### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 7, 2002 Se ssion ROBERT MORRIS v. COLUMBIA CONST RUCTION COMPANY, INC.

Appeal from the Circuit Court for Maury County No. 8594 Robert L. Jones, Judge

No. M2002-00503-COA-R3-CV - Filed F ebruary 4, 2003

In this suit fo

r retali atory

dischar ge, App ellant as serts t hat his filing of a worker’s compensation claim was a substantial factor in his employer ’s decision to terminate him. The trial court granted summary judgmen t to the emp loy er. We af

firm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and F RANK G. C LEMENT , J R ., S P . J., joined. Donald D. Zucca

rello, Na shville, T ennesse e, for the appell ant, Robe rt Morris

. James T. DuBoi s and D. Scott Porch, I V, Columbia , Tennes see, for the appe llee, Colu

mbia Construction Company, I nc. OPINION Appellant ha d b ee n e mp lo ye d b y Columbia Construction Company , Inc. as a welde r for nearly twelve y ears pr ior to his termination on March11, 1998. Mr. Morris suffered a work-related injury on Febr uary 19, 1998. Shortly

therea fter, he reporte d such inju

ry to his supe

rvisor, D avid Goad, and soug ht medica l treatme nt. On Mar

ch 11, 199 8, while w orking a t a Nashville job sit

e under the supervision of Mr. Goad, an event occurre d after which Appellant was terminated by Mr. Goad. According to the

testimony of Mr. Goad, Appe llant and four other employ ees were leaving the work site early . Mr. Go ad called upon Appellant to stop, but he displaye d an obscene gesture and departed the work site. Upon retur ning to Colum bia, Mr. Goad informed his superiors at Columbia Constru ction Company, I nc. that he was terminating Mr. Morris, and his superiors concurred. Morris de

nied that he was le aving th

e work sit e early and denied making

any gestur es, obscene or otherwise, to Mr. Goad. Both Mr. Goad and his superiors deny any

asserte d relatio nship betweenthe w orker ’s compensation claim filed by Mr. Morris and his subsequent discharge. No other evidence appears in the recor d to establish a nexus between Appellant’s claim for worker’s compensation and his termination.1 Th e “de ad m an’s stat ute” was held t o be inappli cable becaus e the empl oyee tel lers of th e bank were not actual partie s to the su it. -2- In sustaining the Motion for Summary

Judgment, the trial

court held: “The plaintiff was an employee at will under Tennessee law and subject to termination without cause. Such ter mination gives the plain

tiff an a ctionabl e claim only

if substantially motivated by retaliation for his worker’s compensation claim. An

y su spicions th

e plaintif f may have or e xpress about the alleged retaliation is not supported by any

evidence credible or otherwise.” The case for Appellant

fai ls for the same reasons that the plaintiff failed in Anderson v. Standard Register Co. , 857 S.W.2d 555 (Tenn. 1993). He is not able to make out a prima faci e case of any ca usal relationship between his worker’s compensation claim and his dischar ge. Because of this, the “b urden shift ing” complexities ev id en ce d b y Smith v. Bridgestone/Firestone, Inc. , 2 S.W.3d 197 (Tenn. Ct. App. 1999) never occur. Appellant places p rimary relianc e on the f

act that M

r. Goad a

nd his supe

rio rs are al l “interested witnesses” within the rule in Poole v. First National Bank of Smyrna , 196 S.W.2d 563 (Tenn. Ct. App. 1946), a

nd that suc

h intere st alone is sufficient to make their credibility a question for th e j ur y. The studied and perhaps underutilized reasoning of Judge F elts in Poole is as sound

in law today as it was 56 y

ears ago. The rule stated ther ein must, however, be applied within the factual cont ext of the case presented, and when so a pplied, it d

oes not cr eate ev idence w here non e otherwise exists. P oole involved a suit by a bank ag ainst the estate of a decedent, and the deter minative question was whether

or not the decedent had made a new promise to pay, thus tolling the statute of limitations

. The testimony of two witnesse s, Barnett

and Steel, cashiers at the bank, was undisputed as to the new promise. 1 The trial court directed a verdict for the plaintiff bank on the ba sis that the testimony of

Barnett and Steel was not contradicted, impeached or discredited and that the trier of fact was bound to accept such testimony as true under the rule set forth in Frank v. Wright , 205 S .W. 434 (Tenn. 1 918); Gouldener v. Brittain , 114 S.W.2d 783 (Tenn. 1938), and Bryan v. Aetna Life Ins. Co. , 160 S.W.2d 423 (Tenn. Ct. App. 1941). The Court of Appeals, in Poole , reversed and remanded for a new trial providing reasoning that is comprehensive and indisputable.

