# FILED

February 23, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk ALLEN SCOTT SMITH, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9803-CV-00146 v. ) ) Rutherford Circui t 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 & Da vis 511 Union Street, S uite 2100 Nashville City Center Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WILLIAM B. CAIN, JUDGE1 Complaint at ¶ 16, T.R. p. 3. -2- 

# OPINION

Plaintiff, Allen Scott Sm it h, filed suit against his former employer Bridgestone/Firestone, Inc. for retaliatory disch arge f or the prior filing of a

wo rker's compensation co mplaint. Plai

ntiff sought " . . .actua l damage s including back

pay, reinstat

ement, front

pay if plaintif

f is not reinstated,

damages for embarrassment and humiliation , and punitive damages." 1

On April 24, 1997, fol

lowing discovery

plaintiff file

d an am ended complaint

with a second count c

harging fa ilure of the defenda nt to notify the Stateof Tennessee of w

orker's compe

nsation injury i

n v i olation of Tennessee Code Annotated section

50-6-114(a). Damage s sou ght we re ess entia lly th e same as in the original com

plaint.

Plaintiff was employed by defendant from February 1988 until October 7, 1994 at its Laverne , Tennessee plant. He suf fer ed a work-relate

d injury on September

12, 1994 but was required to continue wo rk on a restricted work status.

On October 1, 19 94, t he security guar d 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 plan t. Mr. Smith was located on the p

lant grounds some four hours after the security guard's initial report; Smith asserted that he had never left the pl ant grounds. At a meeting on October 4, 1994 bet we en management personnel, union representatives and Mr. Smith ; defendant' s labor relations manager Mr. Davenport decided to discharge

plaintiff for lea

ving plant premises

and filing an inaccur

ate work time car

d.

On October 7, 1994, plain tiff filed a grievance u nder the Un io n Management

Col lective Bargaining Agreement whereunder "union prot est unjust discharge of Scott Smith. Reque sthe be reinstated his record clear and

be made2 Grievance Report No. 5568, T.R. p. 59. -3- whole for all loss of earnings benefits etc."[sic] 2 The defendant re jected the grievance.

On March 25, 1996, fo

llowing a meeting between the plainti

ff, union representatives and Mr. Davenpor t and ano ther management employee , Mr. Smith was reinst ated with all senior ity 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 grante

d summary

judgment to the

defendant on a

l l issues holding:

As the Court understands the law, wh en such an issue is raised, it is first the duty of the Plai nti ff to show to the Court the proof, prima facie, that discrimination has occurred which is unlawful, or tha t the vio lation ha s 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 sati sfied, the burden th en shifts to the Def endant to advance a non-disc

riminatory

basis for the actions which occurred,

in this case the ter

min atio n of the Plaintiff. Again, it appear s 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 itappears to the Court

that it is in this parti

cular 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 ma

y be unnecessary that the Court further consider the issue as

to wheth e r the action by th e Plaintiff is now barred by what perhaps might am

ount to an accord and satisfactio

n. The evidence has b

een presented, and perhaps is not in contr oversy, showin

g that after the Pla intiff's termination,

the matter was presented t o a n arbitration

through a procedure developed between the union of which the Plaintiff

is a member

and the managem

ent of the Defendant. It has been shown tha t the results of the arbitration, whether by agreemen t or by enforceable order, were that the Plaintiff was in fact reins tated without back pay, but with some ba

ck benefits. The

Plaintiff accept

ed the decision, as did the Defendant. Ha ving so accepted the decision, it appears to the Courtadd itionally that further3 Trial Court Memorandum, Supp. T.R. p. 3; p. 4. -4- action by the Pla

intiff is now barre

d. 3

Th e o ft repeated standa rd for considering su

mmary judgment applicable in both tri

al and appellate cou

rts provides: [2, 3] In determining w hether or not a genuin

e issu e of materialfac t exists for purposes o f summary

judgment, courts in this state

have indicated that t

he question should be considered in the same ma nner as a motion for directed verdictmade at the cl

ose of the plaintiff's proof, i.e., the trial courtmust take the strongest legitimate view of the evidence in favor of the

n onmoving party , allow all reas onable inferences in favo r o f that party, and discard all countervailing

