IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE _______________________________________________
JUDY PEWITT,
Plaintiff-Appellant, Williamson Circuit #93145 Vs. C.A. No. 01A01-9501-CV-00025
LILLIE BUFORD, A. CLIFF FRENSLEY and WILLIAMSON FILED COUNTY, TENNESSEE, October 20, 1995 Defendants-Appellees. _________________________________________________________________________ Cecil Crowson, Jr. Appellate Court Clerk
FROM THE WILLIAMSON COUNTY CIRCUIT COURT
THE HONORABLE HENRY DENMARK BELL, JUDGE
James G. Stranch and Jane B. Stranch of Branstetter, Kilgore, Stranch & Jennings of Nashville For Plaintiff-Appellant
Paul L. Sprader of Manier, Herod, Hollabaugh & Smith of Nashville For Defendant-Appellee, Buford
Thomas M. Donnell, Jr. and Alan T. Fister of Stewart, Estes & donnell of Nashville for Defendants-Appellees, Frensley and Williamson County
REVERSED IN PART, AFFIRMED IN PART AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, JUDGE
CONCUR:
ALAN E. HIGHERS, JUDGE DAVID R. FARMER, JUDGE This appeal involves a suit primarily based on the Public Employee Political
Freedom Act of 1980, T.C.A. §§ 8-50-601 - 8-50-604 (1993) (hereinafter PEPFA).
Plaintiff, Judy Pewitt, appeals from the circuit court's summary judgment order
dismissing Pewitt's PEPFA and retaliatory discharge claims against defendants,
Lillie Buford, Cliff Frensley, and Williamson County.
THE FACTS
In October of 1986, Pewitt was hired to fill a part-time position at the
Williamson County Trustee's Office. In 1987, she became a full-time employee.
Lillie Buford, the County Trustee, ran the office and was Pewitt's supervisor.
Buford's husband owned a sole proprietorship known as Buford Trucking.
While working in the trustee's office, Pewitt noticed that Buford used the trustee's
office and its employees to perform various services for Buford Trucking. Pewitt
believed that this improper use of county employees interfered with the work of
the trustee's office, and that Buford was abusing her position as trustee. Pewitt
contacted Clyde Lynch, a county commissioner,1 and told him what was
happening at the trustee's office.
Believing that Pewitt's complaints were significant, Lynch arranged a
meeting with Rick Buerger, the County Attorney, and Bob Ring, the County
Executive, to discuss Pewitt's allegations. Lynch then contacted Joe Baugh, the
District Attorney for Williamson County, and they decided to arrange a meeting
with the Tennessee Bureau of Investigation (TBI). Lynch explained Pewitt's
allegations to the TBI, and thereafter a TBI agent called Pewitt.
In her meeting with the TBI agent, Pewitt indicated that Buford Trucking
timecards were delivered to the trustee's office every Thursday. She stated that
1 County commissioner is an elective office in Williamson County.
2 the trustee's office employees would then fill out these cards and prepare the
payroll for the trucking company. In May of 1991, the TBI raided the trustee's
office and confiscated payroll records and timecards of Buford Trucking from
the trustee's office.
Immediately following the raid, Buford continued as trustee, and Pewitt
became concerned that Buford would somehow discover her identity as the
informant. Melissa Tidwell, a secretary at Buford Trucking, stated in her affidavit
that she had heard Buford speculate that Pewitt was the informant. Tidwell also
stated in her affidavit that Buford indicated that she would fire Pewitt if she
learned that Pewitt had in fact been the informant.
Pewitt's concern increased due to her belief that Buford suspected the
informant to be someone within the trustee's office. Pewitt became convinced
that Buford discovered her role in the raid sometime in the middle of 1991 when
a TBI agent contacted Pewitt on Pewitt's unlisted, private line at the trustee's
office. Pewitt alleged that from this point on, Buford began to discriminate
against her. She alleged that Buford excluded her from various tasks, that
Buford excluded her from social conversations, and that Buford began to record
her absences (although Buford did not record the absences of other
employees). Pewitt further claims that as a result of stress and fear, she began
experiencing problems with her eyes, and she was forced to take a leave of
absence.
