Cripps v. United Biscuit of Great Britain

• Decision Date: 31 October 1989
• Docket Number: No. CIV-3-89-0001.,CIV-3-89-0001.
• Citation: 732 F. Supp. 844
• Parties: James CRIPPS, Plaintiff, v. UNITED BISCUIT OF GREAT BRITAIN d/b/a Keebler Company, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

732 F. Supp. 844

James CRIPPS, Plaintiff, v. UNITED BISCUIT OF GREAT BRITAIN d/b/a Keebler Company, Defendant.

No. CIV-3-89-0001.

United States District Court, E.D. Tennessee, N.D.

October 31, 1989.

David A. Burkhalter, II and Perry H. Windle, III, Knoxville, Tenn., and Robert Ogle, Sevierville, Tenn., for plaintiff.

William A. Blue, Jr., Constangy, Brooks & Smith, and Edward Katze, Constangy, Brooks & Smith, Nashville, Tenn., for defendant.

MEMORANDUM OPINION

JORDAN, District Judge.

This is an action by the plaintiff James Cripps against his former employer, United Biscuit of Great Britain (Keebler) for alleged age discrimination and harassment pursuant to 29 U.S.C. §§ 621, et seq. (ADEA); he also asserts a pendent claim under the Tennessee Human Rights Act, T.C.A. §§ 4-21-101, et seq. The defendant Keebler has filed a motion for summary judgment docs. 5, 5A on the grounds (1) that the plaintiff cannot recover compensatory or punitive damages under either 29 U.S.C. §§ 621, et seq. or T.C.A. §§ 4-21-101, et seq., (2) that a federal court should not exercise pendent jurisdiction over this State claim, and (3) that the plaintiff's unqualified rejection of the defendant's unconditional offer of reinstatement waived any right to equitable relief that he may have had. The plaintiff has filed a response docs. 7, 7A. Both parties have filed supplemental briefs docs. 8, 9, and 10. The motion is now ripe for disposition.

Mr. Cripps was born on October 26, 1929, and was hired by the defendant in about 1953. Cripps deposition at p. 6. During the years of his employment, he received several promotions. In 1984, he agreed to train a younger man to become a distribution center manager. Id., at pp. 14-15. Donald W. Havens, born July 31, 1952, was the individual whom the plaintiff agreed to train. Havens deposition at pp. 4 and 29. By 1986, the plaintiff alleges that he realized that Mr. Havens was being groomed for his position. Cripps deposition at pp. 14-15. On May 20, 1986, the defendant's area manager made the first inquiry about the possibility of the plaintiff's retirement. The plaintiff received a poor evaluation at that time. Id. Conflicts began to develop with Mr. Havens and allegedly the plaintiff's superiors made repeated inquiries about his retirement. Id., at p. 24. The plaintiff testified in his deposition that he was subjected to deteriorating working conditions during the period starting about 1986 until his resignation in 1988. Id., at pp. 24 and 31.

Documentary evidence submitted with the plaintiff's response to the motion for summary judgment does reflect a continuing conflict between Mr. Havens and the plaintiff. E.g., doc. 7A, exs. 2, 3, 4, 5, 7, 8, 10, and 11; see also doc. 9, ex. 2. Critical comments concerning the plaintiff's management style appear in several documents. Id., exs. 6, 9, 10, and 12. At least one document refers to the plaintiff's retirement date and to Mr. Havens' assuming his responsibilities. Id., ex. 12 at p. 9. According to the plaintiff, these documents indicate the kind of harassment he endured during his employment, which eventually forced him to retire and which allegedly increased after the filing of his charges of age discrimination on June 28, 1988 doc. 5A, ex. 2, following the announcement of his retirement on June 8, 1988, and resulting in the subsequent filing of an harassment charge as well on October 18, 1988. Doc. 7A, ex. 13; doc. 5A, ex. 1; Cripps deposition at pp. 29, 47, 49, 150-151, and 156; Havens deposition at pp. 107-108.

During the pendency of administrative proceedings before the Tennessee Human Rights Commission (THRC), Keebler offered to reinstate the plaintiff to his former position at his previous salary and benefits. Doc. 5A, exs. 3 and 4; Cripps deposition at pp. 149-150. Mr. Cripps testified at his deposition that he refused this offer because he believed his working conditions would remain unacceptable. Cripps deposition at pp. 150, 156. Mr. Cripps also stated that he met informally with a representative of Keebler on October 5, 1988, and discussed the reasons he was leaving the company but the offer of reinstatement itself was not discussed, and he did not make any counter offer concerning the conditions on which he would accept reinstatement. Cripps deposition at pp. 161-164. A letter from a THRC official, dated October 11, 1988, states that the agency attempted to resolve the dispute informally "by communicating the requested conciliation terms of the complainant to the respondent, and further transmitting any counter proposals which may have arisen. However, no mutually agreeable terms have been reached at this point." Doc. 5A, ex. 4.

