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Court: It’s Not Whistleblowing if You Only Report to the Wrongdoer

By:  R. Eddie Wayland, TCA General Counsel

Tennessee law protects employees from being fired for “whistleblowing.” An employee acts as a whistleblower when an employee is discharged for refusing to remain silent about his or her employer’s illegal activity or unsafe practices. In a recent decision by the Tennessee Supreme Court, the Court ruled that a whistleblower must report the misconduct to someone other than the wrongdoer, even when the wrongdoer is the head of the employee’s company.

Facts of the Case

The employee worked as a horse groom at a stable. In April 2010, the employee was kicked in the head by a horse. The owner of the stable refused to allow the groom to leave work to get medical treatment, and instead, had a veterinarian seal the groom’s head-wound with horse sutures. Given the improper medical care, the groom complained to the owner about severe headaches for three months after the incident. The groom was then terminated by the stable owner.

The groom subsequently filed this lawsuit in state court. The trial court dismissed the case because the groom failed to report the illegal activity to anyone other than the stable owner. After the intermediate court of appeals agreed with the trial court’s decision, the groom appealed to the Supreme Court.

Supreme Court Decision

The Court stated at the outset of its analysis that in order to prevail on a whistleblower claim, an employee is required to show that he or she reported the employer’s illegal activity and that this reporting “furthered a clear public policy.” Tennessee courts have found this reporting requirement to be satisfied where the employee reports to either an outside entity or internally. Some courts require that if the reporting is made internally, it must be made to an individual other than the wrongdoer. The Supreme Court noted, however, that Tennessee courts are split on who an employee must report the illegal activity to if the wrongdoer is a manager or owner of the company.

In examining this issue, the Supreme Court looked to the public policy underlying whistleblower protections: “When an employee reports wrongdoing only to the wrongdoer—who is already aware of his or her own misconduct—there has been no exposure of the employer’s illegal or unsafe practices. Such an employee necessarily fails to ‘blow the whistle’ in a meaningful fashion because the employee has made no ‘effort to bring to light an illegal or unsafe practice.’” With this in mind, the Court determined that in order to qualify as a whistleblower, an employee must report an employer’s wrongdoing to an individual other than the wrongdoer. The Court included that the employee may be required to report to an outside entity when the wrongdoer is a manager, the highest ranking officer, or the owner of the company.


This decision will likely make it more difficult for discharged employees to prevail on whistleblower claims because the decision requires the employees to “blow the whistle” in a meaningful way. Another consequence of this decision may be that employees who are knowledgeable of the law in this area could be more motivated to make reports concerning illegal activity to outside entities including the police or other governmental authorities.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

May 12, 2015