Smith v. Bridgestone/Firestone, Inc.

ALLEN SCOTT SMITH, )

Plaintiff/Appellant,
)
) Appeal No. FILED
) 01-A-01-9803-CV-00146
v. ) February 23, 1999
) Rutherford Circuit
Cecil Crowson, Jr.
BRIDGESTONE/FIRESTONE, ) No. 35343
Appellate Court Clerk
INC., )
)
Defendant/Appellee. )
)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, JUDGE

MARY A. PARKER
STEPHEN C. CROFFORD
DOUGLAS B. JANNEY, III
209 10th Avenue South, Suite 511
Nashville, Tennessee 37203
ATTORNEYS FOR PLAINTIFF/APPELLANT

ROBERT E. BOSTON
STEPHEN W. GRACE
Waller, Lansden, Dortch & Davis
511 Union Street, Suite 2100
Nashville City Center
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

WILLIAM B. CAIN, JUDGE
 OPINION
Plaintiff, Allen Scott Smith, filed suit against his former employer
Bridgestone/Firestone, Inc. for retaliatory discharge for the prior filing of a
worker's compensation complaint. Plaintiff sought " . . . actual damages
including back pay, reinstatement, front pay if plaintiff is not reinstated, damages
for embarrassment and humiliation, and punitive damages." 1

On April 24, 1997, following discovery plaintiff filed an amended
complaint with a second count charging failure of the defendant to notify the
State of Tennessee of worker's compensation injury in violation of Tennessee
Code Annotated section 50-6-114(a). Damages sought were essentially the same
as in the original complaint.

Plaintiff was employed by defendant from February 1988 until October
7, 1994 at its Laverne, Tennessee plant. He suffered a work-related injury on
September 12, 1994 but was required to continue work on a restricted work
status.

On October 1, 1994, the security guard at the entrance to the
Bridgestone plant grounds reported that Mr. Smith had left the plant grounds in
a vehicle. Plaintiff's supervisor began a search for Mr. Smith in the plant. Mr.
Smith was located on the plant grounds some four hours after the security guard's
initial report; Smith asserted that he had never left the plant grounds. At a
meeting on October 4, 1994 between management personnel, union repre-
sentatives and Mr. Smith; defendant's labor relations manager Mr. Davenport
decided to discharge plaintiff for leaving plant premises and filing an inaccurate
work time card.

On October 7, 1994, plaintiff filed a grievance under the Union
Management Collective Bargaining Agreement whereunder "union protest unjust
discharge of Scott Smith. Request he be reinstated his record clear and be made

1
Complaint at ¶ 16, T.R. p. 3.

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 whole for all loss of earnings benefits etc."[sic]2 The defendant rejected the
grievance.

On March 25, 1996, following a meeting between the plaintiff, union
representatives and Mr. Davenport and another management employee, Mr.
Smith was reinstated with all seniority restored, vacation pay restored and all
insurance and fringe benefits restored. Back pay was denied and both plaintiff
and the union agreed to this settlement of Smith's contract grievance.

The trial judge granted summary judgment to the defendant on all
issues holding:
As the Court understands the law, when such an issue
is raised, it is first the duty of the Plaintiff to show to the
Court the proof, prima facie, that discrimination has occurred
which is unlawful, or that the violation has occurred. It
appears to the Court for purposes of the Motion for Summary
Judgment, that the Plaintiff has satisfied this burden. When
the burden is so satisfied, the burden then shifts to the
Defendant to advance a non-discriminatory basis for the
actions which occurred, in this case the termination of the
Plaintiff. Again, it appears to the Court that the Defendant
has satisfied this burden. The burden then again shifts to the
Plaintiff to rebut the defense presented by the defendant, and
it appears to the Court that it is in this particular that the
Plaintiff has been unable to come forward with further proof,
prima facie, so that the case should go forward.
***
Having so decided, it may be unnecessary that the Court
further consider the issue as to whether the action by the
Plaintiff is now barred by what perhaps might amount to an
accord and satisfaction. The evidence has been presented,
and perhaps is not in controversy, showing that after the
Plaintiff's termination, the matter was presented to an
arbitration through a procedure developed between the union
of which the Plaintiff is a member and the management of the
Defendant. It has been shown that the results of the
arbitration, whether by agreement or by enforceable order,
were that the Plaintiff was in fact reinstated without back
pay, but with some back benefits. The Plaintiff accepted the
decision, as did the Defendant. Having so accepted the
decision, it appears to the Court additionally that further