After medical treatment and a period away from work, Pewitt's condition
improved to the point that she was ready to return to work. Pewitt contacted
Buford and indicated her desire to return, to which Buford allegedly replied, "I
haven't fired you yet." When Pewitt returned, she discovered that her desk had
been moved to a room which had previously contained only the copying
3 machine. Pewitt was upset because she was the sole occupant of the room,
her files had not been moved into the room, and she could not find some of her
personal items which she allegedly left behind. Pewitt was further upset by the
fact that Buford had assigned some of her duties to other employees. Pewitt,
believing that the situation was untenable, immediately resigned. However,
Pewitt told various Williamson County Officials that she wanted her job back
when the investigation of the trustee's office was concluded.
Buford was indicted by the Williamson County Grand Jury for her misuse
of the trustee's office, and she ultimately agreed to resign as trustee. While
Buford was negotiating her resignation, Frensley, a candidate for trustee,
contacted Commissioner Lynch to seek his support. Lynch asked Frensley if he
would give Pewitt her job back if he were appointed, and Frensley indicated
that he would not. After Frensley was appointed trustee, Lynch and Pewitt met
with him in an attempt to get Pewitt rehired. At the meeting, Frensley indicated
that there were no openings in the office, and that he would not hire Pewitt in
any event. Frensley indicated that Pewitt had a reputation as a troublemaker,
and that the other women in the trustee's office did not want to work with her.
Pewitt then filed suit against Buford, Frensley, and Williamson County,
alleging retaliatory discharge and violation of the Public Employee Political
Freedom Act of 1980 (PEPFA), T.C.A. §§ 8-50-601 - 8-50-604 (1993). The various
defendants answered the allegations, and, following extensive discovery, filed
motions for summary judgment. The trial court granted summary judgment as
to all defendants, and this appeal ensued. The issue for review is whether the
trial court erred in granting the defendants' motions for summary judgment.
A trial court should grant a motion for summary judgment only if the movant
demonstrates that there are no genuine issues of material fact and that the
4 moving party is entitled to judgment as a matter of law. Tenn.R.Civ.P. 56.03; Byrd
v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80
(Tenn. App. 1992). The party moving for summary judgment bears the burden
of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d
at 210. When a motion for summary judgment is made, the court must consider
the motion in the same manner as a motion for directed verdict made at the
close of the plaintiff's proof; that is, "the court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence." Id. at
210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. [citations omitted]. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211. (emphasis in original).
The summary judgment process should only be used as a means of
concluding a case when there are no genuine issues of material fact, and the
case can be resolved on the legal issues alone. Id. at 210 (citing Bellamy v.
Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary judgment is not
to be used as a substitute for a trial of genuine and material factual issues. Byrd,
847 S.W.2d at 210 (citing Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61
(Tenn. 1987)). Where a genuine dispute exists as to any material fact or as to the
conclusions to be drawn from those facts, a court must deny a motion for
summary judgment. Byrd, 847 S.W.2d at 211 (citing Dunn, 833 S.W.2d at 80).
5 The Public Employee Political Freedom Act of 1980, as codified, provides:
T.C.A. 8-50-601. Short title. - This part shall be known and may be cited as the "Public Employee Political Freedom Act of 1980."
T.C.A. 8-50-602. Public Employee's communication with elected public officials. -- (a) No public employee shall be prohibited from communicating with an elected public official for any job-related purpose whatsoever. (b) For purposes of this part, "public employee" means any person providing services for the state of Tennessee, state agencies, counties, municipalities, or subdivisions of such governmental bodies in Tennessee for which compensation is paid.
8-50-603. Discipline or discrimination for communication prohibited -- Damages. -- (a) It is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee's right to communicate with an elected public official.
(b) If the court of competent jurisdiction determines that a public employer has disciplined, threatened to discipline or otherwise discriminated against an employee because such employee exercised the rights provided by this part, such employee shall be entitled to treble damages plus reasonable attorney fees.
