Robinson v. Nissan Motor Mfg. Corp., USA

IN THE COURT OF APPEALS OF TENNESSEE
FILED
MIDDLE SECTION AT NASHVILLE March 29, 2000
Cecil Crowson, Jr.
ELVIN DWAYNE ROBINSON, ) Appellate Court Clerk
)
Plaintiff/Appellant, ) Appeal No.
) M1999-00296-COA-R3-CV
vs. )
) Rutherford County Circuit Court
NISSAN MOTOR MANUFACTURING ) No. 39879
CORPORATION, U.S.A., )
)
Defendant/Appellee. )
APPEAL FROM THE RUTHERFORD COUNTY CIRCUIT COURT
AT MURFREESBORO, TENNESSEE
THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR
JOE BEDNARZ, JR,
Suite 1400, Parkway Towers
440 James Robertson Parkway
Nashville, Tennessee 37219
Attorney for Plaintiff/Appellant
LARRY G. TRAIL,
107 North Maple Street,
Murfreesboro, Tennessee 37130
Attorney for Defendant/Appellee
AFFIRMED
INMAN, Sr. J.
Concur:
CRAWFORD, P.J., W.S.
LILLARD, J.
This is an action for damages for asserted discharge from employment in retaliation for filing
a workers’ compensation suit. The motion of the defendant for summary judgment was granted.
This appeal followed. The sole issue is whether summary judgment was properly granted.
Our review is de novo on the record with no presumption of correctness since the issue is one
of law. McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995); Tomlinson v. Kelley, 969 S.W.2d 402(Tenn. Ct. App. 1997); McReynolds v. Cherokee Ins. Co., 896 S.W.2d 137 (Tenn. Ct. App. 1994).
I
The plaintiff alleged (1) that he suffered a work-related injury on October 13, 1997,1 (2) that
he made a claim for workers’ compensation benefit, (3) that the defendant retaliated against him by
harassment, intimidation and discharge. The defendant denied any act of retaliation and alleged the
plaintiff was discharged for insubordination, that being his refusal to perform assigned duties within
his capability.
II
A day job opened for a sealer deck position in Nissan’s Paint Plant in October 1997. Plaintiff
successfully sought this job. Three days later he reported that he had strained his lower back during
the course of employment. His medical tests revealed no abnormalities but the attending physician
imposed some temporary work restrictions.
1
Which involved no permanent impairment or disability. He was initially employed on
October 6, 1991. During the ensuring six years, he filed five (5) claims for workers’
compensation benefits, none of which involved permanent impairment.
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The plaintiff’s area manager, Rodney Baggett, unilaterally determined that the plaintiff
should not continue working in his home work group, and transferred him temporarily to a job
Baggett believed was within his medical restrictions. This job was in the prime work group where
the plaintiff previously had worked on the night shift.
Because Nissan’s general practice is to assign employees outside of their work group for not
more than 30 days, Rusty Krawchuk, Department Manager, Altima Plant, met with plaintiff and
informed him that he was expected to return to his home group in sealer, which was short handed.
Krawchuk also counseled plaintiff about his “uncooperative attitude” in not wanting to work on the
sealer deck, pointing out that the job in the primer group was as strenuous as the work he had been
assigned to perform in sealer. The purpose of this meeting was to let plaintiff know that he was
expected to return to sealer in conformity with Nissan policy.
Following this meeting, plaintiff continued to work in prime for an additional week, allowing
more time for his back to heal. On November 24, 1997, after plaintiff reported to Nissan Medical
complaining of neck pain, he was placed on restriction and assigned to the color order job. The
following day, he again reported to the medical clinic, and Nissan’s physician, Dr. Moore, added the
restriction of no overhead work, which was to remain in place until the plaintiff was examined by
his treating physician, Dr. William Jekot. In light of this new restriction, Baggett assigned plaintiff
to work on the blow and tack job in a third work group called Damp Sand I. After the plaintiff
complained that he was unable to perform some of the job duties, Baggett called Nissan Medical
personnel to evaluate the job. Wade Pinkard, Restricted Work Coordinator, thereupon studied the
job and concluded that the plaintiff could not perform the required tasks.
