                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       March 7, 2012 Session

                        DONNA BELLOMY v. AUTOZONE, INC.

                   Appeal from the Chancery Court for Hamilton County
                     No. 05-1135    W. Frank Brown, III, Chancellor


                  No. E2011-00803-COA-R3-CV-FILED-APRIL 27, 2012


The plaintiff in this case is Donna Bellomy. The defendant is a prior employer of hers,
AutoZone, Inc. In Bellomy v. AutoZone, Inc., No. E2009-00351-COA-R3-CV, 2009 WL
4059158 (Tenn. Ct. App. E.S., filed Nov. 24, 2009) (“Bellomy I”), we vacated, in part, a
summary judgment dismissing the Plaintiff’s entire complaint. We held that the Plaintiff had
created genuine issues of material fact with respect to her Tennessee Human Rights Act
(“THRA”) claims. On remand, the case progressed through discovery and opening
statements, following which the trial court granted a mistrial, holding that the Plaintiff had
violated certain rulings made by the court on AutoZone’s motions in limine. The court later
granted the defendant partial summary judgment and dismissed the constructive discharge
aspect of the Plaintiff’s THRA claims.1 In the same order, the trial court held the Plaintiff
in civil contempt and ruled that the dismissal of the constructive discharge claim was also
appropriate as a sanction for violating the court’s rulings entered on AutoZone’s motions.
The Plaintiff appeals. We vacate the judgment of dismissal and all other orders of the trial
court inconsistent with this opinion and remand for further proceedings.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                    Vacated; Case Remanded with Instructions

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Grace E. Daniell, Chattanooga, Tennessee, for the appellant, Donna Bellomy.

Stacy Lynn Archer, Chattanooga, Tennessee; Laurie M. Chess, Miami Florida; and Tracy E.
Kern, New Orleans, Louisiana, for the appellee, AutoZone, Inc.


        1
          The case is before the Court pursuant to the provisions of Tenn. R. Civ. P. 54.02. The Plaintiff’s
“failure to promote” claim remains pending in the trial court.
                                          OPINION

                                               I.

        The Plaintiff filed this action shortly after she was denied a promotion to the position
of store manager at the AutoZone store in East Ridge where, according to the allegations in
her complaint, she was the acting manager. A man, who allegedly was less qualified than
the Plaintiff, was promoted to the position. The Plaintiff previously had made it known to
a supervisor that she was interested in any store manager’s position that came available in
the Chattanooga area. One such position was filled in Red Bank in 2004, but the Plaintiff
was not made aware of the opening until after it was filled. She later resigned immediately
after being denied the promotion to manager of the East Ridge store. After her attorney
contacted AutoZone, she was offered a job managing the AutoZone store on East Brainerd
in Chattanooga but she declined the offer.

        It is important to understand the procedural progression of this case through two
orders of dismissal and now a second appeal. As this case came to us in Bellomy I, the trial
court had granted AutoZone summary judgment and dismissed the Plaintiff’s complaint in
its entirety. In Bellomy I, we affirmed the dismissal of “various tort claims” but vacated “the
grant of summary judgment on [the] Plaintiff’s [THRA] claims.” Bellomy I at *1. In our
earlier opinion, we noted that “[w]hen rendering its judgment, the Trial Court analyzed each
claim separately.” Id. at *5. In its first order granting summary judgment, the trial court had
identified two components of the THRA claims: constructive discharge and failure to
promote. The trial court treated the constructive discharge component as being based entirely
upon the failure to receive a promotion in 2005 to manager of AutoZone’s East Ridge store.
Upon concluding, in its words, that “a failure to promote, by itself, [is] not sufficient to
constitute a constructive discharge,” the trial court dismissed the constructive discharge
claim. Bellomy I at *7. As to the failure to promote aspect of the claim, the trial court
accepted AutoZone’s explanation of why the Plaintiff was not promoted, i.e., an alleged
policy against promoting an employee to manage a store at which he or she already worked.
Thus, in granting summary judgment the first time, the trial court held that

              (1) she was not eligible to be selected as store manager at East
              Ridge because she was employed at that store; and (2) Plaintiff
              did not suffer an adverse employment decision because she was
              offered a store manager position at the East Brainerd store.
              Finally, the . . . Plaintiff had failed to create a genuine issue of
              material fact as to whether [AutoZone’s] legitimate,



                                              -2-
               non-discriminatory reason for not promoting Plaintiff at the East
               Ridge store was pretextual.

