IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 19, 2013 Session

KEITH A. DAVIS v. SHAW INDUSTRIES GROUP, INC. ET AL.

Appeal from the Circuit Court for Franklin County

No. 17870-CV J. Curtis Smith, Judge

No. M2012-01688-COA-R3-CV - Filed April 12, 2013

Plaintiff was terminated from his at-will employment for violating company policy by

allegedly lying during an investigation into whether he was involved in a romantic

relationship with a human resources manager. Plaintiff filed this action against his former

supervisor, and his former employer, for intentional interference with his employment.

Defendants moved for summary judgment, arguing that, as a matter of law, the corporate

employer cannot be held liable for intentionally interfering with its own employment

contracts, and that the undisputed facts established the supervisor did not act outside the

scope of his authority in assisting in the investigation; thus, he could not be held liable. The

trial court granted Defendants’ motion. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which PATRICIA J.

COTTRELL, P.J., M.J., and ANDY D. BENNETT, J., joined.

Gregory M. O’Neal, Winchester, Tennessee, for the appellant, Keith A. Davis.

Rosemarie L. Hill, and Justin Lewis Furrow, Chattanooga, Tennessee, for the appellees,

Shaw Industries Group, Inc. and Andrew Plisko.

OPINION

Keith Davis (“Plaintiff”) was a long-term employee at Shaw Industries Group, Inc.

(“Shaw”), a carpet and flooring manufacturer. He began as an hourly-wage employee in 1996

at the Winchester, Tennessee plant, and advanced to a salaried, supervisory position. At all

relevant times, Shaw had a policy prohibiting employeesin supervisory positionsfrom dating

or becoming romantically involved with any “associate under his or her supervision or over

whom such management associate may be in a position to exert influence.”
In the summer of 2008, Plaintiff separated from his wife, Marlene Davis, who was

also a long-term employee at Shaw. Approximately two weeks after they separated, Mrs.

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Davis notified the plant manager, Andrew Plisko, that Plaintiff was having an affair with

Katherine Brinkley, the Manager of Human Resources (“HR”) at the Winchester plant. As

the HR Manager, Ms. Brinkley was in a supervisory position over Plaintiff; therefore,

pursuant to Shaw’s policy prohibiting employees in supervisory positions from dating or

becoming romantically involved with any “associate under his or her supervision or over

whom such management associate may be in a position to exert influence,” Mr. Plisko

investigated Mrs. Davis’s allegations. Mr. Plisko also notified David Masters, Shaw’s

Director of Human Resources who was located in the Dalton, Georgia office.

As Shaw’s Director of Human Resources, Mr. Masters was Ms. Brinkley’s direct

supervisor. After speaking with Plaintiff and Ms. Brinkley, who both admitted a friendship

since high school but denied any romantic involvement, Mr. Plisko concluded there was not

sufficient evidence to establish a violation of company policy and closed the investigation.

Not to be deterred, Mrs. Davis persisted in her allegations, continuing to direct them

to Mr. Plisko and later directing them to Mr. Masters in Dalton. Upon learning of Mrs.

Davis’ allegations, Mr. Masters conducted his own investigation into the matter (his first of

two investigations), after which he concluded there was not sufficient evidence that Plaintiff

and Ms. Brinkley were romantically involved, thus no violation of company policy, and

closed his investigation. Nevertheless, because the allegations involved the Winchester

plant’s HR person, whom Mr. Masters supervised from a distance, Mr. Masters instructed

Mr. Plisko to keep him apprised and to forward to Mr. Masters any new information Mr.

Plisko received.

Mrs. Davis subsequently contacted the equal employment opportunity manager for

Shaw, Christi Sparks, who, like Mr. Masters, was located in Dalton. After speaking with

Mrs. Davis, Ms. Sparks also spoke with Mr. Masters and Ms. Brinkley; she also obtained and

reviewed Ms. Brinkley’s phone records. Ultimately, Ms. Sparksreached the same conclusion

as Plisko and Masters and closed her investigation.

