Billy Forester v. Service Experts Heating & Air Conditioning LLC

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0287n.06
Case No. 22-6074
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 20, 2023
) DEBORAH S. HUNT, Clerk
BILLY FORESTER,
)
Plaintiff – Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
SERVICE EXPERTS HEATING & AIR ) TENNESSEE
CONDITIONING LLC, )
Defendant – Appellee. ) OPINION
)
BEFORE: MOORE, McKEAGUE, and MATHIS, Circuit Judges.
McKEAGUE, Circuit Judge. Plaintiff Billy Forester claims that his employer, Service
Experts Heating & Air Conditioning LLC, fired him in retaliation for filing a workers’
compensation claim after he was injured on the job. Tennessee common law protects against
retaliatory discharge. The district court granted summary judgment for Service Experts, finding
no evidence of pretext under the McDonnell Douglas burden-shifting framework traditionally used
by Tennessee courts for these claims. We affirm.
I. BACKGROUND
A. Factual Background
Billy Forester started working for Service Experts as a Residential Installer Helper of
heating and air conditioning units in May 2019. Service Experts provides heating repair, air
conditioning repair, indoor air quality sales, HVAC installation and maintenance, and repair
service for both the residential and commercial HVAC markets, with over 100 service locations
Case No. 22-6074, Forester v. Service Experts Heating & Air Conditioning LLC
across the country. The parties largely agree that during his employment Forester performed his
duties in an acceptable manner.
On December 17, 2019, Forester injured his shoulder. Forester alleges that the injury
occurred when he was working with a co-worker to lower an air conditioning unit to the ground.
Forester claims he told Service Experts about this on-the-job injury that same day. At Service
Experts’ urging, Forester visited a doctor the day after he was injured. He was told he could return
to work with a ten-pound lifting restriction. Although Forester wanted to continue working, his
supervisor, Adam Hacker, told him that there was no work available, and that he should go home
and “get better.”
Much of the timeline following that day is disputed. However, on February 4, 2020,
Forester called Service Experts’ human resources department, questioning why he was not
receiving workers’ compensation for his injury. The next day, Service Experts sent Forester a
letter stating that Forester’s employment was terminated because his leave was up, and that he had
not been released for the “duties required per [his] job description.” R. 20-2, PID # 131. Although
the letter stated that Service Experts was terminating Forester for abandoning his job, the company
did not formally process the termination, and instead waited to receive a response from Forester.
On February 13, 2020, Service Experts sent Forester another letter, stating, in relevant part:
On February 4, 2020, the Human Resources Department received a call from you
regarding a possible work-related injury. The HR Department, as well as myself,
have tried several attempts to reach you via phone and email regarding this matter.
Service Expert’s [sic] policy states if you sustain a work-related injury you are to
report this to your manager as soon as possible. We require a statement from you
to provide details surrounding your work[-]related injury. It is requested that you
contact myself, Adam Hacker, General Manager, within 7 days from receipt of this
letter.
R. 23-4, PID # 242; R. 23-1, PID # 237.
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Case No. 22-6074, Forester v. Service Experts Heating & Air Conditioning LLC
Forester called Hacker on February 14th. It is undisputed that Forester told Hacker on this
call that he sustained his injury while on the job. Hacker maintains that this was the first time he
learned that Forester alleged his injury resulted from a work accident, and that he responded by
directing Forester to contact the company’s nurse line for support. Forester alleges that he
contacted Hacker again on March 2, 2020, further questioning him about the workers’
compensation issue.
Service Experts sent Forester a final termination letter by email on April 7, 2020, stating:
I am writing you this letter to inform you that your employment with [Service
Experts] has been terminated as of 4/7/2020. Due to the medical restrictions you
have been placed under by your personal physician you are unable to perform the
duties assigned to you as an installation helper. At this time there are no other
positions available that would allow you to work while under these restriction[s].
We have attempted to reach you by phone . . . but received no answer at this time.
R. 20-1, PID # 108; R. 23-5, PID # 243. It is undisputed that Forester’s job required him to be
able to lift seventy-five pounds, and that he was unable to lift more than ten pounds at the time he
was fired.
At some point, Forester filed a claim with the Tennessee Bureau of Workers’
Compensation, which eventually settled and resulted in Forester receiving compensation. It is
unclear from the record when this occurred.
