Allen v. McPhee

• Decision Date: 04 December 2007
• Docket Number: No. M2005-00202-SC-R11-CV.,M2005-00202-SC-R11-CV.
• Citation: 240 S.W.3d 803
• Parties: Tammie C. ALLEN v. Sidney McPHEE et al.
• Court: Tennessee Supreme Court

240 S.W.3d 803

Tammie C. ALLEN v. Sidney McPHEE et al.

No. M2005-00202-SC-R11-CV.

Supreme Court of Tennessee, at Nashville.

June 6, 2007 Session.

December 4, 2007.

Steven E. Sager and L. Gilbert Anglin, Murfreesboro, Tennessee, for the appellant, Tammie C. Allen.

Barbara J. Moss and Lauren Paxton Roberts, Nashville, Tennessee, for the appellee, Sidney McPhee, in his individual capacity.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; William J. Marett, Jr., Sr. Counsel, Civil Litigation and State Services Division; for the appellees, State of Tennessee, Tennessee Board of Regents, Middle Tennessee State University, Charles Manning in his official capacity as Chancellor of the Tennessee Board of Regents, and Sidney McPhee in his official capacity as President of Middle Tennessee State University.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.

The employee asserts that both her employer and supervisor are liable for retaliation and discrimination. The trial court granted summary judgment to the employer and supervisor on all issues, and the Court of Appeals affirmed. We granted review of this case to address the standards for imposing liability for sexual harassment discrimination and retaliation under the Tennessee Human Rights Act. With respect to the discrimination claim against the employer, we hold that the availability of the Faragher/Ellerth affirmative defense is not affected by the harassing supervisor's status as a "proxy" or "alter ego" of the employer. We conclude, however, that genuine issues of material fact exist regarding whether the employer has established the Faragher/Ellerth defense. Accordingly, the employer is not entitled to summary judgment on the employee's discrimination claim. With respect to the discrimination claim against the supervisor, we hold that to be individually liable for discrimination a supervisor must encourage the employer to engage in employment-related discrimination or prevent the employer from taking corrective action. The employee has failed to present any evidence that the supervisor encouraged the employer to engage in harassment or attempted to prevent the employer from taking corrective action. Accordingly, the supervisor is entitled to summary judgment on the employee's discrimination claim. With respect to the employee's retaliation claims, we hold that to state a prima facie case for retaliation an employee must demonstrate: 1) that she engaged in activity protected by the THRA; 2) that the exercise of her protected rights was known to the defendant; 3) that the defendant thereafter took a materially adverse action against her; and 4) there was a causal connection between the protected activity and the materially adverse action. If an employee establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the materially adverse action. If the defendant articulates such a reason, the employee, who bears the burden of persuasion throughout the process, must present evidence demonstrating that the articulated reason is pretextual. We conclude that the employee succeeded in making a prima facie showing with respect to the employer but has failed to present any evidence that the employer's stated reason for transferring the employee was pretextual. Accordingly, the employer is entitled to summary judgment on the employee's retaliation claim. Finally, we conclude that the employee has failed to present evidence demonstrating that the supervisor took an action materially adverse to the employee. Accordingly, the supervisor is entitled to summary judgment on the employee's retaliation claim. We therefore affirm the trial court's judgments with respect to the discrimination claim against the supervisor and the retaliation claims against the employer and supervisor. We reverse the trial court's grant of summary judgment on the discrimination claim against the employer and remand this case to the trial court for further proceedings.

The appellant, Tammie C. Allen ("Allen"), filed a complaint alleging unlawful gender-based discrimination in the form of a sexually hostile work environment and retaliation under the Tennessee Human Rights Act ("THRA"). Allen's complaint was filed against the appellees, Dr. Sidney McPhee ("McPhee"), Middle Tennessee State University ("MTSU"), the Tennessee Board of Regents ("TBR"), the Chancellor for the TBR, and the State of Tennessee. We begin our review by summarizing the detailed factual and procedural history.¹

In September 1992, Allen was hired as a secretary at MTSU. By August 1999, she had been promoted to executive secretary in the president's office. She was later promoted to the position of administrative assistant in the president's office. In August 2001, McPhee was selected as the president of MTSU, and Allen began working as his administrative assistant.

