KEVIN CALDWELL,            )            Rutherford County Circuit
                           )            No. 34547
     Plaintiff/Appellant,  )
                           )
VS.                        )
                           )
NISSAN MOTOR MANUFACTURING )            Appeal No.
CORPORATION, U.S.A.,       )            01A01-9703-CV-00096
                           )
     Defendant/Appellee.   )
                                                     FILED
                                                      October 22, 1997
               IN THE COURT OF APPEALS OF TENNESSEE
                    MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
                                              Appellate Court Clerk
       APPEAL FROM CIRCUIT COURT OF RUTHERFORD COUNTY
                 AT MURFREESBORO, TENNESSEE

                    HONORABLE DON R. ASH, JUDGE



Shelley I. Stiles
5214 Maryland Way, #210
Brentwood, TN 37027
ATTORNEY FOR PLAINTIFF/APPELLANT


Andree Sophia Blumstein
SHERRARD & ROE PLC
424 Church St., Suite 2000
Nashville, TN 37219
ATTORNEY FOR DEFENDANT/APPELLEE,



                    AFFIRMED AND REMANDED



                              HENRY F. TODD
                              PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
KEVIN CALDWELL,            )                          Rutherford County Circuit
                           )                          No. 34547
     Plaintiff/Appellant,  )
                           )
VS.                        )
                           )
NISSAN MOTOR MANUFACTURING )                          Appeal No.
CORPORATION USA,           )                          01A01-9703-CV-00096
                           )
     Defendant/Appellee.   )




                                    OPINION

       The plaintiff, Kevin Caldwell, has appealed from a summary judgment dismissing his suit

against Nissan Manufacturing Corp. U.S.A., his former employer, for damages resulting from

the termination of his employment in retaliation for his claiming workers compensation benefits.



       In this Court, plaintiff presents a single issue in the following words:

               I.       Whether there are material facts in dispute rendering
               the trial court’s granting of defendant’s motion for summary
               judgment erroneous.


       Defendant presents the issues in the following form:

               1.      Whether, as the trial court found in this retaliatory
               discharge case, plaintiff has filed to carry his burden of
               presenting compelling circumstantial evidence of a causal
               connection between his claim for workers’ compensation
               benefits and the termination of his employment?

               2.      Even assuming that the plaintiff has presented
               sufficient evidence of causation to make out a prima facie
               case of retaliatory discharge, whether the fact that plaintiff
               was discharged from employment pursuant to a facially
               neutral and uniformly applied company policy shows that the
               defendant had a legitimate, non-pretextual, non-retaliatory
               reason for discharging the plaintiff from employment?


       As material to this appeal, the complaint alleges:



       1.      Plaintiff was injured on the job on or about March 18, 1992, and reinjured on

August 12, 1992.


                                              -2-
       2.      Plaintiff worked for defendant during the months of February through August

prior to the second injury.



       3.      (On an unstated date) plaintiff filed a workers compensation claim and

subsequently (date unstated) plaintiff was awarded compensation benefits.



       4.      On or about April 6, 1993, after the worker’s compensation claim was filed,

defendant notified plaintiff that he was discharged.



       5.      It is plaintiff’s contention that Nissan discharged him because of his filing a

workers compensation claim and the underlying work injuries.



       6.      Plaintiff filed a workers compensation claim and subsequently was awarded

workers compensation benefits in the case of Kevin Marshall 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 workers compensation claim and

pursuing in court his workers compensation benefits.



       The prayers of the complaint are for damages, reinstatement, back pay and benefits, other

compensatory and punitive damages and attorney’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 effective April 6, 1993, but denies any causal link between the discharge and the

workers compensation claim.




                                              -3-
           On February 28, 1995, defendant filed a motion for summary judgment stating:

                          The grounds of this motion are that there is no genuine
                  issue of fact that the plaintiff was terminated for violating
                  company policy by performing unauthorized work while on
                  workers compensation leave of absence and by denying that
                  he did so.


           Defendant supported its motion for summary judgment by affidavit of Galen Medlin,

plaintiff’s responses to requests for admissions and for production of documents, and numerous

other documents.



           On March 17, 1995, plaintiff responded to the motion for summary judgment supported

by his own affidavit and that of his treating physician.



