Newcomb v. Kohler Co.

Decision Date05 September 2006
Docket NumberNo. W2005-02161-COA-R3-CV.,W2005-02161-COA-R3-CV.
Citation222 S.W.3d 368
PartiesBarney NEWCOMB v. KOHLER COMPANY.
CourtTennessee Court of Appeals

W. Stephen Gardner, Memphis, TN, for Appellant.

David Hardee, Jackson, TN, for Appellee.

OPINION

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

In April 2003, the plaintiff's employer terminated his employment. The employer, citing the company's respectful workplace policy, fired the employee for allegedly cursing a fellow employee. The employee subsequently filed suit against the employer for retaliatory discharge. The employee alleged that his prior workers' compensation claims were the real reason that his employer terminated his employment. In his complaint, the employee sought compensatory and punitive damages, but did not set forth the amount requested. After the jury trial got underway, the trial court allowed the employee to amend his complaint to request a specific amount of damages for back pay and front pay, but ultimately dismissed the claim for punitive damages. At the conclusion of the employee's case-in-chief, the employer moved for a directed verdict, which the trial court denied. At the close of the employer's proof, the jury returned a verdict in favor of the employee finding that his workers' compensation benefits were a substantial factor in the employer's decision to terminate his employment. At the end of trial, the trial court conducted a hearing on the issue of whether to award reinstatement or front pay to the employee. After hearing evidence on the issue, the trial court ordered the employer to pay front pay since reinstatement was not warranted under the facts of the case. The employer presented numerous issues related to the jury trial in its motion for a new trial, which the trial court denied. On appeal, the employer asks us to review (1) the trial court's decision to allow the employee to amend his complaint during the trial; (2) the trial court's decisions regarding the admissibility of certain evidence; (3) the trial court's decision to deny the employer's motion for a directed verdict; (4) the trial court's rejection of the employer's proposed jury instructions; (5) the trial court's decision to affirm the jury's verdict while acting as thirteenth juror; and (6) the trial court's award of front pay in lieu of reinstatement. We affirm the trial court's rulings on the various issues raised by the employer on appeal.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

In 1975, Barney Newcomb ("Newcomb" or "Appellee") began working at a manufacturing facility owned by United States Gypsum, which is located in Union City, Tennessee. Kohler Company ("Kohler" or "Appellant") purchased the facility from United States Gypsum in November of 1988. Over the course of his employment with Kohler and its predecessor, Newcomb suffered several work related injuries for which he received workers' compensation benefits.1 After each incident, Newcomb returned to work at the Union City facility.

In January 2000, Don Goad became the plant manager for Kohler's Union City facility. After taking control of the plant, Mr. Goad noted that, while the plant had certain policies in place to govern employee conduct, the policies were not being consistently enforced. To remedy the situation, Mr. Goad sought to implement a respectful workplace policy. To further this goal, Mr. Goad held plant-wide meetings with supervisors and employees to discuss workplace conduct. Newcomb attended the meetings at which Mr. Goad presented his respectful workplace policy and his expectations for employees and management.

Kohler's Associate Handbook provides: "Mutual trust and respect are promoted between all elements of the Company and all associates at all times. Kohler is committed to providing a respectful workplace." The Plant Rules of Conduct contained within the Associate Handbook sets forth prohibited conduct, including the following: "Insubordination or use of profane or abusive language toward fellow associates or officials of the Company or persons doing business with the Company." Mr. Goad subsequently stated that this was the provision he tried to enforce with the implementation of his respectful workplace policy. Under the heading Disciplinary Action, the handbook provides:

When disciplinary action is warranted, in cases other than attendance or quality, it will normally be as follows:

• Verbal warning

• Written warning

• Written warning and meeting with area manager

• Final warning/supervisor

• Termination

The objectives of this procedure are to establish a uniform procedure for handling violation of rules, policies, procedures, and situations involving unsatisfactory/unacceptable job performance. Exceptions to this procedure may be warranted, as it is not possible to write one that covers every situation. As noted, termination may be warranted for the first serious offense. Some examples are theft, destruction of property, fighting, walking off the job, making threats, or any other act deemed to be a substantial breach of reasonable associate conduct.

