                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              August 2000 Session

              HOWARD L. FULLER, v. ASTEC INDUSTRIES, INC.

                  Direct Appeal from the Circuit Court for Hamilton County
                  No. 98-C-0111    Hon. W. Neil Thomas, III, Circuit Judge

                                       FILED SEPTEMBER 8, 2000

                                 No. E2000-00721-COA-R3-CV



Plaintiff filed a retaliatory discharge action based on dismissal from employment for filing a
worker’s compensation claim. The Trial Judge held the record established the dismissal was not
retaliatory. We affirm.


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

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Michael A. Anderson, Chattanooga, Tennessee, for appellant, Howard L. Fuller.

W. Jeffrey Hollingsworth and Alicia Brown Oliver, Chattanooga, Tennessee, for appellee, Astec
Industries, Inc.



                                             OPINION



              Plaintiff’s action seeking damages for retaliatory discharge for filing a worker’s
compensation claim was dismissed by the Trial Judge by summary judgment. Plaintiff has appealed.

                Plaintiff was employed in 1986 as a fitter/welder, and the genesis of this action was
an on-the-job injury claimed by plaintiff in October of 1995, where he sustained disabling injuries,
rendering him unable to perform the duties of his former position. He was on medical leave of
absence from his injury until October 7, 1996. In the fall of 1996, the employer created a new light
duty position in the Department of Engineering for plaintiff, which duties consisted of inputting bills
and materials into the computer for accounting purposes. He was hired on a trial basis for this job,
with no guarantees as to permanence. He was employed in this job for approximately two months,
and in December of 1996, the employer’s President issued a directive that all department budgets
were to be reduced by 10% across the board, and each department head was charged with the
responsibility of formulating a plan to achieve this reduction. The Engineering Department elected
to reduce the number of employees, laying off seven employees, including plaintiff, in January 1997.
It was explained that plaintiff’s position was abolished because it was not integral to the operation
of the department.

                Plaintiff’s worker’s compensation suit was settled on July 17, 1997, and he received
a 60% permanent partial disability award. On January 5, 1998, he filed this action alleging a
retaliatory discharge.

           Responding to a Motion for Summary Judgment, the Trial Court entered a
memorandum granting summary judgment.

               Our standard of review for a motion for summary judgment is well settled. Our
inquiry involves purely a question of law, and no presumption of correctness attaches to the Trial
Court’s judgment. See Tenn.R.App.P. 13(d); Hembree v. State, 925 S.W.2d 513 (Tenn. 1996).

               In deciding a motion for summary judgment, courts must view the evidence in the
light most favorable to the non-moving party and must also draw all reasonable inferences in the
non-moving party’s favor. See Staples v. SBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
Courts should only grant summary judgment where both the facts and the inferences to be drawn
from the facts permit a reasonable person to reach only one conclusion. See Staples.

              A cause of action for retaliatory discharge based upon the filing of a worker’s
compensation claim is actionable in this State. Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn.
1984).

              Four elements compose the cause of action for discharge in retaliation for asserting
a workers’ compensation claim:

               (1) the plaintiff was an employee of the defendant at the time of the injury;

               (2)the plaintiff made a claim against the defendant for worker’s compensation
               benefits;

               (3) the defendant terminated the plaintiff’s employment; and

               (4) the claim for workers’ compensation benefits was a substantial factor in
               the employer’s motivation to terminate the employee’s employment.



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Anderson v. Standard Register Company, 857 S.W.2d 555-558 (Tenn. 1993).

                The Trial Court found that plaintiff failed to establish a prima facie case for
retaliatory discharge, in that he had not shown that his claim for worker’s compensation benefits was
a substantial factor in his employer’s motivation to terminate him. Initially he failed to show facts
to rebut the employer’s statement of its legitimate business reason for termination. Specifically, the
Trial Court found that plaintiff had offered no evidence to support a claim of retaliatory discharge
“other than his own feelings” and that the plaintiff had “no evidence that the individuals who were
separated from Astec’s employment at the time of his separation were terminated to provide a pretext
for Astec to retaliate against him.” The plaintiff in his deposition answered as follows:

               Q.      Is it your opinion that the reason you had been laid off was because
                       you had filed the workers’ comp claim because of you accident in
                       1995?

               A.      I felt it was.

               Q.      What evidence fo you have to support that?

               A.      My own feelings.

               Q.      Do you have anything else besides your own feelings?

               A.      Not really.

                In order to establish the element of causation, the plaintiff must present some proof
other than merely the facts showing his employment, his exercise of rights under the Workers’
Compensation Law, and his subsequent discharge. Thomason v. Better-Bilt Aluminum Prods., Inc.,
831 S.W.2d 291, 293 (Tenn. Ct. App. 1992). Various Courts have considered what type of
circumstantial evidence will support the necessary causal link. For example, a plaintiff’s subjective
beliefs and speculations about the reason for her discharge likewise do not establish the necessary
causal link. See Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677 (Tenn. Ct. App. 1999); Anderson.
Moreover, the mere proximity in time between the employee’s filing of a workers’ compensation
suit and the termination of the employee is insufficient to establish a prima facie case. See Birchett
v. Nashville Co., Inc., 2000 WL 640895 (Tenn. Ct. App. May 19, 2000).

                 Assuming arguendo that plaintiff established a prima facie case for a retaliatory
discharge, which we do not find, the burden would then shift to the employer to show a legitimate
reason for plaintiff’s discharge. The employer asserts that plaintiff’s lay-off was based on a
reduction of force necessitated by a directive to the engineering department to reduce its budget by
ten percent. The head of the department stated that he decided to eliminate plaintiff’s position
because it was less essential than that of the draftsmen. According to him, while the elimination of
plaintiff’s position would have an impact on the department, it would not have the same “devastating


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impact on the Engineering Department” that the absence of a significant number of draftsmen would
have. It is undisputed that plaintiff did not possess the skills necessary for the job of draftsman.

               The termination of a plaintiff due to general business conditions and not for reasons
specific to the individual is generally found to be for a legitimate, non-pretextual reason. See
Anderson (citing 2A A. Larson, the Law of Workmen’s Compensation, § 68.36(d), pp. 188-191
(1990)). This is particularly true where there are general layoffs involving other employees which
are in no way involved in any retaliation. Id.

                 Plaintiff argues that of the other six employees terminated, two permanent employees
voluntarily took early retirement, and the other four were temporary employees, and that he was the
only full time employee that was involuntarily laid off. Further he was the only employee at the time
with a pending workers’ compensation claim. He points out that several new employees were added
to the Engineering Department within six months of his layoff, and two of the employees who were
laid off at the same time with him were subsequently rehired.

               Despite these circumstances, plaintiff admits that there was a cost-cutting program
implemented, and has offered nothing to show that the six other employees who were terminated
were laid off simply to provide a pretext for the employer’s retaliation. Of the two laid off
employees who were subsequently rehired, one was hired as a part-time draftsman with lower pay
and no benefits, and the other was hired part-time in a different department. And while additional
employees were hired by the Engineering Department after plaintiff was laid off, plaintiff’s old
position was never filled; his duties were integrated into the draftsmen’s jobs.

               We conclude, because plaintiff failed to produce evidence to rebut defendant’s
legitimate reason for his termination, the Trial Court properly granted summary judgment to the
defendant.

             We affirm the summary judgment and remand with costs assessed to the plaintiff,
Howard L. Fuller.



                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS , J.




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