FILED

March 26, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE, 

AT JACKSON

_______________________________________________________

)

PATRICIA K. REED, )

)

 Plaintiff/Appellant. )

)

VS. ) C.A. No. 02A01-9802-CV-00032

)

ALAMO RENT-A-CAR, INC., )

)

 Defendant/Appellee. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable Kay S. Robilio, Judge 

John R. Smith,

BROWN, BRASHER & SMITH, Memphis, Tennessee

Attorney for Plaintiff/Appellant.

Roane Waring, III,

SHUTTLEWORTH, SMITH, WILLIAMS, SABBATINI & HARPER, Memphis, Tennessee

Attorney for Defendant/Appellee.

OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)

LILLARD, J.: (Concurs)
Plaintiff Patricia K. Reed appeals the trial court’s judgment dismissing her claims for

retaliatorydischarge and breach of employment contract against Defendant/Appellee Alamo Rent-ACar, Inc. We affirm the trial court’s dismissal of Reed’s retaliatory discharge claim, but we reverse

the court’s dismissal of Reed’s claim for breach of employment contract, and we remand for further

proceedings.

I. Factual and Procedural History

Reed worked for Alamo Rent-A-Car from June 1990 to December 1994. During this

time, Reed received good job evaluations and, on more than one occasion, was named Alamo’s

employee of the month. Reed’s most recent job evaluation indicated that her performance was

between “above average” and “outstanding.” 

On March 13, 1993, Reed injured her knee at work when she slipped on some ice and

fell. Reed’s injury caused her to miss approximately one month of work. After returning to work

in April 1993, Reed resumed her duties as a rental agent supervisor. Reed continued to experience

difficulty with her injured knee, however, and she was required to undergo knee surgery on

October 4, 1994. 

At the time of her surgery, Reed requested permission to take a leave of absence

under the Family and Medical Leave Act (FMLA). See 29 U.S.C. §§ 2601--2654 (1994). Reed’s

manager, Dick Snyder, initially approved Reed’s request to be off work from October 5, 1994, to

November 20, 1994. When the request was submitted to Alamo’s corporate offices in Fort

Lauderdale, Florida, however, Alamo’s Family Wellness Department denied Reed’s request for

FMLA leave because Reed already was on leave for her on-the-job injury, during which time she was

receiving workers’ compensation benefits. 

On November 16, 1994, Reed visited her doctor’s office for a scheduled checkup.

At that time, Dr. Robert L. Bourland, Jr., signed a certificate authorizing Reed to be off work until

December 14, 1994. Shortly after Reed’s visit, however, a representative of CNA Insurance

Company, Alamo’s workers’ compensation carrier, contacted Dr. Bourland, apparently to inquire
about the possibility of releasing Reed to return to light duty work. Dr. Bourland agreed that Reed

could return to light duty work, and on November 18, 1994, he signed a release authorizing Reed’s

return. Dr. Bourland’s certificate set forth the following restrictions: “No prolonged standing,

walking, bending or stooping.” CNA notified Alamo of the release on November 21 or 22, 1994.

CNA also ceased paying workers’ compensation benefits to Reed. 

On November 22, 1994, Diane Bledsoe, Reed’s supervisor at Alamo, contacted Reed

by telephone and informed her that Dr. Bourland had released her to return to light duty work. Reed

expressed confusion and told Bledsoe that she understood she was not supposed to return to work

until December 14, 1994. Bledsoe instructed Reed to contact Dr. Bourland to see if he had made a

mistake in releasing Reed. When Reed contacted her doctor’s office, however, a staff member

confirmed that Reed had been released for light duty work. 

Bledsoe again contacted Reed on November 23, 1994. During this conversation,

Bledsoe informed Reed that Alamo expected her to report to work at 4:00 p.m. that day. Upon

learning this information, Reed became upset and started crying. Just days previously, Reed had

received authorization to be off work until December 14, 1994, and now, one day before

Thanksgiving, Alamo was demanding that Reed return to work. Reed also expressed concern about

her ability to drive because her injured right leg was the leg she used to drive her car. Reed told

Bledsoe that she needed more time to relearn how to drive, and she asked if another Alamo employee

could transport her to work. 

After checking with Dick Snyder, Bledsoe informed Reed that Alamo would not

provide her with transportation to work. Bledsoe also warned Reed that, if she did not report to work

on November 23, 1994, Alamo would assume that she was resigning her position. Despite this

warning, Reed did not report to work for her shift on November 23.

Instead of terminating Reed, Dick Snyder rescheduled Reed to return to work on

November 27, 1994, rather than November 23. When Reed still did not report for work, however,

Snyder wrote a letter to Reed, dated December 1, 1994, warning her that she was in violation of

Alamo’s policy on job abandonment and that Snyder had no other choice but to believe that Reed
had resigned.

Reed received Snyder’s letter during the first week of December 1994, and she

promptly called Snyder to discuss the matter. When Reed insisted that she did not wish to resign her

position but that she still was in great pain and was unable to drive or walk very well, Snyder

instructed Reed to try to get another appointment with Dr. Bourland. Snyder indicated that he would

wait until after Reed’s next appointment before he proceeded with any paperwork, took any

disciplinary action, or made any decision. 

Although Reed was not scheduled to return to the doctor until December 14, she

rescheduled her next appointment for December 7, 1994. At the appointment, however, Dr.

Bourland was not responsive to Reed’s questions as to why he had released her for light duty work,

and he did not provide her with a new certificate authorizing her to be off work as she had hoped.

The parties disputed whether Reed contacted Snyder after her December 7 doctor’s appointment.

On December 13, 1994, however, still having received no authorization for Reed to be off work,

Snyder completed the paperwork required by Alamo to terminate Reed’s employment. 

On December 12, 1995, Reed filed this lawsuit in which she contended that Alamo

had discharged her in retaliation for filing a workers’ compensation claim. Reed further contended

that her discharge breached her employment contract with Alamo, which she claimed was evidenced

by a document entitled “My Personal Alamo Family Member Pact” or “FamPact.” Finally, Reed

contended that Alamo breached section 50-6-123 of the Tennessee Workers’ Compensation Law by

failing to provide case management services to Reed. Reed’s complaint also asserted claims against

CNA Insurance Company and Transportation Insurance Company, but these defendants were

voluntarily dismissed from the lawsuit by an order entered in June 1996. 

