# FILED

Au gust 16, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

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TINA M. PACK, ) ) BLOUNT CIRC UIT Plaintiff/Appellant ) ) No. 03A01-9604- CV-00136 v. ) ) T.T. ENTERPRISES, I NC. d/b/a ) GARY YEO MANS FORD , INC. and ) GARY YEOMANS FORD/LINCOLN/ ) MERCURY, ) ) REVERSED AN D REMAND ED Defendant/Appellee )

David A. Burkhalter, II, Knoxv ille, For the Appellant Perry P. Paine, Jr., Maryv ille, For the Appellee

O P I N I O N INMAN, Se nior Jud ge

The plaintiff challenges the granting of a directed verdict against her in this case. W e find that this was not a proper case f or the granting of a directed verdict and therefore reverse and rem and the case for a new trial. The complaint all eges that the de fendant discharg ed plaintiff in ret aliation for her serv ing on a jur

y, a vi olation of the common and statutory law of Tennessee. Hodges v. S.C

. Toof & Co. , 833 S.W.2d 896 (Tenn. 1992); T ENN . C ODE A NN . §§ 22- 4-108, et seq. On March 26, 1 992, the plainti ff received a summons ordering her to appear for jury dut

y on April 20, 1992. She test ified that, on Mar ch 27, 1992, the foll owing day, she tol d her superv isor that shehad been summoned for jur y duty a nd held out the summons towa rd him. She tes tified that Jim R odgers, the s upervisor , told her he did not have time for “this” and did not look at the summon s.-2- The plaintiff testified t hat she next d iscussed her jury dut y wi th her superv isor as she was

clocking in on Frida

y, April 17, 1992, when her superv isor inq uired about it. She testi fied that she had tol d him about the jur y duty p reviousl y, whi ch he denied. She testi fied that he told her that it was “the craz iest thing I ever hear d of . . . If I had known it you wouldn’t haveserved on the damn thing.” That afternoon as she was l eaving, she testified that he told her that

he would s ee her on Monday , and she r emin ded him t hat s he ha d jury d uty. Plaintiff served on a jury during the entirety of her usual working day on both Monday, April 20, 1992 and Tue sday, April 21, 1992. On W ednesday morning, April 22, 1992, the plaintif f had phone conversation s with Ms. Mikles and then with Mr. Rodgers, du ring w hich she was informed that she needed to provi de the defendant with a st atement from the court showing the exact hou rs that she w orked and w ith her jury money. She tes tified that Mr . Rodgers told her she w ould have to p rovide the statement before she“came back out. ” The plaintiff testified that she called th e clerk’s office and the jud ge’s secretary

but was unabl e to obtain a stat ement of her exact hours; she then talked with Judg e Thomas and explai ned that she needed a statement of her hours and her jury money. He t old her to have the defendant contact hi m. She testified th at she told her employer that he could ca ll Judge Thomas and the jud ge would handle it. She further testified that Mr. Rodgers reiterated that she was not to return bef ore providing a statement of her exact hours. Judge Thomas testi fied that he had a conversation w ith Ms. Pack while s he
was serv ing as a j uror in w hich she ex pressed concer ns about either being paid for her work while on jury duty

or being excused to serve at all. H e testified that he gave her a copy of the st atute dealing with employers and jury servic e and told her to have her e mployer cal l if there was a problem. H e further testifie d that a letter showing the plaintiff’s exact hours could have bee n provided but, since exact hours that jurors served was not recorde d in 1992, it w ould have taken some time.-3- The plaintiff ’s husband, Jim Pack, testif ied that he went to talk with Mr. Rodgers the next day, Thursday, April 23, 1992, at abo ut 8:00 or 8:30 a.m. He test ifie d tha t Mr. Ro dgers told him, “W ell, bef ore yo u say a nythi ng, le t me t ell you we had to let her go.” Mr. Pack testified that he kn ew she had been absent f rom work recently due to surgery and now “this.” He testified that Mr. Rodgers replied, “I don’t have no probl em with peopl e being out for medi cal reasons.” As part of her pr

oof, the plaintiff submitt ed a statement from the defendant , s i g n e d b yM r . R o d g e r s , t h a t w a s p r o v i d e d t o t h e u n e m p l o y m e n t o ff i c e . We reproduce this

statement verbatim :
Tina Pack came to me w ith Jury Duty noti ce 4/17/92 as she was cloc king out at 4:00 p.m. I asked her why she did not tel l me two weeks ago w hen she got it. She stated she did, agai n I told her s he did not, but bec ause of all the conf usio n I st ated O.K. see yo u Mon day. On th e fo llowin g W ed. 4 /22/ 92 I a sked Rosa lie Mi kles to ca ll Tin a fo r the days and time she had ju ry duty , about 30 minutes l ater Tina call ed back and asked why

