The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Plaintiff Herbert A. Conley brings this wrongful termination action against his former employer, Defendant Yellow Freight System, Inc. ("Yellow Freight"). Mr. Conley alleges that he was terminated in violation of the Tennessee Public Protection Act ("TPPA"), Tenn. Code Ann. § 50-1-304. He also brings a common law claim of retaliatory discharge in violation of public policy.
Yellow Freight moves for summary judgment dismissal of both of Mr. Conley's claims [Court Doc. No. 11], and Mr. Conley opposes the motion for summary judgment [Court Doc. No. 19]. After reviewing the record in the light most favorable to Mr. Conley, the Court finds that Defendant's motion for summary judgment will be GRANTED IN PART and DENIED IN PART.
The facts, seen in the light most favorable to the Plaintiff, are as follows. Mr. Conley began working for Yellow Freight sometime in 1987 as an over-the-road ("OTR") truck driver. [Court Doc. Nos. 12-2, 21-2, collectively Deposition of Herbert A. Conley ("Conley Dep."), pp. 106-07]. Mr. Conley apparently performed his job well for several years. On June 18, 2002 then Senator Fred Thompson sent Mr. Conley a letter congratulating him for driving over one million miles without a preventable accident. [Court Doc. No. 19-2, Affidavit of Herbert A. Conley II ("Conley Aff. II"), Ex. B]. On August 3, 2002 the President of Yellow Freight sent a letter of congratulations to Mr. Conley regarding his 15 years of service with the company. Conley Aff. II, Ex. A. The letter states, "I commend you for your fine work and I wish you every success as you continue your career with Yellow." Id.
In the fall of 2002, however, Mr. Conley began to experience employment difficulties. In September of 2002, Jeff Kisor took over the position of general operations manager for Yellow Freight's Chattanooga terminal. Conley Aff. II, ¶ 6; [Court Doc. No. 12-5, Affidavit of Herbert A. Conley I ("Conley Aff. I"), ¶ 6]. Around this time, Jeff Kisor and James Aiken, another Yellow Freight supervisor, began to admonish Mr. Conley "to the effect that [he] should take less time on [his] over the road runs." Id. On September 13, 2002 Mr. Conley attended a meeting with Terry Cobb, a Yellow Freight supervisor, and Wayne Shelton, another Yellow Freight truck driver. Id. At the meeting Mr. Cobb played a recording of a speech by the president of a competitor following the news that the competitor was ceasing to operate. Id. Mr. Conley believed the message of the meeting was that he was "indirectly but firmly advised to complete [his] runs more quickly." Id. Mr. Conley asserts that Mr. Cobb indicated that "if you're full in 30 minutes as opposed to an hour, he wanted us rolling" and that "no matter what it took, he wanted us--he wanted his wheels rolling." Conley Dep., pp. 179-80.
Mr. Conley responded to this September 13th meeting by writing a letter to Mr. Cobb dated September 16, 2002. The letter states:
It appears the main reason you wanted to meet with us was to encourage us to change our work habits. However, over my tenure with Yellow Freight Systems, I have received numerous awards, letters of commendation and complements on my safe and timely driving performance thus far. . . . My first and foremost goal is to complete each route following all Federal Motor Carrier Safety Regulations, specifically Code 392.3 . . . I believe you know where I stand on sacrificing safety performance as opposed to causing an accident, injury or both to myself or others.
I will make every effort to comply with your wishes, but, I will not jeopardize myself or Yellow Freight to do so.
Conley Aff. II, Ex. C. Shortly after this letter to Mr. Cobb, Mr. Conley received a warning letter from James Aiken regarding his failure to "sign in and out properly and accurately" in accordance with the union agreement. Id. at Ex. D. The letter indicated that further violations of the sign-out policy would subject him "to more severe disciplinary action." Id. Section 42 of the union agreement states, "[d]rivers are required to sign in and sign out properly and accurately. This will be policed by the Employer and stewards. Failure to do so will result in: Warning letter (first (1st) occurrence), Three (3) day suspension (second (2nd) occurrence), and discharge (third (3rd) occurrence), subject to Article 45." [Court Doc. No. 12-2, Ex. 3].