After conducting a bench trial, the trial court dismissed Reed’s complaint in its

entirety. The trial court dismissed Reed’s retaliatory discharge claim based upon the one-year statute

of limitations for personal injury actions. See T.C.A. § 28-3-104(a)(1) (Supp. 1990). The court

dismissed Reed’s breach of contract claim based on the court’s ruling that FamPact did not constitute

a part of the parties’ employment agreement.
1Weber v. Moses, 938 S.W.2d 387 (Tenn. 1996).

On appeal, Reed presents the following issues for this court’s review:

I. Whether the Trial Court erred in ruling that [Reed] had

unequivocal knowledge of a termination decision under the

authority of Weber v. Moses1

 barring that portion of [Reed’s]

case involving allegations of retaliatory discharge.

II. Whether the Trial Court erred in ruling that Fampact was not

a contractual agreement by and between [Reed] and [Alamo].

III. Whether the Trial Court erred in failing to award damages to

[Reed] for the violation of Tennessee Code Annotated

Sections [50-6-123(b)(2) and (5)], by [Alamo]. 

Alamo also has raised the following issues: 

I. Whether the Trial Court incorrectly ruled that [the]

release language executed by Reed in the order

approving her workers compensation settlement did

not preclude this action.

II. Whether Reed failed to carry her burden of

establishing a causal connection between her claimfor

worker compensation benefits and her termination.

II. Reed’s Claim for Retaliatory Discharge

We first address Reed’s contention that the trial court erred in ruling that her claim

for retaliatory discharge was barred by the one-year statute of limitations applicable to such claims.

SeeHeadrick v. Union Carbide Corp., 825 S.W.2d 424 (Tenn. App. 1991); T.C.A. § 28-3-104(a)(1)

(Supp. 1990). In making its ruling, the trial court relied upon our supreme court’s decision of

Weber v. Moses, 938 S.W.2d 387 (Tenn. 1996). In Weber, the court held that the one-year

limitations period for a retaliatory discharge or discriminatory practice claim commenced when the

employee received unequivocal notice that his employer had made a definite and final decision to

terminate him. Weber, 938 S.W.2d at 392-93. Applying this rule, the court concluded that Weber’s

claims filed August 31, 1993, were barred because the statute began to run in early August 1992,

when Weber was notified of his employer’s decision to terminate his sales manager contract, and not

on August 31, 1992, when Weber’s employment actually ended. Id. at 393.
At the conclusion of trial in the present case, the trial court orally summarized its

reasons for dismissing Reed’s retaliatory discharge claim:

I believe that she did -- through her oral notice on [November]

the 23rd I believe that [the] decision of the company to discharge her

was abundantly clear. I believe she understood that. I think she had

nothing more than a hope of some kind of redress or a hope of some

kind of grievance procedure being put into place, which evidently

never really completely occurred. That decision being made, really

communicated, the decision that I believe was made before the 23rd

was certainly communicated to her on the 23rd is what is controlling

under Tennessee law under this [Weber] v. Moses case. 

We conclude that the trial court’s ruling on this issue was in error because the

undisputed evidence demonstrated that Alamo had not made a final decision to terminate Reed on

November 23, 1994. It is true that Reed was informed on November 23, 1994, that if she did not

report for work later that day, Alamo would assume that she had resigned her position. Moreover,

other evidence presented at trial suggested that Reed believed she indeed had been terminated on that

date. The testimony of Alamo’s own employees, however, made clear that Reed was not terminated

until a later date in December 1994.

After Reed did not report for work on November 23, Reed’s manager, Dick Snyder,

rescheduled her to return to work on November 27, 1994. On December 1, 1994, when Reed still

did not report for work, Snyder wrote her a letter reiterating Alamo’s job abandonment policy and

stating that he had no alternative but to believe that Reed had resigned her position with Alamo.

Reed and Snyder discussed this letter in a telephone conversation during the first week of December

1994. When Reed complained that she was unable to drive, was in great pain, and could not

understand why the doctor had released her for light duty, Snyder instructed Reed to try to schedule

another appointment with her doctor. Specifically, Snyder testified:

I agreed with her at that time. I said try to get another

appointment and go back to your doctor. If you are unable to

proceed, you know, as far as a work schedule, I will wait until after

you have done this before I proceed with any paperwork.

. . . .

Or any disciplinary, you know, action. 
Snyder later testified that

So that is when I suggested she go back to the doctor, and

after that appointment -- we would hold off any decision making until

we find out if in fact she should be coming back to work. 

Based on this conversation, Snyder expected Reed to contact him after her doctor’s appointment and

they “would proceed from that point on.” 

According to Snyder, this was the last conversation he had with Reed. Reed,

however, testified that she spoke with Snyder after her December 7 doctor’s appointment.

According to Reed, she complained that Dr. Bourland had refused to discuss the release issue with

her and, to complicate matters, had placed her in a brace that extended from her hip to her ankle.

Snyder reportedly responded by stating that “well, we’ll see what happens.” In any event, it was

undisputed that Snyder completed the necessary paperwork to terminate Reed on December 13,

1994. 

Contrary to the trial court’s ruling, we conclude that Reed could not have received

unequivocal notice of Alamo’s termination decision on November 23, 1994, because on that date,

no decision had been made to terminate Reed. The undisputed evidence showed that, after that date,

Snyder rescheduled Reed’s return to work and informed her that he would not make any termination

decision or initiate any disciplinary action until after she returned to the doctor’s office on

December 7. The evidence also showed that Snyder did not actually terminate Reed until

December 13, 1994, and that Reed did not receive notice of her termination until sometime after that

date. This evidence was consistent with Reed’s own testimony that, during their telephone

conversation in early December 1994, Snyder assured her that she had not been terminated. Under

these circumstances, we conclude that the trial court erred in ruling that the one-year statute of

limitations had run by the time Reed filed this lawsuit on December 12, 1995.