Bellomy I at *9.

        As previously noted, in Bellamy I we reversed the trial court’s dismissal of the THRA
claims. Our opinion included a lengthy discussion of the facts presented by the Plaintiff in
opposition to AutoZone’s motion for summary judgment, including (1) deposition testimony
that in 1998 or 1999 her store manager had told the Plaintiff that “women should [not] be
working in auto parts” and had spread rumors about the Plaintiff; (2) testimony that she was
placed in the position of “commercial specialist” at one store but was not given the support
to succeed in that position because she was a woman; (3) testimony that, after moving to the
East Ridge store, she continually made her desire to be a manager known and that “several
store manager positions . . . were filled by male employees even though [her supervisor
Scott] Huddleston told her that generally there was no turnover [in store managers];” and (4)
testimony of the particulars of her being denied the promotion at East Ridge, her resignation,
and her being offered a job as manager of the East Brainerd AutoZone store. Bellomy I at
*3. After noting our obligation to view all the evidence in a light most favorable to the
Plaintiff, we stated in Bellamy I as follows:

               [AutoZone’s] primary argument is that [the] Plaintiff was not
               qualified for the East Ridge store manager position because she
               already worked at that store, and she simply quit before she
               officially could be offered the store manager position at East
               Brainerd. What troubles us most about this argument is that, at
               least according to [the] Plaintiff, she made Huddleston aware
               that if she was turned down for the East Ridge store manager
               position, she would resign her employment with [AutoZone].
               Regardless of whether [the] Plaintiff actually told Huddleston
               that she felt she was being denied promotions because of her
               sex, there is no doubt, from the record now before us, that she
               made Huddleston aware that she believed she was qualified for
               a store manager position2 and that if she continued to be
               over-looked for promotions, she would resign and keep her new
               job at the bakery. Despite knowing this, when [the] Plaintiff
               was told she was not being promoted to the East Ridge store
               manager position, Huddleston stood silent regarding the East


       2
       “We emphasize that not only did [the] Plaintiff believe she was qualified to be a store manager,
[AutoZone] also admits that she was so qualified.”

                                                  -3-
Braine[r]d store. Huddleston did not tell [the] Plaintiff either
that she was being considered for other store manager positions
or that she already had been selected for promotion to the East
Brainerd store manager position.

Huddleston learned on April 8th or 9th that [the] Plaintiff had
accepted a full-time job at McKee Bakery. As stated previously,
[the] Plaintiff testified that she told Huddleston that she would
resign at the bakery if she received a store manager position
with [AutoZone]. Huddleston testified at deposition that when
he told [the] Plaintiff on April 14th she was not being promoted
to the East Ridge store manager position, he also told her that
other opportunities were coming available and that she was
being considered for those positions. This is inconsistent both
with [the] Plaintiff’s testimony and with [AutoZone’s] previous
statement that the reason [the] Plaintiff was not informed of her
promotion to the East Brainerd store was because she had
accepted employment elsewhere. If [AutoZone] considered
[the] Plaintiff no longer eligible for promotion because she had
accepted employment at McKee Bakery, it makes no sense for
Huddleston to tell [the] Plaintiff on the 14th that other
opportunities were coming available and she was being
considered for those opportunities.

At a minimum, there is a fact issue as to why Huddleston, a
district manager, stood silent if he already knew [the] Plaintiff
had been selected for the East Brainerd store manager position
given that: (1) [AutoZone] claims it wanted to wait until the East
Brainerd manager was terminated before telling [the] Plaintiff
she got that promotion; and (2) the former East Brainerd
manager already had been terminated when [the] Plaintiff was
told she did not get the East Ridge position. Drawing all
reasonable inferences in [the] Plaintiff’s favor, this supports an
inference that Huddleston deliberately failed to provide existing
information to [the] Plaintiff knowing she would quit. On the
other hand, if the decision to promote [the] Plaintiff had not yet
been made at the time of her resignation, this scenario supports
an inference that the promotion to East Brainerd store manager
was pretextual and after the fact.