8-50-604. Construction. - No provision of this part shall be construed to prohibit an employer from correcting or reprimanding an employee for making untrue allegations concerning any job-related matter to an elected public official.
The appellees argue that PEPFA does not apply to the case sub judice,
because the elements of the statute are not met. The first issue to be addressed
is the question of who is the "public employer" under the statute. The issue was
not raised by the appellees, but rather by the trial court. In its summary
judgment order, the trial court did not specifically state which of the defendant-
appellees constituted the public employer for purposes of PEPFA, however, the
court did state that Williamson County is not a "public employer" under the Act.
6 The court stated:
Under the . . . Act . . . by implication a "public employer" is the person who has the authority to hire, discharge, and determine the conditions of employment with respect to a "public employee." The apparent purpose of the statute is to punish the individual who violates the act by making such individual liable to the employee for treble damages and attorney fees. There is nothing in the statute to suggest that the county has vicarious liability for a violation by the County Trustee . . . .
We must respectfully disagree with the trial court.
We find no support in the statute for the conclusions of the trial court that
Williamson County is not a public employer, or that the purpose of the Act is to
punish the "individual who violates the act" rather than the "public employer."
Though T.C.A. § 8-50-602(b) does not specifically define who is a "public
employer," it does specifically define who is a "public employee" under the Act.
A public employee is defined as "any person providing services for the State of
Tennessee, state agencies, counties, municipalities, or subdivisions of such
governmental bodies in Tennessee for which compensation is paid." T.C.A. § 8-
50-602(b)(1993) (emphasis supplied). Thus, any person who provides services to
the employers listed in § 8-50-602(b) is a "public employee."
To be a "public employee," one must be the servant of a "public employer."2
Since one who provides services for compensation to the employers listed in §
8-50-602(b) is a public employee, it logically follows that the employers to whom
those services are provided, are "public employer[s]." Thus, we conclude that
2 It is difficult to conceive of an employment relationship in which an employee would be a public employee not employed by a public employer, and none of the appellees have presented this Court a situation in which such a relationship would or could exist.
7 Williamson County is a "public employer" for purposes of PEPFA.3 Because Pewitt
was a county employee, Williamson County must necessarily be her "public
employer."
We must also respectfully disagree with the trial court's conclusion that
"the apparent purpose of the act is to punish the individual who violates the
act." This conclusion is contrary to the rules of statutory construction.
The rule of statutory construction to which all others must yield is that the
intention of the legislature must prevail. Plough, Inc. v. Premier Pneumatics, Inc.,
660 S.W.2d 495, 498 (Tenn. App. 1983); City of Humboldt v. Morris, 579 S.W.2d 860,
863 (Tenn. App. 1978). "[L}egislative intent or purpose is to be ascertained
primarily from the natural and ordinary meaning of the language used, when
read in the context of the entire statute, without any forced or subtle
construction to limit or extend the import of the language." Worrall v. Kroger Co.,
545 S.W.2d 736, 738 (Tenn. 1977). The Court has a duty to construe a statute so
that no part will be inoperative, superfluous, void or insignificant. The Court must
give effect to every word, phrase, clause, and sentence of the Act in order to
achieve the Legislature's intent, and it must construe a statute so that no section
will destroy another. City of Caryville v. Campbell County, 660 S.W.2d 510, 512
(Tenn. App. 1983); Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn. 1975).
It seems apparent from the Act's language that the Legislature is
3 This conclusion is consistent with other provisions of Tennessee Code Annotated, Title 8 which concerns (and is thus entitled) "Public Officers and Employees." T.C.A. § 8-50-1101(4) defines a "public employer" as "[t]he state of Tennessee . . . [a] county, city, town, municipality or any other political subdivision of the state . . . ." T.C.A. § 8-50-1101(4)(1993) (emphasis supplied). T.C.A. § 8-33-101 similarly defines a public employer as "any government, department, or agency . . . of this state, or of any county, municipality or other civil or political subdivision thereof, including any department or agency thereof." T.C.A. § 8-33-101(4), (5) (emphasis supplied).
