Franklin v. Swift Transp. Co., Inc.

• Decision Date: 12 July 2006
• Citation: 210 S.W.3d 521
• Parties: Anthony FRANKLIN v. SWIFT TRANSPORTATION CO., INC.
• Court: Tennessee Court of Appeals

Page 521

210 S.W.3d 521

Anthony FRANKLIN v. SWIFT TRANSPORTATION CO., INC.

Court of Appeals of Tennessee, Western Section, at Jackson.

February 22, 2006 Session.

July 12, 2006.

Permission to Appeal Denied by Supreme Court November 20, 2006.

Jeff Weintraub, J. Gregory Grisham and C. Michael Becker of Memphis, Tennessee for Appellant, Swift Transportation, Inc.

Donald A. Donati and William B. Ryan of Memphis, Tennessee for Appellee, Anthony Franklin.

OPINION

HOLLY M. KIRBY, J., delivered the opinion of the court, in which DAVID R. FARMER, J., joined. W. FRANK CRAWFORD, P.J., W.S., dissented.

This is a retaliatory discharge case. The former employee of a trucking company filed suit against the trucking company for statutory and common law retaliatory discharge, alleging that his employment was terminated due to his refusal to violate a Tennessee Department of Safety regulation that required the truck to carry an original "cab card" showing registration. The employer had directed the employee truck driver to deliver merchandise to a customer, assigning him a particular truck. The original cab card for the truck could not be found, so the employer gave the employee a photocopy of the cab card. The employee refused to drive the truck with only a photocopy, and another truck could not be located. The next day, the employee truck driver was fired. The truck driver sued the employer trucking company for retaliatory discharge, alleging that his employment was discharged for refusing to participate in an illegal activity. The Shelby County Circuit Court entered judgment on a jury verdict in favor of the employee. We reverse, finding that the employee's refusal to perform the assigned work based on the regulation requiring the original cab card, as opposed to a photocopy, did not further important public policy concerns, and therefore would not support a claim of retaliatory discharge.

Plaintiff/Appellee Anthony Franklin was hired by Defendant/Appellant Swift Transportation Co., Inc. ("Swift")¹ in October 2000 as an over-the-road driver. After completing a thirty-day training program, Franklin was assigned as a driver for a dedicated account for the Dollar Tree stores, a chain of convenience-type retail stores. In this position, the driver delivers merchandise regionally to store locations, many in small towns. The assignment required a highly skilled or very experienced driver. For an account such as this, a driver in Memphis would be able to be home with his family three to four nights a week, normally on the weekends. This would give the driver more time at home than a "regular line haul," for which a driver would typically be away from home three weeks at a time. In the normal course of his employment as a dedicated Dollar Tree driver, Franklin would receive a dispatch call, and then go to the Dollar Tree distribution facility in Olive Branch, Mississippi to pick up a trailer loaded with merchandise to be delivered to a Dollar Tree store in the southeast region of the United States. Generally, Franklin drove two shipments a week and grossed between $700 and $1,000 per week.

The Dollar Tree account was a lucrative, important account for Swift. Dollar Tree had very high "on time" requirements for its merchandise deliveries, and Swift would be penalized if its on-time performance fell below ninety-five percent. Failure to maintain an on-time delivery schedule would also affect Swift's ability to keep the account. It was important for a driver on an account such as this to pick up his trailer of merchandise by the appointed time so that he would get the required eight-hour rest break to complete the run.

Swift at that time was a "forced dispatch" company, which meant that, once a driver was assigned to deliver a load, he could not refuse to do so unless there was an emergency. Specifically, dedicated drivers for Dollar Tree were not permitted to refuse to deliver a load.

On December 2, 2001, Franklin received a dispatch call and went to the Dollar Tree facility in Olive Branch, Mississippi. There, Franklin was to pick up a trailer of merchandise and deliver it to a Dollar Tree location in the Dallas, Texas area by the next morning. After picking up the trailer, Franklin went to the Swift terminal in Memphis, Tennessee, to get fuel and have his truck inspected by a maintenance employee. When he arrived, Franklin was told by the maintenance employee that his truck needed to be taken out of service for routine maintenance that was due on the vehicle. Franklin then contacted the weekend dispatcher, Kim Rogers ("Rogers"), to inform her that his truck had been taken out of service. Consequently, Rogers assigned Franklin a loaner truck, truck # 16064.

