# FILED
October 22, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk KEVIN CA LDWELL, ) Rutherfor d County Cir

cuit ) No. 34547 Plaintiff/Appellant, ) ) VS. ) ) NISSAN MOTOR MANUFACTURING ) Appeal No. CORPORATION, U.S.A., ) 01A01-9703-CV-00096 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM C IRCUIT COURT OF RU THERFORD COUNTY AT MURF REESBORO, TEN NESSEE HONORABL E DON R. ASH , JUDGE
Shelley I . Stiles 5214 Maryland Way , #210 Brentwood, TN 37027 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
Andree Sophia Bl

umstein SH ER RAR D & R OE P LC 424 Church St., Suite 2000 Nashville, TN 37219 ATTORNEY FOR DEFENDANT/APPEL LEE,



### AFFIRMED A ND REMAND ED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

KEVIN CA LDWELL, ) Rutherfor d County Cir

cuit ) No. 34547 Plaintiff/Appellant, ) ) VS. ) ) NISSAN MOTOR MANUFACTURING ) Appeal No. CORPORATION USA, ) 01A01-9703-CV-00096 ) Defendant/Appellee. )



## O P I N I O N
The plaintif

f, Kevin Caldwell, has appe aled fr om a summar

y ju dgment d

ismissing his suit agains tNissan Ma

nufactu ring Cor p. U.S.A., his former

employer, for

damages resulting from the termination of his employment in retali ation for

his claiming

worker s compens ation benefits.

In thi s Court, pla

intiff pr esents a single i ssue in the

following

words: I. Whether

there are mate

rial facts in dispute

rendering the trial court’s granting of defe ndant’s motion for summary judgmen t errone ous.
Defend ant pres ents the is sues in the following

form: 1. Whether, as the trial court found in this retaliatory disch arge case, plaintiff has filed to carry his burden of presenting compelling circumstantial evidence of a ca usal connection betwee

n his claim

for work

ers’ co mpensa

ti on benefit s and the t

erminati on of his e

mploy ment? 2. Even assuming that the p l aintiff has presented sufficient evidence of

c ausation

to make ou

t a prima f

acie case of reta liato ry discharge, whether the fact that plaintiff was discharged from employ ment purs uant to a fac ially neutral and unifo

rmly applied company policy

shows that the defendant had a l egitimate, non-pretextual, non-retaliatory reason f or discha rging the plain tiff fro m employ

ment?
As mater ial to this a

ppeal, th e compla int alleg es:

1. Pla intiff

wa s injured on the job on or about March 18, 1992, and reinjured on August 12, 1992.-3- 2. Plaintiff

worked f or defe ndant dur ing the m onths of F

ebruar y th rough A ugust pr io r t o t he se co nd in

ju ry.

3. (On an unsta

ted date ) plaintiff filed a workers compensation claim and subseque ntly (date un stated) p laintiff

was awa rded com pensatio n benefi

ts.

4. On or abou t Apri l 6, 1993, after the worker’s compensation claim was filed, defendant notified plaintiff that he was discharg ed.

5. It is plaintiff’s contention that Nissan discharged him because of h is f ilin g a worker s compens ation cla im and the

underly ing wor k injuries
.

6. Plaintiff

filed a workers compensation claim and subsequently was awarded workers compensation benefits in the case of Kevin Mar shall v. Royal Insurance Company , No. 11857, Marshall Circuit Court. (The date and amount of the award are not stated in the complaint.)

7. Plaintiff

was dismissed because of his filing a workerscompensa tion claim

and pursuing in court h

is worker s compens ation benefits.

The prayer s of the complaint are for damages, r einstatement, back pay

and benefits, other compensa tory and puniti ve damages and at torney ’s fees
.