2
Grievance Report No. 5568, T.R. p. 59.

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 action by the Plaintiff is now barred.3

The oft repeated standard for considering summary judgment
applicable in both trial and appellate courts provides:
[2, 3] In determining whether or not a genuine issue
of material fact exists for purposes of summary judgment,
courts in this state have indicated that the question should be
considered in the same manner as a motion for directed
verdict made at the close of the plaintiff's proof, i.e., the trial
court must take the strongest legitimate view of the evidence
in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all
countervailing evidence. Downen v. Allstate Ins. Co., 811
S.W.2d 523, 524 (Tenn.1991); Poore, 666 S.W.2d at 49;
Dunn, 833 S.W.2d at 80; Wyatt v. Winnebago Industries,
Inc., 566 S.W.2d 276, 279 (Tenn. App. 1977); Taylor, 573
S.W.2d at 480. Then, if there is a dispute as to any material
fact or any doubt as to the conclusions to be drawn from that
fact, the motion must be denied. Poore, 666 S.W.2d at 49
("[I]f the mind of the court entertains any doubt whether or
not a genuine issue exists as to any material fact it is its duty
to overrule the motion."); Dooley v. Everett, 805 S.W.2d 380,
383 (Tenn.App.1990). The court is not to "weigh" the
evidence when evaluating a motion for summary judgment.

Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993).

Little has changed since the adoption of the Tennessee Rules of Civil
Procedure and Justice Harbison's early observations remain valid to this day:
[7, 8] In concluding this opinion we feel it proper to
comment upon the procedure which was followed in the trial
of this case. Summary judgment proceedings in this state
were authorized for the first time by Rule 56 of the
Tennessee Rules of Civil Procedure. This new procedure
was designed to fill a vacancy or void which had existed in
prior practice and to provide a procedural step which had
heretofore not existed. Under previous practice, in both the
circuit and chancery courts, there had been no satisfactory
intermediate step between the demurrer, which dealt only
with the contents of pleadings, and a full-scale trial of a case
upon the merits. The summary judgment procedure was
designed to provide a quick, inexpensive means of
concluding cases, in whole or in part, upon issues as to which

3
Trial Court Memorandum, Supp. T.R. p. 3; p. 4.

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 there is no dispute regarding the material facts. Where there
does exist a dispute as to facts which are deemed material by
the trial court, however, or where there is uncertainty as to
whether there may be such a dispute, the duty of the trial
court is clear. He is to overrule any motion for summary
judgment in such cases, because summary judgment
proceedings are not in any sense to be viewed as a substitute
for a trial of disputed factual issues.

Evco Corporation v. Ross, 528 S.W.2d 20, 24-25 (Tenn.1975) (emphasis added).

There seems to be little dispute between the parties as to the applicable
law relative to retaliatory discharge claims. Tennessee follows McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden rests first upon
plaintiff to establish a prima facie case of retaliatory discharge. Eddins v.
Geneva Pharmacy, Inc., 877 F.Supp. 413, 423 (E.D.Tenn.1993). After such a
showing the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its decision. Anderson v. Standard Register Co.,
857 S.W.2d 555, 559 (Tenn.App.1993).

At this point the burden shifts back to the plaintiff to prove that the
proffered reasons offered by the defendant are pretextual. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973).

In sustaining defendant's motion for summary judgment the trial court
held that plaintiff Smith had carried his burden of proof to establish a prima facie
case of discrimination. The court then held that the defendant had articulated a
legitimate, nondiscriminatory reason for the employee's rejection as a matter of
law and granted summary judgment to the defendant. The question for our
determination is whether or not the plaintiff has presented evidence sufficient to
go to the jury on the "pretext" question.

Prior to the United States Supreme Court’s decision in St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993),
the avenues for proving "pretext" were varied. Until that time, the high court’s
controlling decisions in McDonnell Douglas, supra, and Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207

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(1981), left lower courts, federal and state, to their own devices in determining
what was necessary to prove pretext.

Three distinct approaches emerged. These have been referred to as:
1. "Pretext Only"
2. "Permissive Pretext Only" and
3. "Pretext Plus"
Kline v. Tennessee Valley Authority, 128 F.3d 337, 343 (6th Cir. 1997).