On November 5, 2001, McPhee approved a revision of MTSU's policies and procedures regarding sexual and racial harassment. The revised policy was in effect at all times relevant to this proceeding. Among other things, the policy defines sexual harassment, subjects those who engage in harassing behavior to discipline, and outlines the complaint and investigation procedures to be followed if harassment occurs. Specifically, the policy provides that MTSU employees are required to report harassment to the Director of Equal Opportunity and Affirmative Action ("the director"). After harassment is reported, the policy requires an investigator to investigate the allegations of harassment and determine whether the antiharassment policy has been violated. When the investigation is complete, the investigator drafts a report summarizing the basis of the complaint, the findings of the investigator, and recommendations regarding the disposition of the complaint. The report is then presented to the president. The president is responsible for reviewing the report and making the final determination of the appropriate resolution of the complaint. The policy further states that "[t]o the extent possible, the investigation will be conducted in such a manner to protect the confidentiality of both parties."

In early August 2002, McPhee and Allen were playing golf when McPhee touched Allen and tried to kiss her. According to Allen, McPhee requested that she kiss him, but she turned her face away. McPhee then placed his hand under Allen's shirt and touched the side of her body. In addition, McPhee, while behind Allen, pressed his body against Allen while she was trying to hit a golf shot. Allen described McPhee's actions as "shocking" and "unwelcome." McPhee later telephoned her to apologize for his actions.

On August 26, 2002, McPhee and Allen were again playing golf when McPhee touched Allen. According to Allen, McPhee hugged her, rubbed her back and neck, and tried to kiss her. At one point, McPhee rubbed Allen's upper thigh, forcing Allen to use her hand to block any further movement. At another point McPhee placed his pelvic area against Allen while she was attempting a golf shot.

On October 2, 2002, McPhee asked Allen to participate in a golf tournament as part of a team representing MTSU. After the tournament, the two drove back to MTSU in McPhee's car. While driving, McPhee reached over and placed his hand on Allen's upper thigh. McPhee tried to move his hand through the leg openings of Allen's shorts. Allen tried to prevent McPhee from moving his hand, and after ten to fifteen seconds McPhee stopped.

On Saturday, February 15, 2003, McPhee called Allen and requested that she report to work, which she did. According to Allen, McPhee shut the door and asked her to dance with him. Although Allen complied, she felt "uncomfortable." During one of the dances, McPhee rubbed Allen's lower back and pressed his body against hers.

On Sunday, February 16, 2003, McPhee again called Allen and requested that she report to work. Allen tried to call a friend, Dr. Duane Stucky, to seek advice on how to "deal with the situation." She was unable to reach Dr. Stucky. After she arrived at work, McPhee began playing music and asked Allen to dance. At one point, McPhee pulled Allen's body against his. Allen told McPhee that the dancing was making her uncomfortable.

After Allen left the office, she spoke to Dr. Stucky about the incident but did not tell him all of the details of the harassment. Shortly thereafter, she spoke about the incident to Dr. Watson Hannah, the director of the Office of the Executive Vice President and Provost at MTSU. Sometime during the following weeks, Allen familiarized herself with MTSU's antiharassment policy, which was available online. She did not, however, file a formal charge or complaint of harassment at this time. Allen claims her reluctance to file a formal complaint was based on the fact that the policy dictated that McPhee would make the final decision concerning the resolution of the complaint.

In August 2003, McPhee asked Allen to play golf several times. Allen claims that on one occasion McPhee began asking her explicit questions about sexual intercourse and her sexual behavior. McPhee encouraged Allen to ask him questions as well. Allen answered some of the questions "despite being embarrassed and humiliated." She also tried to ignore or avoid answering the questions. Later that month, McPhee and Allen were playing golf when McPhee instructed Allen to say that she wanted to have sex with him. When she refused, McPhee stated, "I will get you to say it before it is all over with." On another golf outing in early September, McPhee placed Allen's hand on his groin area several times and made several sexual references. Each time, Allen moved her hand away from McPhee as quickly as she could.

On September 29, 2003,...