Carla Suzanne Jackson v. City of Cleveland ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 4, 2016
CARLA SUZANNE JACKSON V. CITY OF CLEVELAND
Appeal from the Circuit Court for Bradley County
No. V-14-586 Lawrence H. Puckett, Judge
No. E2015-01279-COA-R3-CV-FILED-AUGUST 22, 2016
Plaintiff, who had served as a police officer for the City of Cleveland Police Department
since 1990, was fired on September 12, 2011, eleven months after filing a charge of
discrimination with the Equal Employment Opportunity Commission. Four months after
her termination, Plaintiff filed suit in federal court asserting, inter alia, claims of sexual
discrimination, hostile work environment, and retaliation against the City of Cleveland
under the Tennessee Human Rights Act. She asserted that the discriminatory acts
continued until January 18, 2012, when she was interviewed by the Tennessee Bureau of
Investigation for allegedly filing false timesheets while employed by the Department. All
claims in the federal court action were dismissed without prejudice on August 13, 2013.
On August 12, 2014, Plaintiff commenced this action in the Circuit Court for Bradley
County asserting the same state-law claims. After answering the complaint, the city filed
a motion for summary judgment seeking the dismissal of all claims based on the one-year
statute of limitations. Plaintiff opposed the motion contending the action was timely filed
due to the combined effect of the continuing violation doctrine, see Booker v. The Boeing
Co., 188 S.W.3d 639, 649 (Tenn. 2006), and 28 U.S.C. § 1367(d), which suspends the
running of the state statute of limitations while a federal suit is pending and for 30 days
after dismissal. The trial court dismissed all claims as time-barred upon the finding that
they arose from the discrete act of terminating Plaintiff’s employment in September
2011. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II and KENNY W. ARMSTRONG, JJ., joined.
W. Gerald Tidwell, W. Adam Izell, and Todd A. Davis, Chattanooga, Tennessee, for the
appellant, Carla Suzanne Jackson.
Ronald D. Wells and Keith H. Grant Chattanooga, Tennessee, for the appellee, City of
Cleveland.
OPINION
Carla Suzanne Jackson (“Plaintiff”) began working as a reserve police officer for
the City of Cleveland Police Department (“the Department”) in 1990. She was hired as a
fulltime police officer in 1992. In October 2010, Plaintiff mailed a charge of
discrimination to the Equal Employment Opportunity Commission (“EEOC”) claiming
she was being subjected to sexual discrimination. The Department terminated Plaintiff’s
employment on September 12, 2011.1
On January 24, 2012, Plaintiff filed a complaint in the Federal District Court for
the Eastern District of Tennessee (“federal complaint”) against the City of Cleveland
(“Defendant”) claiming she was subjected to repeated retaliatory and discriminatory
conduct by other members of the Department. The federal complaint alleged claims
under both federal and state law. Subsequently, Plaintiff filed a motion to voluntarily
dismiss her federal claims and asked the federal court to remand her state-law claims to
state court. The court granted Plaintiff’s motion with respect to the federal claims but
determined that it could not remand the case to state court because Plaintiff had not
previously filed the case in state court. The federal court declined to exercise
supplemental jurisdiction over Plaintiff’s state-law claims and dismissed the complaint
without prejudice on August 13, 2013.
On August 12, 2014, Plaintiff filed a complaint in the Circuit Court of Bradley
County, Tennessee (“state complaint”) in which she alleged that the Department
discriminated against her because of her sex and retaliated against her because she filed a
charge with the EEOC.2 With one exception, every incident referenced in Plaintiff’s state
complaint occurred before her employment was terminated on September 12, 2011. The
lone post-termination incident is addressed in two paragraphs of the state complaint:
19. In retaliation for filing a complaint of sexual harassment with the
Equal Employment Opportunity Commission on February 14, 2011, an
offense report was prepared by [a lieutenant in the Department] making
false and misleading allegations against the plaintiff regarding timesheet
and [sic] discrepancies in 2008 and 2009. The plaintiff was never informed
1
The reason for terminating Plaintiff’s employment is disputed, but this fact is not material to the
dispositive issue on appeal, the statute of limitations defense.
