Conley v. Yellow Freight System, Inc., 1:06-cv-164.

Citation521 F.Supp.2d 713
Decision Date09 October 2007
Docket NumberNo. 1:06-cv-164.,1:06-cv-164.
PartiesHerbert A. CONLEY, Plaintiff, v. YELLOW FREIGHT SYSTEM, INC., Defendant.
CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee

George M. Derryberry, Chattanooga, TN, for Plaintiff.

J. Gregory Grisham, Jeff Weintraub, Weintraub, Stock & Grisham, PC, Memphis, TN, for Defendant.

MEMORANDUM

R. ALLAN EDGAR, 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.

I. Background

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 Aft 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 ushe 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 Aft. 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. ¶ 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. 1, ¶ 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,...

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