FILED

February 23, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

ALLEN SCOTT SMITH, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9803-CV-00146

v. )

) Rutherford Circuit

BRIDGESTONE/FIRESTONE, ) No. 35343

INC., )

)

Defendant/Appellee. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, JUDGE

MARY A. PARKER

STEPHEN C. CROFFORD

DOUGLAS B. JANNEY, III

209 10th Avenue South, Suite 511

Nashville, Tennessee 37203

ATTORNEYS FOR PLAINTIFF/APPELLANT

ROBERT E. BOSTON

STEPHEN W. GRACE

Waller, Lansden, Dortch & Davis

511 Union Street, Suite 2100

Nashville City Center

Nashville, Tennessee 37219

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED

WILLIAM B. CAIN, JUDGE
1 Complaint at ¶ 16, T.R. p. 3.

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OPINION

Plaintiff, Allen Scott Smith, filed suit against his former employer

Bridgestone/Firestone, Inc. for retaliatory discharge for the prior filing of a

worker's compensation complaint. Plaintiff sought " . . . actual damages

including back pay, reinstatement, front pay if plaintiff is not reinstated, damages

for embarrassment and humiliation, and punitive damages."1

On April 24, 1997, following discovery plaintiff filed an amended

complaint with a second count charging failure of the defendant to notify the

State of Tennessee of worker's compensation injury in violation of Tennessee

Code Annotated section 50-6-114(a). Damages sought were essentially the same

as in the original complaint.

Plaintiff was employed by defendant from February 1988 until October

7, 1994 at its Laverne, Tennessee plant. He suffered a work-related injury on

September 12, 1994 but was required to continue work on a restricted work

status. 

On October 1, 1994, the security guard at the entrance to the

Bridgestone plant grounds reported that Mr. Smith had left the plant grounds in

a vehicle. Plaintiff's supervisor began a search for Mr. Smith in the plant. Mr.

Smith was located on the plant grounds some four hours after the security guard's

initial report; Smith asserted that he had never left the plant grounds. At a

meeting on October 4, 1994 between management personnel, union representatives and Mr. Smith; defendant's labor relations manager Mr. Davenport

decided to discharge plaintiff for leaving plant premises and filing an inaccurate

work time card.

On October 7, 1994, plaintiff filed a grievance under the Union

Management CollectiveBargainingAgreementwhereunder "union protest unjust

discharge of Scott Smith. Request he be reinstated his record clear and be made
2 Grievance Report No. 5568, T.R. p. 59.

-3-

whole for all loss of earnings benefits etc."[sic]2

 The defendant rejected the

grievance.

On March 25, 1996, following a meeting between the plaintiff, union

representatives and Mr. Davenport and another management employee, Mr.

Smith was reinstated with all seniority restored, vacation pay restored and all

insurance and fringe benefits restored. Back pay was denied and both plaintiff

and the union agreed to this settlement of Smith's contract grievance.

The trial judge granted summary judgment to the defendant on all

issues holding:

As the Court understands the law, when such an issue

is raised, it is first the duty of the Plaintiff to show to the

Court the proof, prima facie, that discrimination has occurred

which is unlawful, or that the violation has occurred. It

appears to the Court for purposes of the Motion for Summary

Judgment, that the Plaintiff has satisfied this burden. When

the burden is so satisfied, the burden then shifts to the

Defendant to advance a non-discriminatory basis for the

actions which occurred, in this case the termination of the

Plaintiff. Again, it appears to the Court that the Defendant

has satisfied this burden. The burden then again shifts to the

Plaintiff to rebut the defense presented by the defendant, and

it appears to the Court that it is in this particular that the

Plaintiff has been unable to come forward with further proof,

prima facie, so that the case should go forward.

* * *

Having so decided, it may be unnecessary that the Court

further consider the issue as to whether the action by the

Plaintiff is now barred by what perhaps might amount to an

accord and satisfaction. The evidence has been presented,

and perhaps is not in controversy, showing that after the

Plaintiff's termination, the matter was presented to an

arbitration through a procedure developed between the union

of which the Plaintiff is a member and the management of the

Defendant. It has been shown that the results of the

arbitration, whether by agreement or by enforceable order,

were that the Plaintiff was in fact reinstated without back

pay, but with some back benefits. The Plaintiff accepted the

decision, as did the Defendant. Having so accepted the

decision, it appears to the Court additionally that further
3 Trial Court Memorandum, Supp. T.R. p. 3; p. 4.