I needed this i nformation. I told her I had to pro cess payr oll and needed a statement for w hat days and hou rs she was to be paid. S he went “off” , mad, rav ing, and cr ying s aid it w as another way to screw her and hu ng up. That afterno on she called back and said if I wanted to know when she was in court to call Kelly Thomas’ s office. I did not feel this wa s my job to inquire as to her jury duty days or hours. If she wanted to be paid it would be necessary for her to tell us dates and ti mes, she hung up. Thursday Mor ning 4/23/92, J im Pack came in my office and informed me he did not appreci ate me upsetting his wi fe and he told her not to tell me, that I would try to have her exempted from jur y duty. At that point I told Jim he had cost Tina her j ob, because she di d not comply with company rules and I w

as left in a bad posi tion and over loaded the work schedule. Ms. Mikles is only the switchboard operator and time keeper, she is not T ina’s supervisor. This is a unfortunate situa tion which could have been avoided if Tina would hav

e complyed[si c] with company rule s or even h ad offered to comply to my request for days and hours so I could simply pay her. Plaintiff denied g oing “off” at her supervis or or stati ng that this was another way to screw her

when she fir

st talked to M r. Rodger s about the statement

of her exact hours . Mr. Pack

denied telli ng Mr. R odgers that h e had told plain tiff not to-4-

inform Mr. Rod gers about her jury dut y. Both the plaintiff and her hus band denied that plain tif f’s h usba nd ha d ever told her n ot to tell M r. Rod gers a bou t her jury du ty. Plaintiff also submi tted the separati on notice prov ided her by defendant, to which defendant stipulated. The sep aration notic e, signed by Mr. Rodg ers, states that the plainti ff was fired for faili ng to comply with the rules set out

in the employee handbook. It als o indicates th at the separati on notice was completed and released to Ms. Pack on April 22, 1 992. In review ing a directed verdi ct, we must take the stron gest leg itimate vi ew of the evidence in favor of the pa rty against whom the verdict was directed, discard all countervailing evidence and reverse where there is any doubt as to whether a reasonable mind could conclude ot herwise. Crosslin v. Alsap , 594 S.W.2d 379, 380 (Tenn. 1980). The plaintiff must establ ish the follow ing elements to prove w rongful retaliatory

discharg e: (1) she w

as an employee of the defendant when she served on the jury ; (2) she se rved on a j ury; (3) the defendant terminated her employment and (4) her jury service was a substantial factor in the defend ant’s motivation to fire her. Anderson v. Stand ard Register

Co. , 857 S.W.2d 555, 558 (Tenn. 1993) (paraph rasing the elemen ts listed for pro ving retalia tory discha rge for f iling a workers’ compensation claim). The burden of proof rests upon the plainti ff to prove these el ements, includi ng the causal rel ationship between the jury servic e and the firing . Proof of such a causal relat ionship puts t he burden on the employer to show a legiti mate, nonpretextual reason for the firi ng. Anderson , 857 S.W.2d at 558-559. To recover under T ENN . C ODE A NN . § 22-4-108, th e plaintiff must als o show that she exhi bited the summons to her immediate super visor on the next day

she worked after receiving the summons. Here, taking the strongest legiti mate view of the evidence in favor of the plaintiff, the cir

cumstances sur rounding the plaintiff’s disc harge rais e a causal-5-

relatio nship be tween he r discharge and the jury service. T he plain tiff ’s discha rge took place duri ng the time shewas ser ving as a juror. The plaintiff and her hus band testified to stat ements of plaintiff’s s upervisor suggesti ng that he dis approved of plaintiff’s absenc e from work for jury s ervice. Further, the re is ev idence that the defendant fired the plaintiff before the conversation which allegedly informe d Mr. Rodgers that plaintiff had v iolated company policy by not gi ving hi m timely noti ce of her summons. The plaintiff’s proof al so presents thedefendant’s purport ed rationale for firing her, that she failed to comply w ith the rules in the employee handbook. The handbook states, “ If you receiv e a call to j ury duty , take it immedi ately to y our manager so he may

plan the department ’s work with as little prob lem as possibl e.” Defendant argues that plaintiff was fired because s he lied to her supervis or when she said that she had told him about her serving jury duty before Friday, April 17, 1992. Defend ant bases this argument on the statement of Mr. Rodgers submitted by the plaintiff as par t of its proof, by

which thedefendant argues t he plai ntiff is “ boun d.”We are u ncer tain as t o wh y th e defe ndan t bel ieves t he pl aint iff is more bound by

Mr. Rodg ers’ statements than she is by

her other pr

oof-in-chief. This conflict in the evidence on ly demonstrates that this is not a proper case for a dire cted verdic t. Qu esti ons o f fa ct mu st be subm itte d to t he ju ry. Alternatively, defendant argues that the no tice she prov ided was i nadequate because she did no t inform defendant of the actual dates of her jur y serv ice. Howeve r, the plaint iff testified that she d id exhibi t the summons to her employer on the day after s he receiv ed it, whi ch is all the statute and the company handbook require. Looking at t he evidence i n the light most favorable t o the plaintiff, she complied with the rules set out in the comp any handbook. Theref ore, a reasonable mind could find that the employer has not raised a legitimat e, non-pretex tual reason for her discharge.-6- The judgment of the tr ial court i s revers ed at the costs of the appellee, and the case is remanded to the trial court for a new trial.

W illiam H. I nman, Senior Ju dge
Concur:

Don T. Mc Murray, Jud ge

Hersche l P. Franks , Judge