                               -4-
[The] Plaintiff’s constructive discharge claim is not premised
solely on her failure to get the East Ridge store manager
position. Rather, her claim is premised on being qualified,
which is undisputed, and not being selected for store manager
positions when less qualified males were selected. [The]
Plaintiff claims this occurred in 2004 and 2005. Her claim also
is premised upon comments pertaining to treatment of female
employees in general. According to [the] Plaintiff, all of these
events, when combined with her not being promoted to store
manager at East Ridge, create intolerable working conditions.
We find that [the] Plaintiff has created a genuine issue of
material fact as to whether she was constructively discharged.

[AutoZone] argues that the decision not to promote [the]
Plaintiff to East Ridge store manager and the decision to
promote her to East Brainerd store manager was made by Scott
Poole, [AutoZone’s] regional manager, and not Scott
Huddleston, [AutoZone’s] district manager. [AutoZone] further
argues that [the] Plaintiff has no proof of any discriminatory
animus by Poole towards her. There are, however, questions of
material fact related to these actual decisions including whether
the decisions were made by Huddleston or by Poole. [The]
Plaintiff testified that Huddleston told her that he, Huddleston,
was considering several people for the position of store manager
at the East Ridge store and that he would make his decision by
the end of the week. [The] Plaintiff also testified that
Huddleston told her at the end of that week that he had made his
decision to promote a man, Shane Norton, as store manager at
East Ridge. There also is a genuine issue as to when
[AutoZone] made the decision actually to promote [the] Plaintiff
to East Brainerd store manager. Additionally, if this decision
was made before [the] Plaintiff left her employment with
[AutoZone], there is a genuine issue as to why Huddleston,
[AutoZone’s] district manager, never told [the] Plaintiff the
decision had been made to promote her to store manager at the
East Brainerd store despite knowing full well that this would
result in her immediate resignation.

Finally, we conclude that there likewise is a fact issue as to
whether [the] Plaintiff’s refusal to accept the East Brainerd store

                                -5-
             manager position which was offered to her only after she had
             resigned and after her attorney sent a letter to [AutoZone] was
             reasonable. In other words, we cannot say that [the] Plaintiff’s
             refusal to return to [AutoZone’s] employment was unreasonable
             as a matter of law.

Bellomy I at *12-13 (footnote in original; emphasis added).

      We now move ahead to the actions of the trial court on remand. That court’s
memorandum opinion and order entered on February 2, 2011 (“the Second Dismissal
Order”), provides a good summary of what happened between the time of our opinion in
Bellomy I and the dismissal of the constructive discharge claim on remand. The Second
Dismissal Order states:

             Upon remand, the parties continued their discovery. They also
             prepared for trial. Both parties filed motions in limine and the
             court held several meetings with counsel concerning the scope
             of evidence at trial. The trial of the case began on October 5,
             2010. A jury was chosen. Counsel for AutoZone made several
             objections to Ms. Bellomy’s attorney’s opening statement to the
             jury. After AutoZone’s opening statement, there was a break for
             lunch. After lunch, AutoZone moved the court to declare a
             mistrial on the basis that Ms. Bellomy’s opening statement went
             far beyond the court’s evidentiary rulings and would have
             “poisoned the well” by creating adverse impressions of
             AutoZone that were not relevant to the two remaining issues for
             trial. After hearing from Ms. Bellomy, the court agreed with
             AutoZone and declared a mistrial.

             On October 25, 2010, AutoZone filed its Motion for Civil
             Contempt. AutoZone alleged that Ms. Bellomy violated the
             court’s rulings by remarks made to the jury in opening
             statements. AutoZone asked that the court dismiss Ms.
             Bellomy’s complaint as [a] sanction for the contempt. In the
             alternative, AutoZone seeks recovery of $37,503.03 in
             attorney’s fees and expenses it asserts were incurred as a result
             of the mistrial.

             Ms. Bellomy filed a Response to the Motion for Civil Contempt
             on December 2, 2010. Basically, counsel for Ms. Bellomy

                                            -6-
indicated that while she understood the proof had been limited
by the court, she understood that such limitations applied only
to the failure to promote claim and not to the constructive
discharge claim. Further, she pointed out that the Court of
Appeals, in its opinion, had referred too [sic] many of Ms.
Bellomy’s factual allegations, beginning shortly after her
employment in 1997 and had stated that Ms. Bellomy’s
constructive discharge “[c]laim also is premised upon comments
pertaining to treatment of female employees in general.
According to Plaintiff, all of these events, when combined with
her not being promoted to store manager at East Ridge, create
intolerable working conditions.” Bellomy v. AutoZone, No.
E2009-00351-COA-R3-CV, 2009 WL 4059158, at *18 (Tenn.
Ct. App. Nov. 24, 2009). Finally, Ms. Bellomy asserts that there
was no willful or intentional act to violate the court’s orders.