1. Scope of Recoverable Damages

The plaintiff has brought this action under both federal and State age discrimination statutes.¹ The plaintiff has conceded that under federal law, compensatory damages for pain and suffering cannot be recovered. Doc. 5A, at p. 3. See, e.g., Hill v. Spiegel, Inc., 708 F.2d 233, 235-236 (6th Cir.1983). Under 29 U.S.C. § 626(b), however, "liquidated damages shall be payable only in cases of willful violations of this chapter." See also Marchant v. Schenley Industries, Inc., 572 F.Supp. 155, 159-160 (M.D.Tenn.1983). Whether the defendant acted willfully is a question for the jury.

Regardless, the plaintiff contends that under the Tennessee Human Rights statute, T.C.A. §§ 4-21-101, et seq., he is entitled to compensatory damages pursuant to T.C.A. § 4-21-311. The defendant contests the plaintiff's construction of the Tennessee statute, which provides that a successful plaintiff is entitled "to recover the actual damages sustained by him or her ... all of which shall be in addition to any other remedies contained in this chapter." The defendant relies on several federal cases reaching the conclusion that this language should be construed to permit the same scope of remedies as provided by the federal statute. In particular, the defendant cites Shirley v. Brown and Williamson Tobacco Company, 608 F.Supp. 78 (E.D.Tenn.1984), in which the district court concluded that the Tennessee legislature intended that the Human Rights Act provide the same remedies as federal civil rights legislation. Id., at 78-80.

Shirley was decided in 1984, prior to two decisions in Tennessee courts regarding the Human Rights Act and prior to a recent amendment of that Act.² In an unpublished opinion of the Tennessee Court of Appeals, Taff v. Media General Broadcast Services, Inc., 1986 WL 12240 (Shelby Equity no. 32, slip op., Tenn.App., November 3, 1986), which the defendant contends is not controlling because it is unpublished, the western section of that court concluded that the phrase actual damages means compensatory damages. Slip op. at pp. 7-9. More importantly and more recently, the Tennessee Supreme Court observed in Plasti-Line, Inc. v. Tennessee Human Rights Commission, 746 S.W.2d 691 (Tenn. 1988), that "neither the administrative remedies nor those provided in direct court actions are limited to common-law unliquidated damages." Id., at 693.

Clearly, the actual damages language was given its most natural and obvious construction by the Supreme Court in Plasti-Line, Inc., which is required by the rules of statutory construction utilized in Tennessee, e.g., Neff v. Cherokee Insurance Company, 704 S.W.2d 1, 2-3 (Tenn. 1986). Implicit in Plasti-Line, Inc. is the recognition that T.C.A. § 4-21-306, under which administrative remedies include "damages for an injury, including humiliation and embarrassment, caused by the discriminatory practice," T.C.A. § 4-21-306(8), should be construed in pari materia with § 4-21-311, which expressly provides that the remedies "shall be in addition to any other remedies contained in this chapter." In other words, a complainant may obtain the same remedies in a direct action as would have been obtainable through the administrative process. See Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., 673 S.W.2d 157, 160 (Tenn.App.1984). In this regard, a recent amendment to § 4-21-311 (Supp.1989) makes this construction manifestly explicit, significantly clarifying legislative intent concerning the scope of remedies: "In addition to the remedies set forth in this section, all remedies described in section 4-21-306 shall be available in any such lawsuit."

Recently, this Court adhered to this construction of the Tennessee Human Rights Act in Olivia Hannah v. Pitney Bowes, Inc., no. 3-88-902 (E.D.Tenn., April 21, 1989, Jordan, J.). Observing that although the underlying policies of the Human Rights Act are those embodied in comparable federal civil rights laws, "the Tennessee Human Rights Act is not a mirror image of the federal statute." Id., at p. 4. Given the recent amendment to T.C.A. § 4-21-311 and the decision of the Tennessee Supreme Court in Plasti-Line, Inc., as well as that of the Tennessee Court of Appeals in Taff, this Court finds that it is bound by these authorities. That federal cases do not control the disposition of this issue is axiomatic. E.g., Bagwell v. Canal Insurance Company, 663 F.2d 710, 712 (6th Cir.1981).

Consequently, with all due respect for those federal courts that have reached a contrary conclusion, this Court is duty-bound to follow what is now the clearly expressed law of Tennessee that actual damages include compensatory damages as provided by T.C.A. §§ 4-21-306 and 4-21-311.³ Moreover, other federal courts have reached an identical conclusion on the same scope of damages issue. E.g., Ridenour v. Montgomery Ward and Company, 786 F.2d 867, 869 (8th Cir.1986) (construing similar language in the Iowa Civil Rights Act).

2. Exercise of Pendent Jurisdiction

The defendant argues that if the actual damages language is construed to allow recovery of more damages than permitted under federal law, this Court should decline to exercise pendent jurisdiction because the adjudication of the "pendent claim ... would increase the plaintiff's...