Sasser v. Averitt Exp., Inc.

• Decision Date: 08 May 1992
• Citation: 839 S.W.2d 422
• Parties: Anthony L. SASSER, Plaintiff/Appellee, v. AVERITT EXPRESS, INC., Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 422

839 S.W.2d 422

Anthony L. SASSER, Plaintiff/Appellee, v. AVERITT EXPRESS, INC., Defendant/Appellant.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

May 8, 1992.

Permission to Appeal Denied by

Supreme Court Sept. 14, 1992.

William J. Harbison, O'Hare, Sherrard & Roe and Robert L. Trentham, Lassiter, Tidwell & Trentham, Nashville, for defendant/appellant.

Jon E. Jones, Moore, Jones, Radar & Clift, Cookeville, for plaintiff/appellee.

OPINION

KOCH, Judge.

This appeal involves a long-haul truck driver who was discharged within hours after settling a suit for permanent partial disability benefits. The driver sued his former employer in the Circuit Court for Putnam County alleging that he had been discharged in retaliation for pursuing his workers' compensation claim. The employer asserted that its decision was based solely on the driver's physical inability to do the work. A jury found for the driver and awarded him $500,000 in actual and punitive damages. The employer has appealed. While the record contains material evidence to support the jury's conclusion with regard to liability, we find that the instructions concerning the calculation of damages were in error. Accordingly, we vacate the damage award and remand the case for a trial on the issue of damages only.

I.

Averitt Express, Inc. ("Averitt") is a regulated common carrier operating primarily in the southeastern United States. It employs approximately 2,300 persons at forty locations throughout seven states. In August, 1984, Averitt hired Anthony Sasser to work as a driver at its Cookeville terminal. Mr. Sasser was 41-years-old and had nineteen years of experience as a long-haul truck driver.

Mr. Sasser injured his back in August, 1985 while getting out of the sleeping compartment of his tractor. He continued to work for several days until the pain caused him to consult Dr. Leighton Smith. Dr. Smith eventually referred Mr. Sasser to Dr. Ray W. Hester, a Nashville neurosurgeon, who discovered that Mr. Sasser had a ruptured lumbar disc.

Dr. Hester performed a lumbar laminectomy on Mr. Sasser on August 23, 1985. The operation was successful, and one month later, Dr. Hester permitted Mr. Sasser to return to work with restrictions on his physical activity. These restrictions significantly limited Mr. Sasser's lifting and bending as well as the amount of continuous driving he could do. Averitt informed Mr. Sasser that it would not permit him to return to work at that time because of the extent of the restrictions imposed by Dr. Hester and because Mr. Sasser was taking a prescribed muscle relaxer that could impair his driving.

Mr. Sasser continued to convalesce at home for the next several months. In December, 1985 Dr. Hester found that Mr. Sasser had reached his maximum medical improvement and gave him a permanent disability rating of 15% to the body as a whole. Mr. Sasser met with Johnny Johnson, his immediate supervisor, who encouraged him to settle his permanent disability claim and to obtain his doctor's release from his work restrictions before returning to work.

In mid-December Mr. Sasser and a representative of Fireman's Fund Insurance Company ("Fireman's Fund"), Averitt's workers' compensation carrier, tentatively agreed to settle his permanent disability claim for approximately $10,000. Mr. Sasser also obtained two letters from Dr. Hester stating that Mr. Sasser could return to work without restrictions. Averitt's own physician also examined Mr. Sasser and cleared him to return to work without restrictions. Accordingly, Mr. Sasser returned to work on January 15, 1986.

Unbeknownst to Averitt, Mr. Sasser had consulted an attorney about the proposed settlement of his permanent disability claim before he returned to work. Mr. Sasser decided not to accept Fireman's Fund's settlement offer after the attorney told him that his disability rating was normally worth "three or four times" more than he had been offered. One week after he returned to work, Mr. Sasser sued Fireman's Fund in the Chancery Court for Putnam County seeking unpaid temporary disability benefits, medical expenses, and a lump-sum permanent disability award.

News of the suit prompted an acrimonious confrontation in February, 1986 between Mr. Sasser and Brad Arnold, Averitt's terminal manager. During the conversation, Mr. Arnold called Mr. Sasser a "two-face[d] liar" and a "back stabber." He also said that Mr. Sasser "had made a fool out of him" and that he did not "understand why that you would sue Averitt Express after we've been so good to you ..."

Approximately one month later, Mr. Sasser met with Mr. Arnold, Mr. Johnson, Richard Godsey, Averitt's executive vice president of human resources, and Bill Legge, Averitt's insurance agent. Mr. Godsey observed that Mr. Sasser appeared to have an "attitude problem" after Mr. Sasser requested to be paid for the five weeks Averitt had delayed in putting him back to work. Mr. Godsey finally agreed to pay Mr. Sasser for three of the five weeks, and Mr. Sasser assured Mr. Godsey that he had "no problem" with Averitt, Mr. Arnold, or Mr. Godsey.