2
The state complaint is substantially the same as the federal complaint with two exceptions: (1)
individual defendants who were sued in the federal complaint were not made parties to the state action
and (2) the federal claims were omitted.
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of the report and had no knowledge of the report until July 2011 when the
plaintiff stumbled on the report by accident. Police department policy states
that any employee is to be informed whenever an employee is under an
internal affairs investigation . . . .
....
31. Since [Plaintiff’s] termination, the [Department] has undertaken
to continue an investigation into falsification of timesheets which has no
factual basis or truth regarding the allegations of falsification of timesheets
two and three years earlier and prior to her complaint. The [Department]
undertook a course of action that is retaliatory in nature by requesting that
an investigation be conducted and said investigation is being conducted by
the department through the use of the Tennessee Bureau of investigation
[sic]. [On] January 18, 2012, the plaintiff was interviewed regarding the
allegations of falsification of timesheets. The plaintiff alleges that
department [sic] is motivated to retaliate against the plaintiff in that out of
this motivation the department referred the allegations for further
investigation by the District Attorney’s office. . . .
After answering the state complaint, Defendant filed a “Motion to Dismiss and/or
for Summary Judgment,” arguing that Plaintiff’s claims accrued on September 12, 2011
and were therefore barred by the one-year statutes of limitations in the Tennessee Human
Rights Act (“THRA”) and Governmental Tort Liability Act (“GTLA”).3 See Tenn. Code
Ann. §§ 4-21-311(d), 29-20-305(b). Plaintiff filed responses to the motion, arguing that
the Department’s conduct amounted to a continuing discriminatory act and that her
claims did not accrue until she was interviewed by the TBI on January 18, 2012.
Plaintiff’s responses included a letter that the Chief of Police sent to the District
Attorney General for the 10th Judicial District. The letter states that Plaintiff submitted
several timesheets that were inconsistent with the time she worked and concludes by
stating: “In light of the current circumstances surrounding [Plaintiff’s] complaints with
the City Manager and the EEOC, I [the Chief of Police] am asking that you [the district
3
After Defendant filed its answer and its motion to dismiss, Plaintiff filed a motion to amend her
complaint. See Tenn. R. Civ. P. 15.01. The amended complaint added a cause of action for interference
with business relationships and included additional allegations about the Department’s conduct in
December 2013. Defendant opposed the motion, and the record does not contain any indication that the
trial court granted Plaintiff’s motion to amend her complaint. Additionally, Plaintiff has not presented any
argument that she was or should have been granted permission to amend her complaint. Consequently,
this issue has been waived. See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(“The failure of a party to cite to any authority or to construct an argument regarding his position on
appeal constitutes waiver of that issue.”).
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attorney general] review these timesheets and document evidence for the possibility of a
criminal investigation.”
The trial court treated Defendant’s motion as a motion for summary judgment.
Based upon the entire record, the court found that “because Plaintiff’s complaint arises
from a discreet act of discrimination, her allegedly wrongful and discriminatory discharge
from employment, the continuing tort doctrine does not apply to extend the statute of
limitations.” The court found that Plaintiff’s claims were barred by the statute of
limitations and granted summary judgment to Defendant. Plaintiff appealed.
STANDARD OF REVIEW
This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)). Accordingly, this court must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When defendants move for
summary judgment based on an affirmative defense such as the statute of limitations,
they must establish the elements of the affirmative defense before the burden shifts to the
nonmovant. See Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991) (“Since
. . . a statute of limitations defense is an affirmative defense and no prima facie showing
of the running of the statute of limitations is made by the record, the burden of
establishing that the statute has run is upon the defendant.”); Campbell v. Grand Trunk
Western R. Co., 238 F.3d 772, 775 (6th Cir. 2001) (“Because the statute of limitations is
an affirmative defense, the burden is on the defendant to show that the statute of
limitations has run. If the defendant meets this requirement then the burden shifts to the
plaintiff to establish an exception to the statute of limitations.”).
Once the moving party has made a properly-supported motion, the burden shifts to
the nonmoving party to “set forth specific facts at the summary judgment stage showing
that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks
omitted; emphasis in original). A disputed fact is “material” if it “must be decided in
order to resolve the claim or defense at which the motion is directed.” Byrd v. Hall, 847
S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.