On November 26, 1997, plaintiff reported to work with an “attending physician’s report”
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from Dr. Jekot, who imposed a lifting restriction of no more than 20 pounds, which Nissan
interpreted as eliminating some of plaintiff’s previous restrictions. As a consequence, plaintiff was
assigned to his original job in sealer, which would accommodate a lifting restriction of no more than
20 pounds, but with no further limitations. Plaintiff refused to perform the sealer job. Baggett
thereupon consulted with Nissan Medical, who concluded that Robinson could work on the sealer
job with a 20 pound lifting restriction. This occurred at the end of the working day. Robinson then
left work for the Thanksgiving holidays, following which Nissan Medical learned from Dr. Jekot’s
office that plaintiff had additional restrictions of no repetitive bending, stooping, lifting, or twisting.
On the following Monday, Baggett and other Nissan managers were advised of plaintiff’s
additional restrictions. In light of this new information, he was taken off the job in sealer, and
returned to a job in the prime work group that Wade Pinkard believed was within the additional
restrictions.
On December, 2, 1997, Baggett informed Tom Buchanan, Section Manager, that the sealer
group was short of manpower. Because of the manpower needs in sealer and because the plaintiff
was the only employee then working in prime who also was permanently assigned to sealer,
Buchanan determined that Steve Klintworth, Occupational Health Nurse and Job Placement
Coordinator, and Wade Pinkard should evaluate plaintiff’s ability to perform a job in sealer that
would be within his restrictions. This was the first time that Nissan Medical had reviewed the jobs
in the sealer work group to determine whether the plaintiff, given his restrictions, could perform the
job.
In response to Baggett’s request, Klintworth and Pinkard assessed jobs in sealer and
determined there were two jobs that Robinson could perform within his medical restrictions. The
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plaintiff’s medical restrictions - no continuous bending, stooping, lifting or twisting and no overhead
work - comported with the job functions at Stations V and VI of the sealer deck.2
Because the plaintiff’s medical evaluation indicated he could perform two jobs on the sealer
deck, Larry Burks, Department Manager of Manufacturing Operations, transferred him out of the
prime booth, where he was an “extra,” to Station VI on the sealer deck, where Nissan was short
handed. This was the first time that the plaintiff had been assigned to the Station VI job. Burks
testified that he made this change because he needed “manpower on the sealer deck, . . . Dwayne
[Robinson] was supposed to be on the sealer deck and there was medically no reason for him not to
be on the sealer deck.”
Plaintiff expressed reservations about performing the Station VI job in sealer and refused to
work. He admits that he had no objective evidence that he would have had difficulty performing the
job; rather, he refused to do the work based upon his perception of his abilities.
Patty Dixon, who at the time was Section Manager in Nissan’s medical department, met with
the plaintiff to discuss his concerns. She noted that he had no “outward signs” of pain. Rather, “he
appeared to be relaxed and gave no signs of pain that I normally see in an individual that really was
having severe pain. He was not grimacing, he was not stiff, he did not appear to have discomfort.”
She concluded that Robinson “should [have] be[en] able to perform that [Station VI] job . . . .” She
testified ,
I told him [Robinson] that I had reviewed his file and diagnosis and
job restrictions, coordinators notes in the file and I felt that he should
be able to and that it was in his best interest to try to perform the job,
that it was part of his rehabilitation, that it was really much better for
him to continue working.
2
Mr. Pinkard videotaped the job to verify the assessment.
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She also told the plaintiff, in effect, to try the job and “if he wasn’t able to do that,” she “would
reconsider her position.”
Tom Buchannan and Jim Bowles, Section Manager of Human Resources, also met with the
plaintiff. Bowles testified that he “practically begged” Robinson to try the Station VI job and that
Nissan “did everything we possibly could to get him [Robinson] to attempt to work.” Bowles
requested that the plaintiff return to work until the end of the shift at which time he could then see
his doctor and have his restrictions altered if he could not do the job. At first, Robinson went to the
sealer line and “performed two to three rotations on three or four units,” but after a few minutes, he
again said he could not do the job and refused to continue working. Area Manager, Rodney Baggett,
testified that he considered the plaintiff’s response as constituting a “refusal” to do the job.
Because plaintiff persisted in his refusal to perform the Station VI job, he was terminated on
December 2, 1997 “for refusing to try and do a job that [the] medical department deemed that he was
capable of doing. Insubordination.” Department Manager Larry Burks explained the decision to
terminate the plaintiff as follows:
Someone has to do a job. If you refuse to do a job and you refuse to
accomplish that job, then there is no reason for that employee to be
there anymore, I mean if you’re not going to try and do a job.
According to Section Manager Jim Bowles, one of the “important facts” that entered into
Nissan’s decision to terminate plaintiff was that “medical had talked to him” and plaintiff clearly
understood that even with his restriction said he could do the job [in sealer].” Larry Burks also
pointed out that if plaintiff had tried to do the job and had been unable to perform it because he was
experiencing too much pain, “then he had another avenue” of going back to the medical department.