In ruling on this issue, the trial court noted that Snyder, who no longer worked for

Alamo, was “very hostile toward the company.” The court also indicated that it was not influenced
2On appeal, Alamo relied on Reed’s testimony at a prior unemployment compensation

hearing to support its contention that Reed was terminated by Alamo on November 23, 1994. At

the February 1995 hearing, Reed testified to her belief that she was terminated by Alamo on

November 23, 1994. We agree that principles of judicial estoppel may preclude a party from

contradicting sworn testimony given in a prior judicial proceeding or from maintaining

inconsistent legal positions in judicial proceedings. See Allen v. Neal, 396 S.W.2d 344, 346-47

(Tenn. 1965); Stearns Coal & Lumber Co. v. Jamestown R.R. Co., 208 S.W. 334, 334-35

(Tenn. 1919); Butler v. Butler, No. 02A01-9702-CH-00038, 1997 WL 576533, at *4 (Tenn.

App. Sept. 18, 1997); but see Mangrum v. Wal-Mart Stores, Inc., 950 S.W.2d 33, 37 (Tenn.

App. 1997) (holding that T.C.A. § 50-7-304(k) precludes application of collateral estoppel

principles in workers’ compensation proceedings). We note, however, that Snyder, who

represented Alamo at the unemployment compensation hearing, maintained throughout the

hearing that Reed was terminated on December 13, 1994, and not on November 23, 1994. 

Moreover, we note that it was Alamo which injected the statute of limitations defense into this

lawsuit and which first attempted to maintain a position inconsistent with the one it assumed at

the unemployment compensation hearing.

by Snyder’s testimony that his December 1 letter to Reed “wasn’t a letter of termination.” We

recognize that the trial court is in the best position to judge the credibility of the witnesses and that,

when the court resolves a conflict in testimony in favor of a party, such a determination is “binding

on the appellate court unless from other real evidence the appellate court is compelled to conclude

to the contrary.” Hudson v. Capps, 651 S.W.2d 243, 246 (Tenn. App. 1983).

In the present case, however, the evidence really was not disputed. Alamo’s own

witness, Bobbie Bonavia, testified that Bledsoe and Snyder “extended [the] time that [Reed] could

come back to work.” In fact, toward the trial’s conclusion, even Alamo’s attorney agreed that Reed

had been granted an extension to return to work during her telephone conversation with Snyder in

early December 1994. The undisputed evidence, therefore, showed that Reed was not terminated

on November 23, 1994, that she instead was given an extension to attempt to resolve the confusion

over her doctor’s conflicting reports, and that she later was terminated on December 13, 1994.2

We are aware that the evidence was disputed as to whether Snyder talked to Reed

after her December 7 doctor’s appointment. Reed testified that, when she contacted Snyder after her

December 7 appointment, Snyder merely stated that “well, we’ll see what happens.” Snyder, on the

other hand, testified that he did not talk to Reed between December 7 and December 13, when he

completed the paperwork to terminate Reed. Based on Snyder’s testimony, Alamo could have made

the alternative argument that Reed should have had notice of her imminent termination after her

doctor’s appointment on December 7.
Nevertheless, we decline to affirm the trial court’s ruling on this ground. At trial and

on appeal, Alamo consistently has maintained that the one-year limitations period began to run on

November 23, 1994, and that the limitations period was triggered by the communications which took

place between Bledsoe and Reed on that day. Alamo has not argued that the limitations period could

have begun to run on any other date. Inasmuch as the trial court apparently was not asked to

consider the later date of December 7, the court did not resolve the conflict between Reed’s and

Snyder’s testimony as to what, if any, conversation transpired between December 7 and

December 13.

Because the statute of limitations was an affirmative defense, Alamo had the burden

of proving that the statute had run by the time Reed filed this lawsuit on December 12, 1995. Carr v.

Borchers, 815 S.W.2d 528, 532 (Tenn. App. 1991); Jones v. Hamilton County, 405 S.W.2d 775,

779 (Tenn. App. 1965). Based on the undisputed evidence which was presented in this case, we

conclude that Alamo failed to meet this burden. Even if Reed subjectively believed on

November 23, 1994, that she had been terminated, the testimony of Alamo’s own employees

indicated that Reed was given an extension to return to work and that a final decision on Reed’s

termination was postponed until after her December 7, 1994, doctor’s appointment. We believe that

these facts distinguish the information conveyed to Reed on November 23, 1994, from the

termination decision conveyed to Weber in Weber v. Moses.

Although we conclude that Alamo failed to meet its burden of proving that the oneyear statute of limitations had run when Reed filed this lawsuit, we nevertheless affirm the trial

court’s dismissal of Reed’s wrongful discharge claim. In order to establish a cause of action for

discharge in retaliation for asserting a workers’ compensation claim, a plaintiff must plead and prove

the following elements:

(1) The plaintiff was an employee of the defendant at the time of

the injury;

(2) the plaintiff made a claim against the defendant for workers’

compensation benefits;

(3) the defendant terminated the plaintiff’s employment; and

(4) the claim for workers’ compensation benefits was a
substantial factor in the [defendant’s] motivation to terminate

the [plaintiff’s] employment.

Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).

In the present case, Reed was able to show that she was an employee of Alamo at the

time of her injury, that she made a claim against Alamo for workers’ compensation benefits, and that

Alamo thereafter terminated her employment; however, Reed was unable to establish the final

element of her retaliatory discharge claim, that of causation. This court has held that, in order to

establish the element of causation, the plaintiff must present some proof other than merely the facts

showing her employment, her exercise of rights under the Workers’ Compensation Law, and her

subsequent discharge. Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 293

(Tenn. App. 1992). The plaintiff may accomplish this goal either by presenting direct evidence of

the necessary causal link or by introducing compelling circumstantial evidence of such a link. Id.

Various courts have considered what type of circumstantial evidence will support the

necessary causal link. For example, a plaintiff cannot establish causation by testifying that she

cannot think of any other reason for her discharge. Vaughan v. Harvard Indus., Inc., 926 F. Supp.