For the remainder of 2008 and into 2009, Mr. Plisko received occasional reports from

employees at the Winchester plant that Plaintiff and Ms. Brinkley were romantically involved

and that they had been seen together at plant functions and around town. As previously

instructed, Mr. Plisko forwarded this information to Mr. Masters.

Keith and Marlene Davis divorced in September 2008. 1

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On April 24, 2009, Ms. Brinkley resigned from Shaw after accepting an HR

supervisory position with a different employer in Huntsville, Alabama. After leaving her

employment with Shaw, Ms. Brinkley openly dated Plaintiff.

After Ms. Brinkley left Shaw, several Shaw employees reported to Mr. Plisko that

they had seen Plaintiff and Ms. Brinkley together and believed Plaintiff and Ms. Brinkley

were romantically involved while they were both employed at Shaw. As before, Mr. Plisko

forwarded the information to Mr. Masters.

After reviewing the new reports, Mr. Masters initiated a second investigation; he

interviewed the employees who had made statements to Mr. Plisko, and Mr. Masters again

interviewed Plaintiff. This time Mr. Masters requested Plaintiffs’ phone records and a list of

people who had been at Plaintiff’s home in the prior year. Plaintiff provided the requested

phone records, but refused to disclose his home visitors, informing Mr. Masters it was not

any of Shaw’s business who visited his home. Mr. Masters also obtained and reviewed

Plaintiff’s personnel file at which time he discovered that Plaintiff had changed his life

insurance policy to designate Ms. Brinkley as the beneficiary.

Shortly thereafter, Mr. Masters informed Plaintiff he would need to resign for

“violation of company policy;” specifically, refusing to cooperate and being dishonest during

the prior investigations into his relationship with Ms. Brinkley. Plaintiff refused to resign,

and was terminated on June 9, 2009.

Plaintiff filed suit against Shaw and Mr. Plisko (“Defendants”) on June 3, 2010. He

alleged Mr. Plisko “intentionally, maliciously, and without justification procured the

discharge of the Plaintiff from his employment with Shaw,” and that Mr. Plisko’s actions

“were motivated by his own interest, were malicious in nature, and were motivated by his

personal self-interest rather than the interest of Defendant Shaw.” He alleged Shaw was

vicariously liable as Mr. Plisko’s employer.

Defendants filed a Motion for Summary Judgment on May 25, 2011, arguing that

Shaw cannot be held liable for interfering with its own employment relationship as a matter

of law, and that the undisputed facts established Mr. Plisko acted well within his authority

and not for his own personal benefit in initiating the first investigation and in following Mr.

Masters’s instructions thereafter, and thus was acting on behalf of Shaw. A hearing was held

December 20, 2011, and the trial court granted Defendants’ Motion by Order dated June 28,

2012. Plaintiff filed a timely appeal.

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ANALYSIS

Tennessee is an employment-at-will state. Guy v. Mutual of Omaha Ins. Co., 79

S.W.3d 528, 534 (Tenn. 2002). Under the employment-at-will doctrine, an employer may

terminate an at-will employee “at any time, for good cause, bad cause, or no cause at all.”

Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 526 (Tenn. Ct. App. 2006) (citing Guy,

79 S.W.3d at 535). However, “even an at-will employee has a property interest in continued

employment without unjustified interference by those who stand outside the employment

relationship.” Lyne v. Price, No. W2000-00870-COA-R3-CV, 2002 WL 1417177, at *2

(Tenn. Ct. App. June 27, 2002) (citing Ladd v. Roane Hoisery, Inc.,, 556 S.W.2d 758, 760

(Tenn. 1977)). Intentional interference with that employment interest by a third party,

“without privilege or justification, is actionable.” Forrester v. Stockstill, 869 S.W.2d 328,

330 (Tenn. 1994); see also Thompson v. Lee, No. W2009-02447-COA-R3-CV, 2011 WL

1642614, at *8 (Tenn. Ct. App. April 29, 2011).