The plaintiff

admits to the two injuries on the premises of defendant and the subsequent award of benefits, but does not supply any details. Defendant admits that defendant discharged plaintiff effec tive Apri l 6, 1993, but deniesany causal l i nk betw een the discharge and the worker s compens ation cla im.-4- On Febr uary 28, 1 995, d efenda nt fil ed a mo tion for su mmary jud gment s tati ng:

The grounds of this motion are that there is no genuine issue of fact

that the p laintiff

was term

i nated for violating company policy by performing unauthorized work while on workers compensation leave of absenceand by deny

ing that he did so.
Defendant

supported its motion for summary judgment by affidavit of Galen Medlin, plaintiff’s response s to reque sts for ad missions and for pro duction of document s, and numerous other doc uments.

On March 17 , 1995, pla

intiff re sponded to

the motion for summary judgment supported by his own affidavit and tha t of his treating phy sician.

On Octobe

r 1, 1996, defenda

nt filed a “Suppleme

ntal Motion

for Summa

ry judgmen t” stati ng: Comes now the Defen d ant, Nissan Motor

Manufacturing Co rp or at io n, U. S. A. , b y and thr ough its lawful coun sel, and pursuant to Rule 56 of the Tennessee Rules of Civil Procedure, moves this Honorable Cour t for an Order granti ng it Summary

Judgment, dismissing

the Plainti ff’s cas e in its entirety with prejudice, a nd for grounds therefore (sic) would state that there is no legal basis to support Plaintiff’s cause of actio n, there

is no gen uine iss ue as to any materia l fact, and th e Defend ant is entitled to Summary Judgment as a matter of law. This Supplemental Mot

ion and itspredec ess or Motio n are supported by this notice, the filed plea dings, various medical record s c oncerning treatment rendered to Plaintiff, various deposition transcripts, various affidavits on behalf of Defen dant, the Memorandum of Law, the Supplementa l Memorandum of Law and pe rmissible argume nt of coun sel.

On November 8, 1996, pl aintiff responded to defendant’s supplemental motion for summary judgmen t with suppo

rting a ffidavit s.

On December 19, 1996, the Trial Cour t entere d summary

judgmen t of dismiss al, incorporating therein his memorandum opinion which stated:-5- It is the opinion o f this Court that there is no casual link that the plaintiff was terminated because he had made a claim for worker’s compensation benefits. The affidavits of the plaintiff

an d h is wo rk er s’ co mp en sa ti on at to rn ey, alleging a wrongf ul discha rge, do not cre ate a g enuine is su e of materi al fa ct. The Court further finds the plaintiff was terminatedpursu a nt to a neu tral policy of

the defe ndant to terminat e employees who do not

comply with their policy of working outside the company w hile on worker’s compensation.
A party who moves for summary judgme

nt has the initial bur den of producing admissible, competent evidence of a material fact or facts wh ich, if uncontradicted, entitle the moving party to judg

ment as a matter of law. Byrd v. H all , Tenn. 1993, 847 S.W.2d 208.

When the moving

party has satisf ied this initial burden, then the burden of proceeding shifts to the opponent of the motion to produce admissible, competent evidence to contradict that offered by the moving pa

rty or adm

issible , competent evidence of another fac t or facts which would disent itle th e moving

party to a summar

y ju dgment d

espite the fact or facts sh own in support of the motion. Street v . J. C. Brad ford &Co . (6th Cir. 1989), 886 F.2d 1472. The evidence of the non -moving party must show more than a

mere metaphy sical doubt as to material facts, but must include competent and material evidence of the non existence of facts asserted by the moving party

and/or other facts which effectively disentitle the moving party to summary judgmen t. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 4 75 U.S. 5 74, 104 S.Cl. 1348, 89 L.Ed.2d 538 (1986).
Employees in cases like this must demonstrate that they will be a ble to prove at trial that their pursuit for worker ’s c ompensation benefits was a substantial factor in their employ er’s decision to fire them. Anderson v. Standard Register Co. , 857 S.W.2d at 558. If an employ ee elects to shoulder this burden with circumstantial evidence, the employ ee must present direct and compelling circu mstantial evidence. Thomason v. Better-Bilt Aluminum Prods., Inc ., Te nn. App
. 1992, 831 S.W.2d 291, 293.-6- In the present case, the

issue on a ppeal appears to be whether the def endant-employe

r supportedits motion for summary judgment with u ncontradicted, competent admissible evidence of a legitimate cause or causes for termination of plaintiff, i.e., either (1) that the plaintiff was phy sically

disqualified for employment in plaintiff’s pla nt, or (2) thatplaintiff violated an employment

policy of the

employer by

accepting employ

ment with a

differe nt employ er while receiving from the defendant employee

workers compensation for temporary disability without written applica

tion to the e

mployer for p ermission

and rec eiving f

rom th e e mp lo ye r written permissio n for such extra cu rricula r employ ment.