1340, 1350 (W.D. Tenn. 1996). The plaintiff’s subjective beliefs or speculations are insufficient to

create the requisite causal relationship. Id. (citing Chappell v. GTE Prods. Corp., 803 F.2d 261, 268

(6th Cir. 1986) (indicating that mere personal beliefs, conjecture, and speculation were insufficient

to support inference of age discrimination), cert. denied, 480 U.S. 919 (1987)).

Moreover, a plaintiff may not prevail on a wrongful discharge claim merely by

showing that a causal connection exists between her on-the-job injury and her subsequent discharge.

Vaughan v. Harvard Indus., 926 F. Supp. at 1351. Instead, the plaintiff must show that her claim

for workers’ compensation benefits, as opposed to her injury, was the true or substantial reason for

her discharge. Id.; see alsoAnderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993)

(holding that plaintiff failed to establish causal relationship where she testified that she had “been

out so long” that her employer “didn’t have the time to wait”). And, absent evidence of a

discriminatory motive, a plaintiff may not satisfy the causation requirement merely by showing that
her employer required her to return to work over her objection that she was medically unable to

work. Harris v. American Red Cross, 752 F. Supp. 737, 740 (W.D. Tex. 1990).

When asked by her attorney why she believed she was terminated by Alamo, Reed

gave the following testimony:

A I believe in my heart, because to me my dream was to

retire with Alamo, that had I not had the surgery and filed workers’

comp I would still be employed there, and I wish I was. 

Additionally, when questioned on cross-examination as to why she believed she was terminated for

filing a workers’ compensation claim, Reed gave the following testimony:

Q Now, Ms. Reed, in finishing up here, nobody -- never

heard anybody from Alamo tell you that the reason you were

terminated was because you filed a workers’ compensation claim, is

that true?

A They didn’t word it that way, no.

Q And you don’t have any evidence or reason to believe

that you were terminated because you filed a workers’ compensation

claim other than the fact that you filed a workers’ compensation claim

and you were terminated after that, do you?

A I believe, again, like I repeat myself, I believe in my

heart had I not had the surgery or filed workers’ comp and had stayed

on with Alamo working with my leg the shape it was in, had not had

the surgery, I would still be employed there, and I believe that, and

I’ll die by that.

Q Okay. But my question is do you have any reason to

believe that your termination is related to this workers’ compensation

claim other than the fact that they chronologically follow one

another?

. . . .

A In answer to your question, for a doctor, a company

doctor to tell me one thing on one day, two days later renege on that

because he was instructed by my employer at which point they used

that to tell me -- to start all of this, I can’t help but feel that that is a

major reason, and I believe that the doctor’s a good example of it

when they tell me one thing and just because the company instructs

the CNA to call him, him seeing me two days prior and knew the

shape I was in, and then two days later all of a sudden he’s going to

tell the company, yeah, I’ll let her come back to work. 
In our view, the foregoing contentions by Reed were too speculative to establish the

required causation element of a retaliatory discharge claim. For the most part, Reed’s testimony

merely expressed her subjective belief that she would not have been fired had she not had knee

surgery or filed a workers’ compensation claim. Reed’s subjective beliefs and speculations were

insufficient to create the requisite causal relationship of her claim for wrongful discharge.

Additionally, Reed’s testimony failed to establish that it was her claim for workers’ compensation

benefits, as opposed to her on-the-job injury, which motivated Alamo to terminate her employment.

To support her belief that Alamo terminated her because she had surgery and because

she filed a workers’ compensation claim, Reed additionally testified that Alamo had instructed CNA

to contact Dr. Bourland and that this contact resulted in Dr. Bourland releasing Reed for light duty

work. We conclude, however, that this circumstantial evidence was not sufficiently compelling to

support the inference that Reed was terminated for filing a workers’ compensation claim.

Apparently, it is not uncommon for an employer to contact a doctor who is treating an on-the-job

injury, and we know of no prohibition against an employer questioning a doctor as to an employee’s

progress or availability for work. See Harris v. American Red Cross, 752 F. Supp. 737, 738 (W.D.

Tex. 1990) (wherein plaintiff was instructed to report to work after employer’s chief medical officer

reviewed reports of various treating doctors and concluded that plaintiff was medically able to work);

see also Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1253 (5th Cir. 1990) (wherein

employer’s medical advisor asked plaintiff’s doctor to reconsider his assessment of plaintiff’s

disability in light of plaintiff’s job duties as maintenance administrator and, unsatisfied with doctor’s

response, then sought second opinion from another neurologist); but seeTexas Steel Co. v. Douglas,

533 S.W.2d 111, 117 (Tex. Civ. App. 1976) (wherein defendant’s superintendent, after learning that

plaintiff had reported on-the-job injury, went out of his way to get doctor treating plaintiff to release

him for light duty work even though doctor had advised that plaintiff could not lift more than eight

pounds or stoop more than once per hour). Without more, this evidence was insufficient to support

Reed’s claim for retaliatory discharge.
3The statute of limitations for Reed’s claim for breach of employment contract was six

years. See Stone v. Halsell, 648 S.W.2d 949, 952 (Tenn. App. 1982); T.C.A. § 28-3-109(a)(3)

(1980).

III. Reed’s Breach of Contract Claim

We agree, however, with Reed’s contention that the trial court erred in dismissing her

claim for breach of contract against Alamo. In her complaint, Reed contended that Alamo’s

termination of her employment violated the provisions of “FamPact,” a document which was signed

by the parties in September 1993 and which purported to govern the parties’ employment

relationship. Accordingly, this appeal requires us to consider whether FamPact constituted part of

the employment contract between the parties.3

This court considered a similar issue in Rose v. Tipton County Public Works

Department, 953 S.W.2d 690 (Tenn. App. 1997). In Rose, we explained that

this Court has recognized that an employee handbook can become a

part of an employment contract. Smith v. Morris, 778 S.W.2d 857,

858 (Tenn. App. 1988) (citing Hamby v. Genesco, Inc., 627 S.W.2d

373 (Tenn. App. 1981)); accord Davis v. Connecticut Gen. Life Ins.

