Session November 13, 2019
from the Circuit Court for Shelby County No. CT-005005-15
Valerie L. Smith, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
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
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Robert E. Lee Davies, Sr.
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.
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
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.
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.
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.
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.
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
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
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. Mr. Foltz opposed the motion.
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.