8 attempting to insure free and uninhibited communication between persons
employed in government and their respective elected officials. Obviously, the
Legislature recognized that such communication can inure to the public good
and assist in operating economical and efficient public offices. The Act seeks
to prevent public employers from disciplining or otherwise discriminating against
public employees for communicating with elected public officials. In PEPFA, the
Legislature imposes liability upon the "public employer" rather than the individual
who "discipline[s], threaten[s] to discipline or . . . discriminate[s] . . . ." T.C.A. §§
8-50-603 (a), (b) (1993). If the Legislature wished to impose liability upon the
individual who actually performs the discriminatory or disciplinary actions, the
Legislature could have easily made a provision therefor. The imposition of
liability upon the "public employer," as opposed to the individual "discriminator,"
is plain, clear, and unambiguous. Thus, we cannot agree with the conclusion
of the trial court that the purpose of the Act is to punish the individual
"discriminator." Rather, we think the purpose of the Act is to facilitate free and
open communication between public employees and elected officials by
deterring the public employer from taking discriminatory actions against an
employee because of such communication.
Our holding that Williamson County (hereinafter County) is the "public
employer" is dispositive of the PEPFA claims against defendants Buford and
Frensley, because they were the agents of County rather than Pewitt's employer,
and the Act imposes liability only upon the "public employer." Summary
judgment on Pewitt's PEPFA claim was properly granted to defendants Frensley
and Buford.
With respect to Pewitt's PEPFA claim against defendant Buford, the trial court
held that summary judgment was appropriate, because Pewitt was unable to
9 show that Buford had knowledge of Pewitt's communication with Commissioner
Lynch prior to the termination of Pewitt's employment. Because we find that
Williamson County rather than Mrs. Buford is the "public employer," it is
unnecessary to address this argument with respect to Mrs. Buford. However,
since the issue is dispositive of whether the "causal element" of PEPFA has been
met for purposes of the action against Williamson County,4 we will address the
issue with respect to Williamson County.
Appellee Buford asserts that she never knew of Pewitt's communication with
Clyde Lynch until after Pewitt quit her job at the trustee's office. Therefore, any
of Buford's actions which were directed at Pewitt, whether discriminatory or
otherwise, could not have been "because" Pewitt communicated with an
elected official.
Obviously, the word "because" in T.C.A. § 8-50-603(b) requires that the
discriminatory actions of the public employer must have resulted from the
employee's communication with an elected official. County asserts, and it
appears undisputed in the record, that Mrs. Buford had no actual knowledge
that Mrs. Pewitt had communicated with Commissioner Lynch prior to the time
Pewitt quit her job at the trustee's office.5 County argues that in order for liability
to be established under PEPFA, the employer must have actual knowledge of
the communication with the elected official and act because of that
4 It is necessary because Williamson County is not a natural person and thus can only act through its agents (in this case Lillie Buford). Since the actions of Mrs. Buford constitute the actions of Williamson County, to satisfy the causal element of PEPFA in a suit against Williamson County, it is necessary that plaintiff set forth specific facts which show that Buford acted "because" of Pewitt's communication with Lynch. 5 In support of this proposition, County cites the deposition of Mrs. Pewitt in which she admitted she did not know for certain whether Buford knew of her communication with Lynch or the TBI, but she (Pewitt) believed that Buford knew of the communication.
10 knowledge. We do not believe that the statute requires such a stringent
interpretation. Mrs. Pewitt argues that the alleged discriminatory actions against
her occurred because of Mrs. Buford's belief that Pewitt initiated the TBI
involvement. The record establishes that Commissioner Lynch contacted the TBI
and that Mrs. Pewitt spoke with the TBI at the request and direction of
Commissioner Lynch. Although Mrs. Buford may not have had actual
knowledge that an elected official had been contacted, it is clear that but for
Mrs. Pewitt's communication with Commissioner Lynch, the TBI involvement for
which Mrs. Buford allegedly blamed Mrs. Pewitt, would not have occurred.