The sign in sheet indicated that Mr. Conley had been dispatched from Charlotte, NC, instead of Atlanta, GA. Conley Aff. I, Ex. E.Mr. Conley asserts that he signed out of his place of origination that day, which was Charlotte, NC, but that he failed to sign out of his intermediate stop in Atlanta, GA. Conley Aff. I, ¶ 8. Mr. Conley also asserts that he never received "any instruction as to exactly how the sign in/sign out sheets should be completed." Id.
Mr. Conley admits that on October 8, 2002 he failed to complete the outbound sign-out sheet when he was dispatched from Chattanooga, TN to Charlotte, NC. Id. at ¶ 9. He received another warning letter from Yellow Freight dated October 11, 2002. Id. at Ex. F. The letter indicated that Mr. Conley would receive a three-day suspension and that further violations of the policy would "result in more severe disciplinary action being taken, up to and including discharge." Id.
On November 5, 2002 Yellow Freight dispatched Mr. Conley from Atlanta, GA to Chattanooga, TN. Conley Aff. I, ¶ 10. Upon arriving at the Chattanooga terminal, Mr. Conley initially failed to sign in on the designated sign-in sheet. Id. Mr. Conley started to drive home. Before he reached his home, however, he recalled that he had not signed the sign-in sheet. He immediately returned to the Chattanooga terminal to sign the sheet. Upon his return to the terminal, Mr. Conley could not find the sign-in sheet in any of the locations he usually found it. Id. He entered the dispatch office and obtained a clean sign-in sheet and signed it. Conley Aff. II, Ex. H; Conley Dep., p. 223-25. He then left the sheet with his signature in the appropriate place in the terminal. Conley Aff. II, ¶ 10.Mr. Conley asserts that he signed in on the blank sign-in sheet within thirty minutes of his return to Chattanooga. Id. at ¶ 14. Mr. Conley's supervisor, Mr. Cobb, admitted that failing to sign in immediately upon arrival in the terminal "should be" permissible for as long as thirty minutes. [Court Doc. Nos. 12--3, 21-3, collectively Deposition of Terry Lee Cobb ("Cobb Dep."), p. 124].
On November 6, 2002 Yellow Freight sent Mr. Conley a letter indicating that he failed to sign in at the Chattanooga terminal upon his return on November 5, 2002. Conley Aff. II, Ex. I. The letter indicated that Mr. Conley was "being discharged" because it was his fourth offense for failing to sign in or out properly and accurately. Id. Yellow Freight retracted the third offense because its notice was defective. Conley Dep., pp. 130-34. The letter also stated, "[s]hould you elect to protest this discharge, you will continue to work as your seniority allows until such time as the grievance Committee has rendered a decision." Id.
Mr. Conley received the letter on November 11, 2002 when he checked his post office box. Conley Aff. I, ¶ 13. Mr. Conley understood that under the Teamster's union agreement to which he and Yellow Freight were subject, the November 6, 2002 letter was treated as a conditional notice of "intent to discharge." Id. at ¶¶ 15, 16. Mr. Conley's supervisor, Jeff Kisor, also admitted that "at that point in time it wasn't a discharge, it was an intent to discharge." [Court Doc. No. 12-4, 21-4, collectively Deposition of Jeffrey Andrew Kisor ("Kisor Dep."), p. 83]. Mr. Kisor indicated that the "intent to discharge" was part of Yellow Freight's contract with the Teamster's union. Id. at p. 84. During a hearing before the Tennessee Department of Labor and Workforce Development, Mr. Kisor testified that Mr. Conley was employed with Yellow Freight until April 20, 2003. [Court Doc. 21-5, Affidavit of George Derryberry ("Derryberry Aff."), Ex. D].
