                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 11, 2001 Session

            LOUE G. MANNING v. K-TRANS MANAGEMENT, INC.

                       Appeal from the Chancery Court for Knox County
                         No. 138864-2   Daryl R. Fansler, Chancellor

                                   FILED OCTOBER 29, 2001

                                  No. E2000-02462-COA-R3-CV


Loue G. Manning appeals a summary judgment granted in favor of K-Trans Management, Inc., as
to his suit seeking damages for violation of the Tennessee Human Rights Act and intentional
infliction of emotional distress as a result of his termination by K-Trans. We find there is no
material evidence to support his insistence that he was terminated because of his race and affirm the
judgment below.


     Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                   Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for the Appellant, Loue G. Manning

John M. Lawhorn, Knoxville, Tennessee, for the Appellee, K-Trans Management, Inc.


                                             OPINION

        This is a suit by Loue G. Manning, a black male, against his former employer, K-Trans
Management, Inc. The complaint contains two counts. The first seeks damages for violation of the
Tennessee Human Rights Act, codified in T.C.A. 42-21-101, et seq. The second seeks damages for
intentional infliction of emotional distress. It appears that the claim as to the second count has been
abandoned on appeal.

        K-Trans filed a motion for summary judgment which was sustained by the Trial Court,
resulting in this appeal, wherein Mr. Manning raises the following two issues:
         A.    The Appellee Discriminated Against the Appellant by Disciplining the
         Appellant in a Far More Severe Fashion and Due to a Far Less Significant
         Transgression, than When it Disciplined a Comparable White Male Manager; and,

         B. The Appellee’s Stated Rationale for Terminating the Appellant is Entirely
         Pretextural, as the Appellant Cannot Tenably Point to Any Company Policy
         Which the Appellant in Fact Violated.

       The standard of review for summary judgment has recently addressed in the case of Staples
v. CBL & Associates, 15 S.W.3d 83, 89 (Tenn. 2000), wherein our Supreme Court restated the rule
enunciated in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), as follows

         The standards governing the assessment of evidence in the summary judgment
         context are also well established. Courts must view the evidence in the light most
         favorable to the nonmoving party and must also draw all reasonable inferences in
         the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
         Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when
         both the facts and the inferences to be drawn from the facts permit a reasonable
         person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153
         (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

       Applying the foregoing rule relative to our review of the evidence, we find the record
discloses the following facts. Mr. Manning was employed by K-Trans for over 25 years. He began
his employment as a bus driver and ultimately became one of five directors, immediately under the
General Manager, Timothy A. Lett, a white male, and was serving in that capacity when he was
terminated for an incident occurring on January 21, 1998.

        On that day Mr. Manning, who was furnished an automobile by K-Trans while at work and
also for his personal use, awoke feeling somewhat lightheaded, which he attributed in part to his
hypertension, as well as nitroglycerin tablets which had been prescribed for him on the day in
question, or the day before. During the morning hours he drank four 12-ounce cans of beer and
about 3:00 p.m.–after a nap–drove a K-Trans automobile to a Kentucky Fried Chicken establishment.
As he was backing out of his parking place to leave, another car directly behind him was also
backing out, resulting in a collision of the rear of each vehicle. The damages were minor–only a
scratch on the K-Trans vehicle and a damaged taillight on the other.

        After the collision, Mr. Manning called K-Trans to report the accident and was transported
to the K-Trans office by the driver of the other vehicle.

       While at the K-Trans office he was instructed by fellow employees, Dennis Lowery, Director
of Operations, and Gary A. Robinson, Director of Safety and Training–in accordance with company
policy–to submit to a drug screening. He at first agreed to do so, but then changed his mind and
requested that he be allowed to wait three hours to have the screening done, in accordance with what


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he understood was permitted for a white male supervisor who was drinking while overseeing K-
Trans operations in connection with a University of Tennessee football game.

        After some discussion and a heated argument between Mr. Manning and Messrs. Lowery and
Robinson, Mr. Manning, in the company of a third employee, James E. Jackson, was taken to his
home. He apparently stayed there until Mr. Jackson had completed other business and returned to
pick Mr. Manning up to take him to a testing laboratory where he underwent a drug test at 7:30 p.m.
This test proved negative.

       Thereafter, after an interview with Mr. Lett, Mr. Manning was terminated according to the
termination notice for “driving a company vehicle after consuming alcohol and refusal to take a post-
accident breath test following an accident.”

       As pertinent to the disposition of this case, the Employee Handbook contained the following
work rule:

           It is not possible to list all the forms of behavior that are considered unacceptable
           in the workplace. The following are examples of infractions of rules of conduct
           that may result in disciplinary action, up to and including termination of
           employment:

           ....

           -Working under the influence of alcohol or illegal drugs
           -Possession, distribution, sale, transfer, or use of alcohol or illegal
            drugs in the workplace, while on duty, or while operating KAT1
            vehicles or equipment

         K-Trans also promulgated a substance abuse policy which, as it relates to drug and alcohol
testing, included the following:

                                                  Section 6.0

                  -Post-Accident Testing: Safety-sensitive employees will be required to
           undergo urine and breath testing if they are involved in an accident while on duty
           for KAT unless the KAT official in charge at the time determines, using the best
           information available at the time of the decision, that the covered employee’s
           performance can be completely discounted as a contributing factor to the accident.
           This includes all employees that are on-duty in vehicles and any other whose
           performance could have contributed to the accident.



       1
                  K-Trans is also known as KAT.

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                Following an accident, the employee will be tested as soon as possible, but
        not to exceed eight hours for alcohol testing and 32 hours for drug testing.

                                           Section 10.0

        KAT’s agency disciplinary policy regarding this testing program will be as
        follows:

        Any safety-sensitive or non-safety-sensitive employee who has an alcohol
        concentration of 0.02 or greater but less than 0.04 will receive a “miss-out” and
        be subject to all employee “miss-out” rules;

        Any safety-sensitive or non-safety-sensitive employee who has a verified positive
        drug test result, an alcohol concentration of 0.04 or greater, or who refuses to
        submit to a test will be referred to a Substance Abuse Professional for evaluation
        and his/her employment with KAT will be terminated.

        K-Trans, inter alia, made the following statements of undisputed facts, all of which were
agreed to by counsel for Mr. Manning.

        (6)   Plaintiff is a black male.

        (7) K-Trans’ General Manager, who also was Plaintiff’s supervisor, is Tim Lett.
        Mr. Lett is a white male.

        (8) K-Trans’ Director of Safety and Training at the time of the events made the
        subject of this action was Greg Robinson, who is a black male.

        (9) K-Trans’ Director of Operations at the time of the events made the subject
        of this action, Dennis Lowery, is a black male.

        (10) Plaintiff became K-Trans’ Maintenance Director in October 1994 when he
        was promoted to that position by General Manager Tim Lett, who Plaintiff now
        alleges in this action engaged in intentional racial discrimination against him.

        (11) K-Trans’ Director of Safety and Training, Greg Robinson, a black male,
        was promoted to that position by General Manager Tim Lett.

        (12) K-Trans’ Director of Operations, Dennis Lowery, a black male, was
        promoted to that position by General Manager Tim Lett.

        (13) General Manager Tim Lett was responsible for determining the level of
        compensation paid to K-Trans’ various department managers.


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           (14) As of the date Plaintiff was terminated from his employment with K-Trans,
           Plaintiff had the highest annual compensation among the various department
           directors. These director positions included: Director of Maintenance, Director
           of Operations, Director of Safety and Training, Director of Human Resources and
           Director of Marketing.

       The proof shows that the white male employee, above-referenced, whose conduct as to the
use of alcohol was at least comparable and arguably more egregious than that of Mr. Manning,
received much less punishment–suspension of three days with pay, removal from supervising K-
Trans busses at U.T. football games, and a letter of reprimand. He did, however, when asked,
immediately submit to testing.

         Mr. Manning’s termination was predicated upon his refusal to obey a direction to submit to
testing. 2 Mr. Manning insists that he was never instructed to be tested for alcohol, but only drugs,
which, as already noted, he successfully passed.

       However that may be, it is undisputed that he did not submit to testing in a timely manner
in accordance with the rules of K-Trans.

        With regard to the direction given for testing, both Mr. Lowery and Mr. Robinson testified
that he was instructed to have testing for both alcohol and drugs. However, Mr. Manning states it
was only for drugs, and for the purpose of disposition of this appeal, we take as true the instruction
was only for drugs. Thus, under the present record, Mr. Manning was terminated for not complying
with an instruction that he was never given.

        This, however, does not end our inquiry, as we must determine whether the undisputed proof
shows that his termination was not because of racial discrimination. In this regard, we first note that
Mr. Lett, relying upon the evidence of Messrs. Lowery and Robinson as to the instructions given,
terminated Mr. Manning because of Mr. Lett’s belief that Mr. Manning had violated the substance
abuse policy above-referenced, which would be ground for termination, whereas the white male had
complied with the policy. Given this circumstance and Mr. Lett’s history of promoting blacks to
positions formerly held by whites, which included Mr. Manning, and the fact that he was the highest
paid supervisor in the system, we cannot find that there is material dispute that racial bias played any
part in his dismissal.




       2
                Mr. Lett testified that had Mr. Manning passed the tests he would not have been terminated.




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        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Mr. Manning and his surety.



                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




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