B. Procedural Background
Forester filed suit against Service Experts in Tennessee state court based on Tennessee
common law, asserting that the company wrongfully terminated his employment after he filed for
workers’ compensation. Service Experts removed the case to the Eastern District of Tennessee.
Following discovery, Service Experts moved for summary judgment. The district court
granted summary judgment for Service Experts, concluding that Forester “failed to show Service
Experts terminated his employment because of his workers’ compensation claim as opposed to his
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injury and his ultimate inability to perform the essential functions of his job . . . [and] submitted
no compelling evidence of pretext.” Forester v. Serv. Experts Heating & Air Conditioning LLC,
No. 321CV00180DCLCDCP, 2022 WL 16953692, at *5 (E.D. Tenn. Nov. 15, 2022). Forester
timely appealed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A party is entitled to summary judgment “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The central inquiry is “whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251. All inferences from the underlying
facts must be drawn in the light most favorable to the non-moving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. ANALYSIS
Tennessee common law recognizes a cause of action for retaliatory discharge when an
employer fires an employee for seeking workers’ compensation. See Clanton v. Cain-Sloan Co.,
677 S.W.2d 441, 445 (Tenn. 1984) (“[A] cause of action for retaliatory discharge . . . is necessary
to enforce the duty of the employer, to secure the rights of the employee and to carry out the
intention of the legislature.”); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992). This
is a “narrow exception to the employment at will doctrine.” Newcomb v. Kohler Co., 222 S.W.3d
368, 389 (Tenn. Ct. App. 2006) (citations omitted); see Clanton, 677 S.W.2d at 443 (“Under long-
established Tennessee law, an employee-at-will can be discharged without breach of contract for
good cause, bad cause or no cause at all.”).
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Case No. 22-6074, Forester v. Service Experts Heating & Air Conditioning LLC
Tennessee courts apply the McDonnell Douglas burden-shifting framework to common
law retaliatory discharge claims. Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 200 (Tenn.
Ct. App. 1999); Burns v. Ford Constr. Co., No. W202200492COAR3CV, 2023 WL 2987669, at
*3 n.1 (Tenn. Ct. App. Apr. 18, 2023). To establish a prima facie case for workers’ compensation
retaliation, an employee must show that: “(1) the plaintiff was an employee of the defendant at the
time of the injury; (2) the plaintiff made a claim against the defendant for workers’ compensation
benefits; (3) the defendant terminated the plaintiff’s employment; and (4) the claim for workers’
compensation benefits was a substantial factor in the employer’s motivation to terminate the
employee’s employment.” Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 805 (Tenn.
2015); Burns, 2023 WL 2987669, at *3 n.1 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973)).1 If a plaintiff successfully establishes a prima facie case of retaliatory
discrimination, the burden shifts to the employer to provide a legitimate and non-retaliatory reason
for the discharge. Anderson v. Standard Reg. Co., 857 S.W.2d 555, 558 (Tenn. 1993) (citation
omitted). Once an employer provides such a reason, the burden returns to the employee to prove
that the employer’s reason was pretextual. Smith, 2 S.W.3d at 200 (citation omitted). To do this,
a plaintiff must show “that the Company’s reasons have no basis in fact, or if they have a basis in
1
In two recent unpublished cases, the Tennessee Court of Appeals held that when an employee “cannot perform the
essential job functions as a result of his or her injury, the employee fails to prove the fourth element of his or her claim
for retaliatory discharge for filing a workers’ compensation claim, and the retaliatory discharge claim fails as a matter
of law.” Burns, 2023 WL 2987669, at *8; Hilliard v. Dolgencorp, LLC, No. E201800312COAR3CV, 2019 WL
1377263, at *14 (Tenn. Ct. App. Mar. 26, 2019); see also Leatherwood v. United Parcel Serv., 708 S.W.2d 396, 401–
02 (Tenn. Ct. App. 1985). Here, the parties agree that Forester was unable to perform his job duties at the time he
was fired, and thus, under Burns and Hilliard, his claim would fail.
Although we look to the decisions of a state’s intermediate courts when determining how the state’s supreme court
would decide an issue, we do not follow those cases if “we are convinced that the state supreme court would decide
the issue differently.” See Melson v. Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir. 2005). We need not
determine if the Tennessee Supreme Court is likely to affirm the rule of law set forth in Burns and Hilliard, however,
because we can affirm the judgment on a different ground. See Meredith v. City of Winter Haven, 320 U.S. 228, 234
(1943) (“[It is] the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law
whenever necessary to the rendition of a judgment.” (emphasis added)).