Of these approaches, the sixth circuit had adopted "pretext plus"
whereby the plaintiff must not only demonstrate that the employer's asserted
reasons are pretextual but must introduce additional evidence of discrimination.
Gagne v. Northwestern National Insurance Co., 881 F.2d 309, 314 (6th
Cir.1989). In assessing the effect of Hicks on the various paths, the court in
Kline found:
The Supreme Court attempted to resolve the confusion
among the differing approaches to pretext in Hicks. Hicks
was an appeal from the Eighth Circuit. The Eighth Circuit
had applied the "pretext only" standard reasoning that once
a plaintiff established that the defendant's reasons were
pretextual, he was entitled to judgment as a matter of law.
Hicks, 509 U.S. at 509, 113 S.Ct. at 2748. The Supreme
Court's decision in Hicks effectively rejected both the
"pretext only" and "pretext plus" approaches to employment
discrimination cases and adopted the "permissive pretext"
approach. See id. at 511 n. 4, 113 S.Ct. at 2749 n. 4.
The Court held that rejection of the proffered reasons
did not require that judgment be entered for the plaintiff. Id.
at 511, 113 S.Ct. at 2749. The Court noted that a mandatory
inference which compels judgment for the plaintiff after
disbelief of the employer's alleged non-discriminatory
reasons disregards the traditional burdens of proof. Id. at
511, 113 S.Ct. at 2749. This is an explicit rejection of the
"pretext only" standard.
The Supreme Court also rejected the "pretext plus"
approach. The Court noted:
The factfinder's disbelief of the reasons put
forward by the defendant (particularly if disbelief
is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case,
suffice to show intentional discrimination. Thus,
rejection of the defendant's proffered reasons will
permit the trier of fact to infer the ultimate fact of

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 intentional discrimination, and the Court of
Appeals was correct when it noted that, upon such
rejection, "[n]o additional proof of discrimination
is required."
Id. (citation and footnote omitted) (emphasis in original).
The Supreme Court determined that upon rejection of the
reasons offered by the defendant an inference of
discrimination is permitted and no additional proof of
discrimination is required. This is a clear rejection of the
"pretext plus" requirement.
Subsequently, our sister circuits have interpreted Hicks
to adopt the "permissive pretext" standard. They have
rejected a requirement of additional or direct evidence of
discrimination.

Kline v. Tennessee Valley Authority, 128 F.3d 337, 343-344 (6th Cir. 1997).

In the case at bar, as with most cases of its kind, much has been made
of the McDonnell Douglas burden-shift construct. This confusing discussion of
shifting burdens clouds the nature of the burden being shifted. In truth, the court
in Kline might have been better served by a deeper lesson from the language of
Hicks. This language makes clear the fact that Plaintiff’s prima facie case shifts
only the burden of production. Says the court:
In the nature of things, the determination that a
defendant has met its burden of production (and has thus
rebutted any legal presumption of intentional discrimination)
can involve no credibility-assessment stage. At the close of
the defendant’s case, the court is asked to decide whether an
issue of fact remains for the trier of fact to determine.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993) (emphasis added).

A turn of the page brings the reader of Hicks to a discussion of what
happens (as in the case at bar) when the defendant meets this burden of
production:
If, on the other hand, the defendant has succeeded in
carrying its burden of production, the McDonnell Douglas
framework-- with its presumptions and burdens-- is no
longer relevant. To resurrect it later, after the trier of fact has
determined that what was "produced" to meet the burden is
not credible, flies in the face of our holding in Burdine that
to rebut the presumption "the defendant need not persuade
the court that it was actually motivated by the proffered

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 reasons." 450 U.S. at 254, 67 L.Ed.2d 207, 101 S.Ct. 1089.
The presumption, having fulfilled its role of forcing the
defendant to come forward with some response, simply drops
out of the picture. Id., at 255, 67 L.Ed.2d 207, 101 S.Ct.
1089. The defendant’s "production" (whatever its persuasive
effect) having been made, the trier of fact proceeds to decide
the ultimate question: whether the plaintiff has proved "that
the defendant intentionally discriminated against [him]"
because of his race id., at 253, 67 L.Ed.2d 207, 101 S.Ct.
1089.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993).

