King v. Delfasco, LLC
| Decision Date | 22 September 2021 |
| Docket Number | E2020-01038-COA-R3-CV |
| Citation | 646 S.W.3d 456 |
| Parties | Jennifer KING v. DELFASCO, LLC, et al. |
| Court | Tennessee Court of Appeals |
Henry C. Shelton, III, Lucian T. Pera, and J. Bennett Fox, Jr., Memphis, Tennessee, for the appellants, Delfasco, LLC and Delfasco Finance, LLC.
Jimmie C. Miller and Joseph B. Harvey, Kingsport, Tennessee, for the appellee, Jennifer King.
D. Michael Swiney, C.J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Thomas R. Frierson, II, J., joined.
This appeal concerns an alleged violation of Tenn. Code Ann. § 50-1-304, the Tennessee Public Protection Act ("TPPA"), as well as common law retaliatory discharge. Jennifer King ("King"), a former shipping and receiving coordinator for Delfasco, LLC, a company that manufactures defense-related products, sued Delfasco, LLC and related entity Delfasco Finance, LLC ("Delfasco" collectively) in the Circuit Court for Greene County ("the Trial Court") alleging she was wrongfully fired for refusing to share with Delfasco owner Jack Goldenberg ("Goldenberg") her government-issued password to the Department of Defense ("DOD") Wide Area Workflow ("WAWF") system. King had consulted a DOD representative who advised her not to reveal her password. After a trial, the Trial Court found in favor of King and awarded her damages. Delfasco appeals, arguing among other things that King was not asked to perform an illegal act. King raises her own issues concerning damages. We find, inter alia , that the evidence does not preponderate against the Trial Court's factual findings, and we leave undisturbed the Trial Court's credibility determinations. King acted under the reasonable belief that it was unlawful to share her password with Goldenberg. Further, the record reflects that King was fired solely because she refused to reveal her password to Goldenberg. We affirm the judgment of the Trial Court in its entirety, and remand for an award to King of her reasonable attorney's fees incurred on appeal.
King worked for Delfasco, LLC, and its predecessor Delfasco, Inc., from 1995 until her termination on October 23, 2013. In 2010, Goldenberg bought Delfasco and became King's new boss. Delfasco does much of its business with the DOD. King applied for payment on Delfasco's behalf by submitting electronic invoices via WAWF, a governmental system. As a prerequisite for using WAWF, King had to agree to the terms of the User Agreement. The User Agreement provided, as relevant:
At some point before October 15, 2013, King made certain typographical errors on invoices that resulted in Delfasco not getting paid promptly. Goldenberg, based in New York, emailed King to ask about the delay. King responded that she was working to resolve the issue. Part of their email exchange, which is contained in the record, went as follows:
This sort of back-and-forth drew on over a week's time. Eventually, Goldenberg demanded that King share her WAWF password with him. King refused. Goldenberg stated he would fire her if she did not comply. King stuck to her refusal, and Goldenberg fired her. The email exchange culminated as follows:
King's 18-year tenure at Delfasco thus came to an end. In September 2014, King sued Delfasco in the Trial Court alleging common law retaliatory discharge and violation of the TPPA. Delfasco filed an answer in opposition. Delfasco also filed two motions for summary judgment, which were denied. In March 2020, this case was tried without a jury. King requested, among other damages, emotional distress damages and punitive damages. Goldenberg did not testify at trial; King, among other witnesses, did.1 We proceed to review the pertinent testimony.
King, age 56, testified she was fired for refusing to reveal her WAWF password to Goldenberg despite his insistence that she do so. King stated she refused because "[WAWF] said it was illegal to reveal our passwords." King testified to the nature of Delfasco's business and its hierarchy when she worked there. Delfasco is involved in metal fabricating, and has a facility in Greeneville, Tennessee. From 2001 or 2002, King's supervisor was Tammee Rohr ("Rohr"). Randy Shipley ("Shipley") was plant manager. Goldenberg was Delfasco's owner from 2010 onward. Goldenberg did not work on site but visited the facility from time to time. King testified that she held negative views of Goldenberg's management of Delfasco. King stated, for example, that Goldenberg once "put money into our personal accounts and pulled it out." King stated further that Goldenberg had gone "behind the government's back and brought in material that wasn't approved by the government." King also testified that Goldenberg brought in one Clyde Mullins as a consultant to assist in operations.
King then testified regarding WAWF, the governmental electronic system at the heart of the present dispute. King stated that DOD suppliers were required to use this system. Defense Logistics was the agency that administered WAWF. King testified to how WAWF worked:
Well, we had items to be shipped to the government. There was line items on the contract, and the quality inspector for the government would come and inspect our parts. And, once they approved it, I would submit the invoice by putting in the quantity, the amount, and the line item of the contract we were shipping against. And it would go up through the [WAWF] system. Once it was approved, it would send an email back saying that the invoice had been approved for payment.
King stated that she needed a password to access WAWF. King testified to the application process she underwent to obtain her WAWF password:
At the time when I did mine, there was paperwork that I had to fill out. At one time they even requested -- I had to prove why my name had changed. I had been married and divorced and remarried, and I had to show my marriage license and my divorce papers why my name had changed [sic].
King testified that the agreement she signed to obtain a password contained a "statement of accountability" stating in part: Continuing her testimony, King stated that she loved her job at Delfasco and was good at it.
King then was asked about delays in the shipment of Delfasco products, particularly in regard to "first article testing." King described first article testing as follows:
When we get a contract you have to have a submission of vendors. And the government comes in and you have that layout of the vendors. And, once the first article is completed, there's a vendor list and you can't go and get another vendor for that product; you have to stay with those vendors.
King stated that shipment of Delfasco products had been delayed in the past because of problems with first article testing. For instance, in March 2013, Delfasco's product was put on hold. In October 2013, the government finally agreed to release the product. However, there was a problem with the invoices. King made an error—specifically, a typo. King testified that Goldenberg was aware of this error as of October 15, 2013. Goldenberg went on to press King to give him her WAWF password.
King explained why she was hesitant to give Goldenberg her WAWF password upon his demand: "Because of the things he had done in the past with our...
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