But could his Honor take this testimon y as true in determining plaintiff’s motion? Could the judge tell the jury the y were bound as a matter of

law to believe s uch te sti mon

y , a nd d irect the m to re tur n a verdic t fo

r p la int iff ? Or was th e credibi lity

of these witnesses and

the truth or falsity of their testimony questions for th e j ur y? The cr ed ibility

of witnes ses is pec

uliarly a questio n for the

jury , and in determining a motion for a directed verdict the judge has n o right to determine the-3-

question of the credibility of a ny witness. Nashville, etc., Railway Co. v. Norman , 108 Tenn. 324, 67 S.W. 479; Kinney v. Yazoo & M.V. Railroad Co. , 116 Tenn. 450, 92 S.W. 1116; Anderson v. Stribling , 15 Tenn. App. 267, 279; Patillo v. Gambill et ux. , 22 Tenn. App. 485, 493, 124 S.W.2d 272. The Constitution (Art. 6, sec. 9) for bids (sic) jud

ges to charge

juries “with respect t o matters of fact,” which include, among other things, the question of the credibility of a witness. Brenizer

v. Nashvi lle C. & St. L. Ry. , supra; Haskins v . Howard, 159 Tenn. 86, 97, 16 S.W.2d 20. By wa y of exception

to this general rule, it is declared in a numbe r of cases that a jury will not be permitted to disreg ard testimony arbitra rily or capr

iciously, that ordinar ily the testim

ony of a witne ss who is not contradicted, impeached, or discreditedmust be accepted as true, and that the judge may

take such testimony as true in determining a motion for a directed verdict. Frank v. Wright , 140 Tenn. 535, 205 S.W. 434; Gouldene r v. Britta in , 173 Tenn. 32, 114 S.W.2d 78 3; Bryan v. Aetna Life Ins. Co. , 25 Tenn. App. 496, 505, 160 S.W.2d 423, 429, and cases there cited.

. . . . We think none of th

is line of c ases is a

uthority for dire cting a

verdict f o r plaintiff upon the testimony of himself or other witnesse s interested in the result, or for holding that the jury is bound asa matter of law to believe the testimony of suc h an interest

ed witnes s, merely

because he is not contradicted, impeached, or discredited. Would all reasonable men agree that such testimony must be believed and taken to be true as a matter of law? We think not. . . .

. . . . And since the general

abolishment of interest disqualification of witnes ses, it has ge nerally been held that interest alone is enough to make a witness’ s credib ility a qu es ti on fo r t he ju ry, and that a verdict may not be directed upon the testimony of an interested witness, even though he is not contradicted, impeached, or discredited. Poole , 196 S.W.2d at 568-69. This rule (under which a directed verdict for the plaintiff, having the affirmative burden of proof on th e i ss ue , w as re ve rs ed ; a nd th e c re di bi li ty o f interested witnesses, who were not contradicted, impeached, or discredited, was held to present a questio n for the

jury) provide s no basis for holding that

the denials of

interested witnesses for a defendant, standing alone, can be converted into affirma

tive evid enc e for the

plaintiff sufficie nt to estab lish his prima faci e case. The recent holding in Godfrey

v. Ruiz , 90 S.W.3d 692 (Tenn. 2002), does not hold to the contr ary, as in that case it is not the denial of agency or permission by

the interested party

vehicle owner that takes the case to the jury, but the prima faci e evidence of such ownership and use provided for the plaintiff by Tennessee

Code Annotated section 55-10-311.-4-

It is the bur

den of Pla

intiff to e stablish th at his claim forworker ’s compe nsation wa s a substantial factor

in his employer’s dec ision to terminate him. Standard Register Co. , 857 S.W.2d 555. He cannot carry

his burden by simply

proving that he filed a worker’s compe nsation claim that was followed

by h is termination. From these two facts standing alone, no infer ence of causation may be drawn. DeVore v. Deloitte & Touche , No. 01A0 1-9602-C H-00073, 1998 WL 68985 (Te

nn. Ct. App. Feb. 20, 1998). The judgment of the

trial cou rt is aff irmed with

costs ass essed to A

ppellant s.

___________________________________ WILL IAM B. CAI

N, JUDGE