           On October 1, 1996, defendant filed a “Supplemental Motion for Summary judgment”

stating:

                           Comes now the Defendant, Nissan Motor
                  Manufacturing Corporation, U.S.A., by and through its lawful
                  counsel, and pursuant to Rule 56 of the Tennessee Rules of
                  Civil Procedure, moves this Honorable Court for an Order
                  granting it Summary Judgment, dismissing the Plaintiff’s case
                  in its entirety with prejudice, and for grounds therefore (sic)
                  would state that there is no legal basis to support Plaintiff’s
                  cause of action, there is no genuine issue as to any material
                  fact, and the Defendant is entitled to Summary Judgment as
                  a matter of law.

                         This Supplemental Motion and its predecessor Motion
                  are supported by this notice, the filed pleadings, various
                  medical records concerning treatment rendered to Plaintiff,
                  various deposition transcripts, various affidavits on behalf of
                  Defendant, the Memorandum of Law, the Supplemental
                  Memorandum of Law and permissible argument of counsel.



           On November 8, 1996, plaintiff responded to defendant’s supplemental motion for

summary judgment with supporting affidavits.



           On December 19, 1996, the Trial Court entered summary judgment of dismissal,

incorporating therein his memorandum opinion which stated:

                                                 -4-
                       It is the opinion of 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 and his workers’ compensation attorney, alleging
               a wrongful discharge, do not create a genuine issue of
               material fact. The Court further finds the plaintiff was
               terminated pursuant to a neutral policy of the defendant to
               terminate employees who do not comply with their policy of
               working outside the company while on worker’s
               compensation.


       A party who moves for summary judgment has the initial burden of producing

admissible, competent evidence of a material fact or facts which, if uncontradicted, entitle the

moving party to judgment as a matter of law. Byrd v. Hall, Tenn. 1993, 847 S.W.2d 208.



       When the moving party has satisfied 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 party or admissible, competent evidence of another fact or facts which

would disentitle the moving party to a summary judgment despite the fact or facts shown in

support of the motion. Street v. J. C. Bradford & Co. (6th Cir. 1989), 886 F.2d 1472. The

evidence of the non-moving party must show more than a mere metaphysical 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

judgment. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 104 S.Cl.

1348, 89 L.Ed.2d 538 (1986).



       Employees in cases like this must demonstrate that they will be able to prove at trial that

their pursuit for worker’s compensation benefits was a substantial factor in their employer’s

decision to fire them. Anderson v. Standard Register Co., 857 S.W.2d at 558. If an employee

elects to shoulder this burden with circumstantial evidence, the employee must present direct and

compelling circumstantial evidence. Thomason v. Better-Bilt Aluminum Prods., Inc., Tenn. App.

1992, 831 S.W.2d 291, 293.




                                              -5-
        In the present case, the issue on appeal appears to be whether the defendant-employer

supported its motion for summary judgment with uncontradicted, competent admissible evidence

of a legitimate cause or causes for termination of plaintiff, i.e., either (1) that the plaintiff was

physically disqualified for employment in plaintiff’s plant, or (2) that plaintiff violated an

employment policy of the employer by accepting employment with a different employer while

receiving from the defendant employee workers compensation for temporary disability without

written application to the employer for permission and receiving from the employer written

permission for such extra curricular employment.



        This Court must first consider whether the motion for summary judgment was supported

by competent, admissible, material of uncontradicted evidence of facts which entitle defendant

to summary judgment as a matter of law.



        The affidavit of Mr. Medlin stated:

                       1.     My name is Galen Medlin. I am 45 years old,
                am competent to make this affidavit and do testify herein
                based upon personal knowledge.

                      2.     I am currently employed as Department
                Manager, Human Resources Operations for Nissan Motor
                Manufacturing Corporation U.S.A. (“Nissan”).

                        3.     From October 1991 to April 1993, I was
                employed as Section Manager of Human Resources for the
                Trim and Chassis Plant. In that capacity, I administered
                company policies and employee benefit plans, responded to
                questions regarding company policies and employee benefit
                plans, and administered corrective action, up to and including
                termination, on employees who violate company policies.

                      4.       In my capacity as Section Manager of Human
                Resources for the Trim and Chassis Plant I was familiar with
                and have knowledge of Nissan’s policy with respect to
                employees working while on leave of absence and the
                implementation of that policy.

                       5.     Additionally, I communicated directly with
                Kevin Caldwell, a production technician in the Trim Car
                department of the Trim and Chassis Plant, regarding him
                working while on leave of absence, and I was the person in
                Nissan management who told Kevin Caldwell he was
                terminated from employment at Nissan.

                                              -6-
       6.      Finally, I have reviewed my notes made
simultaneously with my communications with Kevin
Caldwell, and I have reviewed reports and records maintained
by Nissan made at or near the time by or from information
transmitted by a person with knowledge and a business duty
to record or transmit the same in the course of a regularly
conducted business activity and as a regular practice of that
business activity to make the records or memorandum.

