IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 11, 2001 Session

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 judgment granted in favor of K-Trans Management, Inc., as

to his suit seeking damages for violation of the Tennessee Human Rights Act and intentional

infliction of emotional distress as a result of his termination 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 Appeal as of Right; Judgment of the Chancery Court Affirmed;

Cause Remanded

HOUSTON M.GODDARD,P.J., delivered the opinion of the court, in which HERSCHEL P.FRANKS and

D. MICHAEL SWINEY, JJ., joined. 

Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for the Appellant, Loue G. Manning

John M. Lawhorn, Knoxville, Tennessee, for the Appellee, K-Trans Management, Inc.

OPINION

This is a suit by Loue G. Manning, a black male, against his former employer, K-Trans

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 second count has been

abandoned on appeal.

K-Trans filed a motion for summary judgment which was sustained by the Trial Court,

resulting in this appeal, wherein Mr. Manning raises the following two issues:
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A. The Appellee Discriminated Against the Appellant by Disciplining the

Appellant in a Far More Severe Fashion and Due to a Far Less Significant

Transgression, than When it Disciplined a ComparableWhite Male Manager; and,

B. The Appellee’s Stated Rationale for Terminating the Appellant is Entirely

Pretextural, as the 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. Hall, 847 S.W.2d 208 (Tenn. 1993), as follows

The standards governing the assessment of evidence in the summary judgment

context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party 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

both the facts and the inferences to be drawn from the facts permit a reasonable

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).

Applying the foregoing rule relative to our review of the evidence, we find the record

discloses the following facts. Mr. Manning was employed by K-Trans for over 25 years. He began

his employment as a bus driver and ultimately became one of five directors, immediately under the

General Manager, Timothy A. Lett, a white male, and was serving in that capacity when 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 use, awoke feeling somewhat lightheaded, which he attributed in part to his

hypertension, as well as nitroglycerin tablets which had been prescribed for him on the day in

question, or the day before. During the morning hours he drank four 12-ounce cans of beer and

about 3:00 p.m.–after a nap–drove a K-Trans automobile to a Kentucky Fried Chicken establishment.

As he was backing out of his parking place to leave, another car directly behind him was also

backing out, resulting in a collision of the rear of each vehicle. The damages were minor–only 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 employees, Dennis Lowery, Director

of Operations, and Gary A. Robinson, Director of Safety and Training–in accordance with company

policy–to submit to a drug screening. He at first agreed to do so, but then changed his mind and

requested that he be allowed to wait three hours to have the screening done, in accordance with what
1

K-Trans is also known as KAT.

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he understood was permitted for a white male supervisor who was drinking while overseeing KTrans operations in connection with a University of Tennessee football game.

After some discussion and a heated argument between Mr. Manning and Messrs. Lowery and

Robinson, Mr. Manning, in the company of a third employee, James E. Jackson, was taken to his

home. He apparently stayed there until Mr. Jackson had completed other business and returned to

pick Mr. Manning up to take 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 refusal to take a postaccident 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 considered unacceptable

in the workplace. The following are examples of infractions of rules of conduct

that may result in disciplinary action, up to and including termination of

employment:

. . . .

-Working under the influence of alcohol or illegal drugs

-Possession, distribution, sale, transfer, or use of alcohol or illegal

 drugs in the workplace, while on duty, or while operating KAT1

 vehicles or equipment

K-Trans also promulgated a substance abuse policy which, as it relates to drug and alcohol

testing, included the following:

Section 6.0

-Post-Accident Testing: Safety-sensitive employees will be required to

undergo urine and breath testing if they are involved in an accident while on duty

for KAT unless the KAT official in charge at the time determines, using the best

information available at the time of the decision, that the covered employee’s

performance can be completely discounted as a contributing factor to the accident.

This includes all employees that are on-duty in vehicles and any other whose

performance could have contributed to the accident.
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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 disciplinary policy regarding this testing program will be as

follows:

Any safety-sensitive or non-safety-sensitive employee who has an alcohol

concentration of 0.02 or greater but less than 0.04 will receive a “miss-out” and

be subject to all employee “miss-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 who 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, inter alia, made the following statements of undisputed facts, all of which were

agreed to by counsel for Mr. Manning.

(6) Plaintiff is a black male.

(7) K-Trans’ General Manager, who also was Plaintiff’s supervisor, is Tim Lett.

Mr. Lett is a white male.

(8) K-Trans’ Director of Safety and Training at 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 Lett, who Plaintiff now

alleges in this action engaged in intentional racial discrimination against him.

(11) K-Trans’ Director of Safety and Training, Greg Robinson, a black male,

was promoted to that position by General Manager Tim Lett.

(12) K-Trans’ Director of Operations, Dennis Lowery, a black male, was

promoted to that position by General Manager Tim Lett.

(13) General Manager Tim Lett was responsible for determining the level of

compensation paid to K-Trans’ various department managers.
2 Mr. Lett testified that had Mr. Manning passed the tests he would not have been terminated.

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(14) As of the date Plaintiff was terminated from his employment with K-Trans,

Plaintiff had the highest annual compensation among the various department

directors. These director positions included: Director of Maintenance, Director

of Operations, Director of Safety and Training, Director of Human Resources and

Director of Marketing.

The proof shows that the white male employee, above-referenced, whose conduct as to the

use of alcohol was at least comparable and arguably more egregious than that of Mr. Manning,

received much less punishment–suspension of three days with pay, removal from supervising KTrans busses at U.T. football games, and a letter of reprimand. He did, however, when asked,

immediately submit to testing. 

Mr. Manning’s termination was predicated upon his refusal 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 undisputed 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. Lowery 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 Messrs. Lowery and Robinson as to the instructions given,

terminated Mr. Manning because of Mr. Lett’s belief that Mr. Manning had violated the substance

abuse policy above-referenced, which would be ground for termination, whereas the white male had

complied with the policy. Given this circumstance and Mr. Lett’s history of promoting blacks to

positions formerly held by whites, which included Mr. Manning, and the fact that he was the highest

paid supervisor in the system, we cannot find that there is material dispute that racial bias played any

part in his dismissal.
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For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded

for collection of costs below. Costs of appeal are adjudged against Mr. Manning and his surety.

_________________________________________

HOUSTON M. GODDARD, PRESIDING JUDGE