# FILED
September 1, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE
MICHAEL KIN G, ) ) Plaintiff/Appellant, ) Maury Circu it No. 6503 ) VS. ) Appeal No . 01A01-9711-CV- 00624 ) TFE, INC., ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF MAURY COUNTY AT COLUMBIA, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

JOHN W. PALMER THE PALMER LAW FIRM Dyersburg, Tennessee Attorney for Appellant

KIM B. KETTERING HARDIN, PARKES & KETTERING, PLLC Columbia, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J. In this action filed against TFE, Inc. (her eafter “TFE”), Michael

King appeals the trial2

court’s grant of summary judgment to TFE as related to King’s cla ims for breach of an alleged employment contract. The tri al court granted TFE’s moti on for summary judgment based on the court’s conclusion that an employee handbook distri buted by TFE did not constitute an emplo

yment c ontract . For th e reason s hereaft er stat ed, we a ff irm the trial court’s grant of summary judgment.

F ACTS A ND P ROCEDURAL H ISTORY
King began working for TFE as a truck driver on November 5, 1988, at whi ch point TFE provided to King a copy of an employee manual, which w as titled “TFE Professional Staffing.” During King’s e mployment with TFE, this employee manual was occasionally updated either by

replacement pages or by supplemental additional pages that were sent to King. At least as of the time period relevant to

this lawsuit, this

manual was divided i nto three separate sections: (1) Employee Handbook; (2) Schedule Wages & Fring es; and (3) Employee Notices.

On March 25, 1993, King was involved

in a traffic accident whil e driving a truck (the tractor only) during the course of his employment. Apparently, this accident occurred when
a city garbage tr

uck pulled o ut in front of K ing, at w hich time King attempted to avoid the truckby going around its rear, but lost control and ran off the road. During King’s deposition, he described the events surrounding this accident as fo llows: Q What was the weather like? A It was sprinkling rain, drizzle.

. . . . Q Okay. You didn’t hav e a trailer hooked onto the tr actor part. A Yes, I was bob-tailin g. Q Just tell me what hap pened, or what -- you ’re coming down the road,what caused the wr eck to happen? A The City garbage tr uck pulled out in front of me.

. . . . Q And when this vehicl e pulled out or whateve r, what did you do? A I applied my brakes. He pr oceed to bac k off the road. I proceed to let off the brakes. He stopped, clearin g the p ath where I could accelera te. W hen I acce lerated a gain, tha t’s all I -- I done my knowl edg e -- to avoid the wreck any way possible, and I swayed to go in behind him. As soon as the truck hit the shoulder of the road where I could hopefully getpart of the garbage truck or go completely around hi m, th e shoulder gave way. The next thing I know , the truck was upside down. After this traffic accident, King was taken to a hospital. There after, during the course of3

medical treatment and recovery , King was paid temporar y workers’ compens

ation disability benefits up through February 25,1994, a t which point he was released by his treati ng physician to return towork. On Monday, March 7, 1994, King spoke w ith Richard Gilbert, who was King’s reg ional manager and driver supervisor, on the tel ephone. D uring thi s conversation, Gilbert informed King that King’s employment w as being terminated, and he referenced and drew King’s attention to a provision w it hin the employee manual which exp lained that TFE employees could be “ subject to discharge” for a “major chargeable” accident. The next day, on March 8, 1994, Gilbert provide d to the Tennessee Department of Employment Security ( and to King, who applied for and ultimately drew unemployment compensation) a copy of a “separation notice,” w hich explained that King ’s “discharge” w as based upon his involvement in a “major preventable accident.” On this same date, Gilbert sent to King a lett er that explained the following: As discussed, TFE, Inc., has carefully reviewed all re levant data concerning your March 25, 1993, accident, and found that it me ets the defin ition of a major preventable (char geable) accident. For this reason, TFE, Inc., e lects to terminate your employment under the provisions of Rule 1A, as published in your copy of the Driver Handbook. In closing, please be advised that any request to have the Driv e rs’ Committee review this matter, and to thereafter make a recommendation as to whether the company shoul d reconsider this action,should be submitted in accordance with procedures also contained within the Driver Handbook. Thereafter, King, through his attor ney, requestedthat a driver committee hearing be held to review King’s

termination. This driver committee,which is the initi al avenue for review of disciplinaryaction according to the “ Employee Handbook” under the hea ding “Rules

and Regulations” and under the sub-headin g “Appeal of Company Disciplinary Action,” is a committee that is essentially comprised of popularly elec ted driver employees. This driver committee hearing took place on April 30, 1994, at which time the driv er committee opined and “recommended” that King’s accident be deemed “no n-prev entable,” and that King’s employment

should not have been terminated.After the April 30, 1994 driver committee hearing, Ki ng never heard from or spoke with TFE again about his employment, and his employment was not reins tated.