Co., 743 F. Supp. 1273, 1278 (M.D. Tenn. 1990). In order to

constitute a contract, however, the handbook must contain specific

language showing the employer’s intent to be bound by the

handbook’s provisions. Smith v. Morris, 778 S.W.2d at 858. Unless

an employee handbook contains such guarantees or binding

commitments, the handbook will not constitute an employment

contract. Whittaker v. Care-More, Inc., 621 S.W.2d 395, 397 (Tenn.

App. 1981).

Rose, 953 S.W.2d at 692.

In the present case, the trial court apparently dismissed Reed’s breach of contract

claim based upon the following reasoning:

I don’t believe that this FAMPACT is anything other than a very

touchy, feely, wildly drawn document by some attorney to engender

loyalty, which is what, naturally, a company would want of it’s

employees but I don’t believe that it in any way made Ms. Reed

anything other than an at-will employee. 
We respectfully disagree. Contrary to the trial court’s ruling, the FamPact document

executed by Reed and Alamo was not just a loosely-drawn document having no binding legal effect.

Rather, the document contained specific language showing Alamo’s intent to be bound by FamPact’s

provisions. This intent was unequivocally demonstrated by the following language which appeared

near the beginning of the document:

NOW, THEREFORE, Alamo and I agree to my employment

with the company, all on the terms and conditions set forth in this

FamPact document:

1. FAMPACT. “FamPact” means Family Member Pact. It is

my personal agreement of employment with Alamo. 

This intent was supported further by the document’s concluding language:

Alamo has written this FamPact, and promises and agrees to:

- abide by all its terms and conditions;

- provide me competitive pay and benefits, including

the benefits of FamPact.

Alamo and I acknowledge and understand the special relationship

created between us by this FamPact. It is our entire agreement of

employment. Alamo’s employing me under the terms and conditions

of this FamPact, and my working under its terms and conditions,

support this agreement. 

We believe that this case is controlled by the court’s decision in Hamby v. Genesco,

Inc., 627 S.W.2d 373 (Tenn. App. 1981). In Hamby, the employer, Genesco, had furnished to each

employee a handbook which provided that, as long as the employment relationship continued, the

handbook “shall be The Guaranteed Policies, Practices and Procedures of [Genesco].” Hamby, 627

S.W.2d at 376. Based on this language, this court held that the handbook was a part of the contract

of employment between Genesco and its employees. Id.

We similarly conclude that FamPact was a part of the contract of employment

between Alamo and Reed. As the quoted provisions reveal, FamPact itself indicated that it was the

parties’ “entire agreement of employment.” Moreover, in executing FamPact, Alamo specifically
promised and agreed to “abide by all its terms and conditions.” If anything, this language evidences

an even stronger intent to be bound by the document’s provisions than the language found in the

Genesco handbook.

On appeal, Alamo points out that paragraph 24 of FamPact specifically reserved to

Alamo the right to periodically revise FamPact’s provisions. In some of its decisions, this court has

cited Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989), for the proposition

that an employer’s reservation of a unilateral right to modify the provisions of its employee

handbook generally precludes the handbook from being considered part of the parties’ employment

contract. See Rose v. Tipton County Pub. Works Dep’t, 953 S.W.2d 690, 693-94 (Tenn. App.

1997); Adcox v. SCT Prods., No. 01A01-9703-CV-00123, 1997 WL 638275, at *4 (Tenn. App.

Oct. 17, 1997); Williams v. Memphis Hous. Auth., No. 02A01-9608-CV-00190, 1997 WL 287645,

at *3 (Tenn. App. June 2, 1997). While we continue to adhere to this proposition, we do not believe

that it applies in cases such as this where the employer also has included within its handbook

unequivocal language demonstrating its intent to be bound by the handbook’s provisions.

In Adcox v. SCT Products, No. 01A01-9703-CV-00123, 1997 WL 638275, at *4

(Tenn. App. Oct. 17, 1997), we observed that we could “conceive of no clearer way for an employer

to express its intent not to be bound by an employee handbook’s provisions than the employer’s

specific statement that the handbook is not a contract or that the handbook should not be construed

as a contract.” Conversely, we can conceive of no clearer way for an employer to express its intent

to be bound by a handbook’s provisions than the employer’s specific statement that the document

represents the parties “entire agreement of employment” and that the employer “promises and agrees

to abide by all its terms and conditions.” Accordingly, we conclude that the trial court erred in

dismissing Reed’s claim for breach of contract based on the court’s ruling that FamPact was not a

contract.

As with Reed’s retaliatory discharge claim, we have considered whether the trial

court’s judgment dismissing Reed’s breach of contract claim can be affirmed on evidentiarygrounds.

After carefully reviewing the evidence presented at trial, however, we decline to affirm the trial

court’s judgment on this alternate ground because the record contains evidence from which the trial
court could have found that Alamo breached the provisions of FamPact when it terminated Reed’s

employment.

Upon Reed’s successful completion of her probationary-at-will period, FamPact

entitled her to remain employed for a one-year term, which would be renewed annually, unless Reed

voluntarily quit her job or was discharged due to a violation of an official Alamo policy, substandard job performance, or a decline in the company’s revenues or earnings. At trial, Alamo took

the position that Reed voluntarily quit her job pursuant to provision 5(a) of FamPact, which stated

that an employee could quit her job by, inter alia, “engaging in conduct that [made] it apparent that

[she was] quitting, such as [her] unexplained failure to report to work.” To counter this position,

Reed presented evidence from which the fact-finder could have found that Reed’s failure to report

to work was not unexplained. Specifically, Reed presented evidence that she was physically unable

to report to work due to continued swelling, pain, and weakness in her right leg and that she

communicated this fact to both Snyder and Bledsoe. Moreover, the undisputed evidence showed

that, during her conversations with Snyder and Bledsoe, Reed consistently maintained that she had

no intention of resigning her position. 

