### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 11, 2001 Sess

ion LOUE G. MANNING v. K-TRANS MANAGEMENT, INC. Appeal from the Chancery Court for Knox County No. 138864-2 Daryl R. Fansler, Chancellor FILED OCTOBER 29, 2001 No. E2000-02462-COA-R3-CV
Loue G. Manning appeals a summary judg ment granted in favor of K-Trans Management, Inc., as to his sui t seeking dam ages for violation of the Tennessee Human Rights Act and intentional infliction of emotional distress as a result of h is termi nation by K-Trans. We find there is no material evidence to

support his insistence that he was terminated because of his race and affirm the judgment below.
Tenn.R.App.P. 3 Appe

al as of Right; Judgme

nt of the Chancery Co

urt Affirmed; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Jerrold L. Becker a

nd Samuel W

. Brown, Knoxville, Tennessee, for the Appellant, Loue G. Manning John M. Lawhorn, Knoxville, Tennessee, for the Appellee, K-Trans Management, I nc.

OPINION This is a suit by Loue G. Manning, a black male, a gainst his former employer, K-Tr an s Management,

Inc. The complaint contains two counts. The first seeks damages for violation of the Tennessee Human Rights Act, codified in

T.C.A. 42-21-101, et seq. The second seeks damages for intentional infliction of emotional distress. It appears that the claim as to the secondcount has been abandoned on app

eal. K-T ran s filed a motion for s ummary judg

ment which was sust

ained by the

Trial Court, resulting in this a

ppeal, wherein M

r. Manning raise

s the following tw

o issues:-2-

A. The A ppellee Discriminated Against the Appellant by Disciplining the Appellant in a Far More Severe Fashion and Due to a Far L ess Significant Transgression, than When it Disciplined a Comparable Whit e Male Manager; and, B. The Appellee’s Stated Rationale for Terminating the Appellant is Entirely Pretextural,as th e Appellant Cannot Tenably Point to Any Company Policy Which the Appellant in Fact Violated. The standard of review for summary judgment has recently addressed in the case of Staples v. CBL & Associates , 15 S.W.3d 83, 89 (Tenn. 2000), wherein our Supreme Court restated the rule enunciated in Byrd v. Ha

ll , 847 S.W.2d 208 (Tenn. 1993), as follows The standards gove

rning the assess

me nt of evidence in the summary judgment context are also well est

ablished. Courts mus

t view the evidenc

e in the light most favorable to the nonmoving pa

rty and must

also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should grant a summary judgment only when boththe facts and

the inferences

to be drawn from the

facts permit a re

asonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Ap plying the foregoing

rule relative to o

ur review of the

evidence, we fi

n d the recor d discloses the following facts. Mr. Manning was employed by K- Trans for over 25 years. He bega n his employment a

s a bus driver and ultimately became one of five directors, immediately under the General Manager, Timothy A. Lett, a white male, a nd was serving in that capaci ty wh en he was terminated for an incident occurring on January 21, 1998. On that day Mr. Manning, who was furnished an automobile by K-Trans while at work and also for his personal u

se, awoke feeli

n g somewhat

lightheaded, wh

ich he attributed

in part to his hypertension, as well a s nitroglyc erin tablets whic

h had been presc

ribed for him on the

day in question, or the day before. During the mor ning hours he drank four 12-ounce cans of beer and about 3:00 p.m.–after a nap–dr ove a K-Trans a utomobile to a Kentu

cky Fried Chicken establishm

ent. As he was backing

out of his parking

place to le ave, anot her car direct ly behind him w

as also backing out, resulting in a collision of the re ar of each vehi c le. The dam ages were min or– onl y a scratch on the K-Trans vehicle and a damaged taillight on the other. After the collision, Mr. Manning called K-Trans to report the accident and was transported to the K-Trans office by the driver of the other vehicle. While at the K-Trans office he was instructed by fellow employ ees, Dennis Lowery, Director of Operations, and Gary A. Robinson, Director of Safety and Training–in accordance with company policy–to submit to a drug s creening. He at first agreed to do so, but then changed his mind and requested that he be allowe

d to wait three hou

rs to have the screening done, in accordance with what1 K-Tr ansis als o known a s KAT. -3-

he und ers tood was permitted for a white male supervisor who was drinking while overseeing KTrans operations in connection with a University of Tennessee football ga me. After some discussion and a heated argument between Mr. Manning and

Messrs. Lowery and Robinson, Mr. Manning, in the company of a third employe e, James E. Jackson, was taken to hi s home. He apparently stayed the re until Mr. Jackson had completed other b usiness and retur

ned to pick Mr. Manning up to t

ake him to

a testing laboratory where he underwent a drug

test at 7:30 p.m. This test proved negative. Thereafter, after an interview with Mr. Lett, Mr. Manning was terminated according to the termination notice for “ driving a company vehicle after consuming alcohol and refusa l to take apostaccident breath test following an accident.” As pertinent to the disposition of this case, the Employee Handbook contained the following work rule: It is not possible to list all the forms of behavior that are conside

red unaccepta

ble in the workplace. The following are examples of infractions of rules of conduct that may res ult in disciplinary action, up to and including termination of employment:

