Rush Bricken

On the heels of a lawsuit that ended up with Coffee County paying former employee Melinda Keeling nearly $1 million, State Representative Rush Bricken has sponsored a bill (HB 1087) to revise the Public Employee Political Freedom Act (PEPFA). A companion bill in the Senate is sponsored by Sen. Janice Bowling.

Under present law, PEPFA specifies that a public employee may not be prohibited from communicating with an elected public official for any job-related purpose. Currently it unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because the public employee communicated with an elected public official.

If a court determines that a public employer has violated the provisions of the PEPFA, the employee is entitled to triple damages plus reasonable attorney fees, according to the Tennessee General Assembly’s website.

The proposed bills replace authorization to award triple damages under PEPFA with caps on compensatory damages. The amount of the cap on damages depends on the number of employees of the organization. The cap ranges from $25,000 for employers with fewer than eight employees to $300,000 for those with 501 or more employees, according to the Tennessee General Assembly’s website.

 

Keeling case

Keeling was employed by the Coffee County Department of Codes and Safety from 2006 to 2010. Following her dismissal, she filed a claim alleging the county violated PEPFA by terminating her.

Keeling was fired from the county codes department in 2010. At the time, Glenn Darden served as the director of the department and David Pennington was county mayor. Darden retired in September 2015, and Pennington didn’t seek re-election after his term ended in 2014.

Keeling contended she was disciplined and fired because she brought her concerns to Pennington about Darden being unavailable to answer questions and address concerns brought into the office by the public.

Keeling filed suit in the U.S. District Court for the Eastern District of Tennessee, asserting claims against Coffee County and Darden; and against Darden himself for common law assault. In 2013, the U.S. District Court dismissed all those claims. Keeling subsequently refiled the case in Coffee County Circuit Court, alleging the defendants disciplined her and took an adverse action against her, including “physical threat, intimidation, reduction of pay through compensatory time off, removal of job duties, creating a hostile work environment, and, finally, termination.”

A jury found in favor of Keeling on Jan. 12, 2017, and awarded her damages, which in accordance with current state law, were tripled. Keeling was also entitled to back-pay damages and front-pay damages which were at were tripled as well, for a payout amounting to just over $1 million.

The county subsequently appealed that decision.

An opinion issued by the Tennessee Court of Appeals on Sept. 18 affirmed the judgement of the trial court in the case, meaning the county had to pay about $1 million in damages and attorney fees to Keeling and her attorney, Jerry Gonzalez.

 

Amending PEPFA

Bricken, who served as a Coffee County commissioner during Keeling litigation process, said amending the current PEPFA and eliminating triple damages is appropriate.

The proposed bill is “good legislation,” said Bricken.  

“It only replaces the treble (triple) damage provision with compensatory damages,” Bricken said. “There are no other changes to the PEPFA statute.

“This change is needed to prevent potential costly damage claims to our cities and counties that our citizens and taxpayers will end up paying. Compensatory damage language is currently in all the other Tennessee statutes that protect our public employees from wrongful termination, so this bill just gets this provision in conformity with other laws in this area.”

Bricken added the triple damage provision in the current law led to the county paying about $1 million to Keeling. 

“Coffee County just settled a case that cost the county and the taxpayers nearly $1 million dollars because the treble damage provision were invoked,” Bricken said.

Bricken expects the proposed changes to PEPFA to be approved soon.

“The proposed bill has gone through all the House and Senate committees and will be scheduled for a House vote in the next week or so,” Bricken said.

 

Opposition

According to Gonzalez, who represented Keeling against Coffee County, the proposed bill, if enacted, “would allow county and city employers to retaliate against county and city employees simply because they went to an elected official to communicate about workplace issues.”

Eliminating the provision in the law that triples the damages awarded to employees who win PEPFA cases essentially renders the law toothless, according to Gonzalez. He said that provision “was designed to make the penalty so harsh that it would deter employers from even thinking about discriminating.”

Gonzalez claims the changes currently under consideration in Nashville will “chill” open communication between government employees, who are often “the ones most knowledgeable about what goes on behind closed doors of government,” and their supervisors.

Not only is this bill designed to protect employees of counties and municipalities from blatant discriminatory acts, the attorney said, but it eliminates the very incentive built into PEPFA – the triple damages provision. The proposed bill would discourage government entities from training their supervisors on how not to retaliate against employees who seek to communicate with elected officials about workplace issues.

Gonzalez added the incentive for sponsoring this bill was clearly the Keeling case and a similar case against Wilson County.

“In both of those cases, the discriminatory retaliation was blatant and the only reason both cases resulted in large awards was because both Coffee County and Wilson County decided to fight everything instead of seeking to settle the case on reasonable terms and insisted on trying their cases before a jury,” Gonzalez said. “In Keeling’s case, the brunt of the award was back pay over the eight years of litigation and front pay along with interest and attorney fees, all of which could have been substantially reduced if they had simply given Ms. Keeling a job anywhere in the county while the litigation played out. But they refused, even though she applied for a job early in the litigation.”

Because of how the county handled the case, “the large award was entirely their own fault,” added Gonzalez.

“Now, they want to protect themselves from future discrimination against their own employees by asking the county representative to sponsor this bill,” Gonzalez said. “Shame on them. All county employees should be aware of what their employer is trying to do.”

 

Warning about the Senate bill

“The Senate version (SB 0569) is worse,” Gonzalez contended. “SB 0569 began with the same language as the HB 1087 but was amended on March 19 to completely eliminate county and municipal employees from the definition of employee. The sponsor of the amendment, Senator (Mike) Bell in the Judiciary Committee, explained that this was because other laws, such as the Tennessee Public Employee Protection Act (TPEPA), also known as the Whistleblower Law, already protected county and municipal employees for the same thing. But this was deliberately misleading at worst, or ignorant of the law at best.”

There is a very important distinction between PEPFA and TPEPA, said Gonzalez.

“Under PEPFA, discrimination or retaliation is prohibited if the employee’s communication was a ‘substantial or motivating factor’ in the disciplining, threat to discipline or other discrimination,” Gonzalez said. “Under the TPEPA, an employee cannot be ‘discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.’”

So, under the TPEPA, county or city employees can be threatened or actually disciplined or otherwise discriminated against by their supervisor for communicating with an elected official about a workplace matter that is not in violation of the criminal or civil code of the state or the United States, said Gonzalez.

“So, if Keeling complains to the mayor about Darden never being in his office, Darden would have been free to threaten her, as he did, or actually discipline her, as he did, for her action because not being in the office is not ‘illegal’ under the TPPA,” Gonzalez said.

The language of the Senate version is extremely important, noted Gonzalez.

“First, the standard of proof is changed from ‘because such’ to ‘solely because,’” Gonzalez said. “In other words, all the employer has to do is come up with some other plausible reason for the action to justify it other than the employee’s communication with an elected official. For example, you were late to work by five minutes on one day.”

The standard of “solely because” is exceptionally difficult to prove, added Gonzalez.

“Second, the prohibited act is changed from ‘discipline, threaten to discipline or otherwise discriminate’ to ‘terminated or otherwise discriminated against an employee with respect to compensation, terms, conditions, or privileges of employment,’” Gonzalez said. “In other words, an employer would be able to threaten you all they want and that would not be prohibited. They could make the employee’s life a living hell as long as the action did not affect the employee’s compensation, terms, conditions, or privileges of employment.”

Elena Cawley can be reached at ecawley@tullahomanews.com.