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ANALYSIS
Plaintiff asserts claims for discriminatory termination, hostile work environment,
retaliation, intentional infliction of emotional distress, negligent infliction of emotional
distress, and malicious harassment. Defendant contends that all of these claims are time-
barred under the relevant statutes of limitations.
I. STATUTE OF LIMITATIONS
The statute of limitations for claims made pursuant to either the THRA or the
GTLA is one year. See Tenn. Code Ann. §§ 4-21-311, 29-20-305. The complaint,
however, only mentions the THRA. There is no reference to the GTLA. “The substance
of any ordinance or regulation relied upon for claim or defense shall be stated in a
separate count or paragraph and the ordinance or regulation shall be clearly identified.”
See Tenn. R. Civ. P. 8.05(1). Consequently, we will analyze Plaintiff’s claims under the
THRA.
Although Defendant is a governmental entity, the broad definition of “employer”
in the THRA “evidences a clear legislative intent to place governmental employers in the
same standing as private employers” and to “remove whatever immunity a governmental
entity may have had under the [GTLA].” Sneed v. City of Red Bank, Tenn., 459 S.W.3d
17, 27 (Tenn. 2014) (quoting Easton v. Memphis Light, Gas & Water Div., 866 S.W.2d
952, 955 (Tenn. Ct. App. 1993)) (internal quotation marks omitted; alteration in original).
Under the THRA, plaintiffs must file suit “within one (1) year after the alleged
discriminatory practice ceases . . . .” Tenn. Code Ann. § 4-21-311(d). In some situations,
Tennessee’s general savings statutes provide plaintiffs with additional time to refile a
complaint after the dismissal of previous action. See Tenn. Code Ann. §§ 28-1-105, -115.
However, these general savings statutes are inapplicable to suits against the State or other
governmental entities. See Sneed, 459 S.W.3d at 28-29 (discussing a “long line” of
Tennessee cases holding that “general savings statutes do not apply to suits against the
State or other governmental entities unless the statute waving sovereign immunity
expressly permits their application.”); Lynn v. City of Jackson, 63 S.W.3d 332, 337-38
(Tenn. 2001) (“[T]he general rule in Tennessee is that savings statutes may not be applied
to extend the period within which an action must be filed under the GTLA.”); Whitmore
v. Shelby Cnty. Gov’t, No. W2010-01890-COA-R3-CV, 2011 WL 3558285, at *7 (Tenn.
Ct. App. Aug. 15, 2011) (“Absent an express, clear, and unmistakable intent to the
contrary, the saving statute cannot be used to extend the period within which to file suit
against the County under the THRA.”).
The foregoing notwithstanding, certain provisions of federal law can toll the
running of the statute of limitations for claims brought against the political subdivisions
of a state. 28 U.S.C. § 1367(d); Jinks v. Richland Cnty., S.C., 538 U.S. 456, 465-67
(2003). When federal courts exercise supplemental jurisdiction over a state-law claim, the
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relevant limitations period for that claim “shall be tolled while the claim is pending and
for a period of 30 days after it is dismissed unless State law provides for a longer tolling
period.” 28 U.S.C. § 1367(d).
Courts have identified three possible interpretations of 28 U.S.C. § 1367(d). See
Gottschalk v. Woods, 766 S.E.2d 130, 136-38 (Ga. Ct. App. 2014); City of Los Angeles v.
Cnty. of Kern, 328 P.3d 56, 65 (Cal. 2014); In re Vertrue Inc. Mktg. & Sales Practices
Litig., 719 F.3d 474, 480-81 (6th Cir. 2013). In this case, neither party has made any
argument about which interpretation Tennessee should adopt. Instead, both parties have
assumed that the approach adopted by the Sixth Circuit, which is called the “suspension
approach,” is applicable to this case. See In re Vertrue Inc., 719 F.3d at 481. Under that
approach, the state statute of limitations is suspended while the federal suit is pending
and for 30 days after dismissal. Id. After the 30-day period stated in 28 U.S.C. § 1367(d)
expires, the remaining portion of the state statute of limitations begins to run again. See
id.