On March 6, 1995, King commenced this action ag ainst T FE, alleging that King’s employment

with TFE was wrongfully terminated in violation of contrac tually bi nding terms1. The provisi on s that are found withi n TFE’s employee manual that pertain to disci plinar y procedures, as related t o the inst

ant case, are as foll ows:

DISCIPLINARY PROCEDURES [T]o insure [si c] that we protect and pr eserve the excellent

reputati on we have establ ished, management has developed a guideli ne of viol ations of professional performance standards and reasonable di scipli nary penal ties t hat may be imposed upon proven vi olati ons of these standards.

. . . . The follow ing R ules and R egu lation s app ly to all employees who have complete d their 90 -day familiarizati on period. The Company retai

ns th e rig ht to m odify , add to or e limina te wo rk ru les at any t ime a s it deems nec essary . RULES AND REGULATIONS The follo

wing rul es and regulat ions and the pe nalti es to be charged fo r viol ations of the same are set fort

h as guideli

nes so that al l employees may know what is expected of them in the g enera l condu ct of the C omp any’s bus iness. This li st of vi olati ons is not i

nclusive and t

he com pan y ma y add to or m odify it at an y time

. Protests of discipl ine must be fil ed withi n ten (10) day s after not ice is r

eceived by

employees. 1. ACCIDENTS: A. Majo r Cha rge abl e as def in ed b y DOT 1st offense-Subj ect to di scharge

. . . . 8. FAMILIARIZATION PERIOD EMPLOYEES:

During the fir

st ninet y (90) day

s of employment new employees may be d ischarged at management’s discret ion wit hout regard t o the above procedur es. 9. APPEAL OF COMPA NY DISCI PLINARY ACTION: [T]he drive r com mitte e is you r ave nue of ap pea l f or an y complaint you may have rega rding yo ur treatment. The m anagem ent of TFE, Inc., will give every considerati

on to thei r recommendations and fin dings.

. . . . Employees objecti ng to the di scipli nary acti on taken wil l have ten (10) days t o file a notice to tha t effect in writing wit h TFE, Inc. I n the absence of such pr otest, such actio n sha ll be de em ed fin al. INVO LUNTAR Y TERMI NATI ON In the event

an em ployee is invo lunta rily terminated f rom employment with TFE, Inc. , and the employee exhausts the company’ s internal appeal provisions, at the employees request TFE w ill consider

submi tt ing thematt er to an A rbi tra tor for a fi nal and b ind ing remed y. Th e request for arbitr atio n should be made by t he employee . . . with in ten (1 0) days of the emp loyee being notified of ter mina tion. . . . . 4 and conditions set forth in TFE’s employment manual, and allegi ng that TFE terminated King’s employment in retaliation of King ’s w orkers’ compensation clai m. On March 10, 1997, TFE filed amotion for summary judgment, w hich came tobe heard by the trial court
on August 21, 1997. In addition to the pleadings, depositions from both King and Gilbert
were filed with the trial c ourt for its consideration on TFE’s motion for summary judg ment. Thereafter, on October 3, 1997, the trial court entered an order that granted TFE’s motion forsummary judgment. In this order, the trial court explained, among other things, that th e prov isions within TFE’s employee manual that related to disciplinary procedures d id no t contain any specific lang uage indicating a guar antee or binding commitment from TFE. 15

On appeal, King has

asserted no error regarding the trial court’s entry of summary judgmentas related to Kin g’s retaliatory discharge claim. The sol e issue that he has presented for this Court’s consideration is as follows: Does a factual dispute exist that creates a gen uine issue f or trial as to whether the em ployme nt of [King] was terminated by . . . TFE, Inc. in vio lation of contractually binding provisions of the “TFE Pr ofessional Staffing ” manual?
A NALYSIS

As in prior similar cases , we begin our analysis of this issue with the well-es tablished rule “that a contract for employment for an indefinite ter m is a contract at wil l and can be terminated by either party at any time without cause.” Rose v. Tipton County Public Works Dept. , 953 S.W.2d 690, 691 (Tenn. App. 1997); Bringle v. Methodist Hosp. , 701 S.W.2d 622, 625 (Tenn. App. 1985). “Because Tennessee continues to adhere to the foregoing ‘employee-at-will’ rule, a presumption arises in this state that anemployee is an employee at will.” Rose , 953 S.W .2d at 691-92 (c iting Davis v. Connecticut Gen. Life Ins . Co. , 743 F. Supp. 1273, 1280 (M.D. Tenn. 1990). During King’s deposition in the instant case, he
was asked, “withregard to TFE, were you under -- is ityour position or y our contention that you had -- you were under some contract for a term with them?” King’s direct response to this specific question was “n o.” King essentially contends, however, that his “at-will” status was changed by TFE’s promulgation and iss uance of its employee manual. In this regard, this Court has previously state d and summarize d the following: Even in the absence of a definit e d urational term, an employment contract still m ay exist with regard to other terms of employ ment. Williams v