evidence. Downen v. Allstate Ins. Co., 811 S. W .2d523, 524 (Tenn.1991) ; Poore , 666 S.W.2d a t 49; Dunn , 83 3 S.W.2d at 80; Wyatt v. Win nebago 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 a t 49 ("[I]f the mind of the c ourt ente rtains any doubt w hether or not agenuine issue exists a

s to any mate

rial fact it is its

duty to overrule

the motion."); Dooley v. Ever ett , 805 S.W.2d 380 , 383 (Tenn.App.19 9 0). The court is no t to "weigh" the evidence when eva

luating a motion f

or summar

y judgment

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

Little has changed since the adoption of the Te nnessee Rules of

Civil Proced ure and Justic e Harbis on's ea rly obse rvatio ns remain valid t o this d ay:

[7, 8] In concluding this opinion we feel it properto comment upon the procedure which was follow ed in the trial of this case. Sum

mary jud gment proceedi

n gs in th is 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 vacanc y o r void which had exist ed in prior practice and to pr ovide a procedural step which had heretofore not existed. Under previous practice, in both the circuit and chancery c

ourts , ther e had been no satisfactory int erme diate step between the de murrer, w

hich dealt only withthe contents of pleadings, and a full-scale trial of a case upon the merits. The s ummary judgm ent procedure was designed to pro vide a quic k, ine xpen sive me a ns of concluding cases, in whole or in part, upon issues as to which-5- there is no dispute regardin g the material

facts. Where there does exist a dispute as to facts

which are deem

ed material by the trial cour

t, how ever, or where there is uncertainty as

to whether there may

be such a dispute , the d uty of the trial courtis clear. He is

to overrule any

motion for summary judgment in such cas es , because summ ary judgm

ent proceedings are not in any sense to be viewed a

s a substitute for a trial of disput ed factual issues.
Evco Corporat

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

There seems to be litt

le dispute between t

he parties as to

the applicable law relative to retaliatory discharge cl aims. Tennessee follow s McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). The burde n rests first upon plaintiff to establish a prima f

acie c ase of retaliatory discha rge. Eddins v. Geneva Pharmacy, Inc. , 877 F.Supp. 413, 423 (E.D.Tenn.1993). After such a showi ng t he burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. Anderson v. Stan dard Register Co. , 857 S.W.2d 555, 559 (Tenn.App.1993).

Atthis point the burden shif ts back to the plaintif

f to prove th at the proffered reasons offered b y the defendant

are pretextual. McDonnell Dougl as 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 j udgment the trial court heldthat plaintiff Sm

ith had carried his b

urden of proof to esta

blish a prima fa

cie

case of discriminat

ion. The court the

n held that the

defendant had articulated a legitimate, nondiscriminato ry reason for

the employe

e's rejection a

s a matter of law and granted summary judgm ent to the defendan t. The question for our determination

is whether or

not the plaintiff has

presented evidence

sufficient to go to the jury on the "pret ext" question.

Prior to the United State s 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 controllingdecisions in McD onnel l 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 court

s, federal and sta

te, to their own devices i

n determining what was necessary to pr ove pretext.
Three distinct appr

oaches emerged. These have been r eferred to as: 1. "Pretext Only" 2. "Permissive P

retext Only" and 3. "Pretext Plus" Kline v. Tennessee Valley Auth ority , 128 F.3d 337, 343 (6th Cir. 1997).

Of these approaches,

the sixth cir

cu it had adopted "pretext plus" whereby the pla intiff must not only d emonstra te that the employer's asserted

reasons are pretextual but must introduce additional evidence of discriminat ion. Gagne v. Northwes ter n National Insuran ce Co. , 881 F.2d 309, 314 (6 th Cir.1989). In assessing the eff ect of Hicks on t he various paths, the court in Kline found: The Supreme Cour

t attempted to r

esolv e the confusion amongthe differing appr oa ches to pretext in Hicks

. Hicks was an appeal from

the Eighth Circuit.

