Phelps v. State

• Decision Date: 10 March 2021
• Docket Number: No. M2020-00570-COA-R3-CV,M2020-00570-COA-R3-CV
• Citation: 634 S.W.3d 721
• Parties: Kelly L. PHELPS v. STATE of Tennessee
• Court: Tennessee Court of Appeals

634 S.W.3d 721

Kelly L. PHELPS

v.STATE of Tennessee

No. M2020-00570-COA-R3-CV

Court of Appeals of Tennessee, Eastern Section, AT NASHVILLE.

November 12, 2020 Session

FILED March 10, 2021

Jason A. Lee and Laura E. Bassett, Nashville, Tennessee, for the appellant, Kelly L. Phelps.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and David M. Rudolph, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

Kristi M. Davis, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

Kristi M. Davis, J.

Plaintiff Kelly Phelps brought this action for sexual harassment, discrimination, and retaliation under the Tennessee Human Rights Act ("THRA") against her employer, the State of Tennessee. Plaintiff worked as a server at the restaurant at Paris Landing State Park ("the park"). She alleged that Josh Walsh, the assistant park manager who was described as "second in command" at the park, sexually assaulted her at an "after-party" on State property that immediately followed a Halloween party hosted by the park at the restaurant and inn. She further alleged that after she reported the incident, Defendant, among other retaliatory actions, allowed Walsh to continue working around her at the park as usual, and to continue harassing and threatening her. Following extensive discovery, Defendant moved for summary judgment. The trial court found that there were genuine issues of material fact as to whether Walsh was Plaintiff's supervisor; whether he "sexually harassed women at Paris Landing State Park prior to the Halloween party" and Defendant was aware of it; and whether "a reasonable fact-finder could conclude that Mr. Walsh's action in grabbing [Plaintiff] by the neck and thrusting his body against her in a sexual manner was ‘extremely serious’ and sufficient to impose liability on the Defendant." However, the trial court granted summary judgment to Defendant because it found that the sexual assault did not occur "in the workplace." Regarding the retaliation claim, the trial court held that Plaintiff did not establish that Defendant took a "materially adverse action" against her after she reported the assault. We hold that there are genuine issues of material fact regarding whether the alleged harassment and discrimination affected a term, condition, or privilege of Plaintiff's employment, and whether Defendant unlawfully retaliated against her. We vacate the judgment of the trial court.

I. BACKGROUND

The Halloween party was planned and thrown by the park's restaurant managers on October 21, 2017. It was open to the public, and park employees were strongly encouraged to attend in costume. The party was adults-only because the restaurant's bar was open and alcohol was served in abundance. Restaurant managers gave out buy-one-get-one-free drink coupons to employees. Most of the party attendees were park employees. The trial court found that "Mr. Walsh allegedly became intoxicated. He then proceeded to grope, molest, and make uncomfortable at least five women at the party." Four State employees–Plaintiff, her fellow servers Christen Patterson and Magan Davis, and room clerk Alison Otelo–subsequently filed reports with Defendant complaining of sexual harassment by Walsh that evening. One of them, Patterson, later filed a lawsuit at the same time as Plaintiff.

Plaintiff and Patterson filed many joint pleadings, conducted discovery together, and made many of the same arguments before the trial court. Although numerous pleadings and memoranda filed below state that the cases were consolidated, there is no order to that effect in the record. Both parties recognize on appeal that Plaintiff's and Patterson's cases were not officially consolidated. The trial court's final order disposes of both cases together. The trial court denied summary judgment in Patterson's action because some of her alleged harassment took place at the party, in or around the park restaurant. The trial court found as follows:

As to the specific allegations of Plaintiff Patterson, Mr. Walsh put his hands on and rubbed her thighs. He also asked to frisk her while placing his hands on her ribcage. At one point he pinned her against the wall making her uncomfortable. He then stopped her as she was coming out of the bathroom and asked her to perform oral sex on him. Later, he told her that he wanted to have sex with her.

This was not the first time Mr. Walsh had acted inappropriately with Patterson. On numerous previous occasions he had touched her on her back and ribcage, as well as several hugs. Mr. Walsh had also behaved inappropriately with other women prior to the Halloween party. Complaints had been made about him by other women prior to the Halloween party.

(Citations to record omitted).