The Associate Handbook does not contain a provision specifically designated "Respectful Workplace Policy," and the handbook was never amended to expressly set forth Mr. Goad's policy.

Prior to 2001, Newcomb had never received a written reprimand for conduct violations. On April 12, 2001, Newcomb received a written warning after his supervisor received a complaint from two female co-workers alleging that he "was touching them on the arms, in the side, and trying to hold their hand." Newcomb subsequently admitted to "holding a girls hand." The written warning advised Newcomb that such conduct would not be tolerated and that "any further complaints of this nature could result in further disciplinary action up to and including suspension until which time the complaint can be investigated." The warning did not, however, state that his conduct violated Kohler's respectful workplace policy, and Newcomb was not suspended. In August 2001, Newcomb received a quarterly performance review advising him that he "needs to be more respectful toward fellow workers." Newcomb received another quarterly performance evaluation in November 2001, which stated: "Sometimes pays more attention to getting the job done than showing respect toward his fellow associates."

On April 2, 2003, James Bridges, one of Newcomb's fellow co-workers, was finishing the third shift at the facility. When Newcomb arrived for the first shift, he and Mr. Bridges began discussing what Mr. Bridges perceived to be Newcomb's failure to perform his share of the work responsibilities. According to Bridges, Newcomb responded to the accusations by saying "f___you, Bridges." According to Newcomb, he said "To heck with you, James Bridges," and he never used profanity. Tereca Mason, another employee, witnessed the exchange. Mr. Bridges reported the incident to his third-shift supervisor, Tommy Stanford, who in turn reported the incident to Buddy Thompson, his immediate supervisor. Mr. Stanford then instructed Newcomb to report to Mr. Thompson's office where Newcomb denied cursing Mr. Bridges. At the conclusion of the meeting, Mr. Thompson suspended Newcomb pending further investigation of the incident.

Chris Moore assumed the position of manufacturing manager for Kohler's Union City facility in October 2002 with responsibility for all manufacturing operations at the plant. On the morning of April 2, 2003, Mr. Thompson informed Mr. Moore of the incident between Mr. Bridges and Newcomb, and Mr. Moore decided to interview Mr. Bridges and Ms. Mason the following morning, April 3, 2003. Also on the morning of the incident, Mr. Stanford told Mr. Moore that he believed that Newcomb had a prior violation of the company's respectful workplace policy. Later in the day on April 2, 2003, Newcomb called Mr. Moore to give him his version of the incident. During their conversation, Newcomb never mentioned that he previously had filed workers' compensation claims against the company.

According to Mr. Moore, he and Mr. Thompson met with Mr. Bridges and Ms. Mason on the morning of April 3, 2003. After the meeting, Mr. Thompson provided a written statement recounting his version of events, which included Newcomb's use of profanity. Ms. Mason also provided a written statement corroborating Mr. Bridges' version of events. Ms. Mason subsequently stated that Mr. Stanford asked her to give a written statement immediately after the incident on April 2, 2003 and that she did not discuss what happened with anyone else in management.

Since the company was without a human resources manager at the time, the responsibility for handling such matters apparently fell to Mr. Moore. After obtaining the statements from Mr. Bridges and Ms. Moore, Mr. Moore stated that he proceeded to search Newcomb's personnel file looking for any previous violations of the company's respectful workplace policy. Jerry Ray, the previous human resources manager, resigned in 2003 before the incident took place. During his tenure at the facility, Mr. Ray was responsible for maintaining the employees' personnel files, medical files, and workers' compensation files, which were kept separate from each other in the office at the plant. Some of these files contained copies of accident reports, work-related investigations, medical reports, and lawsuits filed against the company. As the human resources manager at the Union City facility, Mr. Ray was aware of the fact that Newcomb had filed workers' compensation claims against the company, but he stated that he did not discuss Newcomb's termination with Mr. Moore, Mr. Stanford, or Mr. Thompson. Mr. Moore stated that, while he assumed he had access to the other files, he confined his...

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