The Eig hth Cir cuit had applied the "pretext only" s ta ndard reasoning that once a plaintiff est

abl ished that the defendant's reasons were pretextual, he w as entitled to judgment a s a matter of law. Hicks , 509 U.S. at 509, 113 S.Ct. at 2748. The S uprem e Court's decision in Hi cks effectively rejected both the "pretext only" and "pretext plus" approaches to employm ent discrimination

c ases and adopted the "perm issive pretext" approach. See id. at 511 n. 4, 113 S.C t. at 2749 n. 4. The Court held

that rejection of the

proffered reaso

ns did not require that judgment be entered for the plai ntiff. Id. at511, 113 S.Ct. at 2749. The Court noted that a mandatory inference which compels judgm e nt for the plaintiff after disbelief of the employ

er's alleged non- d iscriminatory reasons disregards the traditional burd ens of proof. Id. at 511 , 113 S.Ct. at 2749.This is an explicit r ejection of th e "pretext only" st

andard. The Supreme Court al so rejected the "pre text plus " approach. The Court noted: The factfinder's disbelief of the re asons put forwardby the

defendant

(particularly if disbelief is accompanied by

a suspicion

of mendac ity) may, together withthe elements of the prima fac

ie case, suffice to show intentional disc rimination. T

hus, rejection of the defendant's proff

ered reasons

will permit the trier of

fact to infer

the ultimate f

act of-7- intentional discrimination, a nd the Court of Appeals was correct whe

n it noted that, upon

such rejection, "[n]o additional pr oof of discriminat

ion is required ." Id

. (citation and footnot e omitted) (em

phasis in origina

l)

. The Supreme Cour

t determined th

at upon rejection o

f th e reasons offered by the defendant an infer

ence of d iscrimination

is permitted a

nd no additional proof of discrimination

is required. This

is a clear reje

ction of the "pretext plus" requi

rement. Subseq uently, our sister circuits have interpreted Hicks to adopt the "perm

issive pretext" stan

dard. They ha

ve rejected a requiremen

t of additional or dir

ect evid ence of discrimination. Kline v. Tennessee Valley A uthority , 128 F.3d 337, 343-344 (6th Cir. 1997).

In the case at bar,

as with most cases o

f its kind, much has be

en made of the McDonnell Dougl

as burden-shift const

ruct. This confus

ing discussion of shifting burdens clouds the nature of the burden being shifted. In truth, the court in Kline might have been bette r served by

a deeper lesson fr

om the language of Hicks

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

s only the burden of produ ction. Says the cour

t: In the nature of things, the determination that a defendant has met its burden of production (and has th us rebutted any legal pres umption of intentional discrimi

nation) 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 Ce nter v. Hic ks , 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 discu ssion of what happens (as in the case at b ar) when the defe ndant meets th

is burde n of production: If, on the other hand, th e defendant has succ eeded in carryingit s burden of production, the McDonnell Dougl as framework-- with its presumptions and burdens-- is no longer relevant. To resurrect it later, after the trier of fact has determined that what was "pr oduced" to meet the bu

rden is not credible, flies in the face of our holding i n Burdine that to rebut the presumptio

n "the defendant need not pe rsuade the court that it was a

ctually motivated by t

he p roffered-8- reasons." 450 U.S. at 254, 67 L.Ed.2d 207, 101 S.Ct. 1089. The presumption, having fulfi lled its role of forcing the defendan t to come f

orward with some response, simply dro ps out of the picture. I

d., at 255, 67 L. Ed. 2d 207, 101 S.Ct. 1089. The def

endant’s "p roduction" (whatev er its persuasive effect) having been made, the tr ier of fact proce

eds to decide the ultimate question: whether the plaintiff has proved "that the defendant intentiona lly disc r iminated against [him]" becau se of his race id.,

at 253, 67 L.Ed. 2d 207, 101 S.Ct. 1089. St. Mary’s Honor C

enter v. Hicks , 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
The above discussion continues direc tly to the quotation used in Kline , supra. Followingan extensive history o f pre- and post-

Hicks d ecisions, the Sixth Circuit in Kline held: The import of the Hicks decision in this circuit is that once a plaintiff has disproved the rea

sons offered by the defendant , the factfinder is per

mitted to infer discrimination. A plaintiff does not need to int roduce additional evi dence of discrimination

to prevail on the merits. Once a plain tiff establishes its prima facie case, this, along with disbelief of the defendant's profferedre asons for the negativ e employm ent actio n, wil l permi t a fin ding of dis crimi na tion by the factfinder. 128 F.3d 337, 347 (6th Cir. 1997).

T hus in the case at bar w e must analy

ze the proof unde

r thi s "permissive pr

etext" standard.