Of the three possible interpretations of 28 U.S.C. § 1367(d), the suspension
approach provides Plaintiff with the most time in which to file the state complaint.4
However, Plaintiff concedes that the suspension approach alone will not save the state
complaint if her claims accrued on September 12, 2011. If Plaintiff’s claims accrued on
that date, the statute of limitations ran for about four months until Plaintiff filed the
federal complaint on January 24, 2012, at which time it was tolled pursuant to 28 U.S.C.
§ 1367(d). Plaintiff’s federal complaint was dismissed on August 13, 2013, at which time
approximately eight months remained on the state statute of limitations. Under 28 U.S.C.
§ 1367(d), the statute of limitations began running again 30 days after the federal
complaint was dismissed. Therefore, Plaintiff had approximately nine months from the
dismissal of the federal complaint in which to file the state complaint. However, she did
not file the state complaint until August 12, 2014, almost twelve months after her federal
complaint was dismissed. Therefore, Plaintiff’s claims are time-barred under the
suspension approach if they accrued on September 12, 2011.
Plaintiff attempts to avoid this result by arguing that her claims did not accrue
until January 18, 2012, based on the continuing violation doctrine. The continuing
violation doctrine “relieves a plaintiff from the burden of proving that the entire violation
occurred within the limitations period.” Spicer v. Beaman Bottling Co., 937 S.W.2d 884,
889 (Tenn. 1996), overruled on other grounds by Booker v. The Boeing Co., 188 S.W.3d
639, 649 (Tenn. 2006). Under this doctrine, plaintiffs can bring claims for discriminatory
4
As discussed below, we have concluded that Plaintiff’s claims are time-barred even if the
suspension approach applies. Because the suspension approach provides Plaintiff with the most time in
which to file the state complaint, Plaintiff’s claims are also time-barred under the other two approaches to
28 U.S.C. § 1367(d). Therefore, it is not necessary for us to determine which of the three approaches
applies in Tennessee state courts.
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conduct that occurred outside of the limitations period if that conduct is sufficiently
related to conduct that occurred within the limitations period. Booker, 188 S.W.3d at 643.
The discriminatory conduct is treated as one continuing violation that ends within the
limitations period. See id. Thus, when plaintiffs demonstrate the existence of a continuing
violation, they are “entitled to have a court consider all relevant actions allegedly taken
pursuant to the employer’s discriminatory policy or practice, including those that would
otherwise be time barred.” Trent v. Anderson, No. E2009-02064-COA-R3-CV, 2010 WL
3155193, at *4 (Tenn. Ct. App. Aug. 10, 2010) (quoting Sharpe v. Cureton, 319 F.3d
259, 266-67 (6th Cir. 2003)).
Our courts have recognized only two situations in which the continuing violation
doctrine applies. Booker, 188 S.W.3d at 643. The first situation arises when “there has
been a longstanding and demonstrable policy of discrimination such as an established and
repeated pattern of paying men more than women.” Id. (quoting Spicer, 937 S.W.2d at
889-90). The second situation arises when there is some evidence of present
discriminatory activity giving rise to a claim of a continuing violation. Id. “Key to
establishing this exception is proof that at least one of the forbidden discriminatory acts
occurred within the relevant limitations period.” Spicer, 937 S.W.2d at 889.
The THRA’s statute of limitations states that suits must be filed “within one (1)
year after the alleged discriminatory practice ceases . . . .” Tenn. Code Ann.
§ 4-21-311(d) (emphasis added). The term “‘ceases’ connotes and contemplates an
ongoing course of conduct.” Booker, 188 S.W.3d at 648. Thus, by using the word
“ceases” the General Assembly incorporated the continuing violation doctrine into the
THRA’s statute of limitations. Id. Continuing violations, such as a discriminatory pay
rate, “cease” when the conduct at issue ends. See id. In contrast, discrete discriminatory
acts cease “as of the time [they] occur[], not as of the time the consequences of the act[s]
cease.” Id. at 645. Consequently, the THRA’s statute of limitations “does not operate to
extend the limitations period on discrete acts of discrimination.” Id. at 647.
Historically, Tennessee courts have considered three factors to determine whether
a defendant’s conduct was a series of discrete acts or a continuing violation. See id. at
644 (discussing and quoting Spicer, 937 S.W.2d at 890).