Although Mrs. Buford denies that she knew of Mrs. Pewitt's involvement
with the TBI, there is proof in the record from which a trier of fact could find
otherwise. Mrs. Pewitt produced the affidavit of Melissa Tidwell, a secretary at
Buford Trucking, who states that shortly after the TBI raided the trustee's office,
she heard Mrs. Buford say, "If I find out for sure that it was Judy [who leaked the
information], I am going to fire her ass." In her affidavit Mrs. Tidwell states that
Mrs. Buford made this statement to her while she (Tidwell) was at work at Buford
Trucking, and that Mrs. Buford further said, "'Don't you say anything to anybody
about what I said.'" Mrs. Pewitt also produced the deposition of Mrs. Buford in
which Mrs. Buford conceded that after the TBI raid, she may have informed
some employees of the trustee's office that she believed the "informant" to be
an employee of the trustee's office. Buford also admitted in her deposition that
she questioned a TBI agent as to "who had sent them [the TBI] to check the
office." Finally, Mrs. Pewitt produced the deposition testimony of Mrs. Buford in
which Buford admits asking Pewitt how the TBI got Pewitt's phone number to her
private line. Mrs. Buford asked Pewitt the question following a phone call which
the TBI placed on Mrs. Pewitt's private line to Mrs. Buford.
11 Taking the strongest legitimate view of the above facts in favor of Mrs.
Pewitt, and allowing all reasonable inferences in favor of Pewitt, we are of the
opinion that there exists a genuine issue of material fact as to whether Buford's
actions resulted from Pewitt's communication with Lynch.
County next asserts that summary judgment was appropriate, because
Mrs. Pewitt was not "disciplined, threatened with discipline, or otherwise
discriminated against . . ." as required by the statute. We must respectfully
disagree. Pewitt testified that following the TBI raid on the trustee's office, Mrs.
Buford moved her into an office that was not as nice as the previous office,
maintained absentee records on her but not other employees, and
encouraged other employees to avoid Mrs. Pewitt. Mrs. Buford, on the other
hand, states that she kept absentee records on all employees, that Mrs. Pewitt's
new office was as nice as Mrs. Pewitt's previous office, and that the move was
not in any way intended to discipline Mrs. Pewitt. Construing the evidence in
favor of Mrs. Pewitt and allowing all reasonable inferences in favor of her, we
think that reasonable minds could differ as to whether, under the facts of this
case, the actions of Buford constituted discipline or discrimination. These issues
should be resolved by a trier of fact.
Finally, with respect to the elements of PEPFA, County argues that Pewitt's
PEPFA action fails, because Pewitt's communication with Lynch was not for a
"job-related purpose" as required by T.C.A. § 8-50-602(a). We think this argument
is wholly without merit. A communication by an employee of the trustee's office
regarding criminal misconduct occurring at the trustee's office, is certainly for a
"job-related purpose."
County next asserts that even if Pewitt could establish a prima facie case
under PEPFA, County would still not be liable under the Act for a number of
12 reasons. First, County contends that PEPFA is analogous to 42 U.S.C. § 1983 and
argues that caselaw interpreting § 1983 clearly establishes that a county is not
liable on a respondeat superior or vicarious liability basis for the actions of its
agents. While County's interpretation of caselaw construing § 1983 may be
correct, we fail to see what relevance this body of law has to PEPFA which
provides a state law cause of action entirely separate and distinct from § 1983.
Accordingly, County's § 1983 arguments are inapplicable to the case sub
judice. In its brief, County also argues that PEPFA's treble damages provision
is essentially a punitive damages provision, and therefore may not be applied
to County. In support of this proposition, County cites City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748 (1981), in which the United States
Supreme Court stated that punitive damages should not be awarded against
local governments. County argues that, "In common law and civil rights law, it
is well established that punitive damages may not be awarded against local
governments."
County's argument fails to recognize that an action brought pursuant to
PEPFA is neither a common law action nor a federal civil rights action, but rather
a statutory cause of action specifically provided by the Tennessee Legislature.