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action by the Plaintiff is now barred.3

The oft repeated standard for considering summary judgment

applicable in both trial and appellate courts provides:

[2, 3] In determining whether or not a genuine issue

of material fact exists for purposes of summary judgment,

courts in this state have indicated that the question should be

considered in the same manner as a motion for directed

verdict made at the close of the plaintiff's proof, i.e., the trial

court must take the strongest legitimate view of the evidence

in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all

countervailing evidence. Downen v. Allstate Ins. Co., 811

S.W.2d 523, 524 (Tenn.1991); Poore, 666 S.W.2d at 49;

Dunn, 833 S.W.2d at 80; Wyatt v. Winnebago Industries,

Inc., 566 S.W.2d 276, 279 (Tenn. App. 1977); Taylor, 573

S.W.2d at 480. Then, if there is a dispute as to any material

fact or any doubt as to the conclusions to be drawn from that

fact, the motion must be denied. Poore, 666 S.W.2d at 49

("[I]f the mind of the court entertains any doubt whether or

not a genuine issue exists as to any material fact it is its duty

to overrule the motion.");Dooley v. Everett, 805 S.W.2d 380,

383 (Tenn.App.1990). The court is not to "weigh" the

evidence when evaluating a motion for summary judgment.

Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993).

Little has changed since the adoption of the Tennessee Rules of Civil

Procedure and Justice Harbison's early observations remain valid to this day:

[7, 8] In concluding this opinion we feel it proper to

comment upon the procedure which was followed in the trial

of this case. Summary judgment proceedings in this state

were authorized for the first time by Rule 56 of the

Tennessee Rules of Civil Procedure. This new procedure

was designed to fill a vacancy or void which had existed in

prior practice and to provide a procedural step which had

heretofore not existed. Under previous practice, in both the

circuit and chancery courts, there had been no satisfactory

intermediate step between the demurrer, which dealt only

with the contents of pleadings, and a full-scale trial of a case

upon the merits. The summary judgment procedure was

designed to provide a quick, inexpensive means of

concluding cases, in whole or in part, upon issues as to which
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there is no dispute regarding the material facts. Where there

does exist a dispute as to facts which are deemed material by

the trial court, however, or where there is uncertainty as to

whether there may be such a dispute, the duty of the trial

court is clear. He is to overrule any motion for summary

judgment in such cases, because summary judgment

proceedings are not in any sense to be viewed as a substitute

for a trial of disputed factual issues. 

Evco Corporationv.Ross, 528 S.W.2d 20, 24-25 (Tenn.1975) (emphasis added).

There seems to be little dispute between the parties as to the applicable

law relative to retaliatory discharge claims. Tennessee follows McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden rests first upon

plaintiff to establish a prima facie case of retaliatory discharge. Eddins v.

Geneva Pharmacy, Inc., 877 F.Supp. 413, 423 (E.D.Tenn.1993). After such a

showing the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its decision. Anderson v. Standard Register Co.,

857 S.W.2d 555, 559 (Tenn.App.1993).

At this point the burden shifts back to the plaintiff to prove that the

proffered reasons offered by the defendant are pretextual. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973).

In sustaining defendant's motion for summary judgment the trial court

held that plaintiff Smith had carried his burden of proof to establish a prima facie

case of discrimination. The court then held that the defendant had articulated a

legitimate, nondiscriminatory reason for the employee's rejection as a matter of

law and granted summary judgment to the defendant. The question for our

determination is whether or not the plaintiff has presented evidence sufficient to

go to the jury on the "pretext" question. 

Prior to the United States Supreme Court’s decision in St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993),

the avenues for proving "pretext" were varied. Until that time, the high court’s

controlling decisions in McDonnell Douglas, supra, and Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
-6-

(1981), left lower courts, federal and state, to their own devices in determining

what was necessary to prove pretext. 

Three distinct approaches emerged. These have been referred to as: 

1. "Pretext Only"

2. "Permissive Pretext Only" and 

3. "Pretext Plus"

Kline v. Tennessee Valley Authority, 128 F.3d 337, 343 (6th Cir. 1997).

Of these approaches, the sixth circuit had adopted "pretext plus"

whereby the plaintiff must not only demonstrate that the employer's asserted

reasons are pretextual but must introduce additional evidence of discrimination.

