Spann v Abraham

• Decision Date: 05 November 1999
• Docket Number: 96-00003
• Citation: 36 S.W.3d 452
• Parties: CHRISTINE SPANN, Plaintiff/Appellant, VS. BARRY ABRAHAM, individually, and d/b/a SIR PIZZA, Defendant/Appellee. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed
• Court: Tennessee Court of Appeals

CHRISTINE SPANN, Plaintiff/Appellant VS BARRY ABRAHAM, individually, and d/b/a SIR PIZZA, Defendant/Appellee

Appeal No. M1996-00003-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed November 5, 1999

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

Davidson Chancery No. 94-1849-I

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

This appeal involves a pregnancy discrimination claim asserted by an employee of a Nashville pizza restaurant. After refusing to accept a temporary reassignment requested by her employer, the employee quit her job and filed suit, alleging that her employer had discriminated against her in violation of the Tennessee Human Rights Act. The Chancery Court for Davidson County granted the employer's motion for directed verdict at the close of the employee's proof after concluding that she had not made out a prima facie case for disparate treatment because of her pregnancy. The employee asserts on this appeal that the trial court erred by directing a verdict for the employer and by amending its final order on its own motion. We have concluded that the trial court correctly directed a verdict for the employer in this case and, therefore, affirm the trial court.

For the Plaintiff/Appellant:

Kathleen G. Morris, Nashville, Tennessee

Robert J. Turner, Nashville, Tennessee

For the Defendant/Appellee:

C. Eric Stevens, Jeffrey Zager, Trabue, Sturdivant & DeWitt, Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

I.

In March 1991, Christine Spann, a high school graduate in her late twenties, went to work at a Sir Pizza restaurant in Bellevue owned by Barry Abraham. She started as a daytime delivery driver and a nighttime backup driver. Eventually she became a full-time cook and, in 1992, was promoted to assistant manager of the Bellevue restaurant where she worked directly under the manager, Lisa Abraham, who was Mr. Abraham's daughter.

Ms. Spann's duties as assistant manager included preparation work for the evening shift, dealing with vendors and customers, assigning duties to the daytime delivery drivers, and handling money. Her regular work hours were from 9:00 or 9:30 a.m. to 5:00 p.m., Monday through Friday. After she became assistant manager, Ms. Spann occasionally requested permission to work additional hours as both a cook and delivery driver in order to earn additional income. Mr. Abraham was pleased with Ms. Spann's performance and permitted her to work extra hours when the work was available.

Ms. Spann was single and had no children when she went to work at Sir Pizza. In January or February 1993, she discovered that she was pregnant.¹ When Ms. Spann shared her news with Mr. Abraham and his daughter, she perceived that Ms. Abraham began to act coolly toward her and to treat her more formally. Notwithstanding Ms. Abraham's change in attitude, she still allowed Ms. Spann to swap work schedules and to work at times other than her normal work hours in order to accommodate Ms. Spann's prenatal medical care appointments. On one occasion, Mr. Abraham himself worked an entire day shift in Ms. Spann's absence following a scheduling mix-up between Ms. Spann and Ms. Abraham.

In late May 1993, when Ms. Spann was five months pregnant, Mr. Abraham discussed with Ms. Spann how his small business could best accommodate the later stages of her pregnancy, the birth of her child, and her anticipated maternity leave. Ms. Spann informed Mr. Abraham that she planned to miss as little work as possible and that she intended to return to work shortly after her baby was born. Mr. Abraham suggested a temporary reassignment until she returned from maternity leave. He proposed that Ms. Spann work as the backup night delivery driver - a position she had held before - and that his son temporarily take over her assistant manager position. He assured Ms. Spann that she would be reinstated to her cook/assistant manager position when she returned from maternity leave and that "he would see that [she] would not lose any money during this time." Mr. Abraham also offered to advance Ms. Spann money to pay her automobile insurance while she worked as a delivery driver.

Ms. Spann rejected Mr. Abraham's proposal. When she refused the temporary transfer, Mr. Abraham told Ms. Spann that if she did not accept the temporary reassignment to the backup delivery driver position, he had no other position for her. However, he repeated that she could still have her cook/assistant manager position back after her maternity leave.² Ms. Spann refused to change her mind and quit her job at Sir Pizza on May 26, 1993.