Based on the foregoing evidence, we conclude that the record reveals a genuine

dispute as to whether Alamo’s discharge of Reed violated FamPact’s provisions and that this issue

should be resolved by the trier of fact. Inasmuch as the trial court made no findings with regard to

this issue, we reverse the trial court’s dismissal of Reed’s breach of contract claim and remand for

a new trial on this claim. 

IV. Reed’s Statutory Claim

In addition to her claims for wrongful discharge and breach of contract, Reed also

sought to recover damages from Alamo for its alleged violation of section 50-6-123 of the Tennessee

Workers’ Compensation Law. That section contained the following provisions:

(a) No later than January 1, 1993, the commissioner [of

labor] shall establish, pursuant to the commissioner’s rule and

regulation-making authority, a system of case management for
coordinating the medical care services provided to employees

claiming benefits under this chapter.

(b) All cases anticipated to reach an expenditure threshold

or other appropriate point established by the commissioner shall be

subject to case management. Such case management shall include,

but not be limited to:

(1) Developing a treatment plan to provide appropriate

medical care services to an injured or disabled employee;

(2) Systematically monitoring the treatment rendered and

the medical progress of the injured or disabled employee;

(3) Assessing whether alternate medical care services are

appropriate and delivered in a cost-effective manner based on

acceptable medical standards;

(4) Ensuring that the injured or disabled employee is

following the prescribed medical care plan; and

(5) Formulating a plan for return to work with due regard

for the employee’s recovery and restrictions and limitations, if any.

(c) The commissioner may contract with an independent

organization, not owned by or affiliated with any carrier authorized

to write workers’ compensation insurance in the state of Tennessee,

to assist with the administration of the provisions of this section.

(d) Nothing in this section shall prevent an employer from

establishing its own program of case management that meets the

guidelines promulgated by the commissioner in rules and regulations.

T.C.A. § 50-6-123 (Supp. 1992). Reed contends that Alamo violated these provisions by failing to

systematically monitor Reed’s treatment and medical progress and by failing to formulate a plan for

Reed’s return to work with due regard for her recovery and her restrictions and limitations. 

Our supreme court recently addressed the issue of when the provisions of a statute

create a private right of action for the statute’s violation. In Premium Finance Corp. v. Crump

Insurance Services, 978 S.W.2d 91 (Tenn. 1998), the court explained:

Where a right of action is dependent upon the provisions of a

statute, our courts are not privileged to create such a right under the

guise of liberal interpretation of the statute. Hogan v. McDaniel, 204

Tenn. 235, 239, 319 S.W.2d 221, 223 (Tenn. 1958). Only the

legislature has authority to create legal rights and interests. Thus, the

burden of establishing the existence of a statutory right of action lies

with the plaintiff. Ergon, Inc. v. Amoco Oil Co., 966 F. Supp. 577,

585 (W.D. Tenn. 1997).

In determining whether the legislature intended to grant a
4Under the commissioner’s rules and regulations, the duty of an employer or insurer to

provide case management services arises only if (a) the employee requires inpatient

hospitalization, (b) the employee’s injury results in medical costs exceeding $10,000, or (c) the

employee’s lost work time due to the injury reaches a cumulative total of eight weeks of full-time

employment. Tenn. Comp. R. & Regs. 0800-2-7-.03(1) (as revised in Feb. 1998).

5Specifically, the rules and regulations impose this duty (1) on the insurer, where the

employer is insured by a third party, and (2) on the employer, where the employer is self-insured. 

See Tenn. Comp. R. & Regs. 0800-2-7-.02(1)(a) (as revised in Feb. 1998).

statutory right of action, we begin by examining the language of the

statute. If no cause of action is expressly granted therein, then we

must determine whether such action was intended by the legislature

and thus is implied in the statute. To do this, we consider whether the

person asserting the cause of action is within the protection of the

statute and is an intended beneficiary. Carter v. Redmond, 142 Tenn.

258, 263, 218 S.W. 217, 218 (1920); Chattanooga Ry. & Lt. Co. v.

Bettis, 139 Tenn. 332, 337, 202 S.W. 70, 71 (1918). The statute’s

structure and legislative history are helpful in making this

determination.

Premium Fin. Corp., 978 S.W.2d at 93.

Contrary to Reed’s argument, we conclude that section 50-6-123 did not give her a

private right of action against Alamo for negligent case management. We acknowledge that Reed

and other workers’ compensation claimants are among the intended beneficiaries of section

50-6-123's provisions. The primary duty set forth in section 50-6-123, however, appears to be

imposed on the commissioner of labor rather than on employers. To that end, the statute directs the

commissioner to establish a system of case management for coordinating the medical care services

provided to workers’ compensation claimants in cases meeting certain criteria.4 Although certain

responsibilities for case management ultimately may fall on employers,5

 we do not perceive the

primary intent of section 50-6-123 to be to impose on employers the duty of case management.

Moreover, we note that the language of section 50-6-123 does not expressly grant a

cause of action to an employee against an employer who fails to perform its case management duties

in accordance with the guidelines promulgated by the commissioner, and we likewise can discern

no implied grant of a cause of action in the statute. Viewed in its entirety, the Workers’

Compensation Law provides for governmental enforcement of its provisions. Section 50-6-118, for

example, requires the division of workers’ compensation of the department of labor to establish and

collect penalties for certain violations of the Law, such as an employer’s failure to provide coverage,
6See Tenn. Comp. R. & Regs. 0800-2-7-.01 to -.07 (as revised in Feb. 1998).

