Trentham v. K-Mart Corp.

• Decision Date: 26 April 1991
• Docket Number: No. CIV-3-89-0641 (Jury).,CIV-3-89-0641 (Jury).
• Citation: 806 F. Supp. 692
• Parties: John B. TRENTHAM, Jr., Plaintiff, v. K-MART CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

806 F. Supp. 692

John B. TRENTHAM, Jr., Plaintiff, v. K-MART CORPORATION, Defendant.

No. CIV-3-89-0641 (Jury).

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

April 26, 1991.

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

John B. Rayson, and Thomas M. Hale, Kramer, Rayson, McVeigh, Leake & Rodgers, Knoxville, Tenn., for defendant.

MEMORANDUM OPINION

JORDAN, District Judge.

This is a civil action brought against the plaintiff's former employer for alleged age discrimination, defamation, and retaliatory discharge. The plaintiff had been employed for several years as the loss prevention manager of a K-Mart Corporation ("K-Mart") store on Clinton Highway in Knoxville, Tennessee when he was discharged from his employment on April 11, 1989, when he was 41 years old. The plaintiff contends that he was discharged because of his age, and that K-Mart "has engaged in a pattern and practice of discriminating against older, long-term employees." See Pretrial Order, doc. 7.

The plaintiff also says that he suffered a collapse due to a cardiac condition on September 2, 1988, while he was at work. He says that he experienced much difficulty in obtaining payment of his hospital and medical expenses under the health insurance coverage obtained through his employment by K-Mart, and that, as a result of this difficulty, he threatened to sue K-Mart under the Tennessee Workers' Compensation Law. He says that K-Mart discharged him from employment because of his threat to pursue his remedies under the Workers Compensation Law, and that K-Mart engages in a pattern and practice of retaliation against employees who have filed workers compensation claims.

The plaintiff also contended when he commenced this lawsuit that, after his discharge from employment, K-Mart, through its agents and employees, defamed the plaintiff by stating that he had been a dishonest employee, that he had been caught taking company merchandise without permission, and that he had been discharged from employment by K-Mart for these reasons. However, when the Court heard oral argument on the defendant's motion for summary judgment doc. 14 on March 8, 1991, counsel for the plaintiff conceded that the plaintiff does not have a cause of action for defamation in this case, as he had conceded in his brief in opposition to the motion doc. 19.

This Court has jurisdiction of the plaintiff's claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., under 28 U.S.C. § 1331. Regardless of the existence of pendent or ancillary jurisdiction, the Court has jurisdiction of the plaintiff's claims under the Tennessee Human Rights Act, Tennessee Code Annotated §§ 4-21-101, et seq., and for retaliatory discharge, under 28 U.S.C. § 1332. Regarding the plaintiff's claim under federal law, as well as his age discrimination claim under the Tennessee Human Rights Act, it is not disputed that the plaintiff was within the protected age group when he was discharged from employment on April 11, 1989. K-Mart does not dispute that the plaintiff complied with the applicable administrative procedure within the statutory time limits for the prosecution of his claim under the Age Discrimination in Employment Act.

The diverse citizenship of the parties is admitted. It is apparent that Tennessee law governs the plaintiff's claim of retaliatory discharge, since he was employed by K-Mart to work in Tennessee at all pertinent times, and all of the allegedly tortious conduct complained of occurred, if at all, in Tennessee. "A federal court in a diversity case applies the law of the state in which it sits, including that state's choice of law provisions." Davis v. Sears, Roebuck and Company, 873 F.2d 888, 892 (6th Cir.1989) (citation omitted). Tennessee law would apply to this action under either a lex loci delicti or a dominant contacts choice-of-law rule. See Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972).

The defendant K-Mart Corporation has moved under Fed.R.Civ.P. 56 for a summary judgment of dismissal of all of the plaintiff's claims in this civil action. Doc. 14. The parties have submitted in support of and in opposition to this motion transcripts of various discovery depositions, and other evidentiary material, including affidavits. The following is a summary of the pertinent deposition testimony.

The plaintiff, Mr. Trentham, testified that before he was discharged from employment, in 1983 or 1984, he was injured in a motor vehicle accident while collecting payment on a bad check for K-Mart. The automobile liability insurance carrier for the other driver involved in this accident settled Mr. Trentham's claim arising out of this accident. He asked Kentha Farmer, the personnel manager at K-Mart's Clinton Highway store, whether he should file a workers compensation claim as a result of this accident, and, he says, she advised him against it, saying that the fact that he had filed such a claim would go in his personnel file, and that K-Mart frowned upon workers compensation claims. Mr. Trentham's group medical insurance and disability insurance obtained through his employment by K-Mart did pay benefits to him as a result of this motor vehicle accident.