The above discussion continues directly to the quotation used in Kline, supra.
Following an extensive history of pre- and post-Hicks decisions, the Sixth
Circuit in Kline held:
The import of the Hicks decision in this circuit is that once a
plaintiff has disproved the reasons offered by the defendant,
the factfinder is permitted to infer discrimination. A plaintiff
does not need to introduce additional evidence of
discrimination to prevail on the merits. Once a plaintiff
establishes its prima facie case, this, along with disbelief of
the defendant's proffered reasons for the negative
employment action, will permit a finding of discrimination
by the factfinder.

128 F.3d 337, 347 (6th Cir. 1997).

Thus in the case at bar we must analyze the proof under this
"permissive pretext" standard.

The separate body of law in Tennessee as to employment
discrimination and retaliatory discharge began tracking federal procedural law
after the United States Supreme Court established the "shifting burdens" analysis
in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The trail led us through
Johnson v. St. Francis Hospital, Inc., 759 S.W.2d 925 (Tenn.App.1988);
Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993); St. Claire v.
Litho Color Services, Inc., Appeal No. 02A01-9110-CV-00235, 1992 WL
120225 (Tenn.App. June 5, 1992) and Newsom v. Textron Aerostructures, 924

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S.W.2d 87 (Tenn.App.1995). The degree to which this expanding body of
federal law has now subsumed state law is bluntly recognized by this court in
Maurice DeVore v. Deloitte Touche, Appeal No. 01A01-9602-CH 00073, 1998
WL 68985 (Tenn.App.Feb. 28, 1998).

In rejecting the discrimination claims asserted by Mr. DeVore this court
held:
The burden of proving the ultimate issue of
discrimination is at all times on the employee in a
discrimination case. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67
L. Ed.2d 207 (1981); Brenner v. Textron Aerostructures, 874
S.W.2d 579, 583 (Tenn.Ct.App.1993). The employee may
establish a prima facie case of discrimination either by using
the traditional criteria set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.
2d 668 (1973), or by producing direct, circumstantial, or
statistical evidence of discrimination. See Loeffler v.
Kjellgren, 884 S.W.2d 463, 469 (Tenn.Ct.App.1994);
Brenner v. Textron Aerostructures, 874 S.W.2d at 583; Bruce
v. Western Auto Supply Co., 669 S.W.2d 95, 97 (Tenn.Ct.App.
1984).
Once the employee makes out a prima facie case of
discrimination, the burden shifts to the employer to rebut the
presumption of discrimination by articulating a legitimate,
non-discriminatory reason for the employment action. See
Loeffler v. Kjellgren, 884 S.W.2d at 470; Brenner v. Textron
Aerostructures, 874 S.W.2d at 583; Silpacharin v.
Metropolitan Gov't, 797 S.W.2d 625, 629 (Tenn.Ct.App.
1990). When the employer has presented a legitimate, non-
discriminatory reason for the employment action, the burden
shifts back to the employee to prove that the employer's
explanation is pretextual or not worthy of belief. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. at 253, 101
S. Ct. at 1093; Brenner v. Textron Aerostructures, 874
S.W.2d at 583, 587; Silpacharin v. Metropolitan Gov't, 797
S.W.2d at 629.

DeVore v. Deloitte & Touche, Appeal No. 01A01-9602-CH-00073, 1998 WL
8985, * 4 (Tenn.Ct.App. Feb. 28, 1998).

The DeVore court goes on to hold that the retaliatory discharge claim
" . . . founders on essentially the same shoals that undermined Mr. DeVore's
discrimination claims."

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 The elements for both a federal retaliatory discharge
claim and a state retaliatory discharge claim are essentially
the same. In order to make out a prima facie case, an
employee must prove (1) that he or she opposed the
employer's unlawful employment practice, (2) that the
employer subsequently subjected the employee to an adverse
employment action, and (3) that a causal link exists between
the employee's action and the employer's subsequent adverse
employment action. See Yates v. Avco Corp., 819 F.2d 630,
638 (6th Cir. 1987); Newsom v. Textron Aerostructures, 924
S.W.2d 87, 96 (Tenn. Ct.App.1995). An employee may
establish the needed causal connection simply by proving
that his or her protected activity was a substantial factor
leading to the discharge. See Sumner v. United States Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990); Polk v. Yellow
Freight Sys., Inc., 876 F.2d 527, 531 (6th Cir. 1989).
Deloitte & Touche presented competent evidence that
Mr. DeVore was discharged, not in retaliation for his
discrimination charge, but because of his inadequate job
performance. In order to avoid summary dismissal of his
retaliation claim, Mr. DeVore was required to come forward
with some competent evidence that Deloitte & Touche's
explanation was merely pretextual. They [sic] only evidence
that Mr. DeVore offered was the fact that Deloitte & Touche
discharged him two months after he filed his discrimination
charge with the EEC. This bare sequential evidence does not
suffice to make out either a federal or state retaliation claim.
See Booker v. Brown & Williamson Tobacco Co., 879 F.2d
1304, 1314 (6th Cir. 1989); Thomason v. Better-Bilt
Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn.Ct.App.
1992).