The first is subject matter. Do the alleged acts involve the same type of
discrimination, tending to connect them in a continuing violation? The
second is frequency. Are the alleged acts recurring (e.g., a bi-weekly
paycheck) or more in the nature of an isolated work assignment or
employment decision? The third factor, perhaps of most importance, is
degree of permanence. Does the act have the degree of permanence which
should trigger an employee’s awareness of and duty to assert his or her
rights, or which should indicate to the employee that the continued
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existence of the adverse consequences of the act is to be expected without
being dependent on a continuing intent to discriminate?
Spicer, 937 S.W.2d at 890 (quoting Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971,
981 (5th Cir. 1983)). Although Spicer indicates that the third factor is “perhaps of most
importance,” the Tennessee Supreme Court has overruled Spicer “to the extent that it
imposed a ‘discovery rule’ on continuing violation claims.”5 Booker, 188 S.W.3d at 649.
As our Supreme Court stated, continuing violations cease when they end, “not when the
employee’s awareness of [them] should alert him or her to assert his or her rights.” Id. at
649.
Plaintiff contends that all of her claims should be connected as a single, continuing
violation that did not accrue until January 2012; however, we have determined that each
of Plaintiff’s claims must be analyzed separately. Although some of the alleged conduct
might form the basis for multiple claims (e.g., actions taken in retaliation for filing the
EEOC complaint might also contribute to the creation of a hostile work environment),
each of the claims has different elements and thus the accrual of each claim must be
discussed separately. See Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 382
(Tenn. 2014) (retaliation); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 31-32 (Tenn.
1996) (hostile work environment); Tenn. Code Ann. § 4-21-401(a)(1) (discriminatory
termination).
A. NOTICE OF TERMINATION – A DISCRETE ACT
A claim based on the termination of one’s employment is a claim based on a
discrete act. See Booker, 188 S.W.3d at 645 (“Where the alleged discriminatory practice
is a discrete act, such as the decision to terminate an employee, the continuing violation
doctrine is inapplicable to extend the THRA’s statute of limitations.” (emphasis added)).
Termination of employment occurs “when the plaintiff is given unequivocal notice of the
employer’s termination decision, even if employment does not cease until a designated
date in the future.” Id. (quoting Weber v. Moses, 938 S.W.2d 387, 391-92 (Tenn. 1996)).
Here, it is undisputed that the last possible date on which Plaintiff could have been
given “unequivocal notice” of her employer’s termination decision was September 12,
2011, the date her employment terminated. See id. Consequently, the statute of
limitations for claims based on Plaintiff’s termination began to run on September 12,
2011. As discussed above, Plaintiff’s claims are time-barred if they accrued on that date.
5
Consequently, it appears that the “degree of permanence” is no longer a significant part of
continuing-violation analysis. See Booker, 188 S.W.3d at 648-49.
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B. HOSTILE WORK ENVIRONMENT
Hostile work environment claims are based on conduct that “has the purpose or
effect of unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.” See Bazemore v. Performance
Food Grp., Inc., 478 S.W.3d 628, 635-36 (Tenn. Ct. App. 2015) (emphasis added)
(quoting Campbell v. Fla. Steel Corp., 919 S.W.2d at 31), perm. app. denied (Tenn. Nov.
24, 2015). The discriminatory conduct that creates a hostile work environment
necessarily ceases to create such an environment when a plaintiff’s employment ends.
See id.
Plaintiff’s employment ended on September 12, 2011. Thus, Defendant’s conduct
could not have interfered with Plaintiff’s work performance or created an intimidating
work environment for her after that date. See id. Consequently, Plaintiff’s hostile work
environment accrued on September 12, 2011, and based on that date, this claim is time-
barred.
C. RETALIATION
Under the THRA, it is a discriminatory practice for “a person or for two (2) or
more persons” to:
Retaliate or discriminate in any manner against a person because such
person has opposed a practice declared discriminatory by this chapter or
because such person has made a charge, filed a complaint, testified, assisted
or participated in any manner in any investigation, proceeding or hearing
under this chapter
Tenn. Code Ann. § 4-21-301(a)(1) (emphasis added). The term “person” includes, among
other entities, “individuals, governments, [and] governmental agencies . . . .” See Tenn.