7But see Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn. 1984) (holding that

creation of common-law cause of action for retaliatory discharge, although not explicitly created

by Tennessee Workers’ Compensation Law, was necessary to enforce employer’s duty to

compensate employees for work-related injuries, to secure employee’s rights to receive such

compensation, and to carry out legislature’s intention in enacting Law).

the late filing of notices, reports, and judgments, the late payment of benefits, and the bad faith

denial of claims. T.C.A. § 50-6-118 (1991). The legislature could have authorized the establishment

and collection of penalties for an employer’s or insurer’s failure to comply with the commissioner’s

case management rules and regulations,6

 but at this juncture it has not done so. We decline to use

the judicial process to engraft additional requirements onto the enforcement scheme designed by the

legislature.7

V. Alamo’s Release Defense

As for the final issue raised in this appeal, we reject Alamo’s contention that the

present action was precluded by the release previously executed by Reed in connection with her

workers’ compensation action. In settling her workers’ compensation claim, Reed agreed to dismiss,

discharge, and relieve Alamo “from any and all further liability . . . for the injury resulting from the

on-the-job accident of March 13, 1993.” Attempting to characterize this language as a “general

release,” Alamo contends that the release barred Reed’s current action against it. Alternatively,

Alamo contends that Reed’s present claims were expressly barred by the terms of the release because

the claims resulted from Reed’s on-the-job accident. 

As an initial matter, we question whether Alamo waived the defense of release by

failing to raise it in a timely manner. A litigant waives an affirmative defense if he fails to raise it

in his answer. Steed Realty v. Oveisi, 823 S.W.2d 195, 197 (Tenn. App. 1991); Thompson,

Breeding, Dunn, Creswell & Sparks v. Bowlin, 765 S.W.2d 743, 744 (Tenn. App. 1987); T.R.C.P.

8.03, 12.08. In its answer, Alamo did not raise the affirmative defense of release, and Alamo did not

move to amend its answer to assert this defense until shortly before the trial began in July 1997. The

trial court apparently granted Alamo’s motion, but the court did not enter its order permitting Alamo
8As a general rule, a trial court loses jurisdiction to enter orders in a case after one of the

parties files a notice of appeal. McCormick v. Phillips, 204 S.W. 636, 636-37 (Tenn. 1918);

Sweetwater Bank & Trust Co. v. Howard, 66 S.W.2d 225, 228 (Tenn. App. 1932); Osborne v.

Turner, 1991 WL 26720, at *2 (Tenn. App. Mar. 5, 1991); but see T.R.C.P. 54.04(2) (providing

that trial court retains jurisdiction over motion for discretionary costs even though party has filed

notice of appeal); T.R.C.P. 59.01 (listing authorized motions which will extend trial court’s

jurisdiction). In the present case, however, the trial court’s order merely conformed to her pretrial ruling on this issue. See Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888 (Tenn.

1980).

to amend its answer until after Reed filed her notice of this appeal.8

 

We recognize that the trial court has the discretion to allow a defendant to amend his

answer to assert an affirmative defense, even if such a motion is not made until the time of trial.

Steed Realty, 823 S.W.2d at 197. The primary factor to be considered by the trial court in making

this determination is whether the plaintiff will be unduly prejudiced by the defendant’s delay in

raising the affirmative defense. Gardiner v. Word, 731 S.W.2d 889, 891-92 (Tenn. 1987);

Garthright v. First Tennessee Bank, 728 S.W.2d 7, 9 (Tenn. App. 1986). In the present case, we

are unable to determine why the trial court entered its order granting Alamo’s motion to amend its

answer to assert the affirmative defense of release, inasmuch as the court’s comments at trial

suggested that it found Reed was prejudiced by the manner in which Alamo raised this defense. 

Nevertheless, we need not decide whether Alamo waived this defense, or whether the

trial court abused its discretion in permitting Alamo to amend its answer to assert this defense,

because we conclude that the release, by its terms, did not preclude Reed from pursuing claims for

retaliatory discharge and breach of employment contract against Alamo. Our supreme court has

explained that

the scope and extent of a release depends on the intent of the parties

as expressed in the instrument. A general release covers all claims

between the parties which are in existence and within their

contemplation; a release confined to particular matters or causes

operates to release only such claims as fairly come within the terms

of the release. Glover v. Southern Bell Telephone & Telegraph Co.

et al., 229 Ga. 874, 195 [S.E.2d] 11 [(1972)]; 76 C.J.S. Release § 51,

p. 695; 66 Am. Jur. 2d, Release, Section 29, p. 706.

. . . .

“A release which is confined or which is construed as

being confined to claims or demands arising from, or

relating to, a specified matter operates to release all
the particular claims or demands properly embraced in

the specifications, but it does not release other claims

or demands, . . .” 76 C.J.S. Release § 51, p. 696.

Cross v. Earls, 517 S.W.2d 751, 752-53 (Tenn. 1974).

In light of the foregoing authority, we disagree with Alamo’s characterization of the

release in the present case as being a “general release.” Rather than generally purporting to settle

all claims between the parties, the release specifically sought to settle only Reed’s claims “for the

injury resulting from the on-the-job accident of March 13, 1993.” The order in which this release

language appeared was entitled Order Approving Lump Sum Settlement of Worker’s Compensation

Benefits. The order indicated that the parties wished “to settle and compromise this matter on the

basis of payment to [Reed] of permanent partial disability benefits of 30% to the leg, which amounts

to the payment of $275.75 per week for a period of 60 weeks, in the total uncommuted amount of

$16,545.00.” In our view, the plain meaning of the release language that followed was that Reed was

relieving Alamo from any further liability for the leg injury she sustained on March 13, 1993.

Contrary to Alamo’s contention, this language did not relieve Alamo of further liability for any and

all claims arising out of the parties’ employment relationship.

Our interpretation of the release’s language is supported by decisions from other

jurisdictions which have narrowly construed release provisions purporting to relieve an employer

of further liability for injuries from on-the-job accidents. In Pope v. Bethesda Health Center, Inc.,

813 F.2d 1306, 1307 (4th Cir. 1987), for example, Pope released and discharged her former

employer “from all other claims of whatsoever kind which might or could hereafter arise under the

Workmen’s Compensation Law from the said injury, disablement or disability.” In rejecting the

employer’s contention that this release language barred Pope’s subsequent claim for wrongful

discharge, the court explained:

We think that the language of this release, examined in its

entirety, is clear and unambiguous. It releases and forever discharges

Pope’s present or future claims arising underthe compensation statute

“from the said injury, disablement or disability.” Application of the

release thus depends upon fulfillment of two conditions: first, the

claim must “arise” under the Maryland Workmen’s Compensation

Law, and, second, the claim must be “from the said injury,
disablement or disability.” Pope’s claim may satisfy the first

condition, but we need not reach that issue. Pope’s claim does not

stem from her injury and thus fails to satisfy the second condition.