Concerning the incident on September 2, 1988, when he suffered an attack of some nature at the K-Mart store where he worked, Mr. Trentham testified that he had come to the store after appearing in court for K-Mart, one of his duties as the store loss prevention manager. He testified that he experienced numbness, chest pain, and blurred vision, and felt faint, and that some other employees applied ice to his face and neck. He felt better after 20 minutes, ignored his fellow employees' advice to be examined by a physician, and drove home. He suffered a similar attack later, and so sought medical attention the next day.

Mr. Trentham's physicians diagnosed his problem as a collapsed artery, and treated it. He testified that he has not experienced a similar attack since this treatment. The physician whom he first consulted was not a "company doctor," but was instead his family physician. K-Mart had nothing to do with the selection of Mr. Trentham's physicians. Following the initial treatment, Mr. Trentham had to be hospitalized again, for the treatment of phlebitis which apparently was related to the earlier medical treatment he had received.

Mr. Trentham, after he got out of the hospital, came to the K-Mart store to meet with Ms. Farmer, the personnel manager, to sign the papers required to obtain insurance benefits as a result of his attack and subsequent treatment. He applied for both disability insurance benefits and medical insurance benefits, and, he testified, he asked whether he should file an application for workers compensation benefits. According to Mr. Trentham, Ms. Farmer "again said that I wouldn't advise you to turn in a Workmen's Comp claim on this. Said your Aetna disability insurance will take care of half your check. Blue Cross medical insurance will pay the medical bills, hospital bills."

On the claim form submitted to the disability insurer, on the line on which is written "IS ILLNESS OR INJURY DUE TO OCCUPATIONAL CAUSES," Ms. Farmer did not check either yes or no. She testified that this was an oversight on her part. On the same form, Mr. Trentham's attending physician stated his diagnosis of a collapsed artery, and in response to the question "IS CONDITION DUE TO INJURY OR SICKNESS ARISING OUT OF PATIENT'S EMPLOYMENT," the physician answered no.

Mr. Trentham experienced difficulties in obtaining payment of his insurance benefits. He received dunning letters from his health care providers, including a letter from the hospital threatening him with a hospital lien. This angered him, so he complained to Sam Taylor, the manager of the K-Mart store at which he worked, and "told Mr. Taylor that if he, Mr. Trentham had to, he would file a lawsuit against K-Mart because Workmen's Comp, Blue Cross, nobody was paying the bills." According to Mr. Trentham, Mr. Taylor stated that he was experiencing similar problems, and suggested that Mr. Trentham consult with Ms. Farmer, the personnel manager.

In January, 1989, Mr. Trentham was still experiencing these difficulties, and he complained to Morris Lee Pence, K-Mart's loss prevention district manager for the district including the store at which Mr. Trentham worked. Ms. Farmer, the personnel manager, had told Mr. Pence that Mr. Trentham had said that he was going to sue because of his difficulties in obtaining insurance benefits. She did not know who it was that Mr. Trentham was threatening to sue. Mr. Trentham testified that Mr. Pence approached him, and asked Mr. Trentham "what's this you're going to sue K-Mart," to which Mr. Trentham responded, "I said I don't think that I should pay the bills. It happened while I was on the job. And he said — And I told him I was going to file a claim on Workmen's Comp, and he said hold off about that, and he said I'll even call Blue Cross and see if we can straighten it out."

Some time after discussing this matter twice with Mr. Taylor and once with Mr. Pence, Mr. Trentham finally did obtain payment of his outstanding medical and hospital bills. Ms. Farmer, the personnel manager, testified that, to her knowledge, no one employed by K-Mart had control over the payment of claims under the Blue Cross/Blue Shield medical insurance policy. Mr. Trentham admitted at his deposition that he has no knowledge that any employee of K-Mart had anything to do with deciding whether and when to pay his medical and hospital bills.

Mr. Trentham testified that after these conversations in which he threatened to sue K-Mart to recover workers compensation benefits, Mr. Taylor's and Mr. Pence's attitudes towards him changed. He testified that, for example, when he asked Mr. Taylor for instructions, Mr. Taylor answered curtly that he, Mr. Trentham, was the loss prevention manager. Once, when a...