Out of a surprisingly ugly set of circumstances (only some of which I’ve mentioned here), we get an opinion on emotional distress claims that clarifies and progresses the law forward.
In Coleman v. The Humane Society of Memphis and Shelby County, Plaintiff was a veterinarian who was hired by Defendant Humane Society to serve as its new staff veterinarian. Plaintiff had run-ins with Defendant’s executive director about the conditions in which animals were kept at the Humane Society. Plaintiff later discovered that an employee at the Humane Society was illegally euthanizing cats without permission or a license using controlled drugs purchased with Plaintiff’s DEA license.
Plaintiff complained to the executive director and asked that the employee be fired, but the executive director did not terminate the employee. Plaintiff then complained to the Humane Society’s board of directors. Within two months, Plaintiff’s hours, pay, and ultimately her job were cut.
Plaintiff sued for retaliatory discharge and negligent infliction of emotional distress. The trial court denied Defendant’s summary judgment motion as to the retaliatory discharge claim, but granted Defendant summary judgment on the emotional distress claim. Both parties were granted interlocutory appeal of the summary judgment decisions.
Preliminarily, the Court of Appeals found this case was to be judged under the Hannan standard because it was pending before the statutes modifying summary judgment standards were enacted.
Negligent Infliction of Emotional Distress
The key question was whether Plaintiff’s negligent infliction of emotional distress claim was parasitic, or whether it was a standalone claim requiring expert proof.
The Court of Appeals held that a parasitic claim is anyone where the individual claimant has brought another basis for tort liability in the same case. Because Plaintiff also filed a retaliatory discharge claim out of the circumstances that led to her termination, the Court of Appeals found Plaintiff’s claim was parasitic and did not require expert proof.
The court distinguished Flax v. DaimlerChryslter Corp., 272 S.W.3d 521 (Tenn. 2008). In Flax, the plaintiff bringing the emotional distress claim had suffered bodily injuries in the auto accident at issue, but did not sue for those physicial. The plaintiff only filed suit as a wrongful death beneficiary, and wrongful death claims are owned by the decedent, not the beneficiaries. Because the Flax plaintiff had not brought suit with a basis for tort liability to that plaintiff other than the wrongful death claim, it was parasitic.
The Court of Appeals also held that a negligent infliction of emotional distress claim can be parasitic of an intentional tort. Defendant contended that Plaintiff’s negligent infliction of emotional distress claim could not be parasitic of the retaliatory discharge claim because retaliatory discharge is an intentional tort. The Court of Appeals rejected that argument outright.
Finding Plaintiff did not need expert proof, the court reversed summary judgment for Defendant on the negligent infliction of emotional distress claim.
The Court of Appeals began by noting Plaintiff was bringing three types of retaliatory discharge claims, all with unique elements and considerations: (1) common law retaliatory discharge for an employee’s refusal to participate in illegal activities; (2) common law retaliatory discharge for an employee’s reporting of illegal activities; and (3) statutory “whistleblower act” retaliatory discharge for an employee’s reporting of illegal activities.
Retaliatory Discharge – Employee’s Subjective Intent
The Court of Appeals held that an employee’s subjective intent in refusing to participate in illegal activities is irrelevant to that type of claim. An employee who refuses to go along with illegal activity merely to avoid prosecution of the employee herself is entitled to bring a retaliatory discharge claim.
With the common law and statutory claims for reporting illegal activity, however, subjective intent is relevant. The Court of Appeals held that the employee’s motivation for making the report must not be solely in the employee’s self-interest, but must be at least partly for concerns about the public good.
Retaliatory Discharge – Reporting to Outside Agency
The Court of Appeals held that an employee does not have to report illegal activity to anyone outside the company in order to qualify for a retaliatory discharge claim, but must report the illegal activity to someone other than the person(s) engaging in the illegal activity. In this case, Plaintiff complained to the executive director and the board of directors about the other Humane Society employee illegally using drugs to euthanize animals. Plaintiff did not, however, report the activity to anyone outside the Humane Society. The Court of Appeals held that Plaintiff’s report to Humane Society directors was sufficient for common law retaliatory discharge for reporting of illegal activities, as well as statutory “whistleblower act” retaliatory discharge for reporting of illegal activities.
Retaliatory Discharge – Plaintiff’s Duty to Oversee the Activities at Issue
Defendant contended that Plaintiff should not be able to recover because Plaintiff was Defendant’s staff veterinarian, and was legally required to oversee all of the purchasing and dispensing of controlled substances. The Court of Appeals rejected Defendant’s argument that an employee who has supervisory authority over an area can bring a retaliatory discharge claim if the employer continues to engage in the activity despite the employee’s protests.
Click on the link to read more about the law of negligent infliction of emotional distress in Tennessee.