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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
October 11, 2011 Session PHILLIP SULLIVAN v. WILSON COUNTY, ET AL.
Appeal from the Circuit Court for Davidson County No. 09C934 Joseph P. Binkley, Jr., Judge

No. M2011-00217-COA-R3-CV - Filed May 22, 2012

An employee was terminated by a local power board after a detective sent his employer a letter stating the employee sold narcotic drugs from the truck the employee used during his shift and that the employee admitted selling the drugs. The employee denied selling illegal drugs or making such an admission to the detective, but the administrative law judge in charge of the evidentiary hearing determined the statements in the detective's letter were true. The employee later filed suit against the detective who authored the letter, his supervisors, and the county employing the individual defendants. The former employee asserted causes of action for defamation, negligence, false light invasion of privacy, and intentional infliction of emotional distress. The trial court concluded the former employee was collaterally estopped from relitigating the veracity of the statements in the detective's letter leading to the former employee's termination and dismissed the complaint in toto. We affirm. All of the employee's causes of action were based upon statements the detective made in his letter to the employer, which the employee alleged were false. Because the employee is estopped from denying the truth of those statements, he has no basis on which to pursue any of the causes of action set forth in his complaint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined. Michelle Blaylock Owens, Michael Clifford Gillespie, Nashville, Tennessee, for the appellant, Phillip Sullivan. Jeffrey M. Beemer, Kelly Marie Telfeyan, Nashville, Tennessee, for the appellee, Wilson County, Jonathan Daniel, Lane Mullins, and John Edwards.

OPINION Phillip Sullivan worked for Nashville Electric Services ("NES") as a Field Services Technician for about three years when he was terminated in 2008. NES moved to fire Mr. Sullivan after Detective Jonathan Daniel sent a letter to NES suggesting Mr. Sullivan had sold narcotic drugs while he was driving an NES truck during working hours. A hearing was held before an administrative law judge ("ALJ") on October 15, 2008. Mr. Sullivan testified during the hearing and denied ever selling drugs, either from his NES truck or otherwise. Detective Daniel testified Mr. Sullivan admitted he had sold drugs from his NES truck twenty to thirty times over the past year. The ALJ found Detective Daniel to be more credible and recommended that Mr. Sullivan be terminated based on her finding that Mr. Sullivan used an NES vehicle to conduct illegal activities. NES accepted the recommendation and fired Mr. Sullivan. Mr. Sullivan appealed his termination, and the chancery court affirmed. Mr. Sullivan then filed a lawsuit against Detective Daniel, two of his supervisors, and Wilson County, the employer of the three individual defendants. Mr. Sullivan alleged Mr. Daniel's letter contained defamatory statements and claimed the defendants were liable to him for defamation/libel, negligence, false light invasion of privacy, and intentional infliction of emotional distress. The defendants moved to dismiss Mr. Sullivan's complaint based on collateral estoppel and the Tennessee Governmental Tort Liability Act (the "GTLA"), which the trial court granted. Mr. Sullivan appeals the trial court's dismissal of his complaint, arguing collateral estoppel and the GTLA do not bar the litigation of his claims. I. B ACKGROUND A. A DMINISTRATIVE P ROCEEDINGS On November 19, 2007, a residence located on Cascade Drive in Hermitage was under surveillance by the narcotics division of the Wilson County Sheriff's Department because an individual named Earl Pemberton was allegedly using that residence to sell illegal drugs. Phillip Sullivan drove a truck in his employment with NES as a Field Services Technician. An undercover narcotics agent observed Mr. Sullivan park his truck outside and enter the residence on Cascade Drive while it was under surveillance. Mr. Sullivan was not then under suspicion for illegal drug activity. However, when the narcotics agent observed Mr. Sullivan enter the residence and then leave a short time later, the agent informed the other agents in the area and asked Lane Mullins, who was the Sergeant with the Wilson County Sheriff's Department Narcotics Division, to follow the NES truck Mr. Sullivan was driving. Sergeant Mullins followed Mr. Sullivan's truck to a nearby Wal-Mart where he observed Mr. Sullivan 2