In our opinion City of Newport is inapplicable as well as distinguishable from the
case at hand. City of Newport is a case decided under 42 U.S.C. § 1983, a
federal civil rights statute which makes no mention of punitive damages. See
42 U.S.C. § 1983 (1994). PEPFA, on the other hand, is a state statute which, under
a very narrow set of circumstances, specifically authorizes an award of treble
damages against a local government.6
6 This conclusion is supported by City of Newport in which the Court, in a footnote, stated, "The general rule today is that no punitive damages are allowed [against a local government] unless expressly authorized by statute."
13 Finally County argues that even if Appellee Buford did discriminate or
discipline Mrs. Pewitt for her communication with Lynch, such discrimination
would constitute a willful act of misconduct beyond the scope of Buford's
authority as trustee; therefore, § 29-20-310(a) of the Tennessee Governmental
Tort Liability Act (TGTLA) prevents the imposition of liability against County. In our
opinion, this argument is without merit, because it is contrary to well established
principles of statutory interpretation as well as the purpose of PEPFA.
TGTLA section 29-20-310(a) provides:
Determinations to be made by court - Restrictions on claims against employees . . . (a) The court, before holding a governmental entity liable for damages, must first determine that the employee's or employees' act or acts were negligent and the proximate cause of plaintiff's injury, that the employee or employees acted within the scope of their employment and that none of the exceptions listed in § 29-20-205 are applicable to the facts before the court.
T.C.A. § 29-20-310 (a) (Supp. 1994). PEPFA can impose liability upon a local
government for the willful or intentional misconduct of the government's agents,
while T.C.A. § 29-20-310 (a) requires negligent acts of an employer within the
scope of employment to impose liability upon the governmental entity. See
Jenkins v. Loudon County, 736 S.W.2d 603, 608 (Tenn. 1987). Despite County's
arguments to the contary, we do not think § 29-20-310 (a) either conflicts with
PEPFA or operates to bar a PEPFA cause of action against a local government.
By enacting PEPFA and § 29-20-310(a), the Legislature merely removed
sovereign immunity under two separate circumstances. We think both statutory
provisions are valid, and that each can be applied without conflicting with the
453 U.S. at 261,101 S.Ct. at 2756, n. 21.
14 other.7
This conclusion is supported by T.C.A. § 1-3-103 (1994) which states, "If
provisions of different titles or chapters of the Code appear to contravene each
other, the provisions of each title or chapter shall prevail as to all matters and
questions growing out of the subject matter of that title or chapter."
T.C.A. § 1-3-103 guides the courts of this state to resolve conflicts among Code
provisions so that "each provision prevails as to subjects within the special
purview of the relevant chapter or title." Neff v. Cherokee Ins. Co., 704 S.W.2d
1, 3 (Tenn. 1986). We think, the facts of this case are within the "special purview"
of PEPFA rather than encompassed by the more general provisions of The
Tennessee Governmental Tort Liability Act.
To hold that § 29-20-310(a) of the TGTLA bars the PEPFA suit against County
because the alleged discrimination by Buford was willful or intentional would not
only run counter to rules of statutory construction, but would also nullify the
protection afforded to public employees by PEPFA. If a public employer could
escape liability under the Act simply because the actions of the employer (or
the employer's agent) were willful or intentional, then the protection as well as
7 It should be noted that even if we did perceive an "irreconcilable conflict" between the TGTLA and PEPFA, the TGTLA would still not bar the plaintiff's PEPFA action, because under the doctrine of implied repeal the more specific provisions of PEPFA, which impose liability upon a county (as a "public employer") in a very narrow set of circumstances, would prevail over the more general immunity provisions of the TGTLA. As our Supreme Court stated in State Dep't of Revenue v. Moore, 722 S.W.2d 367 (Tenn. 1986):
The rule may be stated that where two acts conflict and cannot be reconciled, . . . a "special statute or a special provision of a particular statute controls a general provision in another statute or general provision in the same statute."
Id. at 374 (quoting Strader v. United Family Life Ins. Co., 218 Tenn. 411,417, 403 S.W.2d 765,768 (Tenn. 1966)).
15 the cause of action afforded a public employee by PEPFA, would be nullified.