Gagne v. Northwestern National Insurance Co., 881 F.2d 309, 314 (6th

Cir.1989). In assessing the effect of Hicks on the various paths, the court in

Kline found: 

The Supreme Court attempted to resolve the confusion

among the differing approaches to pretext in Hicks. Hicks

was an appeal from the Eighth Circuit. The Eighth Circuit

had applied the "pretext only" standard reasoning that once

a plaintiff established that the defendant's reasons were

pretextual, he was entitled to judgment as a matter of law.

Hicks, 509 U.S. at 509, 113 S.Ct. at 2748. The Supreme

Court's decision in Hicks effectively rejected both the

"pretext only" and "pretext plus" approaches to employment

discrimination cases and adopted the "permissive pretext"

approach. See id. at 511 n. 4, 113 S.Ct. at 2749 n. 4.

The Court held that rejection of the proffered reasons

did not require that judgment be entered for the plaintiff. Id.

at 511, 113 S.Ct. at 2749. The Court noted that a mandatory

inference which compels judgment for the plaintiff after

disbelief of the employer's alleged non-discriminatory

reasons disregards the traditional burdens of proof. Id. at

511, 113 S.Ct. at 2749. This is an explicit rejection of the

"pretext only" standard.

 The Supreme Court also rejected the "pretext plus"

approach. The Court noted:

The factfinder's disbelief of the reasons put

forward by the defendant (particularly if disbelief

is accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie case,

suffice to show intentional discrimination. Thus,

rejection of the defendant's proffered reasons will

permit the trier of fact to infer the ultimate fact of
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intentional discrimination, and the Court of

Appeals was correct when it noted that, upon such

rejection, "[n]o additional proof of discrimination

is required."

Id. (citation and footnote omitted) (emphasis in original).

The Supreme Court determined that upon rejection of the

reasons offered by the defendant an inference of

discrimination is permitted and no additional proof of

discrimination is required. This is a clear rejection of the

"pretext plus" requirement.

Subsequently, our sister circuits have interpreted Hicks

to adopt the "permissive pretext" standard. They have

rejected a requirement of additional or direct evidence of

discrimination.

Kline v. Tennessee Valley Authority, 128 F.3d 337, 343-344 (6th Cir. 1997).

In the case at bar, as with most cases of its kind, much has been made

of the McDonnell Douglas burden-shift construct. This confusing discussion of

shifting burdens clouds the nature of the burden being shifted. In truth, the court

in Kline might have been better served by a deeper lesson from the language of

Hicks. This language makes clear the fact that Plaintiff’s prima facie case shifts

only the burden of production. Says the court:

In the nature of things, the determination that a

defendant has met its burden of production (and has thus

rebutted any legal presumption of intentional discrimination)

can involve no credibility-assessment stage. At the close of

the defendant’s case, the court is asked to decide whether an

issue of fact remains for the trier of fact to determine.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125

L.Ed.2d 407 (1993) (emphasis added).

A turn of the page brings the reader of Hicks to a discussion of what

happens (as in the case at bar) when the defendant meets this burden of

production:

If, on the other hand, the defendant has succeeded in

carrying its burden of production, the McDonnell Douglas

framework-- with its presumptions and burdens-- is no

longer relevant. To resurrect it later, after the trier of fact has

determined that what was "produced" to meet the burden is

not credible, flies in the face of our holding in Burdine that

to rebut the presumption "the defendant need not persuade

the court that it was actually motivated by the proffered
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reasons." 450 U.S. at 254, 67 L.Ed.2d 207, 101 S.Ct. 1089.

The presumption, having fulfilled its role of forcing the

defendant to come forward with some response, simply drops

out of the picture. Id., at 255, 67 L.Ed.2d 207, 101 S.Ct.

1089. The defendant’s "production" (whatever its persuasive

effect) having been made, the trier of fact proceeds to decide

the ultimate question: whether the plaintiff has proved "that

the defendant intentionally discriminated against [him]"

because of his race id., at 253, 67 L.Ed.2d 207, 101 S.Ct.

1089.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125

L.Ed.2d 407 (1993).

The above discussion continues directly to the quotation used in Kline, supra.