This Court must

first consider whether the motion for summary judgment was supported by competent, admissible, material of uncontradicted evidence of fact s which entitle defendant to summary judgment a s a matter of law.

The affidavit of Mr. Medlin stated:

1. My

name is Galen Medlin. I am 45 years old, amcompete

nt to make

this affi davit and

do te sti fy

herein based upon personal knowledge. 2. I am currently

employed as De

partment Manager, Human Res ources O peratio ns for Nis s an Motor Manufacturing Corporation U.S.A. (“Nissan”)
. 3. From

October 199 1 to A pril 1993, I was employed as Section Manager of Human Resource s for the Trim and Chassis Plant. In that capacity , I administered company policies a

nd employ

ee bene fit plans, responded to questions regar

ding co mpany

policies a

nd employ

ee bene fit plans, and administered

corrective action, up to and including terminat ion, on emp loy ees who violate company policies. 4. In my c apacity

as Section Manager of Human Resources for the Trim and Chassis Plant I was familiar with andhave kno wledge

of Nis san ’s policy

with resp ect to employeesworking while on leave of absence and the im pl em en ta ti on of

th at po li cy. 5. Ad di ti on al ly, I co mmunicated direct l ywith Kevin Caldwell, a production tech nician in th e Trim Car department

of the Tr

im and Chas sis Plant, r

egard in g him working while on leave of absence, and I was the person i n Nissan management who told Kevin C ald well he was terminated from employme nt at Nissan.-7- 6. Fi na ll y, I have review edmy n otes made simultane ously

with m y c ommunica tions with K

evin Caldwell, and I have re

viewed reports and records maintained b y Nissan ma

de at or near the

time by or from in

formati o n trans mitt ed by a pers on wit h know ledge anda busines s duty to record or tra

ns mit the sam

e in the c ourse of

a regu larly conducted

business activity an d as a regular practice of that business a

ctivity to make the recor

ds or memo

randum. 7. Based

on the for egoing , it is my testimony that Kevin Caldwell is a 28 y ear old male who b egan h is employment

as a prod

uction te chnicia

n in the Nissan Tr

im Car department of the Trim and Chassis plant on February 2, 1992. 8. Mr. Caldwell s ustained an on-the -job injur

y to his back and

went out o n leave o f absenc e on Aug ust 18, 1992 and remained out on leave. 9. On January 4, 1993, Mr. Caldwell’s trea ting physician, Dr. Stanley Hopp, found tha t Mr. Caldwell had reached maximum medic al i mpr ovement. Dr. Hopp also assigned Mr. Caldw ell perma nent res trictions
. 10. There w as no job within Mr. Caldwell’s department

at Nissan which fit the plaintiff’s restrictions, so, in accordance with Nissan policy , Mr. Caldwell was not returned to work a t Nissan a

t that time. Mr. Caldw ell, though, remained a Nissan employee, with the opportuni ty to obtain long ter m disability

benefit s (which w ere, in

fact, pa id to the plaintiff, commencing March 10 1993). 11. Nissan has a com p a ny policy

regarding working while on leave of absence. The Employee Handbook states that policy

as follows, “Performing unauthorized work for personal gain wh il e on a leave will be cause for termination.” 12. Becau se the re quests to work while on leave must be evaluated by

members of both Nissan’s Medical and Human Res o urces staff, an employ ee who requests to work while on leave o f

absence is instructed to submit a written request describing the nature of the work the e mploy e e proposes to do while on leave. 13. On or