       7.    Based on the foregoing, it is my testimony that
Kevin Caldwell is a 28 year old male who began his
employment as a production technician in the Nissan Trim
Car department of the Trim and Chassis plant on February 2,
1992.

        8.     Mr. Caldwell sustained an on-the-job injury to
his back and went out on leave of absence on August 18, 1992
and remained out on leave.

       9.      On January 4, 1993, Mr. Caldwell’s treating
physician, Dr. Stanley Hopp, found that Mr. Caldwell had
reached maximum medical improvement. Dr. Hopp also
assigned Mr. Caldwell permanent restrictions.

        10.      There was 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 at Nissan at that time. Mr. Caldwell,
though, remained a Nissan employee, with the opportunity to
obtain long term disability benefits (which were, in fact, paid
to the plaintiff, commencing March 10 1993).

         11.     Nissan has a company policy regarding
working while on leave of absence. The Employee Handbook
states that policy as follows, “Performing unauthorized work
for personal gain while on a leave will be cause for
termination.”

       12.     Because the requests to work while on leave
must be evaluated by members of both Nissan’s Medical and
Human Resources staff, an employee who requests to work
while on leave of absence is instructed to submit a written
request describing the nature of the work the employee
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 had left for me to call him.

        14.     The conversation began with Mr. Caldwell
stating that he had some questions about working while on
leave of absence. I explained to Mr. Caldwell that he needed
to submit, in writing, a request to work and describe in the
request the work he wanted to do.




                              -7-
                        15.    Mr. Caldwell responded that he did not see
                why this procedure was necessary and that what he planned to
                do was none of Nissan’s concern. Mr. Caldwell also stated
                that he planned to substitute as a teacher and that he wanted
                to work as a waiter. Mr. Caldwell told me that he had
                discussed this work with an employee in Nissan’s Medical
                Department who had told him to provide a written request to
                work while on leave of absence to Nissan’s Human Resources
                staff. Mr. Caldwell stated that he did not understand why I
                could not give him permission over the telephone.

                       16.     I told Mr. Caldwell that it was Nissan’s
                procedure that the request must be made by the employee in
                writing and that that was the only way it could be granted.

                                           ----
                       19.     I never received from 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 Board
                of Education for as long as a month or six weeks (i.e., since
                February of 1993) as a substitute teacher.

                        21.    Because Mr. Caldwell had worked while on
                leave of absence without having followed company procedure
                to obtain authorization from Nissan to do so, and had denied
                to me that he had engaged in any work while on leave of
                absence when, in fact, he had done so, I followed customary
                company practice and reported these violations to other
                members of Nissan’s management and recommended Mr.
                Caldwell’s termination.

                       22.    As per company policy, I received instructions
                to terminate Mr. Caldwell for violating Nissan’s policy
                regarding working while on leave.

                       23.    On April 6, 1993, I met with Mr. Caldwell,
                told him that he had violated company policy regarding
                working while on leave, and told him his employment with
                Nissan was terminated.



        Although some doubt may exist as to the first-hand knowledge of Mr. Medlin of some

of the facts stated in his affidavit, any such infirmity is cured by the affidavits of other employees

and the admissions of plaintiff also exhibited to the motion for summary judgment.




                                                 -8-
       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 work

until he had been working outside for nearly two months.



       The defendant has shown by uncontradicted evidence a non-pretextual and justifiable

reason and cause of the discharge of plaintiff. Prior to the discovery of the violation of the rule

on outside work, defendant was overly generous in dealing with plaintiff who was hired for a 90-

day trial period and did not qualify during the first 90 days. Nevertheless, he was granted a

second 90-day trial period during which he was injured. So far as this record shows, plaintiff

received all of the benefits due him as workers compensation.



       Plaintiff has offered nothing more than his own conception of why he was discharged,

plaintiff has shown no evidence contrary to that offered by defendant. This is simply not

sufficient to overcome the direct, undisputed reason shown by defendant. Newsome v. Textron

Aerostructures, Tenn. App. 1995, 924 S.W.2d 87.



       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

plaintiff. The cause is remanded to the Trial Court for any necessary further proceedings.

                            AFFIRMED AND REMANDED


                                                       _________________________________
                                                       HENRY F. TODD
                                                       PRESIDING JUDGE, MIDDLE SECTION
CONCUR:

_____________________________
BEN H. CANTRELL, JUDGE

_____________________________
WILLIAM C. KOCH, JR., JUDGE


                                               -9-