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Plaintiff did not avail himself of this possible alternative. As emphasized by Burks, “I know that he
[plaintiff] should have tried to do the job to see if he was in pain or not. I don’t know how you
determine he was in pain if he didn’t try to do the job.”3
III
The foregoing recitation of the facts of this case is essentially undisputed subject to the caveat
that the plaintiff insisted that he was not physically able to perform the assigned work. Such
inability, he argues, was caused by his low back strain, and the insistence of his supervisors that he
should nevertheless work was pretextual and in retaliation for making a workers’ compensation
claim.
In support of his admittedly subjective complaint that he could not do the work and thus was
allegedly subject to the vengeance of his employer, he offered affidavits from former employees,
typical of which is that of William Burk, who deposed that he was harassed, intimidated and then
terminated because he filed a workers’ compensation claim. He argues that in light of T.R.E. 406
which provides:
. . . [E]vidence of a habit of a person or routine practice of a business
is admissible to show that the actions of the person or organization
are in conformity with the habit or routine practice on the date in
question, . . .
superimposed upon his personal opinion of his inability to do the assigned job, a genuine issue of
3
Tom Buchanan specifically informed Burks that Robinson “was not trying to do the job”
on the sealer deck and that there were two instances in which Burks recalled that he had
encouraged Robinson to do the sealer job, but Robinson refused. Later Buchanan and Jim
Bowles tried again to encourage Robinson “to go back and try the job, at least try the job and see
if he can do it or not and if he can not, then go back to medical and get a restriction.”
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a material fact existed which made summary judgment inappropriate pursuant to the teaching of Byrd
v. Holt, 847 S.W.2d 208 (Tenn. 1993).
When the plaintiff protested that he was unable to perform the duties of the job to which he
had initially been assigned, his employer had the “job considered by a number of professionals” who
determined that the job was within the plaintiff’s medical restriction. Various fellow workers and
supervisors “directed and encouraged” the plaintiff to at least try to do the job, but he refused. He
was thereupon terminated.
The trial judge found that whether he accepted the plaintiff’s reason for refusing to work at
the assigned job, or the defendant’s reason for terminating the plaintiff, there was nevertheless no
“basis for a finding that the plaintiff was terminated for filing a workers’ compensation claim.”
The trial judge then found that the plaintiff “cannot satisfy the initial requirement in a
retaliatory discharge case in proving any connection between the workers’ compensation claim and
his subsequent termination”, and dismissed the case.
IV
The plaintiff insists that summary judgment was inappropriate because the evidence offered
on the issue of whether the defendant pretextually terminated him for making a workers’
compensation claim was material. To make the point, the plaintiff relies (1) upon his personal belief,
and (2) the beliefs of other employees that they were terminated because they had made a claim for
workers’ compensation benefits.
When faced with the supported motion for summary judgment, the court ‘allowed’ the
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plaintiff to take the discovery depositions of nine(9) employees of the defendant. Their testimony
was not helpful to the plaintiff.4
When a non-movant claims there is a disputed material fact, the court, when so confronted,
must examine the elements of the claim to determine whether the resolution of the factual issue will
affect the disposition of the claim. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). Such a
determination will resolve the issue of materiality.5 But even if there is a material fact in dispute,
the court must still evaluate whether the disputed material fact creates a genuine issue for trial. If
the evaluation show that a reasonable trier of fact could resolve the issue only one way, summary
judgment is proper. Byrd, supra. In Caldwell vs. Nissan Motor Manufacturing Corp., U.S.A., 968
S.W.2d 863 (Tenn Ct. App 1997), we held, citing Matsushita Elec. Indus. Co. Ltd. vs. Zenith Radio
Corp., 475 U.S. 574 (1986), that
. . . [T]he evidence of the non-moving party must show more than a
mere metaphysical doubt as to material facts, must include competent
and material evidence of the non-existence of facts assisted by the
moving party and/or facts which effectively disentitles the moving
party to summary judgment.
V
To make a prima facie case for retaliatory discharge, a plaintiff must prove: (1) that he was
an employee of the defendant at the time of the injury; (2) that he made a claim for workers’
4
Following his termination, according to company policy, the plaintiff was afforded the
opportunity to take advantage of the defendant’s “peer review” process. Involved are three
fellow employees and two Area Managers who determine if “there is some reason we should
overturn the termination.” A meeting was arranged, which the plaintiff declined to attend.