The separate body of law in Tennessee

as to employ

ment discrimination

and retaliatory

discharge began t

rac king federal procedural law after the United States Suprem e Court established t

he "shifting burdens" a

nalysis 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. Bur dine , 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed .2d 207 (1 981). The trail l ed us through Johnson v. St. Fra

nc is Hospital, Inc. , 759 S.W.2d 925 (Tenn.App.1988); Anderson v. Standard RegisterCo. , 857 S.W.2d 555 (Tenn.1993); St. Claire v. Litho Color Services, Inc. , Appe al No. 02A01 -9110-CV-0 0235, 199 2 WL 120225 (Tenn.App. June

5, 1992) and Newsom v. Textron Aerostructures , 924-9-

S.W.2d 87 (Tenn.App.199 5). The degree t o which this expand

ing body of federal law has now subsum ed s tate law is bluntly

recognized by t

his court in Maurice DeVorev. Deloitte Touche , Appeal No. 01A 01-9602-CH 00073, 1998 WL 68985 (Tenn.App.Feb. 28, 1998).

In rejecting the disc

rimination cla

ims asserted by Mr. D eVore this court held: The burden of proving the ul timate issue of discrimination

is at all times on the employ ee in a discrimination case. See Texas Dep't of Communi ty Affairs v. Burdine, 450 U.S. 248, 2 5 3, 101 S.Ct. 1089, 1093-94, 67 L. Ed.2d 207 (1981); Brenner v. Textron Aerostruct

ures, 874 S.W.2 d 579 , 583 (Tenn.Ct.App.1993). The employee may establish a prima faci

e case of discrim

ination either by

using the traditional criter

ia set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 8 02, 93 S.Ct. 1817, 1824, 36 L.Ed. 2d 66 8 ( 1973), or by producing dir ect, circum

stantial, or statistical evidence of discrimination. See Loeffler v. Kjellgren, 884 S.W.2d 463, 469 (Tenn.Ct.App.1994); Brenner v. T ext ron Aerostructures, 874 S.W.2d at 583; Bruce v. Western Auto Suppl

y Co., 669 S.W

.2d 95, 97 (Tenn.C

t.App. 1984). Once the employe

e makes out a pr

ima facie ca

se of discrimination,

the burden shifts to the em ployer to rebut the presumption

of discrimination by articulating a l egitimate, non-discriminatoryreason for the employm ent action. See Loeffler v. Kjellgren, 884 S.W.2d at 470; Brenner v. Textron Aerostructures, 874 S.W.2d a t 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

employm ent action, the burden shifts back to t

he 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 Aerost ructures, 874 S.W.2d at 583, 58 7; Silpacharin v. Metropolitan Gov't, 79 7 S.W.2d at 629.
DeVore v. Delo itt e & Touche, Appeal No. 0 1A01-960 2-CH-0007 3, 1998 WL 8985, * 4 (Tenn.Ct.App. Feb. 28, 1998).

The DeVore court goes on to hold tha t the retaliatory

discharge claim

" . . . founders on essentially the sa me shoals that undermin ed Mr. DeVore's discrimination claims."-10- The elements for both a federal ret aliatory discha

rge claim and a state retali

atory discharge

claim are es sentiall y the same. In ord er to m ake out a prima facie case, an employee must prove (1) t

hat h e or

she opposed the employer's unlawf

ul e mploym

ent practice, (2

) that the employer subsequently subj ected the empl oyee to an adver

se employm ent action, and (3) that a causal link exists between the employee' s action and the employer's subsequent adverse employm ent action. See Yates v. Avco Corp. , 819 F.2d 630, 638 (6th Cir. 1987); Newsom v. Text ron Aerostructures, 924 S.W.2d 87, 96 (Tenn. Ct. App.1995). An employee may establish the needed causal c

onnection sim

pl y by proving that his or her protecte

d activity was a

subst a ntial factor leading to the discharge. See Sumner v. United S tates Postal Serv. , 899 F.2 d 203, 209 (2d Cir. 1990 ); Polk v. Yellow Freight Sys., Inc., 876 F.2d 527, 531 (6th Cir. 1989). Deloitte & Touche presented competen t evidence that Mr. DeVore was disc

harged, not in reta

liation for

hi s discrimination

charge, but becau se of his inadequate j ob performance. In o rder t o avoid summa ry dismissa

l of his retaliation

claim, Mr. DeVore was required to come forward withsome co mp etent 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 sequentia l evidence does not suffice to make

out ei ther a feder al or s tate r etali ation claim. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1314 (6th Cir. 1989); Thomason v. Bette r-Bilt Aluminum

Prods., Inc., 831 S.W.2d 291, 2 93 (Tenn.Ct.App

. 1992).
De Vor e v. Deloitte & Touche , Appeal No. 0 1A01-960 2-CH-0007 3, 1998 WL 68985, * 11 (Tenn.Ct.App. Feb. 28, 1998).