On May 24, 1994, Ms. Spann sued Mr. Abraham in the Circuit Court for Davidson County alleging that he had discriminated against her in violation of the Tennessee Human Rights Act, Tenn. Code Ann. 4-21-101, -1004 (1998). The parties later agreed to transfer the case to the Chancery Court for Davidson County pursuant to Tenn. Code Ann. 16-2-107 (1994) because at that time the chancery court had exclusive subject matter jurisdiction over Ms. Spann's claim.³ A jury was empaneled to hear the case on July 15, 1996. At the close of Ms. Spann's proof on July 16, 1996, the trial court granted Mr. Abraham's motion for a directed verdict because Ms. Spann had failed to establish a prima facie case that Mr. Abraham had discriminated against her because she was pregnant. The trial court entered an order dismissing Ms. Spann's complaint on July 30, 1996 which the trial court corrected on its own motion on September 30, 1996. Ms. Spann now appeals from the amended final judgment.

II.

Three procedural issues must be dealt with before considering the dismissal of Ms. Spann's discrimination claim. First, Ms. Spann asserts that the trial court lacked the power to direct a verdict for Mr. Abraham because it earlier denied his motion for summary judgment. Second, she takes issue with the trial court's decision that it did not have jurisdiction to consider her Tenn. R. Civ. P. 59 motion filed after she perfected this appeal. Third, she insists that the trial court erred by correcting the text of its final order on its own motion after it declined to consider her Tenn. R. Civ. P. 59 motion.

A.

At the close of Ms. Spann's proof on July 16, 1996, Mr. Abraham moved for a directed verdict on the ground that she had failed "to show that she was treated differently than similarly-situated employees" and that "telltale comments" cannot be direct evidence of discrimination. The trial court, after reciting that "one of the grounds" of the "motion to dismiss" was that Ms. Spann had failed to prove that she had been treated differently from similarly situated employees, stated that it was "of the opinion that the motion to dismiss is meritorious." Accordingly, it directed Mr. Abraham's lawyer to prepare an order of dismissal. However, the trial court did not sign an order prepared by Mr. Abraham's lawyer but rather signed an order prepared by Ms. Spann's lawyer. This order, which was entered on July 30, 1996, recited that the "plaintiff [had] failed to prove that there existed other employees similarly situated to her that were treated more favorably than plaintiff, and that reasonable minds could not differ as to this conclusion."

On August 28, 1996, Ms. Spann filed her notice of appeal from the July 30, 1996 order along with the appeal bond required by Tenn. R. App. P. 6. Thereafter, on August 29, 1996, she filed a Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment arguing that disparate treatment of similarly situated employees was not a necessary element of her proof because she had presented direct evidence of Mr. Abraham's discriminatory intent. Mr. Abraham responded to the motion by asserting that the trial court lacked jurisdiction to consider Ms. Spann's motion and that the motion was substantively without merit. On September 30, 1996, the trial court entered an order denying Ms. Spann's Tenn. R. Civ. P. 59.04 motion on jurisdictional grounds. However, on its own motion pursuant to Tenn. R. Civ. P. 60.01, the trial court "corrected" its July 30, 1996 order to state more broadly that "the plaintiff has failed to carry her burden to establish a prima facie case, either by direct or by circumstantial evidence."

B.

Ms. Spann asserts, without citation to authority, that the trial court erred by granting the motion for directed verdict because it had earlier denied the motion for summary judgment. This argument is not well-taken because these two motions required the trial court to review different evidence. In addition, trial courts confronted with a motion for summary judgment must consider the wisdom of terminating a case before trial and may deny a motion for summary judgment if they entertain any doubt concerning the plaintiff's ability to make out a prima facie case. If, at trial, the plaintiff fails to make out a prima facie case, the trial court may then direct a verdict even though it earlier denied the summary judgment motion. See Malone v. Microdyne Corp., 26 F.3d 471, 475 n.4 (4th Cir. 1994); Catts Co. v. Gulf Ins. Co., 723 F.2d 1494, 1502 (10th Cir. 1983).

C.

Ms. Spann next asserts that the trial court erred by determining that it did not have jurisdiction to consider her Tenn. R. Civ. P. 59.04 motion, filed one day after she had filed her notice of appeal and appeal bond. We have determined that Ms. Spann's notice of appeal was not premature and that the filing of her notice of appeal and appeal bond had the legal effect of terminating the trial court's authority to act on her later filed Tenn. R. Civ. P. 59.04 motion without leave of the appellate courts.

The procedural posture of this case differs from prior cases involving premature notices of appeal. Several years after the adoption of the Tennessee Rules of Appellate Procedure, we were called upon to pass upon the effectiveness of a notice of appeal filed before the trial court...