Code Ann. § 4-21-102(14).
The words “in any manner” in the statute indicate that plaintiffs need not prove
that an adverse action affected their employment. See Allen v. McPhee, 240 S.W.3d 803,
820 (Tenn. 2007), abrogated on other grounds by Gossett v. Tractor Supply Co., Inc.,
320 S.W.3d 777, 783-85 (Tenn. 2010). Thus, employers may be held liable for retaliatory
actions that are not employment decisions. See id. In order establish a prima facie case of
retaliation under the THRA, plaintiffs must prove (1) that they engaged in activity
protected by the THRA; (2) that the employer knew about the protected activity; (3) that
the employer subsequently took a materially adverse action against the plaintiff; and (4) a
causal connection between the plaintiff’s protected activity and the resulting adverse
action. See Ferguson, 451 S.W.3d at 382.
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Although Plaintiff has alleged that the Department committed a number of
retaliatory acts, the only act that occurred after September 2011 was the TBI interview in
January 2012. Consequently, in order for Plaintiff’s retaliation claim to survive, the
Department’s pre-termination conduct must be linked with the post-termination
investigation. See Booker, 188 S.W.3d at 643. Regarding the investigation, Defendant
does not dispute that one of the Department’s employees sent a letter requesting that the
district attorney review Plaintiff’s timesheets for the possibility of a criminal
investigation “[i]n light of the current circumstances surrounding [Plaintiff’s] complaints
with the City Manager and the EEOC . . . .” It is also undisputed that the TBI conducted
an investigation that involved interviewing Plaintiff on January 18, 2012.
In some situations, an investigation may constitute a continuing violation. See,
e.g., Levy v. Pappas, 510 F.3d 755, 763 (7th Cir. 2007) (noting in dicta that for purposes
of a claim under 42 U.S.C. § 1983 “[a]n ongoing criminal investigation is less like a
singular event, such as being fired from a job or being beaten by a police officer, than it is
like being denied medical treatment, or suffering from a hostile environment, or being
maliciously prosecuted over an extended period of time.”), abrogated on other grounds
by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010). However, it is important to be
specific about the alleged discriminatory conduct that is at issue. See Booker, 188 S.W.3d
at 645 (“[W]e must first identify the alleged discriminatory practice.”) (quoting Weber,
938 S.W.2d at 390).
In this case, it is undisputed that the Department was not conducting the
investigation that was ongoing as of January 2012. Instead, the TBI conducted that
investigation. Plaintiff herself alleged that Defendant “request[ed] that an investigation be
conducted . . .” and that the investigation was conducted by the TBI. According to
Plaintiff, Defendant’s conduct consisted of making false allegations and referring those
allegations to the district attorney general for investigation. Neither the Department nor
Defendant had any authority to require the district attorney to investigate. Moreover,
neither of them could independently ask the TBI to conduct the investigation. See Tenn.
Code Ann. § 38-6-102(a) (“The director [of the TBI], upon the request of the district
attorney general of any judicial district, may assign the criminal investigators to aid that
district attorney general in the investigation of any crime committed in the district
attorney general’s judicial district, but only when the district attorney general requests
such aid.”) (emphasis added).
Under the facts of this case, the act of requesting the investigation was not a
recurring act like a bi-weekly paycheck. See Booker, 188 S.W.3d at 644. Requesting an
investigation was more akin to an isolated decision―a discrete act―than an ongoing
course of conduct. As a result, the TBI investigation is a consequence of the
Department’s request rather than a continuation of any conduct by the Department or
Defendant. See id. at 645.
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Discrete discriminatory acts cease as of the time they occur, not as of the time the
consequences of the acts cease. See id. Because the Department’s conduct (i.e., the
request for an investigation) is a discrete act, the continuing violation doctrine does not
allow Plaintiff to link the Department’s conduct to the TBI investigation and interview.6
Aside from the TBI interview, the last retaliatory act alleged in the complaint occurred on
September 12, 2011. Consequently, Plaintiff’s retaliation claim accrued, at the latest, on
that date, not January 18, 2012.
