In Smith v. BlueCross BlueShield of Tenn., decided today by the Court of Appeals of Tennessee (in an opinion by Chief Judge Michael Swiney, joined by Judges John McClarty and Kristi Davis), Smith alleged that BlueCross had wrongly fired her for, among other things, "email[ing] Tennessee state legislators with her concerns and grievances regarding vaccine mandates." The court concluded that this stated a claim under Tennessee law:
This case implicates the doctrine of employment-at-will. Under this doctrine, "employment for an indefinite period of time may be terminated by either the employer or the employee at any time, for any reason, or for no reason at all." It is undisputed that Smith was an at-will employee of BlueCross when she was fired. However, there are certain exceptions to the doctrine, and an employee may bring a retaliatory discharge action if she is fired in violation of public policy. Here, Smith alleged just that.
Our Supreme Court set out the elements of a common law retaliatory discharge claim thusly:
In Tennessee, the elements of a typical common-law retaliatory discharge claim are as follows: (1) that an employment-at-will relationship existed; (2) that the employee was discharged, (3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the employer's decision to discharge the employee was the employee's exercise of protected rights or compliance with clear public policy.
"[T]he exception cannot be permitted to consume or eliminate the general rule." To be liable, the employer must have violated a clear public policy, which usually is "evidenced by an unambiguous constitutional, statutory or regulatory provision." …
Article I, Section 23 of the Tennessee Constitution reads: "That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance." {[I]t is evident that [this] concerns the right to petition.}
"[T]he right of petition is … 'an ancient right' and 'the cornerstone of the Anglo-American constitutional system.'" "Parliament used the Petition of Right to 'gain popular rights from the king,' and the people eventually 'used petitioning as the means to secure their own rights against parliament.'" Indeed, "'[t]he development of petitioning is inextricably linked to the emergence of popular sovereignty.'"