Following an extensive history of pre- and post-Hicks decisions, the Sixth

Circuit in Kline held:

The import of the Hicks decision in this circuit is that once a

plaintiff has disproved the reasons offered by the defendant,

the factfinder is permitted to infer discrimination. A plaintiff

does not need to introduce additional evidence of

discrimination to prevail on the merits. Once a plaintiff

establishes its prima facie case, this, along with disbelief of

the defendant's proffered reasons for the negative

employment action, will permit a finding of discrimination

by the factfinder.

128 F.3d 337, 347 (6th Cir. 1997).

Thus in the case at bar we must analyze the proof under this

"permissive pretext" standard.

The separate body of law in Tennessee as to employment

discrimination and retaliatory discharge began tracking federal procedural law

after the United States Supreme Court established the "shifting burdens" analysis

in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The trail led us through

Johnson v. St. Francis Hospital, Inc., 759 S.W.2d 925 (Tenn.App.1988);

Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993); St. Claire v.

Litho Color Services, Inc., Appeal No. 02A01-9110-CV-00235, 1992 WL

120225 (Tenn.App. June 5, 1992) and Newsom v. Textron Aerostructures, 924
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S.W.2d 87 (Tenn.App.1995). The degree to which this expanding body of

federal law has now subsumed state law is bluntly recognized by this court in

Maurice DeVore v. Deloitte Touche, Appeal No. 01A01-9602-CH 00073, 1998

WL 68985 (Tenn.App.Feb. 28, 1998).

In rejecting the discrimination claims asserted byMr.DeVore this court

held:

The burden of proving the ultimate issue of

discrimination is at all times on the employee in a

discrimination case. See Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67

L. Ed.2d 207 (1981); Brenner v. Textron Aerostructures, 874

S.W.2d 579, 583 (Tenn.Ct.App.1993). The employee may

establish a prima facie case of discrimination either by using

the traditional criteria set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.

2d 668 (1973), or by producing direct, circumstantial, or

statistical evidence of discrimination. See Loeffler v.

Kjellgren, 884 S.W.2d 463, 469 (Tenn.Ct.App.1994);

Brenner v. Textron Aerostructures, 874 S.W.2d at 583; Bruce

v. Western Auto Supply Co., 669 S.W.2d 95, 97 (Tenn.Ct.App.

1984).

Once the employee makes out a prima facie case of

discrimination, the burden shifts to the employer to rebut the

presumption of discrimination by articulating a legitimate,

non-discriminatory reason for the employment action. See

Loeffler v. Kjellgren, 884 S.W.2d at 470; Brenner v. Textron

Aerostructures, 874 S.W.2d at 583; Silpacharin v.

Metropolitan Gov't, 797 S.W.2d 625, 629 (Tenn.Ct.App.

1990). When the employer has presented a legitimate, nondiscriminatory 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. See Texas

Dep't of Community Affairs v. Burdine, 450 U.S. at 253, 101

S. Ct. at 1093; Brenner v. Textron Aerostructures, 874

S.W.2d at 583, 587; Silpacharin v. Metropolitan Gov't, 797

S.W.2d at 629.

DeVore v. Deloitte & Touche, Appeal No. 01A01-9602-CH-00073, 1998 WL

8985, * 4 (Tenn.Ct.App. Feb. 28, 1998).

The DeVore court goes on to hold that the retaliatory discharge claim

" . . . founders on essentially the same shoals that undermined Mr. DeVore's

discrimination claims."
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The elements for both a federal retaliatory discharge

claim and a state retaliatory discharge claim are essentially

the same. In order to make out a prima facie case, an

employee must prove (1) that he or she opposed the

employer's unlawful employment practice, (2) that the

employer subsequently subjected the employee to an adverse

employment action, and (3) that a causal link exists between

the employee's action and the employer's subsequent adverse

employment action. See Yates v. Avco Corp., 819 F.2d 630,

638 (6th Cir. 1987); Newsom v. Textron Aerostructures, 924

S.W.2d 87, 96 (Tenn. Ct.App.1995). An employee may

establish the needed causal connection simply by proving

that his or her protected activity was a substantial factor

leading to the discharge. See Sumner v. United States Postal

Serv., 899 F.2d 203, 209 (2d Cir. 1990); Polk v. Yellow

Freight Sys., Inc., 876 F.2d 527, 531 (6th Cir. 1989).

