non-retaliatory reasons for terminating Plaintiff. Defendants further averred that an independent consulting firm that they had retained had notified them in a report (the "Solstice Report") of a variety of issues concerning Plaintiff's performance as fleet manager for First Call. Lastly, EDG argued that it was entitled to summary judgment on the additional basis that it was not Plaintiff's employer-which is a necessary precondition to liability under the THRA and TPPA.

         In his response to the Defendants' motion for summary judgment, Plaintiff argued that he was an employee of both First Call and EDG and that he had made numerous complaints to management about ambulance units being operated in violation of state regulations. Additionally, Plaintiff argued that the Solstice Report on which Defendants relied for his termination was misleading and not worthy of belief. Nevertheless, on February 16, 2018, the trial court granted Defendants' motion for summary judgment. In its order, the trial court found that Plaintiff failed to establish that EDG was either a joint employer or single employer with First Call. As to Plaintiff's THRA claim, the trial court found that the evidence of harassment and discriminatory conduct offered by Plaintiff occurred over a period of 4 years and was, therefore, insufficient to establish a hostile work environment. As to Plaintiff's TPPA claim, the trial court found that Plaintiff failed to present evidence raising a genuine issue of material fact regarding First Call's reliance on the Solstice Report in reaching its decision to terminate Plaintiff. Plaintiff timely appealed on June 21, 2018. Plaintiff, however, did not pursue his claims against EDG on appeal.

         Issue Presented

         As we perceive it, Plaintiff raises one issue on appeal: whether the trial court erred in granting Defendants' motion ...


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