Mr. Conley grieved the intent to discharge and continued working full-time with full pay and benefits. Conley Aff. I, ¶ 15. At the conclusion of a discharge hearing on April 23, 2003, Yellow Freight terminated Mr. Conley. Id.
Mr. Conley presents evidence that other Yellow Freight employees were treated more favorably than he for their failure to sign the sign in/sign out sheet or for their attempt to correct a failure to sign in. He presents the affidavits of two Yellow Freight truck drivers in support of his allegation that other employees were treated more favorably. Gerald Shelton attests that "I personally know that the 'sign in/sign out' rule described above has routinely and consistently been violated by Yellow Freight drivers, including myself, without being disciplined by Yellow Freight." [Court Doc. No. 19-3, Affidavit of Gerald Wayne Shelton ("Shelton Aff."), ¶ 7]. Mr. Shelton asserts that Tony Simpson, an OTR driver, has frequently driven from Charlotte through Atlanta and on to Chattanooga without signing in or out in Yellow Freight's Atlanta terminal.
Id. Mr. Shelton also asserts that Mr. Simpson has not been disciplined for his failure to sign in or sign out. Id. Mr. Shelton asserts that three other employees also have not been disciplined for their failures to sign in or sign out properly and accurately. Id. Mr. Shelton also asserts that he has violated the sign in/sign out policy himself intentionally and has not received any discipline. Id.
Mr. James Stockley, another Yellow Freight OTR truck driver, asserts that noncompliance with the sign in/sign out policy "has been widespread" and that no other employee to his knowledge has been terminated for repeated violations of the policy except for Mr. Conley. [Court Doc. No. 19-4, Affidavit of James Stockley, "Stockley Aff.", ¶¶ 4-5]. Mr. Conley also asserts that at least three other employees, Paul Martinetti, Karl Laue, and Joe Marion, have not been disciplined as severely for failing to sign in or sign out properly and accurately. Conley Aff. II, ¶ 18. He further alleges that Yellow Freight did not discipline Paul Martinetti for correcting an error on his sign in/sign out sheet. Id. at ¶ 19.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden is on the moving party to show conclusively that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Once the moving party presents evidence sufficient to support a motion under Fed. R. Civ. P. 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party's case with respect to which the nonmoving party has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of the witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); 60 Ivy Street, 822 F.2d at 1435-36. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; see also Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140 (6th Cir. 1997). If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; University of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir. 1995); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
A. Statute of Limitations
Claims under the TPPA and common law claims for retaliatory discharge in violation of public policy must be filed within one year from the date of the discriminatory act. See Stewart v. Memphis Housing Authority, 287 F.Supp.2d 853, 858 (W.D. Tenn. 2003); Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. Sup. Ct. 1996); Tenn. Code Ann. § 28-3-104. Conley filed his initial complaint on March 1, 2004. Yellow Freight asserts that under the U.S. Supreme Court decisions in International Union of Electrical Radio and Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), Mr. Conley's termination occurred when he received the November 6, 2002 letter and that the statute of limitations began to run on that date even though Conley continued working and receiving full pay and benefits through April of 2003. Yellow Freight thus contends that Conley's initial complaint was untimely.
In Robbins & Myers, the plaintiff was terminated from employment and filed a grievance related to her termination. 429 U.S. at 444-45. The plaintiff's grievance was processed through three steps, and then it was denied with a finding that the discharge complied with the terms of the collective bargaining agreement. Id. at 445. The plaintiff then filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") 84 days after the final denial of her grievance and 108 days from the date of her termination. Id. At that time the relevant statute required an aggrieved employee to file a discrimination charge within 90 days of the alleged discriminatory act. Id. The plaintiff argued that the discharge was "tentative" and "non-final" until the denial of the grievance. Id. at 446. The Supreme Court disagreed, noting that the plaintiff stopped work and ceased receiving pay and benefits as of the date of the discharge. Id. It also found that there was "no indication that either party viewed the October 25 discharge as anything other than 'final.'" Id. The Supreme Court held that the statute of limitations began to run on the date of discharge and that the pendency of the grievance did not toll the statute of limitations. Id. at 447-49. In making its determination, the Supreme Court noted that "the parties could conceivably have agreed to a contract under which management's ultimate adoption of a supervisor's recommendation would be deemed the relevant statutory 'occurrence,'" but they failed to do so. Id. at 234.