If a public employer subjects an employee to discipline or discrimination
because of an employee's communication with an elected public official, then
such discipline or discrimination will always be intentional or willful.8 Therefore,
barring a PEPFA action on the ground that the underlying conduct on which the
action is based was willful or intentional, would effectively "gut" PEPFA. We think
such a result would be clearly at odds with the intention of the Legislature in
enacting PEPFA.
In addition to bringing a PEPFA action against the defendants, Pewitt
brought a retaliatory discharge action. Since Pewitt was not fired but rather
voluntarily quit her job at the trustee's office, she argues that Buford's actions
toward her constituted a constructive discharge, and that such discharge was
in retaliation for Pewitt's communication with Lynch. The case of Montgomery
vs. Mayor of City of Covington, 778 S.W.2d 444 (Tenn. App. 1988), is dispositive of
Pewitt's retaliatory discharge action against County. In Montgomery, this Court
was presented with the question of whether the TGTLA barred a retaliatory
discharge action against the City of Covington. We answered this question in
the affirmative stating,
An action for retaliatory discharge is by its very nature an action based on the intent of the employer to discharge the employee . . . . Therefore this would not be a negligent act or omission and immunity [under the TGTLA] would not be removed at all. Thus the city enjoys complete immunity from this action.
Id. at 445. Applying Montgomery to the case sub judice, we conclude that the
TGTLA provides County with complete immunity from Pewitt's retaliatory
8 It is difficult to conceive of a situation in which an employer could negligently, (recklessly, etc.) discriminate against an employee because of an employee's communication with a publicly elected official.
16 discharge action. Thus, the trial court properly granted County's motion for
summary judgment on the retaliatory discharge claim.
The trial court's grant of summary judgment to Appellees Buford and Frensley
on the retaliatory discharge action was also proper. Although the TGTLA
generally does not bar an action against a government employee who acts
willfully or intentionally (and therefore outside of the employee's scope of
authority), for an action to lie against the employee personally, the employee
must obviously be sued personally. Since Pewitt's retaliatory discharge action
against Frensley and Buford is brought against them in their capacities as
trustees for Williamson County rather than as individuals, the trial court's grant of
summary judgment to Buford and Frensley on the retaliatory discharge claim
was proper.9
Finally, the County asserts that Pewitt's claim for statutory damages
pursuant to PEPFA is barred by the one year statute of limitations in T.C.A. § 28-3-
104 (4) (1994). County argues that since this action was commenced on March
5, 1993, any discriminatory actions which occurred prior to March 5, 1992, would
be barred. County cites no authority nor makes an argument concerning this
assertion, and we consider it waived. State ex rel. Dep't of Transp. v. Harvey, 680
S.W.2d 792, 795 (Tenn. App. 1984); T.R.A.P. 27 (a) (7). In any event, we think the
best reasoning in this case is that the alleged discrimination against Mrs. Pewitt
was a continuing series of events that merely culminated on March 9, 1992,
when Mrs. Pewitt quit her job. Therefore, since at least some of the
discriminatory actions occurred within the limitations period, all of the
9 In addition, with respect to Appellee Frensley, Frensley took over the office of county trustee after Pewitt quit her job at the trustee's office, and Pewitt never returned to work for, or under Frensley. Therefore, Frensley never, retaliatorily or otherwise, discharged Pewitt.
17 discriminatory actions are actionable under PEPFA. See Haithcock v. Frank, 958
F.2d 671, 677 (6th Cir. 1992) ("[W]here there is an ongoing, continuous series of
discriminatory acts, they may be challenged in their entirety as long as one of
those discriminatory acts falls within the limitations period.").
Accordingly, the order of the trial court granting summary judgment to
Williamson County on Pewitt's PEPFA claim is reversed, and the case is
remanded for trial on that claim. The order of the trial court in all other respects
is affirmed. Costs of the appeal are assessed against appellee, Williamson
County.
____________________________________ W. FRANK CRAWFORD, JUDGE
_________________________________ ALAN E. HIGHERS, JUDGE
________________________________ DAVID R. FARMER, JUDGE