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fact, by showing that they were not really factors motivating the discharge, or, if they were factors,
by showing that they were jointly insufficient to motivate the discharge.” Davis v. Reliance Elec.
Indus. Co., 104 S.W.3d 57, 63 (Tenn. Ct. App. 2002) (citing Moore v. Nashville Elec. Power Bd.,
72 S.W.3d 643, 652 (Tenn. Ct. App. 2001)); see also Sasser v. Averitt Exp., Inc., 839 S.W.2d 422,
427 (Tenn. Ct. App. 1992) (“An employee may contradict an employer’s assertion that the reasons
for the discharge were non-pretextual either by persuading the finder of fact that the discharge was
substantially motivated by the desire to retaliate or by showing that the employer’s proffered
explanation is unworthy of credence.”).
We assume for purposes of this appeal that Forester made a prima facie case of retaliatory
discharge. Because Service Experts provided a legitimate basis for the termination of Forester’s
employment—Forester’s inability to complete his job duties—the burden returns to Forester to
prove that this reason is pretextual. See Anderson, 857 S.W.2d at 559 (explaining that physical
inability to do a job is a legitimate reason for terminating an at-will employee); Birchett v.
Nashville Co., No. M199900207COAR3CV, 2000 WL 640895, at *4 (Tenn. Ct. App. May 19,
2000) (“[A]n employer is entitled to terminate an at-will employee who is unable to perform
satisfactorily because of physical infirmity, even though the physical infirmity resulted from an
on-the-job compensable accident.”).
Forester argues that two circumstances demonstrate that Service Experts’ explanation is
pretextual: 1) Hacker’s behavior towards Forester; and 2) Service Experts’ violations of its Return-
to-Work policy.
1. Hacker’s Behavior
Forester argues that Hacker’s behavior before and after Forester’s injury occurred
demonstrates pretext. “The expression of a negative attitude by the employer toward an
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employee’s injury” can serve as evidence of pretext, though “subjective beliefs” or “mere
speculation” about such attitude is insufficient to withstand summary judgment. Newcomb, 222
S.W.3d at 391, 395. But it is negative attitude towards an injury that can serve as evidence of
pretext. Id. But see Burns, 2023 WL 2987669, at *6 (finding no evidence of pretext where the
plaintiff’s manager “made crude comments” about the plaintiff’s injury).
First, Forester points to an incident where he was reprimanded by Hacker prior to his at-
issue injury. At that time, Hacker allegedly told “Forester he could be fired, [and then] glared at
him then smiled in a manner that [] Forester interpreted to mean that [] Hacker was excited about
potentially firing him.” Appellant’s Br. at 31. This speculation is not enough to survive summary
judgment. Cf. Ellis v. Buzzi Unicem USA, 293 F. App’x 365, 376 (6th Cir. 2008). And this incident
is unrelated to Forester’s injury, which had not yet occurred. Cf. Newcomb, 222 S.W.3d at 395.
Next, Forester argues that Hacker’s allegedly false statements that Forester did not
immediately report the on-the-job nature of his injury demonstrate negative attitude toward
Forester’s injury and thus, pretext. Forester and Hacker have entirely different stories regarding
when Forester reported that he was injured on the job. But, even if we assume that Hacker was
lying, and that Forester reported the work-nature of this injury on the day he was injured, Forester
does not explain how that shows that Hacker held a negative attitude towards the injury, or that
Forester’s inability to complete his job duties did not motivate his termination. Burns, 2023 WL
2987669, at *6 (“Even taking such testimony in the light most favorable to Mr. Burns, on this
Court’s review, this testimony fails to show that Ford Construction had a negative attitude towards
Mr. Burns as a result of his workers’ compensation claim.”). The fact that their stories differ
regarding the report time of an injury could indicate many things—including poor memory—and
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simply cannot be viewed, without more, as direct evidence of a wrongful motivation or a negative
attitude towards an injury.
2. Violation of Company Policy
Forester further argues that Service Experts’ alleged violations of its company policy
demonstrate pretext. Failure to adhere to company policy can constitute circumstantial evidence
of pretext. Ellis, 293 F. App’x at 374.