To prove a claim of intentional interference with at-will employment, a plaintiff must

establish “that the defendant intentionally and without justification procured the discharge

of the employee in question.” Ladd v. Roane Hoisery, Inc., 556 S.W.2d 758, 760 (Tenn.

1977). The claim “contemplate[s] a three-party relationship – the plaintiff as employee, the

corporation as employer, and the defendants as procurers or inducers.” Lyne, 2002 WL

1417177, at *2 (citing Nelson v. Martin, 958 S.W.2d 643, 647 (Tenn. 1997) (overruled on

other grounds)).

The trial court correctly determined Shaw cannot be held liable for intentional

interference with its own employment relationship with Plaintiff, as a matter of law. The law

in Tennessee is clear on this issue: “[A] plaintiff who asserts a claim for intentional

interference with employment must assert facts showing that the defendant stood as a third

party to the relationship between the plaintiff employee and the employer.” Thompson, 2011

WL 1642614, at *8; see also Nelson, 958 S.W.2d at 647; Forrester, 869 S.W.2d at 331;

Lyne, 2002 WL 1417177, at *2; Bob E. Lype, A Murky Intersection Between Employment

Law and ‘Business Torts,’ 38 Tenn. B.J. 27, 29-30 (2002) (“[O]ne of the fundamental axioms

of interference claims is that a party cannot be held liable for wrongfully interfering with its

own contract – instead, there must be some interference from a separate, third party.”).

It is abundantly clear that Plaintiff is unable to establish a claim against Shaw because

there is no third-party relationship. Indeed, Plaintiff concedes his claim against Shaw is

without merit, and this issue requires no further analysis.

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As for Plaintiff’s claim of intentional interference with employment against Mr.

Plisko, the plant manager, the relevant legal principles can be summarized as follows:

A corporation may only act through its agents and employees; consequently,

a corporate director, officer or employee is not individually liable for tortious

interference with . . . an at-will employment agreement, so long as he is acting

in furtherance of the corporate interest. Forrester v. Stockstill, 869 S.W.2d

328, 334-335 (Tenn. 1994). A corporate director, officer or employee may be

held liable for interference with such a contract if “he is acting outside the

scope of his authority, acting with malice, or acting to serve his own interests.”

Id. at 333 (quoting Thomas G. Fisher, Annotation, Liability of Corporate

Direct, Officer or Employee for Tortious Interference with Corporation’s

Contract with Another, 72 A.L.R. 4 492 (1989)).

th

Lyne, 2002 WL 141777, at *2-3.

The basis for Plaintiff’s claim against Mr. Plisko is that Mr. Plisko was maliciously

relaying untrustworthy reports of Plaintiff’s alleged affair with Ms. Brinkley to Mr. Masters,

which caused Mr. Masters to re-open the investigation in 2009, after Ms. Brinkley had left

her employment with Shaw and after three previous investigations, including one by Mr.

Plisko himself, were closed due to a lack of evidence.

Regarding claims against supervisors, our Supreme Court has explained:

With intent to interfere as the usual basis of the action, the cases have turned

almost entirely upon the defendant’s motive or purpose, and the means by

which he has sought to accomplish it. As in the cases of interference with

contract, any manner of intentional invasion of the plaintiff’s interests may be

sufficient if the purpose is not a proper one. . . . .

Most of the decisions . . . have turned upon the defendant’s motive or

purpose. Again, as in the case of interference with contract, the defendant has

been held liable if the reason underlying his interference is purely a malevolent

one, and a desire to do harm to the plaintiff for its own sake. On the other

hand, some element of ill will is seldom absent from intentional interference;

and if the defendant has a legitimate interest to protect, the addition of a spite

motive usually is not regarded as sufficient to result in liability.

Forrester, 869 S.W.2d at 332-33 (quoting W. Page Keeton, Prosser & Keeton on the Law

of Torts § 130, pp. 1009-10 (5th ed. 1984)). Thus, when a corporate employee or officer “acts

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within the general range of his authority, and his actions are substantially motivated by an

intent to further the interest of the corporation, . . . the action . . . is considered to be the

action of the corporation and is entitled to the same immunity from liability.” Id. at 334-35.