DeVore v. Deloitte & Touche, Appeal No. 01A01-9602-CH-00073, 1998 WL
68985, * 11 (Tenn.Ct.App. Feb. 28, 1998).

Contrasting Mr. Devore's proof with Mr. Smith's, it is difficult to
conceive how Mr. DeVore's purely subjective beliefs about discrimination
unsupported by competent evidence could survive summary judgment on both
discrimination and retaliatory discharge claims, even under the "permissive
pretext" rule. His proof simply provides no basis by which a reasonable trier of
fact could find the employer's explanation to be pretextual or not worthy of
belief.

Construing the evidence most strongly in favor of the plaintiff we find

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the record at bar shows:
1. Defendant had a written work policy that work-related injuries
resulting in restrictions were matters for which an employee could be
reprimanded, disciplined, and subject to termination depending upon the number
of work-related injuries (defined in the policy as an "offense").
2. No previous employee of Bridgestone during the tenure of Mr.
Davenport had been discharged as a result of leaving the plant premises.
3. Before making a decision to terminate Mr. Smith on October 4,
1994, Mr. Davenport had before him unsworn statements from numerous co-
workers attesting to the fact that Mr. Smith had never left the Bridgestone
premises on October 1, 1994.
4. Mr. Smith had never been in violation of plant policy before this
event and had not been disciplined for insubordinate conduct or activity.
5. The gatekeeper on October 1, 1994 had not, in fact, actually seen
Mr. Smith leave the Bridgestone premises.
6. Mr. Davenport could not explain how Mr. Smith could have left
the premises through its guarded security gate and then come back to the
premises without being observed at the gate. He speculated that Mr. Smith may
have "jumped the fence" to get back into the plant.

At the summary judgment stage and under the "permissive pretext"
standard, the proof by Mr. Smith was sufficient to "permit" (not "mandate") the
trier of fact to find pretext. Additional evidence under the discarded "pretext
plus" standard is not necessary and the trial court erred in granting summary
judgment to the defendant on the retaliatory discharge claim.

The trial court did not address plaintiff's alleged cause of action
asserted in his amended complaint about the failure of the defendant to report to
the State of Tennessee the work-related injury previously suffered by Mr. Smith.
It is clear, however, that no independent action for damages will lie for this
failure to report. Perry v. Transamerica Insurance Group, 703 S.W.2d 151
(Tenn.App.1985).

Whether or not such violation would be a "device" under Tennessee

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Code Annotated section 50-6-114 and be thus admissible in evidence in a
retaliatory discharge case is not a question presented to the court in this appeal.

Plaintiff last asserts that the trial court erred in granting summary
judgment to the defendant on the question of "accord and satisfaction."

We disagree. On October 7, 1994 plaintiff filed his grievance under the
collective bargaining agreement whereby he and his union protested " . . . unjust
discharge of Scott Smith." Relief requested in the grievance was that he be
reinstated to his job, his record cleared and " . . . he made whole for all loss of
earnings, benefits, etc." This is the same relief he seeks under the complaint of
retaliatory discharge. Defendant rejected his grievance and he remained on
terminated status until March 25, 1996 when he, together with three
representatives of the union, met with Jim Davenport and Missy Cortez for the
defendant. The minutes of this meeting are revealing.

Subject: Allen Scott Smith - Reinstatement

Davenport: Scott, I talked with you briefly
on the phone last week
regarding this. The Union and
the company sat down the past
several weeks to talk about
s e t t l i n g t e r m i n at i o n
grievances. Yours is one of
those grievances. The Union
asked if there was anyway
[sic] to solve it prior to
arbitration. In arbitration, you
win some, you loose some.
We felt like we had a good
case, and we felt just in our
discharge, however an
arbitrator may have felt
different. Last Friday in a
meeting with John Johnson,
we offered reinstatement, with
no back pay but with full
seniority, vacation etc. If the
union accepts, it becomes a
dead issue. It will simply be
recorded as a suspension. It

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 will be just like you never left.
One thing we are trying to
figure is your vacation pay for
1995. If it is going to count as
a suspension, you are due your
vacation. I believe it is based
on 2% of last years [sic]
earnings.