Pope does not allege a cause of action for injury, disablement or

disability stemming from an accident in the course of her

employment. Rather she alleges a separate, distinct and different

cause of action -- her wrongful discharge because she asserted her

right to worker’s compensation benefits.

Pope, 813 F.2d at 1308 (emphases added).

In Bailey v. Martin Brower Co., 658 So. 2d 1299 (La. Ct. App. 1995), the plaintiff

was injured in an on-the-job accident in July 1991. In September 1991, the plaintiff was terminated

by his employer, ostensibly for filing a fraudulent workers’ compensation claim. Bailey, 658 So. 2d

at 1300. In settling his workers’ compensation claim in December 1991, the plaintiff agreed to

release his former employer from any and all claims, actions, and causes of action sustained “in

consequence of [the] accident that occurred on or about the 21st day of July, 1991.” Id. at 1301.

Thereafter, the plaintiff filed a wrongful termination suit against the former employer in which he

alleged that he was illegally fired for filing a workers’ compensation claim. Id. at 1300. In rejecting

the employer’s argument that the plaintiff’s retaliatory discharge claim was barred by the language

of the release agreement, the Louisiana appellate court explained:

We find that given the language employed by the parties in the

release agreement, as well as the only testimony on the parties’ intent

in confecting that agreement, the parties did not intend to release

plaintiff’s wrongful discharge claim. Although purporting to release

[the employer] from “all claims,” the language of the release itself

focuses on the plaintiff’s worker’s compensation claim arising on

July 21, 1991. The termination, which gave rise to the instant cause

of action, did not occur until September 5, 1991. There is nothing in

the document pertaining specifically to this separate cause of action,

although it was in existence prior to the time that the release was

executed. Furthermore, the small consideration given in exchange for

the release lends support to the conclusion that the parties intended

for the release to only cover plaintiff’s compensation claim.

Accordingly, . . . the parties did not intend to release plaintiff’s

retaliatory discharge claim.

Id. at 1302; cf. Spencer v. Howard, Weil, Labouisse & Friedrichs, Inc., 543 So. 2d 547, 551-52

(La. Ct. App.) (reaching different result where plaintiff released defendant for all claims arising out

of on-the-job accident “or anything else that may have occurred” to plaintiff while employed by
9

In Tennessee, “[a] claim for damages for retaliatory discharge is not a part of a worker’s

compensation claim, but is a separate tort action.” Van Cleave v. McKee Baking Co., 712

S.W.2d 94, 95 (Tenn. 1986).

defendant), writ denied, 546 So. 2d 1217 (La. 1989).

In accordance with these authorities, we conclude that the release language in the

present case did not bar Reed’s claims for wrongful discharge and breach of employment contract.

Reed’s complaint did not allege a cause of action for injury or disability resulting from her on-thejob accident of March 13, 1993. Rather, Reed alleged separate, distinct, and different causes of

action. She alleged that Alamo wrongfully discharged her because she asserted her right to workers’

compensation benefits,9 and she further alleged that Alamo breached the parties’ employment

contract when it discharged her. Moreover, we note that the language of the release focused on

Reed’s workers’ compensation claim arising due to her March 13, 1993, on-the-job injury. Nothing

in the document pertained to the separate causes of action alleged in the present case, although these

potential claims existed prior to the time when Reed agreed to the release language. Our conclusion

that the release did not bar the present claims is further supported by the fact that the consideration

given in exchange for the release pertained only to disability benefits for Reed’s March 13, 1993,

leg injury.

In contending that the release barred the present claims, Alamo relies on a line of

Alabama decisions holding that a retaliatory discharge action was barred by a prior settlement

agreement which released the employer from all claims on account of the employee’s injury under

the Alabama Workmen’s Compensation Act “or otherwise.” Gates Rubber Co. v. Cantrell, 678 So.

2d 754 (Ala. 1996); Ex parte Aratex Servs., Inc., 622 So. 2d 367 (Ala. 1993); Sanders v. Southern

Risk Servs., 603 So. 2d 994 (Ala. 1992); Dow-United Techs. Composite Prods., Inc. v. Webster,

701 So. 2d 22 (Ala. Civ. App. 1997). We conclude that these decisions are distinguishable from the

present case because they dealtwith retaliatory discharge claims which, at least arguably, arose under

the Alabama Workmen’s Compensation Act. In contrast, the release in the present case did not

purport to release Alamo from liability for all claims arising under the Tennessee Workers’

Compensation Law. Moreover, in the present case, Reed also asserted a claim for breach of

employment contract, which did not arise under the Workers’ Compensation Law. In any event, to
the extent that it conflicts with our decision today, we decline to follow the reasoning set forth in the

Alabama courts’ decisions.

We also conclude that the present case is easily distinguishable from this court’s

decision in Davenport v. Home Federal Bank, No. 03A01-9401-CV-00034, 1994 WL 287591

(Tenn. App. June 30, 1994), wherein we held that a plaintiff’s claim for retaliatory discharge was

barred by a prior release executed in connection with the plaintiff’s termination from employment.

In that case, the plaintiff released the employer “of any and all claims he has or may acquire arising

out of or related to his employment.” Davenport, 1994 WL 287591, at *1. We reasoned that the

plaintiff’s subsequent retaliatory discharge claim arose out of or was related to his employment, “and

so must be covered by the express terms of the Release.” Id., at *6. In contrast, the release in the

present case referred only to the injury resulting from Reed’s on-the-job accident of March 13, 1993.

The release did not purport to cover the parties’ entire employment relationship.

VI. Conclusion

That portion of the trial court’s judgment dismissing Reed’s claim for breach of

employment contract is reversed, and this cause is remanded for further proceedings consistent with

this opinion. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are

taxed one-half to Reed and one-half to Alamo, for which execution may issue if necessary.

____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

LILLARD, J. (Concurs)