Equal Pay Act Claims in Tennessee

Equal Pay Act claims in Tennessee are essentially claims usually involve situations where a female employee is paid less than a male employee for the same job.  These claims can be brought in Tennessee under the Tennessee Equal Pay Act (found in T.C.A. § 50-2-201 et al) and under the Federal Equal Pay Act (found in 29 U.S.C. § 206(d)).  These statutes basically are very similar to each other.  These types of pay disparity claims can also be brought under Title VII for sex discrimination.

Initial Burden of the Plaintiff:

To establish a prima facie claim of unequal pay for equal work under the EPA, a plaintiff has the burden to prove that the employer “pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Vehar v. Cole Nat'l Group, Inc., 251 Fed.Appx. 993, 998 (6th Cir. 2007).  Essentially, a female employee meets this burden if she proves that she is paid less than a male employee performing the same job (does not need to be perfectly identical but does need to be substantially similar) at the employer.

Defenses Available to Employer:

After this initial burden is met by the employee, then the employer has some available defenses to try to combat a finding of liability under the EPA.  Specifically, once a plaintiff establishes a prima facie case of disparate pay, the burden shifts to the defendant to prove the wage differential is justified under one of four affirmative defenses: “(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor other than sex.” Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 (6th Cir.1998). 

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2016 Tennessee Statute Provides for Attorney’s Fees to Be Awarded to State When State Employee is Individually Sued Unsuccessfully Under § 1983

Sometimes state government employees are sued on an individual basis for actions that they took as a government employee.  Often these cases are § 1983 claims asserting the state employee acted inappropriately under the “color of law.”  However, this new statute is not limited to claims under § 1983.  In response, the Tennessee legislature felt it was necessary to provide protection to the State when the individual governmental employee is successful in defending such a claim.  As a result, the 2016 Tennessee added a provision in the law that provides that attorney’s fees and costs should be awarded to the state or the state employee when the state employee is not found to be not responsible when they are sued in their individual.  In fact, the employee is not even required to be successful on the merits, but instead, even if the case is voluntarily dismissed greater than 45 days after an Answer is filed making specific assertions, then the employee is still awarded attorney’s fees and costs.   

Public Chapter No. 848, which was signed into law on April 19, 2016 by Governor Bill Haslam, has been amended and now provides as follows:

(a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.

Attorney’s Fees Cannot Be Awarded as Punitive Damages Under Tennessee Law When Not Provided For in Contract or Statute

A new Tennessee Court of Appeals decision, Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc., No. W2013-02468-COA-R3-CV, 2014 WL 3563470 (Tenn. Ct. App. 2014), dealt with a situation involving repossession of the plaintiff’s car by a finance company.  The plaintiff then paid the balance due on the loan.  He then received the title in the mail but never received the vehicle back.  As a result, the plaintiff sued the defendant Santander Consumer USA, Inc. alleging breach of contract, conversion, trespass to chattels, fraud, misrepresentations and violation of the Tennessee Consumer Protection Act. 

Ultimately, the case went to trial.  The trial court awarded Mr. Bridgefourth $6,000.00 in compensatory damages for conversion of the car and “special damages in the amount of $13,348.00 for attorney’s fees necessary to compensate Plaintiff for his losses as a result of Defendant’s actions.”  The plaintiff then asked the court to clarify its order and the trial court changed the $13,348.00 award from “special damages” to “punitive damages”.  As a result, the defendant Santander appealed, arguing that it was not appropriate to award attorneys’ fees in this case.

The Tennessee Court of Appeals noted the rule in Tennessee is that “litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise.”  Bridgefourth at 2 (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3.d 186, 194 (Tenn. 2000)).  The Tennessee Court of Appeals next addressed whether the trial court could award attorney’s fees as “punitive damages” as was done in this case.  The Court noted:

The purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter others from committing similar wrongs in the future. Attorney's fees are not punitive in nature. 

In a Tennessee Breach of Contract Action Does a Voluntary Dismissal Make the Defendant the “Prevailing Party” for Contractual Attorney’s Fees?