Contrasting

Mr. Devore's pr

oof with Mr. Smith 's, it is difficult to conceive how Mr. DeVor

e's purely sub

jectiv e beliefs about discr imination unsupported by compete

nt evide nce could survive sum mary jud gment on both discrimination

and retaliatory discharge claims, even under the "perm issive pretext" rule. His proof simply provides no basis by which a reasonable trie

r of fact could find the em

ploye r's explanation to be pretextual or not w

orthy of belief.
Construing the evidence m ost strongly in fa

vor of the plaintiff we find-11-

the record at bar s

hows: 1. Defendant

had a wr itten work policy that work-related injuries resulting in restri ctions were m atters for which a

n employee could be reprimanded,

disciplined, and subjectto termination d epending 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 d

ischarged as a res

ult of leaving the plan

t premises. 3. Bef ore making a decisi

on to terminate

Mr. Smith on O

ctobe r 4 , 1994, Mr. Davenport had before him unsworn stat ements f rom numer

ous cow orkers attesting to the fac t that Mr. Sm

ith had never left th

e Brid geston e premises on Oc

tober 1, 1994. 4. Mr. Smith had never been in violation of pla

nt policy before

this event a nd had n ot been discip lined f or insu bordin ate con duct or activi ty. 5. The gatekeeper on October 1, 1994 had not, in fact, actually seen Mr. Smith lea

ve the Bridgestone pr

emises. 6. Mr. Davenportcould not explain how Mr. Smith could have left the premises through its guarded security gate and then come back to th e premises without

being observed at the

gate. He specula

ted that Mr. Sm

ith may have "jumped t

he fence" to get bac

k into the plant.

Atthe summar

y judgment

stage and under the " permissive pre text" standard, the proof by Mr. Smith was suf

ficient to"permit" (not "mandate" ) the trier of fact to find pre

text. Additional evidence under the discarded

"pretext plus " standard is not necessary and the trial court erred in granting summary judgme nt to the de fenda nt on the re talia tory d ischa rge cl aim.

The trial court did not ad dress plaintiff's alleged cause of action asserted in his amended com plaint about the failu

re of the defendant to re

port to the State of Tennessee the work-related injury previou sly suffered by Mr. Smith. Itis clear, howeve

r, that no independe

nt action for dam

ages w il l lie for this failure to report. Perr

y v. Transamerica Insurance Group , 703 S.W.2d 151 (Tenn.App.1985).

Wh ether or not such violation would be a "device" under Tennessee-12-

Code Annotated section 50- 6-114 and be thus admissible i n evidence in a retaliatory discharge case is not a question prese

nted to the court in this appea l.

Plaintif f last asserts that the trial court erred in granting summary judgment to the defendan t on the question of "accord and satisfa ction."

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

ent whereby

he and his union proteste d " . . . unjust discharge of Scott Smith ." Relief reque sted in the grie vance was that he be reinstated to his job, his rec or d cleared and " . . . he ma de whole for all los s of earnings, benefits, etc." This is the sam e relief he seeks

under the compla

int of retaliatory discharge. Defen dant reje cted his grievance a nd he remained on terminated

status until March 25, 1996 when he, together with three representatives of

the union, met w

ith Jim Davenpor

t andMissy

Cortez for the defendant. The m

inutes of this me

eting are reveali

ng.
Subject: Allen S cott Smith - Re instatement Davenport: Scott, I talked with you b riefly on the phone last w eek regardingthis. The Union and the company sat

down the past several weeks to talk about set tling termina tio n gr ievances. Yours is one o f those grievances. The Union asked if there was anyway [sic] to sol ve i t prior to arbitration. In arbitration, y ou win some, you loose some. We felt li ke we had a good cas e, and we felt just i

n our discharge, howe ver a n ar b itrator may have fel t different. Last Friday i n a meeting with Joh n Johnson, we offered reinstat

ement, with no back pay but wit

h ful l senior ity, vacation etc

. If the union accepts, it becomes a dead issue. It will sim

ply be recorded as a suspension. It-13- will be just like you

never left. One thin g we are tryin g to figure is your vacation

pay for 1995. If it

is going to count as a suspension, you

are due your vacati on. 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: Mayb e it can. I will ask O llie to loo k at it. There are a couple of things you need t o do

