Fleming v. Xerox Connect, Inc.
Opinion of the Court
In this diversity action brought under Tennessee common law, the plaintiff contends that he was fired in retaliation for his refusal to remain silent about what he now describes as defendant Xerox Connect Inc.’s criminal extortion of its client, Columbia Physician Services, for money payment over and above an agreed contract price, in violation of TenmCode Ann. § 39-14-112,
Recent decisions of the Tennessee Supreme Court have clarified somewhat the contours of the so-called common-law “whistleblower” exception to the at-will employment doctrine. At oral argument, counsel for the plaintiff emphasized the court’s recent statement in Guy v. Mutual of Omaha Insurance Co. that the court’s inquiry “is not limited to whether a particular law or regulation has been violated [, but rather] focuses on whether some important public policy interest embodied in the law has been furthered by the whistle-blowing activity.” 79 S.W.3d 528, 538 (Tenn. 2002) (internal quotations omitted). By calling our attention to the above-quoted language, the plaintiff seems to suggest that, to survive summary judgment, he need not demonstrate that Xerox Connect in fact violated the statutes. Rather, he need only demonstrate that, by objecting to coworkers and his supervisor about what he believed were improprieties relating to a computer system shutdown, the plaintiff has advanced an important public policy interest. In our view, however, the plaintiff misconstrues Guy.
Under the whistleblower variant of the public policy exception, employees are protected from discharge in retaliation for speaking out about illegal activities if such conduct furthers an important public policy interest embodied in the law. See id. In Guy, the plaintiff whistleblower did not claim that the employer violated the law. Rather, the court was faced with an insurance agent who had been discharged by his employer after he reported the unlaw
Unlike the plaintiff in Guy, however, the plaintiff here contends that his own employer violated two specific criminal statutes. He does not attempt to locate the source of the public policy at issue outside his employer’s alleged statutory violations. Therefore, the public policy basis for his claim for retaliatory discharge rests squarely on the alleged statutory violations and his decision to speak out in opposition to them. Accordingly, whether Xerox’s actions could reasonably be viewed as clearly constituting either offense remains the key to whether the public policy element of the tort of retaliatory discharge has been satisfied. See Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988) (holding that the plaintiff must show “a clear violation of some well-defined and established public policy”).
Viewing all the evidence presented in the light most favorable to the plaintiff, the plaintiff has not demonstrated that Xerox violated Tennessee’s extortion and computer fraud statutes. At the very most, the facts demonstrate nothing more than that Xerox was a party to a fixed-price contract to implement a certain software program for Columbia, but before the project was completed, Xerox cut off Columbia’s access to the software program because unauthorized persons at Columbia had accessed the software code and broken it. Although Xerox was under a fixed-price contract to implement the software program, the plaintiff himself believed that Columbia should pay an additional amount for the needed repairs. In short, the evidence shows that even the plaintiff believed that Xerox had a legitimate business dispute regarding responsibility for the
In sum, we agree with the district court that no reasonable factfinder could find that Xerox was clearly engaged in illegal conduct that jeopardized the public good. As a result, the plaintiffs “refusal to remain silent” about a possible breach of contract could not have furthered the kind of important public policy interest contemplated by the whistleblower exception to the employment-at-will doctrine. On this ground alone, summary judgment in favor of the employer is appropriate. As a result, we need not detail and address all of the “he-said-she-said” factual disputes concerning the plaintiffs discharge and the performance of his job with Xerox, nor do we address his supervisor’s and his fellow employees’ dissatisfaction with his work.
Accordingly, the judgment of the district court is AFFIRMED.
. Under Tennessee law, a person commits extortion "who uses coercion upon another person with the intent to: (1) Obtain property, services, any advantage or immunity; or (2) Restrict unlawfully another's freedom of action.” T.C.A. § 39-14-112(a). We note at the outset that "[i]t is an affirmative defense to prosecution for extortion that the person reasonably claimed ... [appropriate compensation for property or lawful services.” Id. § 39-14-112(b).
. In Tennessee, whoever "knowingly, directly or indirectly, accesses ... [any] computer software, computer program, data, computer, computer system, computer network, or any part thereof, for the purpose of ... [ojbtaining money, property, or services for oneself or another by means of false or fraudulent pretenses, representations, or promises” is subject to criminal penalties. T.C.A. § 39-14-602(a). A person is likewise subject to criminal penalties who "who performs an act which is responsible for the disruption of any computer, computer system, computer network, computer software, program or data which resides or exists internal or external to a computer, computer system or computer network.” Id. § 39 — 14—602(b)(2).
Reference
- Full Case Name
- David FLEMING v. XEROX CONNECT, INC.
- Status
- Published