II. PLAINTIFF’S OTHER CLAIMS
Plaintiff also asserted claims of intentional infliction of emotional distress and
negligent infliction of emotional distress.7 These claims are based on the same conduct
that forms the basis of Plaintiff’s other claims. Because Plaintiff’s other claims are time-
barred, her claims for negligent and intentional infliction of emotional distress are time-
barred as well.
Additionally, Plaintiff asserted a claim of malicious harassment. The THRA
provides plaintiffs with a cause of action for “malicious harassment.” Tenn. Code Ann.
§ 4-21-701(a). Neither “malicious” nor “harassment” is defined in the THRA. See
Washington v. Robertson Cnty., 29 S.W.3d 466, 471 (Tenn. 2000). After reviewing the
legislative history of this section, our Supreme Court concluded that a claim of malicious
harassment requires a plaintiff to demonstrate (1) that the defendant acted maliciously
from “ill-will, hatred or spite” and (2) that the defendant “unlawfully intimidated another
from the free exercise or enjoyment of a constitutional right by injuring or threatening to
injury or coercing another person or by damaging, destroying or defacing any real or
personal property of another person.” Id. at 473.
In addition to these elements, plaintiffs must also prove that the defendant was
motivated by the plaintiff’s race, color, religion, ancestry, or national origin. See Bowman
v. City of Memphis, 329 S.W.3d 766, 768-69 (Tenn. Ct. App. 2004). Notably, this list
does not include motivation based on the plaintiff’s sex, and this court has previously
declined to expand the definition of “malicious harassment” to include such claims. See
6
Because the continuing violation doctrine does not apply to the request to conduct an
investigation, the discovery rule may apply. See Booker, 188 S.W.3d at 648-49; Redwing v. Catholic
Bishop for Diocese of Memphis, 363 S.W.3d 436, 457-59 (Tenn. 2012) (discussing the discovery rule).
However, Plaintiff has not made any argument about the discovery rule. Consequently, that issue has been
waived. See Newcomb, 222 S.W.3d at 401.
7
One of the headings in Plaintiff’s complaint references a claim for reckless infliction of
emotional distress. Intentional infliction of emotional distress can be proved by a showing of reckless
behavior. Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 n.6 (Tenn. 2012). Consequently, reckless
infliction of emotional distress is not a separate tort from intentional infliction of emotional distress. See
id.
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Levy v. Franks, 159 S.W.3d 66, 81 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. Dec.
6, 2004); Surber v. Cannon, No. M1998-00928-COA-R3-CV, 2001 WL 120735, at *5
(Tenn. Ct. App. Feb. 14, 2001).
Here, Plaintiff alleged that discrimination occurred based on her sex, and she has
not identified any facts indicating that the Department’s employees were motivated by
her race, color, religion, ancestry, or national origin. Thus, this claim could have been
dismissed on this ground in addition to the fact it was time-barred.
III. THE POSSIBILITY OF NEW, DISCOVERABLE EVIDENCE
Plaintiff contends that her claims should not have been dismissed because “there is
the possibility of new, discoverable discriminatory behavior on the part of [Defendant]
related to the TBI investigation.” This argument is not persuasive. Summary judgment is
appropriate when “the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the existence of a genuine issue of material fact for trial.” Rye,
477 S.W.3d at 265 (emphasis in original). When faced with a motion for summary
judgment, nonmovants may request additional time for discovery by “submitting an
affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule
56.06.” McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)
(quoting Byrd, 847 S.W.2d at 215 n.6). The record does not contain such an affidavit.
Moreover, Plaintiff had ample time to investigate her case because her federal
complaint was pending for nearly 18 months before it was dismissed. Indeed, the record
reveals that Plaintiff obtained a copy of the TBI’s file about the timesheet investigation
before her federal complaint was dismissed. One of Plaintiff’s responses to Defendant’s
motion for summary judgment states that: “Since appearing in court Monday, counsel
discovered that prior to the dismissal of the federal lawsuit the TBI investigation file on
the Plaintiff was acquired by counsel.” (Emphasis added).
For the foregoing reasons, we affirm the dismissal of all claims.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Carla Suzanne Jackson.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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