. You need to re-enr

oll i n your insurance so we can get it in the mainfram

e and the paperwork

to Akron. Jo Ann i s the new Benefits Clerk

. You need to get a new ID and sticker on your car.
Smith: Jackie gave me on e alread y. Davenport: You were in departm e nt 115 w hen you left. I am plan nin g on putt i ng you back in that department. I don't know what Wesleywill 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 letus kno w when to expect you back to work.
Smith: The 1st of April will be fine. I

would like to work B cre w. Davenport: Le t m e get the schedule an d see if B crew is in (JD leaves to get schedule). B C

rew will be in on the 3rd of Apr

il.
Smith: Then I will c ome in on the 3rd-14- of April. Manning: He has restrictions (M anning hands him restrictions). Davenport: Is this from the injury you had when you left?
Smith: Yes. Davenport: Do you have perm anent restrictions?
Smith: Those are perm anent. Davenport: We will have to mov e you out of 115 with these re strictions.
Smith: I can still do the reprocessor. Davenport: You think you can d o it.
Smith: Yes. There is n o overhead work. Davenport: I will give thi s to medical and

hav e them do perm

anent restrictions for th

e book. Manning: So thes e are mostly concerni n g overhead work?
Smith: Y e s, mostly overhead. Back

th ere we don't do stuff li ke that. Davenport: What is you clock card number?
Smith: 1025. Davenport: Anything else y ou need to ask?
Smith: As far as unemplo yment. Who is going to pay them. They saidI had to pay them back once I got my

job back. Capps: You did not rec eive ba ck pay. Davenport: You should not have to pay

them back since y ou did not receive ba ck pay, however

, if4 Minutes i ncluded in T. R. as part of Attachme nt IX to Jim my Davenport's

deposition. -15-

you do have to pay them back i t will be your res ponsi bility, not the company 's. Gillespie: Jimmy, on his vacation pay, he is getting pai d for 1995, but what about 1996? Would it pick up at the new year? Davenport: Yes. He would schedule right in line with his senior ity. Right now we need to ge

t to the issue of resolving la s t years vac ation p ay. Smith: How soon could I get i t? Davenport: Ho p efully

by next Th ursday, as long as the pa y rol l depar tme n t can get the right information

in time and have

it done.
Be sure to getwithJo Ann and mak e sure you get y our paperwork

for your benef

i ts filled out so w e c an process them. I will let Wesl

ey know you will be in on April 3rd, B Crew. I will get Ollie sta rted on the vacation pay and

have med ical take care of the restrictions(JD leaves the room to make copies of restrictions). Manning: You will

not have to pay back th e unemploym

ent since you didn't get bac k pay.
Smith: That is Ok. I am not loosing much. (JD comes back in). Meeting adjourned. 4-16- I n Anderson v. Frank , 755 F.Supp. 187, 189 (E.D.Mich. 1991) th e court addressed the same issue:

Defendant

a rgu es that the executed settlement agreement

bars plaintiff's s

ubsequent action

in this Court for a lleged sex and reprisal discrimination. Defendant ma intain s that even though

the settlement check compensated plaintiff for only six out of the eight weeks during which she was unemployed,

the settlement

agr eeme nt, nonetheless, ba rs any subsequent

Title VII clai

m for additiona

l wages and/or compensation. Defendant relie s on Strozier v. General Motors Corp. , 635 F.2d 424 (5th Ci r. 1981) in

support of

its proposition. The Co

urt agrees. Strozier provides guidance with respect to th e outc ome of this matt er. In Strozier , the court held that a voluntary settlement

of agrievance claim bars any further proceedings in the district court on

the same clai

m if the request for relief in both the grievance procedure and district court proceeding are identical. The Court

is persuaded by the principle s articulated in Strozier , a case

that is factually similar to the instant case. In the instant case, as in Strozier , the pla int iff voluntarily accepted the benefits of the settlemen t a greement by returningto work and cashing th e settlement c

heck , and requested identical relief in her grievance and in herdistrict courtcomplaint. Therefore, pur suant to Strozier , plaintiff is barred from pur suing any further action on her sex and reprisal claim