Analysis:  In a Tennessee breach of contract case if the defendant has a counterclaim pending to recover attorney’s fees under the contract and the plaintiff voluntary dismisses the case, the defendant can recover attorney fees if not timely refiled.  This is governed by a Tennessee statute, T.C.A. § 20-6-306 that provides as follows:

(a) If a plaintiff voluntarily dismisses an action while a counterclaim is pending for contractual attorney fees, and if the plaintiff does not timely recommence the action, the court, upon proper showing, may order that the counterclaimant is the prevailing party for the purpose of recovering contractual attorney fees.

(b) This section shall only apply if the contract clause providing for attorney fees applies equally to all parties to the contract.

As a result, the counterclaiming party is essentially considered the prevailing party for the purpose of determining if contractual attorney’s fees must be paid (this is the usual terminology in contracts that discuss when attorney’s fees are due).  However, this only occurs after the plaintiff does not recommence the action in a timely manner (usually this will be within one year from the dismissal).  Even though a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01 is not a determination on the merits, under this statute, it does have the impact of essentially finding the defendant is the prevailing party under a contractual term for attorney’s fees. 

This statute was adopted and put in effect on July 1, 2004.  A search on Westlaw shows this statute has not been substantively addressed by the Court of Appeals or the Tennessee Supreme Court.  I am not sure how well known this statute is but it is certainly something to consider in the context of a counterclaim in a bre...

Under Tennessee law does a trial court have discretion to refuse to award attorney's fees to the prevailing party that are provided for in a contract between the parties?

Brief Summary:  The trial court does not have discretion to refuse to award attorney’s fees that are to be paid by the “non-prevailing” party as provided for in a contract between the parties.

Analysis:  The Tennessee Court of Appeals in Gatlinburg Roadhouse Investors, LLC v. Charlynn Maxwell Porter, No. E2011-02743-COA-R3-CV, 2012 WL 6643809 (Tenn. Ct. App. December 20, 2012) recently decided a breach of contract case between two parties.  The contract in question had a provision requiring that the “non prevailing” party of any litigation pertaining to the contract pay the attorney's fees of the prevailing party.  The specific language of this term in the contract was:

The non-prevailing party shall pay all reasonable costs and expenses, including attorneys' fees and court costs, that shall be made or incurred by the prevailing party in enforcing the terms and conditions of this Lease.

Gatlinburg at 10.  In this case the trial court refused to award attorney's fees that were required in the party's contract.  The trial court specifically stated on the record that:

I will not award attorney fees rightly or wrongly from a legal perspective. I will not award attorney's fees. The problem here is you had all sort of ambiguity, and the ambiguity in the Interest Purchase Agreement and the amendment to the sublease, you had the original ambiguity about the sale of the restaurant which I held is an ambiguity. That's what I think, so you are going to enforce the terms of a document, you are going to award attorney fees for enforcement in terms of a document that's so ambiguous that each side in my opinion had a reasonable basis for their argument of what the terms of the lease was. So I don't think it's appropriate to award attorney’s fees, and therefore I do not.

Tennessee Consumer Protection Act – The “catch all” provision (T.C.A. § 47-18-107(b)(27)) found in the Tennessee Consumer Protection Act has been eliminated

The Tennessee tort reform bill of 2011 eliminated the “catch all” provision previously found in the Tennessee Consumer Protection Act (The Tennessee Consumer Protection Act is found in T.C.A. § 47-18-101 – T.C.A. § 47-18-130).  This change went into effect with the adoption of Public Chapter No. 510 (the Tennessee tort reform bill) and applies to all actions that accrue on or after October 1, 2011. 

The key operative portion of the Tennessee Consumer Protection Act is T.C.A. § 47-18-104(b) which provides a long detailed listing of "unfair or deceptive acts or practices" that are forbidden under Tennessee law.  Currently there are a total of forty-seven acts or practices that are listed and each of these is considered to be a Class B misdemeanor.  T.C.A. § 47-18-109(a)(1) creates a private cause of action for any person who suffers a loss as a result of one of the listed “unfair or deceptive acts or practices” found in T.C.A. § 47-18-104(b).  T.C.A. § 47-18-109(a)(1) provides as follows:

(a)(1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.

