Davis v. Vanderbilt Univ. Med. Ctr.

JEFFREY CLAY DAVIS v. VANDERBILT UNIVERSITY MEDICAL CENTER

No. M2019-01860-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

June 3, 2020 Session

August 5, 2020

Appeal from the Chancery Court for Davidson County

No. 19-0067-II

Anne C. Martin, Chancellor

A medical center employee sued the medical center under the Tennessee Public Protection Act ("the TPPA") asserting that his employment was terminated because he refused to remain silent about the medical center's failure to enact policies to safeguard its employees from workplace violence. The medical center moved to dismiss the employee's complaint for failure to state a claim, and the trial court granted the motion. We conclude that the employee's complaint satisfies the TPPA's "illegal act" requirement because it alleges the violation of the Occupational Safety and Health Act's general duty clause and describes activities that implicate important public policy concerns. Therefore, we reverse the trial court's dismissal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

Bob Lynch, Jr., and Nancy Vincent, Nashville, Tennessee, for the appellant, Jeffrey Clay Davis.

William S. Rutchow and Casey McCluskey Parker, Nashville, Tennessee, for the appellee, Vanderbilt University Medical Center.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Jeffrey Davis was employed as a claims manager for the risk and insurance management division of Vanderbilt University Medical Center ("VUMC"). On January 17, 2019, Mr. Davis filed a complaint against VUMC alleging that his employment was terminated because he refused to remain silent about VUMC's failure to comply with new Occupational Safety and Health Administration ("OSHA") guidelines for preventing workplace violence; he asserted causes of action for common law retaliatory discharge and violation of the TPPA, also known as the whistleblower act. VUMC filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, and Mr. Davis filed a motion to amend his complaint to add allegations that the "illegal activities" referenced in his complaint included violations of the Patient Safety and Quality Improvement Act of 2005 ("PSQIA"), Tenn. Code Ann. §§ 63-1-150 and 68-11-272, as well as assault and battery.

On June 4, 2019, the trial court entered an order of dismissal regarding Mr. Davis's claim for common law retaliatory discharge in response to a notice of voluntary dismissal filed by Mr. Davis. A few days later, the trial court entered an order granting Mr. Davis's unopposed motion to amend his complaint. In his amended complaint, Mr. Davis alleged, in pertinent part, as follows:

8. Vanderbilt is subject to regulation by OSHA and it was the Plaintiff's responsibility to ensure that it complied with all OSHA regulations. On April 2, 2015, OSHA updated its "guidance for protecting healthcare and social services workers from workplace violence" to address what it had determined was a growing crisis in the healthcare industry.

9. As a result of this OSHA update, the Plaintiff began reviewing Vanderbilt's existing workplace policies in order to update them to comply with the new OSHA regulations. [Reference to attached "regulations"].

10. On March 14, 2016, the Plaintiff placed several Vanderbilt officials on notice, including his immediate supervisor, Ms. Sandy Bledsoe (hereinafter "Ms. Bledsoe"), that OSHA was becoming much more strict with respect to workplace violence within high-risk industries, which included healthcare, and instructed them on what needed to be done to comply with these new stricter policies. [Reference to attached email].

11. In the March 14, 2016 email, the Plaintiff informed his superiors of the following:

"Workplace violence falls under OSHA's 'General Duty' clause."

"Healthcare Industry is considered a 'high risk' industry and as such OSHA expects employers in this industry to be more proactive with recordkeeping, prevention and employee training."

"Employers should have a 'trained' employee population on how to prevent workplace violence."

"Employers should adopt the OSHA recommended guidelines on Healthcare worker violence prevention."

"OSHA categorized workplace violence into 4 subgroups. (1. Criminal intent, 2. Patient 3. Coworker 4. Personal)"

"OSHA expects the Healthcare Employer to keep detailed recordkeeping of all workplace violence injuries broken down into the 4 categories mentioned above."

"VU - Has a HR policy that governs Workplace Violence in a University setting."

"VUMC - I do not see a HR policy that addresses Work Place Violence in a Healthcare Setting specially."

[Reference to attached email].