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

The case at bar be

ars no resembl

ance to Gray v. Toshiba , M.D.Tenn. Case No. 3:94- 0712. Gr

ay involved arbitration and a failed arbitration procedure be cause of procedural flaws. This case involves a voluntary settlement of a grievance entered into between the em ployee and his union

on the one hand and the employer o

n the other hand, wi

thout regard to

arbitration either compulsory

or voluntary. Strozier v. Gene ral Motors Corp. , 635 F.2d 424 (5th Cir. 1981) explained the diffe

rences between a

rbitration and volunta

ry settlem ent. Settlement

of a dispute is i nherently diff erent from resolution

through arbitration.

A settlement

is a comprom

ise voluntarily

agreed to by the

pa rties . Each party

generally accepts something less tha n that to which he beli

e ve s he is entitled based on a decision tha t the comprom

ise is m or e ad vantage ous to him than the sum of the risks and benef

its involved in pursuing th e clai m. Arbitration, on the other-17- hand, is an "adjudication " of confli cting i nteres ts by a neutral third party. In bindi

ng arbitrat ion, neither party is free to accept or reject the r

uling of the arbitrator. On

ce the dispute has been s u bmitted to arbit ration, the parties must abide by the arbitral decision. In light of these d iff erences, diffe

rent approaches are required in de termining whet

her resolution of a claim through se

ttlement or

t hrough arbitration ba

rs a subsequent

suit under Title VII and section 1981. Strozier's 19 73 claims were settled and the 1976 discharge was arbitr ated, s o each mus t be tre ated se parate ly. Strozier v. Gene

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

Plaintiff Sm

ith is in the exact position as was Mr. Strozier.He is not "m itigating his damages" by voluntarily joi

ning in a full settlem

ent o f all hi s grievances. [2] Altho ug h 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 i s suggested by our deci s ion in United States v. A llegheny-Ludlum I ndustries, 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 Ti tle VI I and section 1981 claim

s were expressly

mentioned in the consent decree controlling

the release in that ca

se, the opini on did not rest on that formalism. There this Court stated that nothing in Gardner-Denver supports the assertio

n "that an aggrieved em

ployee who fre

ely settles his or h er unliquidated demand with the employer or the union may reciprocate

by suing the same defendant at a later date

on the same cause of a ction, merely because the employee grows dissatisfied with the paym ent for which he or she settled." Id. at 858. That proposition is e qually applicabl

e to this case and we hold p lainti ff's agreem ent to and acceptanc

e of the settlement for

ecloses the present

lawsuit with respect to

the 1973 disciplinary ac

tions, even though

statutory claims were not expressly covered. The re me dy sought and settled was the precise rem

edy sought

in this lawsuit. Although he pled for a class action in

junction, the only individual relief plaintiff sought in the complaint was reinstatement and back pay. The denial of cla ss action certific ati on was not appealed. He settled both aspects of the requested individual relief. Under All egheny-Ludlum, Strozier cannot now reques t addit ional monetary relief merely because he is dissatisfied with the amount he volu ntarily agree

d to accept in t

h e settlement as c

ompensation for

his claims. Strozier v. Gene

ral Motors Corp. , 635 F.2d 424, 426 (5th Cir. 1981).-18- This result is demanded not so m uch by any dr

amatic, new

body of law

" . . . but rather

by the establishe

d principle that on

e who a grees to settle his claim cannot subsequen tly seek both the benefit of the settlem

ent and the opportunity to continu e 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, 858-8 59.

Th e volun tary settlement of the grievance between the parties has preclusive

effect and the

trial court corre

ctlysustained the motion for summary judgment.

The action of the trial court in granting su mma ry judgme

nt on the retaliatory di scharge claim is reversed.

The action of the trial court in gr anting summa

ry judgme

nt on the preclusive effec

t of the grievance settlement agr eement is aff

irmed.

Costs of this cause a

re assessed against

appellant.

_____ _______________________ _____ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ ___ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ ___ PATRICIA J. COTTRELL, JUDGE