. Mare mont

Corp. , 776 S.W.2d 78, 80 (Tenn. App. 1988); accord Hooks v . Gibson , 842 S.W.2d 625, 628 (Tenn. App. 1992). In this regard, this Court has re cognize d 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 Ge n. Life Ins . Co. , 743 F. Supp. 1273, 1278 (M.D. Tenn. 1990). In order to consti tute a contract, however, the handbook must contain spe ci fic language showing the employer's intent to be bound bythe handbook's provisions

. Smith v. Morris , 778 S.W.2d at 858. Unless an employee handbook contains suc h guarantees or

binding commitments, the hand bookwill not constitute an employment contract. Whittaker v. Care-More, Inc. , 621 S.W.2d 395, 397 (Tenn. App. 1981). As stat ed by one court, in order for an employee handbook to be conside red part of an employment

contract, "the language used must be phrased in binding terms, interpreted in the con text of the entire handbook, and read in c onjunction with a ny other relevant material,such as an employment applica tion."2. See supra note 1.

3. We note, however, that Ki ng’s bri ef places conside rable rel iance upon one particular provisi on withi n the employee manual, whi ch states:

Followi ng the rule s set fort h in the American Trucking Associati on’s safety awards program, TFE willmake the initial determinat ions regarding anaccident’ s status. A driver may appeal a finding of “p reventa ble” to one of the ex isting driver s afety com mittees

. Eit her TFE or the driver may appeal a driver co mmittee d ecision t o ATA’s panel of saf ety expert

s whose decision shal l be fi nal and bin ding. W e need not resolve whether t his provi sion refl ects an int ent to be bound, however, because this particular provisi on doe s not per ta in to TFE’s “disciplinary procedures,” “rules and regulations,” and “involuntary termin ations.” Inste ad, th is pro vis ion pertains to and is a s ub-hea ding of T FE’s “S afety Awa rd Prog ram ,” which, as re vised , is se t forth within the second part of TFE’s employee manual, t itl ed “Schedule Wages & Fringes .” This “S afety Awa rd Prog ram ” provides emp loymen t benefits relatin g to a drive r’s pay scale, which increases over time and/or mil eage travel ed in the absen ce of the dri ver having a preventable accident. “A prev enta ble accident willnot cost a driver i ncreases previ ously earned under thi s program. However, a driver having a pre venta ble ac cide nt will serve a penalt y peri od during whi ch the dri ver cannot pro gress to a higher level.” 6 Claiborne v. Frito-Lay, Inc. , 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989). Rose , 953 S.W.2d at 692. While we have previously recognized th at “an emplo yee handbook” can become a part of an employment contract in some cases, our concern in the instant case is limited to the specific prov isions set forth withi n TFE’s employee manual that govern TFE’s “Di scipl inaryProcedures,” “Rules and Regulations,” and “Involuntary Termination.” 2 Our review of these provisions reveals that the p ertinent langua ge clearly reflects TFE’s intent not to be bound either by parti cular procedures described therein, or bythe “recommendation” of the driv er committee. 3 Under the heading “Disciplinary Procedures,” TFE’s manual ex plains that its management “has developed a guideline of violations of professional performance standards and reasonable disciplinary penalties.” TFE thereafter states, “ The Company retains the right to modify, add to or eliminate work rules at any time as it deems necessary. ” An employer’s reserv ation ofa unilateral right to modify such provisions within an employee h an dbook generally precludes such provisions

from being consideredpart of the parties’ employment contract. See Rose , 953 S.W.2d at 693-94 (citing Claiborn e v. Frito-L ay, Inc. , 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989)). Under the heading“Rules and Regulations,” TFE’s manual again explains that the “rulesand regulations and the penalties to be charged for violations of the same are s et forth as guidelines , and that the “list of vio lations is not inclusive and the company

may add to or modify it

at any time .” Under the rules and re gu lations sub-heading “Appeal of Company

Disciplinary Action,” TFE’s manual explain s that “the driver commit tee is your
avenue of appeal,” but that the mana gement o f TFE will o nly “give ever y consideration to7

their recommendations and find ings.” Las tly, under the heading “Involuntary Termination,” TFE simply states that

it will simply “ consider

submitting the matter to an Ar bitrator” upon an employee’s request after submission to the dri ver commi ttee. Th erefore , as we have stated above, the language of the pertin ent pro visions within TF E’s employee manual clea rlyreflects TFE’s intent not to be bound either by parti cular procedures descri bed therein, or by the “recommendation” of the driver committee. Moreover, as these provisions

within TFE’s employ

ee manual must be “read in conjunc tion with a ny other relevant material,” we find it r

elevant to further note

that King s igned a document upon receiptof TFE’s employee manual that acknow ledged, among oth er thi ngs, that the manual in no way created or established an employment contract.

C ONCLUSION
Accordingly, we hereby affirm the trial court’s grant of summary judgment toTFE. Costs are taxed to Mi chael Kin g, for which execution may issue i f necess ary.

HIGHERS, J.

CONCUR:8

CRAWFORD, P.J., W.S.

LILLARD, J.