engage in a hand to hand transaction with a woman in the parking lot. Mr. Sullivan claims the woman he met in the Wal-Mart parking lot was a friend of his who had asked to borrow some money. He alleges he was not aware of any drug activity going on at the Cascade Drive residence. Mr. Sullivan testified that he had sold a car belonging to his wife's grandmother to Mr. Pemberton, an individual he knew spent time at the residence on Cascade Drive, and that Mr. Pemberton owed him a payment on the car. When Mr. Sullivan's friend asked him for a loan, Mr. Sullivan went to the Cascade residence to collect the payment from Mr. Pemberton so he would have the money to lend to his friend. Mr. Sullivan asserted that what appeared to Sergeant Mullins to be a hand to hand drug transaction on November 19 was in fact simply the transfer of cash to his friend. Mr. Pemberton was later arrested, and the car Mr. Sullivan had sold him was impounded. Mr. Pemberton had not fully paid Mr. Sullivan the amount he owed on the car, and Mr. Sullivan contacted the sheriff's department at the behest of his mother-in-law in an effort to obtain possession of the car.1 When Mr. Sullivan called the sheriff's office he spoke with Jonathan Daniel, a detective working in the narcotics division. During their conversation, Detective Daniel learned that Mr. Sullivan was employed by NES and that he drove an NES truck. When Mr. Sullivan explained his interest in the automobile, Detective Daniel invited Mr. Sullivan to come down to meet with him at the station to discuss the situation. Detective Daniel did not then mention to Mr. Sullivan that he suspected Mr. Sullivan was the individual Sergeant Mullins had observed in the Wal-Mart parking lot on November 19, 2007. When Mr. Sullivan arrived at the sheriff's department, Detective Daniel brought him upstairs to a room used for interviews. Mr. Sullivan and Detective Daniel have conflicting accounts of what occurred while Mr. Sullivan was at the sheriff's department. The ALJ made the following findings of fact concerning this meeting 2 : On March 27, 2008, Employee went to the Wilson County Sheriff's Department to discuss ownership of a vehicle that was seized during a narcotics investigation. Two Wilson County Sheriff's Detectives were present at this meeting, Daniels and Detective Jeremy Rich ("Rich"), with Daniels being the head officer on the case, therefore he conducted the meeting and

1

The car was still titled in the name of his mother-in-law.

The ALJ prepared a Report of Findings of Fact and Recommendations following the hearing on October 15, 2008.

2

3

Rich just listened. Daniels informed the Employee that on November 19, 2007, the Wilson County Sheriff's Department had been conducting a narcotics surveillance on a residence on Cascade Drive ("Cascade Residence") and that Employee had been observed by several detectives pulling up in an NES truck, parking near the Cascade Residence and entering the Cascade Residence. After Employee spent several minutes in the Cascade Residence, he left and another Wilson County Sheriff's Office detective, Lane Mullins ("Mullins"), followed Employee. Employee was seen stopping in a Walmart parking lot on Andrew Jackson Parkway. In the Walmart parking lot, Employee was seen getting out of the NES truck where he approached a red car with a woman in the driver's seat. Once on the driver's side, a hand to hand exchange occurred. Then the Employee got back into the NES truck and drove away. Detectives followed the woman in the red car, . . . but did not follow Employee. [The woman] was stopped and questioned, but was not arrested or cited by the detectives. At the March 27, 2008 meeting, Daniels questioned Employee extensively about his relationship with [the woman], asking very specific questions regarding the type of relationship the Employee had with [the woman]. Employee denied any type of relationship other than friends that used to work together at a company in Mt. Juliet in the past. Daniels posed a hypothetical similar to the events that occurred November 17, 2008 [sic], and stated that Employee responded that he had purchased pills from Earl Pemberton ("Pemberton") that day and then sold them to [the woman], his only customer, and that he estimated that he had sold pills in his NES truck twenty (20) or thirty (30) times over the course of a year. Daniels did not arrest Employee, but the statements made by Employee to Daniels that day prompted Daniels to contact NES and submit an affidavit to NES describing the events stated above. This in turn prompted NES to prefer charges for termination of Employee's employment at NES for selling narcotics while he was on duty in an NES vehicle. (Citations to record omitted.) Despite Mr. Sullivan's testimony that he was giving money to his friend and not selling her any drugs when he was observed in the Wal-Mart parking lot on November 19, 2007, the ALJ found Detective Daniel to be more credible than Mr. Sullivan, explaining: Employee's post hearing brief states that NES's evidence is speculative and circumstantial. However, Employee failed to refute any of NES's evidence. Neither the testimony of Employee nor the testimony of [the woman 4