The following facts are undisputed in this case: Plaintiff’s ex-wife, Mrs. Davis, filed

the complaints that started the investigation into whether Plaintiff and Ms. Brinkley were

romantically involved. Mr. Plisko reported the matter to Mr. Masters, as required by Shaw

corporate policy. Mr. Masters instructed Mr. Plisko to continue forwarding any reports from

the Winchester plant relating to the situation. New reports came in after Ms. Brinkley left

Shaw, which Mr. Plisko forwarded to Mr. Masters, who decided to re-open the investigation.

During Mr. Masters’s second investigation, Plaintiff refused to provide Mr. Masters with a

list of all the people who had visited his home in the year preceding the investigation.

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Finally, it is undisputed that Mr. Masters, not Mr. Plisko, made the decision to terminate

Plaintiff’s at-will employment based on Plaintiff’s violation of Policy Number E-6 of the

Shaw Corporate Human Resources Associate Guide, which provides:

From time to time, it may become necessary for the Company [Shaw] to

conduct an investigation of various employment matters including, but not

limited to, allegations of improper behavior, violations of Company policy,

discrimination, sexual harassment, etc.

During the court of such investigations, any associate called upon for a factfinding interview is expected to fully cooperate with the investigation by

actively participating in the interview and by providing the Company with all

facts that the associate possesses regarding the situation being investigation.

Any associate who refuses to participate in an investigation or who is found

not to be truthful and complete in his/her responses will be subject to

corrective action, up to and including termination.

This undisputed evidence compelstwo conclusions: First, Mr. Plisko’s actions did not

cause Plaintiff to be terminated. Plaintiff was terminated by Mr. Masters, against whom

Plaintiff alleges no wrongdoing, not for having a romantic relationship with Ms. Brinkley,

but because Mr. Masters determined Plaintiff failed to comply with the above-quoted Shaw

corporate policy. Cf. Fitzgerald v. Abbott, No. M2008-00920-COA-R3-CV, 2009 WL

304421, at *3 (Tenn. Ct. App. Feb. 5, 2009) (Affirming grant of summary judgment to

Mr. Masters denies that he made this request of Plaintiff; he claims that he asked Plaintiff to list any 2

people who visited his home in the year preceding the investigation who could be mistaken for Ms. Brinkley.

Because this matter was resolved at summary judgment, we accept Plaintiff’s account of the investigation.

See Martin, 271 S.W.3d at 84; Stovall, 113 S.W.3d at 721; Godfrey, 90 S.W.3d at 695. 

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defendant supervisor, finding, “Mr. Abbott’s actions did not cause [the plaintiff] to be

discharged. Rather, [the plaintiff] was terminated by Mr. Abbott’s superiors who, based on

their first hand knowledge and evaluations, determined that termination . . . was in the best

interests of [the employer]”). Second, the undisputed evidence establishes that Mr. Plisko’s

actions were in furtherance of a legitimate corporate interest, namely assisting Mr. Masters,

the corporate HR director, in investigating the complaints filed by Mrs. Davis, a Shaw

employee at Mr. Plisko’s plant. See Lyne, 2002 WL 141777, at *3.

The party seeking summary judgment bears the burden of demonstrating that no

genuine disputes of material fact exist and that the party is entitled to judgment as a matter

of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary

judgment, the moving party must affirmatively negate an essential element of the nonmoving

party’s claim or show that the moving party cannot prove an essential element of the claim

at trial. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). Both Defendants, as

the moving parties, demonstrated that no genuine disputes of material fact exist and that they

are entitled to judgment as a matter of law by successfully negating essential elements of

Plaintiff’s claim. For these reasons, we affirm the trial court’s grant of summary judgment

to both Defendants.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of

appeal assessed against the plaintiff, Keith Davis.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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