about March 9, 1993, I spoke with Mr. Caldwell by telephone. I

was returning a message Mr. Caldwell h ad left f

or me to c all him. 14. The convers ation beg an with Mr . Cald we ll stating that he h ad some questions about working while on leave of absence. I e

xplained to Mr. Caldwell that he needed to submit, in writing, a request to work and descr i be in the request the work he wanted to do.-8- 15. Mr. Caldwell res pon ded that he did not see why this procedure was necessary and that what he planned

to do w as none of Nissan’s concern. Mr. Caldwell also stated that he planned to substitute as a teacher a nd that he wanted to work as a waiter. Mr. Caldwell told me that he h ad disc ussed this work with an employee in Nissan’ s Medical Department

who hadtold him to provide awritten r equest to work while on leave of

absence to Nissan’s Human Resources staff. Mr . C al dw el l s ta te d t ha t h e d id no t u nd er st an d w hy I could not give him permission over the telephone. 16. I told Mr. Ca

ldwell tha

t it was N issan’s procedurethat the request must be made by the emplo ye e in writing and that that was the only way it could be g

ranted.

- - - - 19. I never received f

rom the plaintiff a written request to work while on leave of absence. 20. On or

about March 17, 1993, I contacted three school systems in the area and learned that Mr. Caldwell had, in fact, already

been working for the Marshall County B oard of Education for as long as a mon th or six weeks (i.e., since February of 1993) as a substitute teacher. 21. Beca

use Mr. Caldwell had worked while on l eave of absence without having followed company pro cedure to obtain authorization from Nissan to do so, and had denied to me that he had engag ed in an y w ork while on leave of absence when, in fact, he had done so, I followed

customary company practic e and re

ported th ese vio lation s to other me mb ers of Nissan’s management and rec ommended Mr. Caldwell’s termination. 22. As per company

policy, I received instructions to terminate Mr. Caldwel l fo r violating Nissan’s policy regarding working

while on leave. 23. On Apr il 6, 1993, I met with Mr . Caldwel

l, told him that he had v iola ted company policy regarding working while on le ave, an d told him hisemplo ym ent with Nissan was terminated.
Although some doubt may e xist as to the first-hand knowledg e of Mr. M edlin of some of the facts stated in his affidavit, any such infirmity is cured

by the aff idavits of other employee s and the a dmissions of

plaintiff also exhibit

ed to the m

otion for summary judgmen t.-9- Plaintiff’s claim that

his work supervisor approved his working elsewhere is ineffective because no written request was submitted and there is no evidence of the authority of the work supervisor to grant any

such permission.

It is also undisputed that plaintiff produced no physician’s authorization for outside wor k until he ha

d been wo

rking ou tside for nearly two months.

The defendant has shown by uncontradicted evidence a non-pre tex tual and j ustifiabl e
reasonand cau se of the discharge of plaintiff. Prior to the discovery of the viola tion of the

rule
on outside work, defendant was overly generous in dealing with plaintiff who was hired for a 90- day trial per iod and did

not qu alify during

the first 90 days. Ne

vertheless, he was granted a second90-day

trial per io d during wh ich he was injured. So far as this record shows, plaintiff received all of the benefits due him as worker s compensation.

Plaintiff has offered nothing more than his own conce ption of why he was discharged, plaintiff has shown no evidence co nt ra ry t o that offered by defendant. This is simply not sufficient to overc ome the di

rect, undisputed reason shown by defe ndant. Newsome v. Textron Aerostructures , Tenn. App. 1995, 924 S.W.2d 87.
The judgment of the Trial Court is affirmed. Costs of this appeal aretaxed against the plaintiff . The ca use is re manded to

the Tria l Court for

any necessa ry further procee dings. 

### AFFIRMED A ND REMAND ED

_________________________________ HENRY F. TODD PRESIDING JUDGE , MIDD LE SE CT IO N CONCUR:

_____________________________ BEN H. CANTRELL , JUDGE

_____________________________ WILL IAM C. KOCH, JR., JUDGE