Smith: Why not the last full year?

Davenport: We could look at it.

Smith: Could it be based on the last full year?

Davenport: Maybe it can. I will ask Ollie
to look at it. There are a
couple of things you need to
do. You need to re-enroll in
your insurance so we can get it
in the mainframe and the
paperwork to Akron. Jo Ann
is the new Benefits Clerk.
You need to get a new ID and
sticker on your car.

Smith: Jackie gave me one already.

Davenport: You were in department 115
when you left. I am planning
on putting you back in that
department. I don't know what
Wesley will do. Probably
have to excess someone out of
that department, but we can do
that. There is no C crew
anymore, only B & D crews.
You just need to notify us and
let us know when to expect
you back to work.

Smith: The 1st of April will be fine. I
would like to work B crew.

Davenport: Let me get the schedule and
see if B crew is in (JD leaves
to get schedule). B Crew will
be in on the 3rd of April.

Smith: Then I will come in on the 3rd

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 of April.

Manning: He has restrictions (Manning
hands him restrictions).

Davenport: Is this from the injury you had
when you left?

Smith: Yes.

Davenport: Do you have permanent restrictions?

Smith: Those are permanent.

Davenport: We will have to move you out
of 115 with these restrictions.

Smith: I can still do the reprocessor.

Davenport: You think you can do it.

Smith: Yes. There is no overhead work.

Davenport: I will give this to medical and
have them do permanent
restrictions for the book.

Manning: So these are mostly concerning
overhead work?

Smith: Yes, mostly overhead. Back
there we don't do stuff like
that.

Davenport: What is you clock card number?

Smith: 1025.

Davenport: Anything else you need to ask?

Smith: As far as unemployment. Who
is going to pay them. They
said I had to pay them back
once I got my job back.

Capps: You did not receive back pay.

Davenport: You should not have to pay
them back since you did not
receive back pay, however, if

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 you do have to pay them back
it will be your responsibility,
not the company's.

Gillespie: Jimmy, on his vacation pay, he
is getting paid for 1995, but
what about 1996? Would it
pick up at the new year?

Davenport: Yes. He would schedule right
in line with his seniority.
Right now we need to get to
the issue of resolving last
years vacation pay.

Smith: How soon could I get it?

Davenport: Hopefully by next Thursday,
as long as the payroll
department can get the right
information in time and have it
done.

Be sure to get with Jo Ann and
make sure you get your
paperwork for your benefits
filled out so we can process
them. I will let Wesley know
you will be in on April 3rd, B
Crew. I will get Ollie started
on the vacation pay and have
medical take care of the
restrictions (JD leaves the
room to make copies of
restrictions).

Manning: You will not have to pay back
the unemployment since you
didn't get back pay.

Smith: That is Ok. I am not loosing much.

(JD comes back in).

Meeting adjourned.4

4

Minutes included in T. R. as part of Attachment IX to Jimmy Davenport's
deposition.

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 In Anderson v. Frank, 755 F.Supp. 187, 189 (E.D.Mich.1991) the
court addressed the same issue:
Defendant argues that the executed settlement
agreement bars plaintiff's subsequent action in this Court for
alleged sex and reprisal discrimination. Defendant maintains
that even though the settlement check compensated plaintiff
for only six out of the eight weeks during which she was
unemployed, the settlement agreement, nonetheless, bars any
subsequent Title VII claim for additional wages and/or
compensation. Defendant relies on Strozier v. General
Motors Corp., 635 F.2d 424 (5th Cir. 1981) in support of its
proposition. The Court agrees.
Strozier provides guidance with respect to the outcome
of this matter. In Strozier, the court held that a voluntary
settlement of a grievance claim bars any further proceedings
in the district court on the same claim if the request for relief
in both the grievance procedure and district court proceeding
are identical.
The Court is persuaded by the principles articulated in
Strozier, a case that is factually similar to the instant case. In
the instant case, as in Strozier, the plaintiff voluntarily
accepted the benefits of the settlement agreement by
returning to work and cashing the settlement check, and
requested identical relief in her grievance and in her district
court complaint. Therefore, pursuant to Strozier, plaintiff is
barred from pursuing any further action on her sex and
reprisal claims in this Court.