Service Experts has a Return-to-Work policy, that states:
The Company deeply appreciates and values the workplace efforts and
contributions of its employees. As a reflection of that appreciation, the Company
has provided a Return to Work Program. The purpose of the program is to ensure
that each employee injured in the course and scope of their employment is provided
the opportunity to remain an active and productive member of the Company. The
policy applies to all eligible workers and will be followed whenever appropriate.
R. 23-8, PID # 330. The policy goes on to say: “Supervisors will support the employee’s return to
work by identifying appropriate modified assignments and ensuring the employee does not exceed
the physician’s set restrictions.” Id. at PID # 331. It also states that “the Company will make
every reasonable effort to provide employees with temporary or modified duty work assignments
following a work-related injury for which the treating physician prescribes temporary physical
restrictions.” Id. at PID # 332.
Forester argues that Service Experts did not consider him for temporary or modified work
duties, in violation of this policy. Hacker testified that he made the decisions about temporary and
modified work assignments. He stated that he considered whether modified work was possible,
but decided there was “just no way” to modify Forester’s job duties. R. 23-6, PID # 264–65.
However, when asked about whether he considered temporary work assignments, Hacker
answered as follows:
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Q. Okay. Was Mr. Forester considered for any temporary transitional
duties with the company after December 18 of 2019?
A. No.
Q. Why not?
A. Directly after December –
Q. At any point after December 18 of 2019.
A. No. There was – there was no positions available for him.
Id. at 264. Forester seems to rely on this deposition testimony as evidence that Service Experts
did not consider him for temporary work in violation of company policy. But, in this excerpt, it is
clear that the reason Service Experts did not consider Forester for temporary work is because there
were no positions available. And Forester acknowledges this reality: at his deposition he stated
that there were “no other positions available to apply for except a service technician,” a position
for which he had previously been rejected and which was not posted as available. R. 20-1, PID
# 94. Thus, the evidence that Forester relies on to establish a violation of company policy is, at
best, a “mere scintilla” of evidence, and thus, not enough to survive summary judgment. Hartman
v. Thompson, 931 F.3d 471, 478 (6th Cir. 2019) (quoting Anderson, 477 U.S. at 252).
Additionally, although failure to follow company policy can serve as evidence of pretext,
Tennessee cases relying on violations of company policy as evidence of pretext explain how the
violation called into question the employer’s justification for the termination. For example,
evidence that a company did not follow its policy when firing a person for their bad actions—the
same bad actions that supposedly justified the termination of employment—is considered some
evidence that those bad actions were unlikely to be the true cause for termination. See, e.g.,
Newcomb, 222 S.W.3d at 394 (finding a manager’s failure to “follow the five-step process in the
Associate Handbook” when reprimanding the plaintiff some evidence of pretext); Whirlpool Corp.
v. Pratt, No. M200702534COAR3CV, 2008 WL 4615709, at *6 (Tenn. Ct. App. Oct. 17, 2008);
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see also Kinsler v. Berkline, LLC, 320 S.W.3d 796, 801 (Tenn. 2010) (“[T]he record shows that
[the employer] did not enforce the lifting restrictions . . . until three days after [the plaintiff]
rejected its settlement offer. Based on these facts, a reasonable person could reach more than one
conclusion as to whether [the plaintiff’s] rejection of the settlement offer was a substantial factor
in [the employer’s] decision to discharge him.”). Forester fails to explain how evidence that
Service Experts failed to consider him for a temporary work assignment calls into question that he
was fired because he was unable to complete his job duties months after his injury occurred. See
Davis v. Reliance Elec., 104 S.W.3d 57, 63 (Tenn. Ct. App. 2002); see also Canady v. Gillette Co.,
547 F. App’x 670, 681 (6th Cir. 2013) (“Canady’s allegations that Gillette deviated from company
policy fails to generate compelling circumstantial evidence of causation.”); Thayer v. Tyson Foods,
Inc., 355 F. App’x 886, 890 (6th Cir. 2009) (“The District Court convincingly reasoned that there
was no logical connection between any of these relatively inconsequential procedural variances
and the cause of Thayer’s discharge.”).
In sum, Forester fails to raise a genuine issue of material fact as to his retaliatory discharge
claim. The district court thus appropriately granted summary judgment in favor of Service
Experts.
IV. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
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