THE LAW AT WORK: Blowing the Whistle on Yourself

When Protected Activity Provides a Legitimate, Nondiscriminatory Reason for Termination

In Johnny Cash’s “Folsom Prison Blues,” between the twang of the guitar and the upbeat tempo, the second verse famously ends with the song’s prison-stranded narrator lamenting, “When I hear that whistle blowin’, I hang my head and cry.”[1] No doubt, this was the reaction former Union City Police Officer Michael Hogg had after three of his fellow officers allegedly “blew the whistle” on his insurance fraud scheme. There is no dispute that these officers were terminated shortly after “blowing the whistle.” However, their claims under the Tennessee Public Protection Act,[2] also known as the Whistleblower Act,[3] did not survive summary judgment because they waited too long to report Hogg’s scheme — they sat on this information for a period of time and the delay ultimately provided their employer with a legitimate, nondiscriminatory reason for their termination.

In Jones et al. v. City of Union City, the scene opens with Officer Hogg making it well-known to his co-workers that he had a four-wheeler that he could no longer afford, and he either wanted someone to buy it or steal it (so he could collect the insurance proceeds) — he did not care which.[4] When fellow officer Randy O’Dell told Hogg that he could not afford the four-wheeler, Officer Hogg responded that he could just take it home and have it. Officer Hogg then told O’Dell that he wished someone would steal it so that he could turn it in to his insurance.

The second officer, David Jones, also told Hogg that he could not afford the four-wheeler. Officer Hogg told Jones to just “come take it” and he would claim it on his insurance.[5] The third officer, Ashley Thompson Merrell, also learned that Hogg had been “trying to get rid of the four-wheeler for about a year” before he reported it stolen.[6]

Months later, on August 7, 2010, Hogg reported to the Obion County Sheriff’s Department that his four-wheeler had mysteriously been “stolen.”[7] All three of Officer Hogg’s coworkers — O’Dell, Jones and Merrell — discussed how it seemed “a little fishy” that Officer Hogg wanted to get rid of the four-wheeler and its payment obligation, and then he reported it stolen.[8] However, none of them informed the Union City chief of police, the Obion County Sheriff’s Department, or the district attorney’s office about Hogg’s previous “fishy” comments.[9]

A little more than a year later, the police department held a week-long in-service, where the chief of police announced a change to 12-hour shifts for the officers. Tensions arose and many officers opposed the change. Officer Hogg, however, supported the shift change, and openly antagonized the officers who opposed it, including Merrell and O’Dell.[10]

About this time, the three officers decided to report Officer Hogg and their suspicion that he may have filed a false report to commit insurance fraud. Merrell contacted her shift supervisor about Hogg, and he advised her that he did not have a problem with her contacting the authorities.[11] Merrell then contacted an agent with the Tennessee Bureau of Investigation (TBI), who in turn, advised her, Jones and O’Dell to meet with the district attorney the following morning. None of the three officers, however, appeared at the appointed time.[12]

Eventually, TBI agents interviewed the three officers, as well as Officer Hogg and other members of the Union City Police Department. Officer Hogg ultimately confessed to the crime whereupon he was terminated and criminally prosecuted.[13]

Hogg’s employment was not the only casualty related to the “stolen” four-wheeler — the three officers were terminated for failing to come forward in a timely fashion. Union City took the position that their delay in reporting Hogg’s comment violated important public trust and compromised their integrity as officers.[14] O’Dell, Jones and Merrell filed a lawsuit against the city for violation of the TPPA. As a reminder, the TPPA provides that “[n]o employee shall be discharged or terminated solely for refusing to participate in, or remain silent about, illegal activities.”[15] The plaintiffs specifically alleged that they “refused to remain silent’ about Hogg’s illegal activity and that the city was angered that plaintiffs would not conceal the crimes of a fellow officer” and that “the city terminated them solely for reporting the illegal conduct of Hogg.”[16]

The trial court granted the city’s motion for summary judgment based on evidence that the officers were discharged for at least one legitimate, non-pretextual reason — that they “had access to information or gut feelings that Hogg may have been involved in criminal activity, which they withheld for more than a year, in violation of departmental policy and ethical standards.”[17]

The officers raised several issues on appeal, pertinent ones being: (1) that the city had admitted causation, (2) that other officers who violated the same reporting policy were not terminated, thereby establishing pretext, and (3) that the city’s reporting policies had a “chilling effect” on reporting illegal activities.[18]

On the first issue, the officers argued that city officials had testified that they would not have been terminated had they “not come forward,” and this established causation.[19 ]The court of appeals reasoned that does not “suggest or establish that the City terminated Plaintiffs’ employment solely for their refusal to remain silent about illegal activity.”[20] Importantly here, the plaintiffs blew the whistle at the same time that they admitted that they had been withholding the information on Hogg for well over a year — their reporting also provided the cty with a legitimate, nondiscriminatory reason for their termination.

The officers next argued that they established pretext by showing the city did not fire other police officers who violated the same policies.[21] Specifically, the officers argued that two other officers knew about Hogg’s comments, failed to report them, but yet were not terminated. The court of appeals explained that these employees did not violate the same policies because they did not learn of Hogg’s comments until “at or near the time the plaintiffs reported such to the city” — thus, these comparators did not delay in reporting the information like the plaintiffs did.[22]

Finally, the officers argued that the city’s reporting policies had a “chilling effect” on reporting illegal activities.[23] The court of appeals disagreed, holding the city’s written policy required officers having knowledge of other members who violated laws to report such violations in writing to the chief of police through official channels. The policy did not discourage employees from reporting illegal conduct but, rather, encouraged and even mandated reporting.[24]

This case presents a unique situation where the protected activity tipped the employer off to a serious policy violation: when the officers blew the whistle, they also admitted to withholding information, in violation of departmental policy, for over a year. Here, Union City was able to establish that the plaintiffs’ delay in reporting the information on Officer Hogg, not the actual report itself, was a factor in their terminations, thus, guaranteeing summary dismissal.

The ultimate takeaway? Potential whistleblowers must follow internal reporting requirements — not delay or sit on the information — or they may have a reason to “hang [their] head and cry.”[25]

Notes

  1. Johnny Cash, “Folsom Prison Blues,” With His Hot and Blue Guitar (Sun Records, 1955).
  2. Tenn. Code. Ann. §50-1-304.
  3. Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn. 2015).
  4. 2015 Tenn. App. LEXIS 972, **2-3 (Tenn. Ct. App. Dec. 17, 2015).
  5. Id. at *3.
  6. Id.
  7. Id. at *1.
  8. Id. at *4.
  9. Id.
  10. Id. at *5.
  11. Id.
  12. Id. at *6.
  13. Id. at *7.
  14. Id. at *11.
  15. Tenn. Code Ann. § 50-1-304.
  16. Id. at *12.
  17. Id. at *23.
  18. Id. at *25-40.
  19. Id. at *27.
  20. Id.
  21. Id. at 30.
  22. Id. at *32.
  23. Id. at *40.
  24. Id. at *41.
  25. Cash, supra.

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.

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