5
The trial judge noted that although some facts may be disputed as to whether the plaintiff
attempted to perform his job, these would be immaterial on the issue of causation.
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compensation benefits; (3) that the defendant terminated his employment, and (4) that there was a
causal nexus between the termination of his employment and his claim for workers’ compensation
benefits. Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. Ct. App. 1993). The issue for
resolution is whether the plaintiff established the necessary element of causation required by
Tennessee law. If circumstantial evidence is presented, it must be compelling on the issue that
retaliation was a substantial factor in the decision to terminate the plaintiff. Thomason v. Better-Bilt
Alum. Prod. Inc., 831 S.W.2d 291 (Tenn. Ct. App. 1992).
Mere proof of discharge without evidence of a causal link between the workers’
compensation claim and the discharge “does not present an issue for the jury.” Anderson, at 558-
559. To present an issue for the trier of fact, the plaintiff must prove that his claim for workers’
compensation benefits was a substantial factor in his employer’s motivation to terminate his
employment, Id. at 558, and the burden of forging this causal link rest upon the plaintiff. Id. at 559.
Evidence of causation requires more than facts showing employment, the exercise of rights,
and a subsequent discharge. Thomason v. Better-Bilt Aluminum Products, Inc.. 831 S.W.2d 291, 293
(Tenn. Ct. App. 1992). For a plaintiff to prevail, there must be either direct evidence of causation
or compelling circumstantial evidence. Id. If the plaintiff fails to present adequate evidence of
causation, then summary dismissal is justified. As the Supreme Court has observed, the “failure of
proof concerning an essential element of the cause of action necessarily renders all other facts
immaterial.” Alexander v. Memphis Individual Practice Ass’n., 870 S.W.2d 278, 280 (Tenn. 1993).
Even if a plaintiff is able to muster sufficient direct or circumstantial evidence to allow the
inference of a causal link between the claim for benefits and the plaintiff’s subsequent discharge, that
does not end the inquiry. The burden is shifted to the employer to come forward with “a legitimate,
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non-pretextual reason for the employee’s discharge.” Anderson at 559.
Stated differently, causation does not exist if the basis for discharge is valid and not a mere
pretext, even if the discharge is related or linked to a claim for benefits. Id. at 558. For example,
an employer may fire an employee for excessive absenteeism, even though the absenteeism is caused
by a compensable injury. See Anderson and cases cited therein. Other legitimate reasons include
the employee’s own shortcomings (such as tardiness, lack of skill, lack of truthfulness) and the
employee’s physical inability to do the job. Anderson, at 559 (citing A. Larson, The Law of
Workmen’s Compensation).
Where the employer presents a legitimate, non-discriminatory reason for the employment
action, the burden shifts back to the employee to prove that the employer’s explanation is pretextual
or not worthy of belief. Smith v. Bridgestone/Firestone, Inc., 1999 Tenn. App LEXIS 110 at *16
(Tenn. Ct. App. Feb. 23, 1999) (citing, Devore v. Deloitte & Touche, 1998 Tenn. App. LEXIS 122at *12-13 (Tenn. Ct. App. Feb. 20, 1998). In doing so, the employee “must present specific
admissible facts, which realistically challenge the defendant’s stated reasons.” Hubrig v. Lockheed
Martin Energy Sys., 1998 Tenn. App. LEXIS 303 at *24 (Tenn. Ct. App. May 4, 1998). See also
Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir. 1986); Silpacharin v. Metropolitan Gov’t., 797
S.W.2d 625, 629 (Tenn. Ct. App. 1990). The employee faces summary dismissal of his claims if he
is unable to demonstrate that he could prove that the defendant’s reason for the discharge was
pretextual. DeVore, 1990 Tenn. App. LEXIS at *16-17. Thus, if the employee fails to make the
required showing of pretext, the employer must prevail. Id.As we have heretofore noted, the plaintiff presented no direct proof that he was terminated
because he made a claim for workers’ compensation benefits, and he presented no compelling
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circumstantial evidence. See, Thomas, supra. He testified that he had nothing beyond his subjective
feelings to support his claim, other than the beliefs of other employees who had been terminated.
Subjective beliefs as to why he was dismissed do not create a genuine issue of material fact.
Newsom vs. Textron Aerostructures, 924 S.W.2d 87 (Tenn. Ct. App. 1995)
Accordingly, we find that summary judgment was properly granted. The judgment is
affirmed at the cost of the appellant.
____________________________________
INMAN, Sr. J.
CONCUR:
____________________________________
CRAWFORD, P.J., W.S.
____________________________________
LILLARD, J.
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