Deloitte & Touche presented competent evidence that

Mr. DeVore was discharged, not in retaliation for his

discrimination charge, but because of his inadequate job

performance. In order to avoid summary dismissal of his

retaliation claim, Mr. DeVore was required to come forward

with some competent evidence that Deloitte & Touche's

explanation was merely pretextual. They [sic] only evidence

that Mr. DeVore offered was the fact that Deloitte & Touche

discharged him two months after he filed his discrimination

charge with the EEC. This bare sequential evidence does not

suffice to make out either a federal or state retaliation claim.

See Booker v. Brown & Williamson Tobacco Co., 879 F.2d

1304, 1314 (6th Cir. 1989); Thomason v. Better-Bilt

Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn.Ct.App.

1992).

DeVore v. Deloitte & Touche, Appeal No. 01A01-9602-CH-00073, 1998 WL

68985, * 11 (Tenn.Ct.App. Feb. 28, 1998).

Contrasting Mr. Devore's proof with Mr. Smith's, it is difficult to

conceive how Mr. DeVore's purely subjective beliefs about discrimination

unsupported by competent evidence could survive summary judgment on both

discrimination and retaliatory discharge claims, even under the "permissive

pretext" rule. His proof simply provides no basis by which a reasonable trier of

fact could find the employer's explanation to be pretextual or not worthy of

belief.

Construing the evidence most strongly in favor of the plaintiff we find
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the record at bar shows:

1. Defendant had a written work policy that work-related injuries

resulting in restrictions were matters for which an employee could be

reprimanded, disciplined, and subject to termination depending upon the number

of work-related injuries (defined in the policy as an "offense").

2. No previous employee of Bridgestone during the tenure of Mr.

Davenport had been discharged as a result of leaving the plant premises.

3. Before making a decision to terminate Mr. Smith on October 4,

1994, Mr. Davenport had before him unsworn statements from numerous coworkers attesting to the fact that Mr. Smith had never left the Bridgestone

premises on October 1, 1994.

4. Mr. Smith had never been in violation of plant policy before this

event and had not been disciplined for insubordinate conduct or activity.

5. The gatekeeper on October 1, 1994 had not, in fact, actually seen

Mr. Smith leave the Bridgestone premises.

6. Mr. Davenport could not explain how Mr. Smith could have left

the premises through its guarded security gate and then come back to the

premises without being observed at the gate. He speculated that Mr. Smith may

have "jumped the fence" to get back into the plant.

At the summary judgment stage and under the "permissive pretext"

standard, the proof by Mr. Smith was sufficient to "permit" (not "mandate") the

trier of fact to find pretext. Additional evidence under the discarded "pretext

plus" standard is not necessary and the trial court erred in granting summary

judgment to the defendant on the retaliatory discharge claim.

The trial court did not address plaintiff's alleged cause of action

asserted in his amended complaint about the failure of the defendant to report to

the State of Tennessee the work-related injury previously suffered by Mr. Smith.

It is clear, however, that no independent action for damages will lie for this

failure to report. Perry v. Transamerica Insurance Group, 703 S.W.2d 151

(Tenn.App.1985).

Whether or not such violation would be a "device" under Tennessee
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Code Annotated section 50-6-114 and be thus admissible in evidence in a

retaliatory discharge case is not a question presented to the court in this appeal.

Plaintiff last asserts that the trial court erred in granting summary

judgment to the defendant on the question of "accord and satisfaction."

We disagree. On October 7, 1994 plaintiff filed his grievance under the

collective bargaining agreement whereby he and his union protested " . . . unjust

discharge of Scott Smith." Relief requested in the grievance was that he be

reinstated to his job, his record cleared and " . . . he made whole for all loss of

earnings, benefits, etc." This is the same relief he seeks under the complaint of

retaliatory discharge. Defendant rejected his grievance and he remained on

terminated status until March 25, 1996 when he, together with three

representatives of the union, met with Jim Davenport and Missy Cortez for the

defendant. The minutes of this meeting are revealing.

Subject: Allen Scott Smith - Reinstatement

Davenport: Scott, I talked with you briefly

on the phone last week

regarding this. The Union and

the company sat down the past

several weeks to talk about

set tling termina tio n

grievances. Yours is one of

those grievances. The Union

asked if there was anyway

[sic] to solve it prior to

arbitration. In arbitration, you

win some, you loose some.