Mr. Sasser consulted Dr. Hester again in May, 1986 to prepare for the chancery court hearing on his workers' compensation suit. Since Mr. Sasser was complaining of continued pain and other problems, Dr. Hester placed him under the same work restrictions that he had prescribed in September, 1985. Mr. Sasser did not inform Averitt of what Dr. Hester had done, and Averitt did not learn of the restrictions until July, 1986 when it obtained a copy of Dr. Hester's deposition. Notwithstanding the restrictions, the record contains no evidence that Mr. Sasser had not been performing his duties satisfactorily since his return to work.

Mr. Sasser settled his suit against Fireman's Fund for $30,340, based on 45% permanent partial disability to the body as a whole. The chancery court approved the settlement on July 14, 1986. When Mr. Sasser returned to work, Mr. Godsey informed him that Averitt could no longer use him because of his 45% disability rating. He instructed Mr. Sasser to turn in his uniforms and keys and to clear out all his personal belongings. Mr. Godsey also authorized Mr. Johnson to prepare a payroll status record stating that Mr. Sasser had been "terminated due [to] 45% disability which he was granted to the body as a whole--we can't use!"

Dr. Smith examined Mr. Sasser the next day and certified that he met all of the Department of Transportation's requirements for long-distance truck drivers. When he received Dr. Smith's certificate, Mr. Arnold told Mr. Sasser that Averitt still "couldn't use" him. Several days later, in an effort to forestall a threatened lawsuit, Averitt offered Mr. Sasser a job washing trucks for $14,000 per year. Mr. Sasser turned down the offer since he had been earning $37,200 per year as a driver.

Mr. Sasser filed a retaliatory discharge action against Averitt in August, 1986. He went to work for Roberts Contract Carrier ("Roberts") in October, 1986 as a full time driver. He remained with Roberts until May, 1988 when he went to work as an independent driver for another trucking company. The salaries and benefits for both jobs were less than what he had been earning with Averitt.

As the trial neared, Averitt offered to reinstate Mr. Sasser either to a non-driving position with no health or physical requirements for $25,688 per year or to a driving position for $38,000 per year with minimum physical conditions. When Mr. Sasser declined the offer, Averitt requested a hearing on his claims for reinstatement and for future lost earnings. The trial court entered an order in June, 1990 finding that reinstatement was feasible but that it lacked jurisdiction to order Mr. Sasser to return to work for Averitt.

Following a five-day trial, a jury awarded Mr. Sasser $250,000 in compensatory and $250,000 in punitive damages. The trial court later denied Averitt's post-trial motions but, in response to Mr. Sasser's motion, vacated its earlier finding that Mr. Sasser's reinstatement at Averitt was feasible. Averitt has perfected this appeal.

II.

We turn first to Averitt's challenge to the evidentiary adequacy of Mr. Sasser's case. Averitt continues to insist that Mr. Sasser's retaliatory discharge claim should never have gone to the jury because the company proved conclusively that it discharged Mr. Sasser for valid, non-pretextual reasons. We disagree. The proof, when viewed in its entirety, does not support Averitt's theory of the case alone. The record contains sufficient material evidence to support the jury's conclusion that Mr. Sasser's decision to file suit for his permanent partial disability benefits was a substantial motivating factor in Averitt's decision to discharge him.

A.

Employees have the burden of proof in retaliatory discharge cases. To prevail in a case involving a claim for workers' compensation benefits, an employee must prove: (1) that he or she was employed by the defendant, (2) that he or she sought workers' compensation benefits, (3) that the defendant discharged him or her, and (4) that the request for workers' compensation benefits was a substantial motivating factor in the defendant's discharge decision. Johnson v. Saint Francis Hosp., Inc., 759 S.W.2d 925, 928 (Tenn.Ct.App.1988); Anderson v. Standard Register Co., App. No. 01-A-01-9102-CV-00035, slip op. at 11, 17 T.A.M. 17-5, 1992 WL 63421 (Tenn.Ct.App. Apr. 1, 1992). ¹

The burden of going forward with the evidence does not shift to the employer until the employee has made out a prima facie case. Accordingly, an employer need not prove that its reason for discharging the employee was valid and non-pretextual until the employee has established the required link between the discharge and the claim for workers' compensation benefits. Johnson v. Saint Francis Hosp., Inc., 759 S.W.2d at 928; Sibert v. State, App. No. 89-176-11, slip op. at 9-10, 14 T.A.M. 48- 20, 1989 WL...