In addition, Plaintiff orally informed Vanderbilt's management that even though it had a policy on workplace violence in a healthcare setting, it did not address OSHA's regulations, rules and guidelines.

12. Plaintiff alleges pursuant to Tenn. R. Civ. P. 8.05 that the public policy for which he refused to participate in or remain silent about is based on OSHA's "General Duty" clause and any and all OSHA and Tennessee Occupational Safety and Health Administration's (hereinafter "TOSHA") regulations and policies concerning workplace violence. Plaintiff further alleges that in determining the existence of "illegal activities" that 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," includes the Patient Safety and Quality Improvement Act of 2005 (Public Law 109-41), T.C.A. § 63-1-150 and § 68-11-272 et seq. (see ¶ 17), and T.C.A. §§ 39-13-101 and 102 - Assault and Battery. (See ¶ 20, [reference to an attached list of assault and batteries on the 8^th floor of Vanderbilt Children's Hospital in 2016-2017]). Plaintiff alleges that in addition to protecting employees from workplace violence as alleged herein, he was also attempting to protect patients and the general public from the violence occurring at the hospital.

(Footnotes omitted). Mr. Davis went on to allege that VUMC terminated his employment "because of his failure to remain silent about the violations/deficiencies and his continued efforts to bring Vanderbilt within compliance of the OSHA Workplace Violence Guidelines."

VUMC filed a motion to dismiss the amended complaint on the basis that the complaint failed to state a claim because Mr. Davis did not engage in protected activity for two reasons: (1) his conduct did not relate to any law or regulation, and (2) his conduct did not further an important public policy interest.

After a hearing on July 12, 2019, the trial court entered an order on July 18, 2019, granting VUMC's motion to dismiss. The court determined that the OSHA guidelines are not mandatory and found that "the failure to employ best practices, or follow OSHA recommendations, does not equate to illegal activity." It further concluded that neither PSQIA nor assault and battery law was relevant to Mr. Davis's allegations. Mr. Davis filed a motion to alter or amend on August 15, 2019, and the trial court denied the motion in an order filed on October 7, 2019.

The sole issue presented in this appeal is whether the trial court erred in granting VUMC's motion to dismiss for failure to state a claim upon which relief may be granted.

STANDARD OF REVIEW

The grant or denial of a motion to dismiss involves a question of law, which we review de novo, without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).

A party that files a motion pursuant to Tenn. R. Civ. P. 12.02(6) asserts that the plaintiff has failed to state a claim upon which relief can be granted. The motion "challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence." Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011); see also Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 710 (Tenn. 2003). A Rule 12.02(6) motion is resolved by examining the complaint alone; if the plaintiff can prove any set of facts in support of the claim, the motion should be denied. Webb, 346 S.W.3d at 426. The party filing the motion "'admits the truth of all the relevant and material allegations contained in the complaint, but . . . asserts that the allegations fail to establish a cause of action.'" Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014) (quoting Webb, 346 S.W.3d at 426) (further citations omitted). When ruling on Rule 12.02(6) motions, courts are to "'construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.'" Id. (quoting Webb, 346 S.W.3d at 426) (further citations omitted).

ANALYSIS

Retaliatory discharge "is an important, but narrow, exception to the employment-at-will doctrine." Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 530 (Tenn. Ct. App. 2006). We must determine whether Mr. Davis's amended complaint states a claim forwhich relief can be granted under the TPPA. To prevail on a claim under the TPPA, a plaintiff must prove the following four elements:

"(1) the plaintiff was an employee of the defendant;

(2) the plaintiff refused to participate in or remain silent about illegal activity;

(3) the defendant employer discharged or terminated the plaintiff's employment; and

(4) the defendant terminated the plaintiff's employment solely for the plaintiff's refusal to participate in or remain silent about the illegal activity."

Webb, 346 S.W.3d at 437 (quoting Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 27 (Tenn. 2011)).

Illegal activity: violation of statute or regulation

The trial court dismissed Mr. Davis's complaint on the ground that the allegations did not relate to or demonstrate illegal activity on the part of VUMC. The TPPA defines "illegal activities" as "activities that are in...