We felt like we had a good

case, and we felt just in our

discharge, however an

arbitrator may have felt

different. Last Friday in a

meeting with John Johnson,

we offered reinstatement, with

no back pay but with full

seniority, vacation etc. If the

union accepts, it becomes a

dead issue. It will simply be

recorded as a suspension. It
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will be just like you never left.

One thing we are trying to

figure is your vacation pay for

1995. If it is going to count as

a suspension, you are due your

vacation. I believe it is based

on 2% of last years [sic]

earnings.

Smith: Why not the last full year?

Davenport: We could look at it.

Smith: Could it be based on the last full year?

Davenport: Maybe it can. I will ask Ollie

to look at it. There are a

couple of things you need to

do. You need to re-enroll in

your insurance so we can get it

in the mainframe and the

paperwork to Akron. Jo Ann

is the new Benefits Clerk.

You need to get a new ID and

sticker on your car.

Smith: Jackie gave me one already.

Davenport: You were in department 115

when you left. I am planning

on putting you back in that

department. I don't know what

Wesley will do. Probably

have to excess someone out of

that department, but we can do

that. There is no C crew

anymore, only B & D crews.

You just need to notify us and

let us know when to expect

you back to work.

Smith: The 1st of April will be fine. I

would like to work B crew.

Davenport: Let me get the schedule and

see if B crew is in (JD leaves

to get schedule). B Crew will

be in on the 3rd of April.

Smith: Then I will come in on the 3rd
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of April.

Manning: He has restrictions (Manning

hands him restrictions).

Davenport: Is this from the injury you had

when you left?

Smith: Yes.

Davenport: Do you have permanent restrictions?

Smith: Those are permanent.

Davenport: We will have to move you out

of 115 with these restrictions.

Smith: I can still do the reprocessor.

Davenport: You think you can do it.

Smith: Yes. There is no overhead work.

Davenport: I will give this to medical and

have them do permanent

restrictions for the book.

Manning: So these are mostly concerning

overhead work?

Smith: Yes, mostly overhead. Back

there we don't do stuff like

that.

Davenport: What is you clock card number?

Smith: 1025.

Davenport: Anything else you need to ask?

Smith: As far as unemployment. Who

is going to pay them. They

said I had to pay them back

once I got my job back.

Capps: You did not receive back pay.

Davenport: You should not have to pay

them back since you did not

receive back pay, however, if
4

Minutes included in T. R. as part of Attachment IX to Jimmy Davenport's

deposition.

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you do have to pay them back

it will be your responsibility,

not the company's.

Gillespie: Jimmy, on his vacation pay, he

is getting paid for 1995, but

what about 1996? Would it

pick up at the new year?

Davenport: Yes. He would schedule right

in line with his seniority.

Right now we need to get to

the issue of resolving last

years vacation pay.

Smith: How soon could I get it?

Davenport: Hopefully by next Thursday,

as long as the payroll

department can get the right

information in time and have it

done.

Be sure to get with Jo Ann and

make sure you get your

paperwork for your benefits

filled out so we can process

them. I will let Wesley know

you will be in on April 3rd, B

Crew. I will get Ollie started

on the vacation pay and have

medical take care of the

restrictions (JD leaves the

room to make copies of

restrictions).

Manning: You will not have to pay back

the unemployment since you

didn't get back pay.

Smith: That is Ok. I am not loosing much.

(JD comes back in).

Meeting adjourned.4
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In Anderson v. Frank, 755 F.Supp. 187, 189 (E.D.Mich.1991) the

court addressed the same issue:

Defendant argues that the executed settlement

agreement bars plaintiff's subsequent action in this Court for

alleged sex and reprisal discrimination. Defendant maintains

that even though the settlement check compensated plaintiff

for only six out of the eight weeks during which she was

unemployed, the settlement agreement, nonetheless, bars any

subsequent Title VII claim for additional wages and/or

compensation. Defendant relies on Strozier v. General

Motors Corp., 635 F.2d 424 (5th Cir. 1981) in support of its

proposition. The Court agrees.

Strozier provides guidance with respect to the outcome

of this matter. In Strozier, the court held that a voluntary

settlement of a grievance claim bars any further proceedings

in the district court on the same claim if the request for relief

in both the grievance procedure and district court proceeding

are identical. 