. . . . -Working un der the infl uence of alco hol or ill egal drugs -Possession, distribution, sale, transfer, or use of alcohol or illegal drugs in the workplace, while on duty, or while operating KAT 1 vehicles or equipment K-Trans also promulgated a substance abuse policy which, as it relat

es to drug and alcohol testing, i ncluded th e followin g: Section 6.0

-Post-Accident

Tes ting : Safety-se

nsitive employ

ees will be requir

ed to undergo urine andbreath testing if they are involved in an accident while o

n duty for KAT unless

the KAT official

in charge at the

time determines, u

sing the best information available at the time of the decision, t hat th e covered employee’s performance

can be completely

discounted as a c

ontributing fac

tor to the accide

nt. This includes all employ ees that are on-

duty in vehic

les a nd a ny o ther whose performance c

ould have contrib

uted to the accide

nt.-4- Following an accident, the employee will be tested as soon as possible, but not to exceed eight hours for alcohol testing and 32 hours for drug testing. Section 10.0 KAT’s agency disciplinar y policy regarding this testing program will be as follows: Any sa fety-se

nsitive or non-safety-sensitive employee w ho has an alcohol concentrationof 0.02 or grea ter but less

than 0.04 will rec

eive a “miss-out”

and be subject to all e

mployee “mi

ss-out” rules; Any safety-sensitive

or non-safety-sensitive employee who has a verified positive drug test result, an alcohol concentration of 0.04 or greater, or wh o refuses to submit to a test will be referred to a Substance Abuse Professional for evaluation and his/her employment with KAT will be terminated. K-Trans , inte r alia , made the following statements of undisputed facts, all of which were agreed to by couns el for Mr. Ma nning. (6) Plaintiff is a black male. (7) K-Trans’ Gene

ral Manager,

who also was Plaintiff’s su

pervisor, is Tim L

ett. Mr. Lett is a white male. (8) K-Trans’ Director of Safety and Training a t the time of

the events made the subject of this action was Greg Robinson, who is a black male. (9) K-Trans’ Director

of Operations at the time of the events made the subject of this action, Dennis Lowery, is a black male. (10) Plaintiff became K-Trans’ Maintenance Director in October 1994 when he was promoted to that position by General Manager Tim L

ett, who Plaintiff now alleges in this a

ction engage

d in intentional rac

ial discrimination a

gainst him. (11) K-Tr ans’ D irector of Safety and Training, Greg Robinson, a black male, was promoted to tha

t position by Ge

neral Manage

r Tim Lett. (12) K-Trans’ Di rector o f Operations, Dennis Lowery, a blac k male, was promoted to that pos

ition by Gene

ral Manager T

im Lett. (13) General Manager Tim Lett was responsible for determining the level of compensation paid

to K-Trans’ var

ious department ma

nagers.2 Mr. Lett t estif ied that had Mr. Manning pa

ssed the tests he would not

have been t

erminat ed.

-5- (14) As of the date Plaintiff was terminated from his employ

ment with K-Trans , Plain tiff had the highest annual compensation among the various depart men t directors. These director p ositions included: D

ir ect or of Maintenance, Director of Operations,

Director of Safety and Trai ning, Director of Human Resources and Director of Marketing. The proof shows that the white male employee, above-refere nced, whose conduct as to the use of alcohol was at least com parable and a rguably more egregi ous than th at of Mr. Man ning, received much less punishmen

t– suspens ion of three days with pay, removal from supervising KTrans busses at U.T. foo tball g ames, a nd a letter of reprimand. He did, however, when asked, immediately submit to testing. Mr. Manning’s termi

nation was predic

ated upon his refu

sal to obey a direction

to submit to testing. 2 Mr. Manning insists that he was never instructed to be tested for alcohol, but only

drugs, which, as already noted, he successfully passed. However that may be,

it is undis pu ted that he did not submit to testing in a timely manner in accordance

with the rules of K

-Trans. With regard to the direction given for testing, both Mr. Lower y and Mr. Robinson testified that he was instructed to have testing for both alcohol and drugs. However, Mr. Manning states it was only for

drugs, and for the purpose of disposition of this appeal, we take as true the instruction was only for

drugs. Thus, under the present record, Mr. Manning was terminated for not complying with an instruction that he was never given. This, however, does not end our inquiry, as we must determine whether the undisputed proof shows that his termination was not because of racial discrimination. In this regard, we first note that Mr. Lett, relying upon the evidence of Me ssrs. Lowery and Robins on a s to the instructions given, terminatedMr. Manning because of Mr. Lett’s belief that Mr. Manning had violated the substance abuse policy above-referenced, which would be g round for termination, whereas the white male had complied with the policy. Given t his cir cumstance and Mr . Lett’s histor

y of promotin

g blacks to positions formerly held by whites, wh ich includ ed Mr. Manni ng, and the fact that he was the highe

st paid supervisor in the s

ystem,we cannot find that there is material dispute that racial bias played any part in his dismissal.-6-

For the foregoingreasons the judgment of the Trial Court is affirmed and the cause remanded for col lec tio n of cos ts b elo w. C ost s of app eal are a dju dged agai nst Mr. Man nin g and his sur ety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE