                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0123n.06
                           Filed: February 15, 2006

                                          No. 05-5325

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


KELLY KI LGORE HALVORSEN,                        )
Individually and as Personal Representative of   )
the Estate of Bruce Halvorsen, Deceased          )
                                                 )
       Plaintiff-Appellant,                      )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
v.                                               )   EASTERN DISTRICT OF TENNESSEE
                                                 )
PLATO LEARNING, INCORPORATED,                    )
                                                 )
       Defendant-Appellee.                       )




       Before: SILER, SUTTON and COOK, Circuit Judges.


       SUTTON, Circuit Judge. Bruce Halvorsen and his wife Kelly Kilgore Halvorsen worked

for competing educational-technology companies: Bruce for Plato Learning, Inc., and Kelly for

Riverdeep Interactive Learning. Kelly rebuffed Plato’s offers of employment; Plato ultimately

ended Bruce’s employment. Three weeks after Plato fired Bruce, he died in a single-car accident.

Kelly asserts that Plato’s decision to fire her husband was “specially designed (a) to punish the

Halvorsen family for [her] refusal to work for Plato; and (b) in some backhanded way to induce her

to return to work for [Plato] even in the face of” the firing. Halvorsen Br. at 27. Because the

circumstances of Bruce’s employment, firing and death do not support any of the claims asserted

against Plato as a matter of law, we affirm the district court’s grant of summary judgment.
No. 05-5325
Halvorsen v. Plato Learning, Inc.

                                                 I.


       In 1992, Bruce Halvorsen began working for Plato (then called TRO Learning) as a

technical-support engineer in its corporate office in Minnesota. In 1997, Plato hired Kelly Kilgore

as an educational consultant and permitted her to work out of her home in Knoxville, Tennessee.


       In December 1997, Bruce and Kelly met at a company event, and they married shortly

thereafter in June 1998. Bruce relocated in 1998 to Tennessee, where he worked as a field engineer

for Plato. In 1999, Kelly became a sales account manager for Plato. Although they both worked

out of offices in their home, the Halvorsens’ job duties did not overlap, they worked on different

projects for Plato and they maintained separate, individually protected computers.


       Kelly left Plato in 2000 to work as a sales representative for a competitor, Riverdeep, where

she had considerable success, earning as much as $330,000 in one year in salary and commissions.

In 2001, Plato filed a lawsuit against Kelly and Riverdeep, alleging breach of a non-solicitation and

confidentiality agreement between Kelly and her former company. The parties settled the dispute

for $50,000.


       Once the litigation had ended, Plato made several attempts to rehire Kelly. After she rejected

a written offer of employment in January 2002, see JA 181, she claims that “it got nasty,” JA 1248.

In a conversation with Plato vice-president Mike Reynolds, Kelly claims that he threatened to fire

her husband if she did not agree to return to Plato. When Reynolds asked her to work for Plato, she

told him, “I want to stay where I am,” to which he replied, “Well, does Bruce like his job?”

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No. 05-5325
Halvorsen v. Plato Learning, Inc.

JA 1249. When Kelly answered, “Yes, I believe he does,” Reynolds responded, “Would Bruce like

to keep his job?” Id. According to Kelly, she said, “I hear what you’re saying,” ended the

conversation and rejected Plato’s offer. Id.


       Four months later, in May 2002, Riverdeep and Plato competed for a sale. Riverdeep was

awarded the contract for $250,000; Plato had put in a bid for $500,000. Four days after learning

they had lost the sale, Plato fired Bruce. Kelly claims that Bruce told her he was fired “[b]ecause

you turned down the job that Plato offered you.” JA 1247. On May 28, 2002, Plato explained its

decision through an internal e-mail to company employees:


       The competitive environment has changed over the last year. Because of this, we are
       running head to head with certain companies on major deals. As many of you know,
       Bruce Halvorsen’s wife, Kelly, is a top salesperson for one of these companies,
       Riverdeep. For this reason, Bruce Halvorsen is leaving the organization and
       transitioning to other employment opportunities effective at the close of business
       today. This is not in any way the result of Bruce’s performance with PLATO and in
       no way suggests any impropriety has occurred.


JA 1373.


       After Plato discharged Bruce, Kelly claims that he was “despondent.” JA 279. On June 10,

2002, three weeks after the firing, Bruce and a friend stayed up late “talking because he could not

sleep [and] was nervous, appeared depressed, and worried about his financial situation with his

children.” JA 290. Around 12:30 a.m. on June 11, Bruce left to get cigarettes. He died in a single-

car accident on “a very curvy road” with “no shoulders” that experiences “lots of accidents.” JA

159. The Tennessee Department of Transportation ruled Bruce’s death an accident; it “believed that

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No. 05-5325
Halvorsen v. Plato Learning, Inc.

[Bruce] was dodging something, because he tried to recover the car, either an animal or he just went

off the shoulder . . . the marks indicated that he broke back right and then couldn’t recover.” Id.


       Kelly found it “emotionally impossible to continue working or to bring in any new clients”

after her husband’s death. Halvorsen Br. at 18 (internal quotation marks omitted). About two years

later, she quit her job at Riverdeep.


       In 2002, Kelly filed a complaint in Tennessee state court against Plato on behalf of herself

and the estate of her husband. After Plato timely removed the case to federal court, the parties

consented to have the case handled by a magistrate judge. On February 15, 2005, the magistrate

judge granted Plato’s motion for summary judgment.


                                                II.


       On appeal, Kelly argues that the magistrate judge improperly rejected several contract and

tort claims as a matter of law and contends that the magistrate judge abused his discretion in

excluding the proposed expert testimony of one of her witnesses. We give fresh review to a district

court’s summary-judgment decision, Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 787–88

(6th Cir. 2005), and give abuse-of-discretion review to a decision to exclude expert testimony,

Barnes v. Kerr Corp., 418 F.3d 583, 588 (6th Cir. 2005). Tennessee law, the parties agree, governs

these claims.




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No. 05-5325
Halvorsen v. Plato Learning, Inc.

                                                 A.


       The trial court dismissed the breach-of-employment-contract claim against Plato because

Bruce was an at-will employee. See Cantrell v. Knox County Bd. of Educ., 53 S.W.3d 659, 662

(Tenn. 2001) (“[I]n the absence of . . . a contract of employment for a definite term,” Tennessee law

provides that “an employment relationship generally can be terminated by either the employer or

the employee with or without cause.”). In response, Kelly argues that Bruce was not an at-will

employee because Plato “induce[d]” him “to give up his long-standing position in Minnesota in

order to move to Tennessee” with a “promise of long employment.” Halvorsen Br. at 43 (internal

quotation marks omitted). The record does not support this claim.


       All written correspondence between Plato and Bruce indicates that he was employed at will.

His offer of employment stated that he would be an at-will employee. JA 195 (“[Y]our acceptance

of this offer of ‘at will’ employment represents the sole agreement between you and [Plato].”). The

employee handbook said the same thing. JA 1393 (“All employment at PLATO Learning is

considered ‘at will.’ This means that an employee may at any time without reason, with or without

notice, and without procedural formality or progressive discipline, be terminated from employment

with the company.”). And the employee manual made clear that his at-will status was not subject

to change. Id. (“No practice or procedure and no representations to the contrary, written or oral,

expressed or implied, . . . forms part of any employment contract between you and the company so

as to alter the status of employment at will. No representative of the company shall have the




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No. 05-5325
Halvorsen v. Plato Learning, Inc.

authority to enter into any employment agreement in contradiction with the employment at will

except as authorized in writing by the President of PLATO Learning.”).


       Attempting to rebut this evidence, Kelly relies on her deposition testimony and her affidavit.

While Kelly’s statements show that Plato was pleased to have Bruce relocate to Tennessee, they also

acknowledge that he was marrying someone who presently lived in Tennessee and are equally

consistent with the view that Bruce’s transfer accommodated his personal interests as much as the

company’s needs. While her appellate briefs repeatedly say that Plato promised to employ Bruce

for a “long” time, that word does not appear on any of the appendix pages cited in support of this

argument. See Halvorsen Br. at 7; Halvorsen Rep. Br. at 19.


       In total, the record evidence supporting this claim consists of the following testimony by

Kelly: Bruce “never had a concern that he would get fired,” JA 1329; Plato “told him he was a

valuable employee,” JA 1327; he “certainly had to be reassured to leave Minnesota to work in the

field, to work at home [because] [h]e’d always worked in the corporate office,” id.; she and

“everybody heard it . . . : ‘If we could just get Bruce Halvorsen down there, he is the best, he’s the

one—you know, we won’t have any technical problems[’],” JA 1328; Bruce had “various awards

pointing out his work ethic signed by officers of the company,” id.; he “never believed that he would

lose his job,” JA 281; “the news of [his] termination came as a total shock,” id.; Plato “did yearly

contracts” and “presented” itself as an “equal opportunity employer[],” JA 1322–23; and employees

“felt secure that if you did your job, you would not be fired,” JA 1323.




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No. 05-5325
Halvorsen v. Plato Learning, Inc.

       All of this in the end amounts to nothing more than generalizations about Bruce being a good

employee and his lack of subjective fear that he was at risk of being fired—both of which fall short

of what Tennessee requires to alter an at-will relationship. As Kelly has pointed to no evidence of

a definite term of employment (written or otherwise), the magistrate judge correctly determined that

Bruce was an at-will employee and thus properly dismissed the breach-of-contract claim.


                                                 B.


       Because Kelly bases her claim for promissory fraud on alleged promises of “long”

employment, see Halvorsen Br. at 43, this claim fails as well. Nor, at any rate, has she alleged the

facts necessary to support a prima facie case of promissory fraud—namely, that Plato made “an

intentional misrepresentation with regard to a material fact” or had “knowledge of the

representation[’s] falsity.” Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App. 1990)

(citations omitted).


                                                 C.


       The district court also properly rejected the retaliatory-discharge claim as a matter of law.

“In Tennessee an employee-at-will generally may not be discharged for attempting to exercise a

statutory or constitutional right, or for any other reason which violates a clear public policy which

is evidenced by an unambiguous constitutional, statutory, or regulatory provision.” Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997). The magistrate judge characterized Kelly’s

claim as alleging that Plato violated a “public policy favoring marriage” by firing her husband.

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No. 05-5325
Halvorsen v. Plato Learning, Inc.

Mag. Op. at 9. Finding no “clear and w[e]ll-defined public policy or clear mandate under Tennessee

law opposing employment decisions based upon an employee’s marriage to an employee of a

competitor,” id. at 10, the judge dismissed the claim.


       Kelly contends that the magistrate judge took “much too narrow and inaccurate a view of the

rights that were violated by Plato,” explaining that “[i]t is not the fact that Mr. Halvorsen was fired

because of his marital status that is offensive here; it is, rather, the fact he was terminated merely

because of his relationship with an employee of a competitor, whatever the nature of that

relationship.” Halvorsen Br. at 28. But as she identifies no evidence of such a public policy in

Tennessee or elsewhere, her claim cannot proceed.


       Kelly also invokes a Tennessee statute banning restraint of trade as the basis of the public

policy supporting the retaliatory-discharge claim. The statute provides:


       All arrangements, contracts, agreements, trusts, or combinations between persons or
       corporations made with a view to lessen, or which tend to lessen, full and free
       competition in the importation or sale of articles imported into this state, or in the
       manufacture or sale of articles of domestic growth or of domestic raw material, and
       all arrangements, contracts, agreements, trusts, or combinations between persons or
       corporations designed, or which tend, to advance, reduce, or control the price or the
       cost to the producer or the consumer of any such product or article, are declared to
       be against public policy, unlawful, and void.


Tenn. Code Ann. § 47-25-101. In Bloom v. Gen. Elec. Supply Co., 702 F. Supp. 1364 (M.D. Tenn.

1988), Kelly points out, a district court addressed a similar fact pattern—a couple worked as

employees at will for the defendant and when the husband took a job with a competing company in



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Halvorsen v. Plato Learning, Inc.

the area, the defendant terminated the wife, citing potential conflict of interest and antitrust

concerns. And there, Kelly adds, the court concluded that § 47-25-101 embodies a public policy

against restraint of trade and refused to dismiss a retaliatory-discharge claim as a matter of law.


       Like the magistrate judge, we “respectively disagree[]” with the reasoning of Bloom. Mag.

Op. at 11. No other Tennessee decision supports this reading of the statute, and no federal or state

case has cited Bloom favorably for this proposition. Most importantly, the statute does not say that

any action resulting in a restraint of trade violates the criminal law; it says that “arrangements,

contracts, agreements, trusts, or combinations between persons or corporations” restraining trade

will violate the law. Kelly has pointed to no such agreement involving Plato or anyone else. See

also Freeman Indus. LLC v. Eastman Chem. Co., 172 S.W.3d 512, 522 (Tenn. 2005) (“According

to its plain language, the [statute] prohibits arrangements that decrease competition or affect the

prices of goods.”) (emphasis added). That Plato wished to “expand[] sales,” as its 2002 annual

report unsurprisingly said, JA 442, and that it recognized the “intensely competitive” nature of the

educational-technology industry, JA 450, do not show that the company entered into an anti-

competitive agreement, as this criminal law requires. Accordingly, whether framed as a claim

directly under the statute or framed as a claim premised on a retaliatory discharge in violation of the

public policy identified in the statute, the claim fails as a matter of law.


                                                  D.


       The trial court also properly dismissed the outrageous-conduct claim. To establish this tort,



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Halvorsen v. Plato Learning, Inc.

“the conduct complained of” must be “intentional or reckless,” must be “so outrageous that it is not

tolerated by civilized society” and must “result in serious mental injury.” Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). Kelly has not directed us to any cases in which the discharge of an at-will

employee satisfied this standard.


       Nor does the manner of the discharge satisfy this imposing standard. The uncontradicted

evidence shows that Plato informed Bruce of its decision to fire him over the telephone and later sent

an e-mail to its employees explaining its reasons for the decision and emphasizing that the choice

did not rest on concerns about Bruce’s performance or suggest that he had engaged in any

impropriety. Neither did the company hide its motives for the discharge: its concerns about Kelly

working for a competing company. While one can certainly imagine better ways to handle the

problem that Plato faced, its solution cannot be described as conscience-shocking in a legal sense.

And because Plato’s action did not amount to outrageous conduct as a matter of law, we need not

address Kelly’s argument in support of her “indirect, bystander claim,” including the impact of the

decision in John Doe 1 ex rel. Jane Doe 1 v. Roman Catholic Diocese, 154 S.W.3d 22 (Tenn. 2005).


                                                 E.


       Also unavailing is Kelly’s claim that Plato interfered with her employment relationship with

Riverdeep and caused her to breach her contract with it. To establish this claim, Kelly bore the

burden of demonstrating: “(1) an existing business relationship with specific third parties or a

prospective relationship with an identifiable class of third persons; (2) the defendant’s knowledge



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No. 05-5325
Halvorsen v. Plato Learning, Inc.

of that relationship and not a mere awareness of the plaintiff’s business dealings with others in

general; (3) the defendant’s intent to cause the breach or termination of the business relationship;

(4) the defendant’s improper motive or improper means; and finally, (5) damages resulting from the

tortious interference.” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002)

(internal quotation marks omitted).


       Most problematically, Kelly cannot show that Plato proximately caused her to resign from

her job. While Kelly eventually did resign from her job, she did not turn in her resignation until

almost two years after the company fired her husband. See Wooley v. Madison County, 209 F. Supp.

2d 836, 849 (W.D. Tenn. 2002) (one element of a claim for procurement of a breach of contract is

“that the act complained of was the proximate cause of the breach of the contract”). Making matters

worse, she acknowledges that she has “an open-door policy to go back” to Riverdeep “whenever

[she] can,” JA 1214, which is fundamentally inconsistent with the claim that Plato caused her to

leave Riverdeep.


                                                F.


       In pressing her wrongful-death claim, Kelly asserts that “[i]f Bruce hadn’t been terminated

in the way he was terminated, he wouldn’t have been despondent. . . . He wouldn’t have been

nervous, he would have been able to sleep, he wouldn’t have been worried, felt betrayed; and he

would have been in Las Vegas with the other field engineers from Plato . . . [the] weekend [he

died].” JA 160. This claim fails under fundamental tort-law principles. A claim of negligence



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No. 05-5325
Halvorsen v. Plato Learning, Inc.

requires: “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the

applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation

in fact; and (5) proximate, or legal cause.” Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).

Because Plato employed Bruce at will, it had no duty to employ him permanently. And even if one

could say that Plato’s decision became one of many but-for causes of Bruce’s death, its decision

cannot plausibly be described as the proximate cause of his death. See, e.g., McClenahan v. Cooley,

806 S.W.2d 767, 775 (Tenn. 1991) (holding proximate causation requires, among other things, that

“the tortfeasor’s conduct must have been a substantial factor in bringing about the harm being

complained of” and that “the harm giving rise to the action could have reasonably been foreseen or

anticipated by a person of ordinary intelligence and prudence”) (internal quotation marks omitted).

That “a person in Mr. Halvorsen’s emotional state could well be expected to suffer an accident of

the kind that killed him,” Halvorsen Br. at 46, is no answer to this defect in the claim, because Kelly

nowhere alleges that Plato knew or should have known of Bruce’s emotional state, whether before

or after the discharge.


                                                  G.


       Kelly, lastly, argues that the district court abused its discretion in rejecting expert evidence

from Dr. Walker, who performed a “psychological autopsy” on her husband and who concluded that

Plato’s actions “led to his emotional condition and contributed to the auto accident.” JA 288. The

federal Rules of Evidence give trial judges responsibility for acting as gatekeepers over expert

testimony. See Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In this

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No. 05-5325
Halvorsen v. Plato Learning, Inc.

instance, Dr. Walker explained that she neither spoke with nor examined Bruce, did not review any

of his medical records, relied entirely on anecdotal evidence supplied by Kelly and admitted that she

had never performed a psychological autopsy before. No less importantly, Kelly sought to use this

testimony to establish an opinion about the legal cause of her husband’s death. On this record, the

magistrate judge did not abuse his considerable discretion in excluding “what amounted to a legal

opinion” from an expert witness. Stoler v. Penn Cent. Transp. Co., 583 F.2d 896, 899 (6th Cir.

1978); see also Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (“The problem with

testimony containing a legal conclusion is in conveying the witness’ unexpressed, and perhaps

erroneous, legal standards to the jury. This invades the province of the court to determine the

applicable law and to instruct the jury as to that law.”) (internal quotation marks omitted).


                                                III.


       For these reasons, we affirm.




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