The Court is persuaded by the principles articulated in

Strozier, a case that is factually similar to the instant case. In

the instant case, as in Strozier, the plaintiff voluntarily

accepted the benefits of the settlement agreement by

returning to work and cashing the settlement check, and

requested identical relief in her grievance and in her district

court complaint. Therefore, pursuant to Strozier, plaintiff is

barred from pursuing any further action on her sex and

reprisal claims in this Court.

Anderson v. Frank, 755 F.Supp. 187, 189 (E.D.Mich.1991).

The case at bar bears no resemblance to Gray v. Toshiba, M.D.Tenn.

Case No. 3:94-0712. Gray involved arbitration and a failed arbitration procedure

because of procedural flaws. This case involves a voluntary settlement of a

grievance entered into between the employee and his union on the one hand and

the employer on the other hand, without regard to arbitration either compulsory

or voluntary. Strozier v. General Motors Corp., 635 F.2d 424 (5th Cir. 1981)

explained the differences between arbitration and voluntary settlement.

Settlement of a dispute is inherently different from

resolution through arbitration. A settlement is a compromise

voluntarily agreed to by the parties. Each party generally

accepts something less than that to which he believes he is

entitled based on a decision that the compromise is more

advantageous to him than the sum of the risks and benefits

involved in pursuing the claim. Arbitration, on the other
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hand, is an "adjudication" of conflicting interests by a neutral

third party. In binding arbitration, neither party is free to

accept or reject the ruling of the arbitrator. Once the dispute

has been submitted to arbitration, the parties must abide by

the arbitral decision. In light of these differences, different

approaches are required in determining whether resolution of

a claim through settlement or through arbitration bars a

subsequent suit under Title VII and section 1981. Strozier's

1973 claims were settled and the 1976 discharge was

arbitrated, so each must be treated separately.

Strozier v. General Motors Corp., 635 F.2d 424, 425 (5th Cir. 1981).

Plaintiff Smith is in the exact position as was Mr. Strozier. He is not

"mitigating his damages" by voluntarily joining in a full settlement of all his

grievances.

[2] Although a Gardner-Denver footnote discusses

voluntary settlements, 415 U.S. at 52 n.15, 94 S.Ct. at 1021

n.15, the settlement issue in this case is suggested by our

decision in United States v. Allegheny-Ludlum Industries,

Inc., 517 F.2d 826 (5th Cir.1975), cert. denied, 425 U.S. 944,

96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). Although Title VII

and section 1981 claims were expressly mentioned in the

consent decree controlling the release in that case, the

opinion did not rest on that formalism. There this Court

stated that nothing in Gardner-Denver supports the assertion

"that an aggrieved employee who freely settles his or her

unliquidated demand with the employer or the union may

reciprocate by suing the same defendant at a later date on the

same cause of action, merely because the employee grows

dissatisfied with the payment for which he or she settled."

Id. at 858. That proposition is equally applicable to this case

and we hold plaintiff's agreement to and acceptance of the

settlement forecloses the present lawsuit with respect to the

1973 disciplinary actions, even though statutory claims were

not expressly covered. The remedy sought and settled was

the precise remedy sought in this lawsuit. Although he pled

for a class action injunction, the only individual relief

plaintiff sought in the complaint was reinstatement and back

pay. The denial of class action certification was not

appealed. He settled both aspects of the requested individual

relief. UnderAllegheny-Ludlum, Strozier cannot nowrequest

additional monetary relief merely because he is dissatisfied

with the amount he voluntarily agreed to accept in the

settlement as compensation for his claims.

Strozier v. General Motors Corp., 635 F.2d 424, 426 (5th Cir. 1981).
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This result is demanded not so much by any dramatic, new body of law

" . . . but rather by the established principle that one who agrees to settle his

claim cannot subsequently seek both the benefit of the settlement and the

opportunity to continue to press the claim he agreed to settle." Kirby v. Dole,

736 F.2d 661, 664 (11th Cir. 1984); see also U.S. v. Allegheny-Ludlum

Industries, 517 F.2d 826, 858-859.

The voluntary settlement of the grievance between the parties has

preclusive effect and the trial court correctly sustained the motion for summary

judgment.

The action of the trial court in granting summary judgment on the

retaliatory discharge claim is reversed.

The action of the trial court in granting summary judgment on the

preclusive effect of the grievance settlement agreement is affirmed.

Costs of this cause are assessed against appellant.

__________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, PRES. JUDGE, M.S.

_____________________________________

PATRICIA J. COTTRELL, JUDGE