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Foltz v. Barnhart Crane and Rigging Co.

Court of Appeals of Tennessee, Jackson

December 16, 2019

SCOTT FOLTZ
v.
BARNHART CRANE AND RIGGING COMPANY

          Session November 13, 2019

          Appeal from the Circuit Court for Shelby County No. CT-005005-15 Valerie L. Smith, Judge

         Appellant/employee brought this retaliatory discharge case against Appellee, his former employer. Appellant alleged that he was fired in retaliation for claiming workers' compensation benefits. The trial court granted summary judgment in favor of the employer, finding that Appellant failed to meet his burden to show a causal connection between the filing of his workers' compensation claim and the termination of his employment. In the alternative, the trial court found that Appellee provided legitimate, non-discriminatory reasons for its decision to terminate Appellant's employment, and Appellant failed to meet his burden to show that the proffered reasons were pretext. Discerning no error, we affirm and remand.

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

          Roger A. Maness, Clarksville, Tennessee, and Marti Kaufman Monroe, Memphis, Tennessee, for the appellant, Scott Foltz.

          Jennifer Shorb Hagerman and Gary S. Peeples, Memphis, Tennessee, for the appellee, Barnhart Crane and Rigging Company.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Robert E. Lee Davies, Sr. J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         Appellant Scott Foltz began working for Appellee Barnhart Crane and Rigging Company ("Barnhart") in April 2007. Mr. Foltz, who worked primarily as a small crane operator, received good yearly performance evaluations. However, in March 2013, Mr. Foltz was working on assignment at Valero, a Barnhart client. Mr. Foltz left the job site complaining that he was having difficulty breathing. He was admitted to the hospital, where his condition worsened. He was subsequently transferred to Methodist Hospital in Memphis, where he remained in ICU for almost three months after being diagnosed with acute respiratory distress syndrome. Mr. Foltz eventually recovered and returned to work at Barnhart in June of 2013. Barnhart reported Foltz's hospitalization to its workers' compensation carrier, Liberty Mutual. Following an investigation, Liberty Mutual denied Mr. Foltz's claim in June 2014, finding that Mr. Foltz's health condition was not the result of a workplace injury or exposure. In response to the denial of his claim, Mr. Foltz filed an action for workers' compensation benefits, which purportedly was still pending at the time of this appeal.

         Barnhart administers drug tests to its employees. Depending on the job duty, Barnhart employees may be subject to four types of drug testing: (1) random DOT drug testing, which is administered by DISA Global Solutions ("DISA"); (2) random corporate (i.e., Barnhart-administered) drug testing; (3) site-specific (e.g. Valero-administered) drug testing; or (4) post-accident drug testing. While at Barnhart, Mr. Foltz submitted to several drug tests; prior to March 2015, he passed them all. On March 11, 2015, Mr. Foltz was randomly selected for DOT drug testing. He provided a urine sample, which tested positive for amphetamine (which is legal) and methamphetamine (which is illegal). DISA verified the results on March 20, 2015. Under Barnhart's Substance Abuse Policy, a positive result on a drug/alcohol test will result in disciplinary action up to and including termination of employment.

         Mr. Foltz denied using illegal drugs and advised Barnhart that he thought the test was a false-positive. Mr. Foltz requested a split-sample of the urine he provided on March 11, 2015. Barnhart granted the request. Pending the re-testing, Barnhart removed Mr. Foltz from driving any commercial vehicles or operating machinery. Barnhart also agreed to work with Mr. Foltz to ascertain whether the positive result could be due to Mr. Foltz's prescribed medications.

         On March 23, 2015, Mr. Foltz took another drug test, which was negative. On March 30, 2015, the split sample returned positive for amphetamines and methamphetamine. David Giddens, Barnhart's Safety Manger, relayed the results to Mr. Foltz, who continued to maintain that he had not used illegal drugs. Mr. Foltz provided information concerning his prescription medication. However, on April 24, 2015, DISA sent an email to Mr. Giddens, informing him that the positive urine test could not have been the result of legal medications because of the method of testing used by DISA.

         Before DISA sent the foregoing email, Mr. Foltz was allowed to return to work at Valero. While there, he violated a Valero policy, which required a daily crane inspection. Rather than completing a new report, Mr. Foltz changed the date of a report from the day before and gave it to Valero. There is no written report of this incident; however, Valero requested that Barnhart remove Mr. Foltz from the Valero worksite. At the time Barnhart removed Mr. Foltz from the Valero site, the results of the split sample drug test were pending. As such, Barnhart assigned Mr. Foltz to work in the "yard" at Barnhart's Memphis facility.

         On April 28, 2015, James Odom, Barnhart's Memphis Branch Manager, and John Moore, Barnhart's Regional Director and Mr. Odom's direct supervisor, had a telephone conversation to discuss Mr. Foltz's employment. During that conversation, Mr. Odom made the decision to fire Mr. Foltz. On the morning of April 29, 2015, Mr. Odom informed Randy Lewis, Barnhart's Senior Vice President of Operations, that he was firing Foltz.

         On April 29, 2015, Mr. Odom left for the Memphis yard around 11:00 a.m. to inform Mr. Foltz of his decision. When Mr. Odom got to the yard, he learned that Mr. Foltz had been involved in a minor accident that morning while mowing grass. Mr. Foltz received medical treatment and was released to return to work that afternoon. When he returned to Barnhart, Mr. Odom met with Mr. Foltz and informed him that his employment was terminated due to: (1) positive drug test confirmed by the split sample; and (2) his violation of the Valero policy concerning daily crane inspections. The crux of Mr. Foltz's lawsuit is that Barnhart fired him in retaliation for his filing the 2013 workers' compensation claim, supra. As discussed further below, Mr. Foltz does not dispute that Mr. Odom told him that he was being fired based on the drug screen and the Valero violation, but he further asserts that Mr. Odom stated that Mr. Foltz "had too many workers' compensation claims and that, 'You got hurt and you already got one claim.'" In the separation notice, Barnhart cited only the drug screen and safety violation but indicated that Mr. Foltz would be eligible for rehire "provided he has completed a substance abuse program, has a re-instated CDL, and can demonstrate competence."

         After he was fired, Mr. Foltz filed for disability. It is undisputed that, in his application for disability benefits, Mr. Foltz averred that he has been physically unable to work since he was fired from Barnhart. Mr. Foltz's application for benefits was granted, and he is currently receiving disability benefits.

         On December 4, 2015, Mr. Foltz filed his complaint for workers' compensation retaliatory discharge. Barnhart filed an answer denying liability. The parties proceeded to discovery. On February 22, 2018, Barnhart filed a motion for summary judgment. As grounds for its motion, Barnhart asserted: (1) Mr. Foltz could not make a prima facie case of workers' compensation retaliation; (2) Mr. Foltz could not show that Barnhart's legitimate, non-retaliatory reasons for terminating his employment were pretext; and (3) Mr. Foltz admitted that he was physically incapable of working as of the date of the termination of his employment and, therefore, has no cognizable damages.[1] Mr. Foltz opposed the motion.

         Following a hearing on September 21, 2018, the trial court granted Barnhart's motion for summary judgment by order of November 15, 2018. The trial court held that: (1) Mr. Foltz failed to satisfy the fourth prima facie element, i.e., a causal connection between his filing a workers' compensation claim and the termination of his employment; (2) in the alternative, allowing that Mr. Foltz satisfied his burden to establish a prima facie case, Barnhart provided legitimate, non-discriminatory reasons for its decision to terminate Mr. Foltz's employment, and Mr. Foltz failed to meet his burden to establish pretext. Mr. Foltz appeals.

         II. ...


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