friend] was enough to refute any of NES's proof. When having to compare the testimony of a six (6) year experienced narcotic detective that testified the event in the Walmart parking lot looked to his experienced eyes like a drug buy as compared to Employee's testimony at the Administrative Law hearing that he was giving his mistress two hundred ($200) dollars for tags and various other expenses, a woman he denied as his mistress while talking to police detectives some 8 months earlier, more weight must be placed on the testimony of the detective. In the March 27, 2008 meeting at the Wilson County Sheriff's Office, Employee told Daniels he sold drugs while in the NES truck. But after charges for termination are preferred against Employee, Employee states that (I) Daniels, a seasoned veteran detective, misunderstood the statements he made at the March 27, 2008 meeting; (ii) [the woman friend] is his mistress and the exchange witnessed [by] Mullins, a detective with ten years experience on November 19, 2007 in the Walmart parking lot was Employee giving his mistress two hundred ($200) dollars for car tags, gas and other necessities and not a drug buy; and (iii) Daniels submitted the affidavit to NES in retaliation for Employee failing to provide assistance to Daniels in the Wilson County Sheriff department's quest to "bust" Pemberton. Again, more weight must be placed on the testimony of the detectives since it was evident from their testimony that they had already built a very substantial case against Pemberton through hundreds of hours of surveillance of the Cascade Residence . . . and, which is furthered by the fact that Pemberton was subsequently arrested and indicted for conspiracy to sell drugs and the Cascade Residence was the subject of a police raid where drugs were confiscated. In addition, John Edwards, with 15 years service for the Wilson County Sheriff's department and presently the detective lieutenant over the narcotics division, acted as undercover detective and purchased drugs directly from Pemberton so the case against Pemberton was pretty solid without having to rely on Employee's assistance to build a case against Pemberton. (Citations to record omitted.) Based on the ALJ's findings of fact, the ALJ recommended that Mr. Sullivan be terminated from his position at NES. The ALJ wrote: Charges were preferred against Employee because he admitted to Daniels that he sold drugs out of his NES vehicle and he was observed doing so by a seasoned narcotics detective who has witnessed hundreds of drug transactions. Testimony at the Hearing showed that Employee admitted to selling drugs out of his NES vehicle in the March 27, 2008 meeting with Daniels and Rich. 5

As part of its report and recommendation, the ALJ expressly found (1) Mr. Sullivan sold narcotic drugs from an NES truck while he was on duty and (2) Mr. Sullivan admitted to Detective Daniel that he sold drugs out of his NES vehicle twenty to thirty times over the course of a year. The Electric Employees' Civil Service and Pension Board of the Metropolitan Government of Nashville and Davidson County adopted the ALJ's Report of Findings of Fact and Recommendation and terminated Mr. Sullivan's employment with NES. Mr. Sullivan appealed the ALJ's report and recommendation to the chancery court, which affirmed the report and recommendation after concluding "substantial material evidence in the record supports the NES Board's decision to terminate Phillip Sullivan." Mr. Sullivan did not appeal the chancery court's judgment, and the judgment became final by May 27, 2010.
B.

S EPARATE L AWSUIT

After the chancery court affirmed the firing of Mr. Sullivan, he filed a complaint against Wilson County, Jonathan Daniel, Lane Mullins, and John Edwards. Mr. Sullivan alleged the statements Detective Daniel made in his letter to NES that led to NES's preferment of charges against him were false. Specifically, Mr. Sullivan takes issue with the following statements Detective Daniel included in his letter: Sullivan stated that . . . he did sell a white female ten (10) Lortab pills for $100.00. . . . Sullivan stated that [the white female] is his only customer, and that he does not make a profit from the sales. Detective Daniel asked Sullivan how many times he has sold narcotics in his NES truck. Sullivan estimated twenty to thirty times, but maintained that [the woman] was his only customer. Sullivan stated that he has been selling narcotics to [the woman] for approximately one year. Sullivan said that he sells to [the woman] approximately once a week and that she orders ten to twenty Lortab pills at a time. Claiming these statements were false, Mr. Sullivan asserted in his Complaint that each of the defendants was liable to him for defamation/libel, false light invasion of privacy, intentional infliction of emotional distress, and negligence. Mr. Sullivan alleged Detective Daniel was negligent in tendering a false statement to Mr. Sullivan's employer and that the other defendants were negligent in their supervision of Detective Daniel. In addition, Mr. Sullivan alleged Wilson County was liable to him for Detective Daniel's actions pursuant to Tenn. Code Ann.

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