The Halloween party ended after midnight. Keith Littles, a building maintenance worker employed at the park, invited some of the employees to his residence for an after-party. The attendees went directly to his residence, which was located on park property about a block and a half away from the restaurant and inn. According to Plaintiff's complaint, at the after-party, Walsh

approached the Plaintiff and put his arm around her neck and pulled her body into his pelvis. He had a semi-erect penis and he pressed his penis into the Plaintiff's buttocks and rubbed and thrust his penis into her buttocks area. The Plaintiff physically moved Josh Walsh away from her body. She then verbally instructed Josh Walsh to cease this activity immediately and told him to "go home to your wife." He then, a second time, grabbed the Plaintiff around the neck, pulled her in and rubbed his semi-erect penis against her buttocks and thrusted his penis in a sexual manner, into the Plaintiff. The Plaintiff was distraught, outraged and completely distressed over the actions of the assistant park manager[.]

According to the trial court's final order,

After the party, complaints were made regarding Mr. Walsh's behavior. Joan Williams, the head park manager[,] blamed the women and suggested that Mr. Walsh's behavior was acceptable. Ms. Williams did not immediately remove Mr. Walsh from his duties after the complaints were filed. He was allowed to continue being around the women who had filed complaints against him.

Eventually, on January 31, 2018, Mr. Walsh was placed on administrative leave with pay, pending formal disciplinary action more than two weeks later. On February 20, 2018, Mr. Walsh began serving a ten-day suspension without pay for his misconduct. When he came back to work, it was in a demoted position. On April 13, 2018, he resigned his employment with the State.

(Citations to record omitted).

Plaintiff filed a sworn declaration in which she alleged as follows, in pertinent part:

Following my report on November 17, 2017 about Josh Walsh's actions directed at me, he continued to work around me in the restaurant area. There was no apparent separation between Josh Walsh and myself or Christen Patterson. Josh Walsh would stare at me and Christen Patterson from the balcony. From November 17, 2017 through January 31, 2018 Josh Walsh would stare at me, smirk at me and smile at me in an intimidating, harassing, hostile manner.

The State of Tennessee did nothing to separate Josh Walsh from me and I reported his conduct to my managers, Sara Byrd and Alicia Brewer[,] on multiple occasions of Josh Walsh's actions directed at me in retaliation and harassing following my reports of sexual harassment. Josh Walsh drove by my home on multiple occasions to intimidate and stare at me during the "investigation" being performed by the State of Tennessee after I reported the sexual harassment and before he was placed on administrative leave. I reported this to my managers, and nothing was done to stop this activity.

Management at the State of Tennessee retaliated against me for my reports of sexual harassment and reduced my work hours, work shifts and the type of shifts that I was getting so that I was not given as favorable shifts to work which were less profitable and impacted me [from] a monetary perspective.

(Numbering in original omitted).

Plaintiff also alleged that as further retaliation, Defendant unfairly singled her out for written discipline resulting from its determination that her Halloween costume was inappropriate. Defendant moved for summary judgment in both Patterson's case and the current case. Among other things, the parties filed the entire depositions of fourteen witnesses in support of, and opposition to, summary judgment. The trial court stated as follows in its order granting summary judgment:

[T]he Court finds there that there is a genuine dispute of material fact as to whether Mr. Walsh was a supervisor. Even if Mr. Walsh was just a "co-worker," the Court also finds that there is a genuine dispute as [to] whether Defendant knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

There is evidence that Josh Walsh sexually harassed women at Paris Landing State Park prior to the Halloween party, including Magan Davis, Sara Byrd, and Plaintiff Patterson. He would also get physically close to the women who worked in the restaurant in a sexually harassing way, which was known, experienced by, and encouraged by manager Sara [Byrd]. Park manager Bridget Lofgren also experienced sexual harassment in 2017, when Walsh tried to get her to sit on his lap, and sent her 50+ texts of a sexual nature. Ranger Amy O'Brien also experienced sexually explicit comments.

The Court finds that there is a genuine dispute as to whether Defendant knew about all of Walsh's behavior before the Halloween party and had a duty to take prompt and appropriate remedial action, reasonably calculated to terminate the harassment.

(Citations in original omitted).

The trial court denied summary judgment in Patterson's action, finding among other things that "a reasonable...