Franklin located truck # 16064, and performed the mandatory pre-trip inspection of the truck, as required by Swift. The inspection included checking all paperwork in the truck, such as maintenance and registration permits kept in the truck's permit book. The truck checked out satisfactorily, except that truck # 16064's International Registration Plan card ("IRP cab card") was missing. The IRP cab card is a pink-colored motor registration card issued by the State of Tennessee, listing all of the states in which the vehicle is registered to operate.

Franklin contacted Rogers again to tell her that the original IRP cab card was missing from truck # 16064. In response, Rogers told Franklin to "run with [the truck] anyway." Franklin told Rogers that he did not feel comfortable driving the truck without the original IRP cab card. Rogers told Franklin to contact the road maintenance records department to find out whether they had a back-up original of the IRP cab card for truck # 16064. Franklin contacted the road maintenance records department and was told that they only had a black and white photocopy of the IRP cab card for truck # 16064. Franklin called Rogers and told her that the road maintenance records department only had a photocopy of the IRP cab card. Rogers told Franklin to take truck # 16064 with the photocopy of the IRP cab card. When Franklin expressed reluctance, she assured him that driving the truck with a photocopied cab card would not be a moving violation or a D.O.T. violation, that it would not go on his driving record, and that if he were stopped for it and any fine was assessed, or anything else happened as a result of only having a copy, the company would pay for it. Despite this, Franklin refused to drive the truck without the original IRP cab card and asked Rogers to locate another loaner truck. Rogers acquiesced, and assigned Franklin a second loaner truck.

Considerable time had passed by this point. Franklin searched for the second loaner truck, but was unable to locate it on the Swift lot. Finally, Franklin called the dispatch office to tell them that he could not find the second loaner truck. Franklin was then informed by the dispatch staff that the delivery load had been taken off of him, and that he needed to contact the account manager for the Dollar Tree account the next morning. Before leaving the Swift terminal, Franklin discovered that the second loaner truck that he had been trying to locate on the Memphis Swift lot was actually in Brownsville, Tennessee.

The next morning, Monday, December 3, 2001, Franklin went to the Swift offices to meet with the account manager for the Dollar Tree account, Montel Maners. When he arrived at the offices, Franklin learned that he had been terminated from his job. That morning, at 8:05 a.m., Debbie Ashley, Franklin's immediate supervisor, made an entry into Swift's computer system that Franklin had been terminated for refusing a load. After learning of his termination, Franklin went to the Swift Employee Relations department. Franklin was told to write a summary of the events that occurred, which he did. Franklin was then told that Swift employee Jerry Stairs ("Stairs") needed to review the appeal letter, and that Franklin would be contacted after Stairs' review. On December 4, 2001, Franklin contacted Stairs to discuss his appeal. A meeting was set for December 5, 2001. At the December 5, 2001 meeting, Stairs told Franklin that he had contacted Montel Maners, but nothing had been resolved. On December 31, 2001, Franklin received a separation notice from Swift, stating that he had quit his employment to take another job.

On December 2, 2002, Franklin filed a lawsuit against Swift for statutory and common law retaliatory discharge, alleging that his employment was terminated due to his refusal to violate safety provisions of Tennessee Motor Carriers Act. Franklin sought back pay, front pay in lieu of reinstatement, and compensatory and punitive damages. Swift answered and asserted the affirmative defenses that Franklin failed to state a claim upon which relief could be granted, that Franklin's claims were pre-empted by the Surface Transportation Assistance Act of 1982, 42 U.S.C. § 31105, and that Franklin's employment with Swift would have ended regardless of his refusal to drive a truck that was allegedly not in compliance with the Tennessee Motor Carriers Act and its implementing regulations.

On October 15, 2004, Swift filed a motion for summary judgment, arguing that Franklin could not establish a cause of action for retaliatory discharge because Franklin's refusal to drive loaner truck number # 16064 was a lawful reason for Swift to terminate his employment. Swift asserted that Franklin did not have sufficient reason for refusing to take the truck because he personally did not know of any inspectors who would not accept a photocopy of the IRP cab card, as opposed to the original IRP cab card. On January 28, 2005, the trial court, after hearing arguments from counsel, denied Swift's motion for summary judgment. On February 8, 2005, the trial court entered an order denying Swift's motion for summary judgement; absent from the order was any explanation of the trial court's legal conclusions. On...