(emphasis added).  Prior to the Tennessee tort reform bill of 2011, the Tennessee Consumer Protection Act had a “catch all” provision that provided a private cause of action for “engaging in any other act or practice which is deceptive to the consumer or to any other person.” (See T.C.A. § 47-18-107(b)(27)).  This “catch all” provided for a significant expansion of the Tennessee Consumer Protection Act beyond the specifically listed “unfair or deceptive acts or practices”.  This “catch all” provided the Court with great discretion to find violations of the Tennessee Consumer Protection Act even if the unfair or deceptive act was not explicitly listed in the statute.

The amendment to the statute found in Public...

Motion to Dismiss - Tennessee's new "loser pays" law … that isn’t

Brief Summary:  The new “loser pays” law in Tennessee provides very limited circumstances where the “loser” plaintiff actually is required to pay for the attorney’s fees and costs of the defendant.  Generally, this new law only applies to Rule 12.02(6) motions to dismiss for failure to state a claim upon which relief may be granted.  Even when a Rule 12.02(6) motion to dismiss is granted, there are many exceptions to this requirement.

Analysis:  The Tennessee legislature adopted Public Chapter No. 1046 which was signed into law by Governor Bill Haslam on May 21, 2012.  This law applies to all claims filed on or after July 1, 2012.  As a result, this “loser pays” law is currently in effect for all new claims filed in Tennessee.  This law is effectively a “loser pays” statute but is has many exceptions and is very limited in scope.  The new bill added T.C.A. § 20-12-119(c).  The key operative portion of this “loser pays” statute is subsection (c)(1) which provides as follows:

(c)(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney's fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties. The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.

As a result, attorney’s fees and costs “shall” be paid by the party who brought the claims that are dismissed under Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be granted.  This requirement is mandatory, unless one of the many exceptions applies.

Subsection (c)(3) provides that the

Recreational Vehicles - New Tennessee carbon monoxide detector requirement for RV’s

On September 18, 2011, a tragic event occurred in Clarksville, Tennessee.  Five bikers were found dead at a Bikers Who Care charity event at the Clarksville Speedway.  At that event, these five individuals lost their lives due to carbon monoxide poisoning from a recreational vehicle (also known as an “RV”).  According to a USA Today article, a small storage hatch on the RV did not close properly.  As a result, carbon monoxide entered the RV and killed five individuals that were in the recreational vehicle.  The USA Today article can be found at: http://www.usatoday.com/news/nation/story/2011-09-18/biker-deaths-tennessee/50457812/1.

As a result of this tragic occurrence the State of Tennessee legislature passed Public Chapter 568, which was signed into law by Governor Haslam on March 13, 2012.  This legislation added T.C.A. § 55-9-218 which provides: 

(a) A recreational vehicle that is leased or rented must have in such vehicle a carbon monoxide detector in proper working order. All leases or rental agreements for a recreational vehicle shall contain language that the carbon monoxide detector in such recreational vehicle was tested, is in proper working order, and that a demonstration of the use of such equipment was performed for the lessee of the recreational vehicle. All leases or rental agreements for recreational vehicles shall contain the following statement, an acknowledgement of which shall be initialed or signed by the lessor and lessee of such vehicle:

I CERTIFY THAT AT THE TIME OF THE RENTAL/LEASE OF THIS VEHICLE THAT IT IS EQUIPPED WITH A WORKING CARBON MONOXIDE DETECTOR.

(b) An action for civil damages in a court of competent jurisdiction may be brought against any lessor found violating this section, and damages sustained as a consequence of the lessor's violations may be recovered, together with all costs and attorneys' fees.

The entire bill can be found at http://www.tn.gov/sos/acts/107/pub/pc0568.pdf.  This statute went into effect on July 1, 2012 and requires that any RV that is "leased or rented" must have a working carbon monoxide detector inside the vehicle.&...