In Ricks the Supreme Court addressed a situation involving a denial of academic tenure. 449 U.S. at 252. In February 1973 the tenure committee of the defendant college recommended that the plaintiff not receive tenure. It then agreed to reconsider its decision the next year. In February 1974 the tenure committee again recommended that the plaintiff not receive tenure. In March of 1974, the Faculty Senate agreed with the tenure committee's recommendation. On March 13, 1974 the Board of Trustees "formally voted to deny tenure" to the plaintiff. Id. The plaintiff filed a grievance with the college's grievance committee. The college had a policy of offering a "terminal" contract of one year to a faculty member who did not receive tenure, and it offered such a "terminal" contract to the plaintiff on June 26, 1974. Id. at 253. On September 12, 1974 the Board of Trustees notified the plaintiff that it had denied his grievance.
The plaintiff filed a discrimination charge with the EEOC on April 28, 1975, and then filed his lawsuit in September of 1977. 449 U.S. at 254. The college moved to dismiss the complaint as untimely. The plaintiff argued that the statute of limitations began to run on the last date of employment, or the last date of his terminal contract. Id. at 255-56. The Supreme Court disagreed and held that the "limitations periods commenced to run when the tenure decision was made and [the plaintiff] was notified." Id. at 259. The Supreme Court upheld the district court's determination that the statute of limitations began to run on June 26, 1974 when the Board of Trustees formally notified the plaintiff of the offer of a "terminal" contract and after the "tenure committee had twice recommended that [the plaintiff] not receive tenure; the Faculty Senate had voted to support the tenure committee's recommendation; and the Board of Trustees formally had voted to deny [the plaintiff] tenure." Id. at 262.
In the instant action, Conley continued to work and receive full pay and benefits even after he received the notice of "intent to discharge" dated November 6, 2002. Conley Aff., ¶ 15. The parties do not dispute that Mr. Conley was employed with Yellow Freight until April 2003. Id.; [Court Doc. No. 21-5, p. 13]. Mr. Kisor admits that the notice dated November 6, 2002 was an "intent to discharge" and not an actual discharge and that this point had been negotiated with the Teamsters union. Kisor Dep., pp. 83-85.
Yellow Freight also relies on Weber v. Moses for support of its position that Conley's claims are barred by the statute of limitations. 938 S.W.2d 387 (Tenn. Sup. Ct. 1996). In that case the Tennessee Supreme Court relied upon the Ricks decision, as well as Chardon v. Fernandez, 454 U.S. 6 (1981) in holding that "a discriminatory termination ceases and is complete, when the plaintiff is given unequivocal notice of the employer's termination decision, even if employment does not cease until a designated date in the future." 938 S.W.2d at 391-92. The court noted that "[a]n employee's hope for rehire, transfer, promotion, or a continuing employment relationship cannot toll the statute of limitations absent some employer conduct likely to mislead an employee into sleeping on his rights." Id. at 392. In Fahrner v. SW Manuf. Inc. the Tennessee Supreme Court confirmed that the "discovery rule" applies to the accrual of the statute of limitations in retaliatory discharge cases. 48 S.W.3d 141, 144 (Tenn. Sup. Ct. 2001). As this court has recently explained the discovery rule, "the clock begins to run either when actual notice is received or when the plaintiff should have known of his injury by exercising reasonable ...