Anderson v. Frank, 755 F.Supp. 187, 189 (E.D.Mich.1991).

The case at bar bears no resemblance to Gray v. Toshiba, M.D.Tenn.
Case No. 3:94-0712. Gray involved arbitration and a failed arbitration procedure
because of procedural flaws. This case involves a voluntary settlement of a
grievance entered into between the employee and his union on the one hand and
the employer on the other hand, without regard to arbitration either compulsory
or voluntary. Strozier v. General Motors Corp., 635 F.2d 424 (5th Cir. 1981)
explained the differences between arbitration and voluntary settlement.
Settlement of a dispute is inherently different from
resolution through arbitration. A settlement is a compromise
voluntarily agreed to by the parties. Each party generally
accepts something less than that to which he believes he is
entitled based on a decision that the compromise is more
advantageous to him than the sum of the risks and benefits
involved in pursuing the claim. Arbitration, on the other

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 hand, is an "adjudication" of conflicting interests by a neutral
third party. In binding arbitration, neither party is free to
accept or reject the ruling of the arbitrator. Once the dispute
has been submitted to arbitration, the parties must abide by
the arbitral decision. In light of these differences, different
approaches are required in determining whether resolution of
a claim through settlement or through arbitration bars a
subsequent suit under Title VII and section 1981. Strozier's
1973 claims were settled and the 1976 discharge was
arbitrated, so each must be treated separately.

Strozier v. General Motors Corp., 635 F.2d 424, 425 (5th Cir. 1981).

Plaintiff Smith is in the exact position as was Mr. Strozier. He is not
"mitigating his damages" by voluntarily joining in a full settlement of all his
grievances.
[2] Although a Gardner-Denver footnote discusses
voluntary settlements, 415 U.S. at 52 n.15, 94 S.Ct. at 1021
n.15, the settlement issue in this case is suggested by our
decision in United States v. Allegheny-Ludlum Industries,
Inc., 517 F.2d 826 (5th Cir.1975), cert. denied, 425 U.S. 944,
96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). Although Title VII
and section 1981 claims were expressly mentioned in the
consent decree controlling the release in that case, the
opinion did not rest on that formalism. There this Court
stated that nothing in Gardner-Denver supports the assertion
"that an aggrieved employee who freely settles his or her
unliquidated demand with the employer or the union may
reciprocate by suing the same defendant at a later date on the
same cause of action, merely because the employee grows
dissatisfied with the payment for which he or she settled."
Id. at 858. That proposition is equally applicable to this case
and we hold plaintiff's agreement to and acceptance of the
settlement forecloses the present lawsuit with respect to the
1973 disciplinary actions, even though statutory claims were
not expressly covered. The remedy sought and settled was
the precise remedy sought in this lawsuit. Although he pled
for a class action injunction, the only individual relief
plaintiff sought in the complaint was reinstatement and back
pay. The denial of class action certification was not
appealed. He settled both aspects of the requested individual
relief. Under Allegheny-Ludlum, Strozier cannot now request
additional monetary relief merely because he is dissatisfied
with the amount he voluntarily agreed to accept in the
settlement as compensation for his claims.

Strozier v. General Motors Corp., 635 F.2d 424, 426 (5th Cir. 1981).

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 This result is demanded not so much by any dramatic, new body of law
" . . . but rather by the established principle that one who agrees to settle his
claim cannot subsequently seek both the benefit of the settlement and the
opportunity to continue to press the claim he agreed to settle." Kirby v. Dole,
736 F.2d 661, 664 (11th Cir. 1984); see also U.S. v. Allegheny-Ludlum
Industries, 517 F.2d 826, 858-859.

The voluntary settlement of the grievance between the parties has
preclusive effect and the trial court correctly sustained the motion for summary
judgment.

The action of the trial court in granting summary judgment on the
retaliatory discharge claim is reversed.

The action of the trial court in granting summary judgment on the
preclusive effect of the grievance settlement agreement is affirmed.

Costs of this cause are assessed against appellant.

__________________________________
WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________
BEN H. CANTRELL, PRES. JUDGE, M.S.

_____________________________________
PATRICIA J. COTTRELL, JUDGE

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