In addition, AutoZone filed its Renewed Motion for Partial
Summary Judgment on November 30, 2010. AutoZone sought
the dismissal of Ms. Bellomy’s claim for constructive discharge.
The Motion was accompanied by a Concise Statement of
Material Facts and 12 exhibits in support of AutoZone’s motion.
Much of the position of AutoZone’s Motion is based upon Ms.
Bellomy’s applying for employment at McKee Foods
Corporation (“McKee”) before the Red Bank store manager’s
job was filled in November of 2004 and her acceptance of
McKee’s offer of employment before being told on April 14,
2005, she was not being promoted to store manager at
AutoZone’s East Ridge store, where Ms. Bellomy had served as
Parts Sales Manager.

Ms. Bellomy responded on December 28, 2010, arguing first
that this court did not restrict Ms. Bellomy’s constructive
discharge claim to evidence related solely to the promotion
decisions in 2004 at Red Bank and 2005 at East Ridge. Further,
Ms. Bellomy’s Response noted that such a limitation, if there
was one, would be contrary to the Court of Appeals’ decision.
Ms. Bellomy also filed a Supplemental Response on January 6,
2011, in which she argued that there were other discriminatory
acts that occurred within the six months prior to Ms. Bellomy’s



                              -7-
              resignation that could support a claim for intolerable working
              conditions. . . . Both matters are now ready for resolution.

        Because the Second Dismissal Order was based in part on the trial court’s evidentiary
rulings on remand, it is important before considering that order, to understand the parameters
of the court’s evidentiary rulings. They are contained in a memorandum opinion and order
entered September 8, 2010 (“the September 2010 Order”). That order states in pertinent part:

              AutoZone wants to preclude Ms. Bellomy from introducing
              testimony or evidence (1) concerning any claims that were
              already dismissed on summary judgment, (2) of other alleged
              promotion decisions or employment decisions unrelated to the
              East Ridge store in April of 2005, (3) of what non-decision
              makers allegedly said, and (4) AutoZone wants to prevent Ms.
              Bellomy from alleging hostile work environment because it was
              not alleged in her original Complaint.

              First, Ms. Bellomy may not introduce testimony or evidence
              concerning . . . negligent retention, negligent infliction of
              emotional distress, and intentional infliction of emotional
              distress/outrageous conduct. Such evidence is not relevant to
              Ms. Bellomy’s existing claims of failure to promote and
              constructive discharge and would constitute a collateral attack
              on the summary judgment ruling. Second, other alleged
              promotion and/or employment decisions unrelated to the East
              Ridge store in April of 2005 may be relevant to show
              constructive discharge and are therefore admissible. As held by
              the Court of Appeals, “Plaintiff’s constructive discharge claim
              is . . . premised [partly] on being qualified . . . and not being
              selected for store manager positions when less qualified males
              were selected. Plaintiff claims this occurered in 2004 and
              2005. . . .” Thus, the promotion decision of 2004 [at the Red
              Bank store] may be relevant to Ms. Bellomy’s constructive
              discharge claim and will not be precluded.

              Third, AutoZone wants to prevent Ms. Bellomy from
              introducing alleged statements by non-decision makers. As
              AutoZone correctly points out, alleged comments by persons not
              involved with the decision to promote are irrelevant. . . .



                                             -8-
In this case . . . there is a genuine question as to the identity of
the decision maker. While AutoZone alleges that the decision
maker was Scott Poole (“Mr. Poole”), Ms. Bellomy contends
that the decision maker was in fact Scott Huddleston (“Mr.
Huddleston”). Such a determination is more appropriately left
for the jury; therefore, statements by Mr. Huddleston are
relevant and may be admissible, in addition to statements by Mr.
Poole.

Finally, AutoZone wants to prevent Ms. Bellomy from alleging
hostile work environment. Ms. Bellomy has not asserted a
hostile work environment claim in her Complaint and such a
claim has not been the subject of this litigation. . . .

. . . The Court of Appeals never discussed a “stand alone” claim
for hostile work environment.

This court acknowledges that the Court of Appeals mentioned
on page 18 of its opinion that Ms. Bellomy’s constructive
discharge claim was also

       [p]remised upon comments pertaining to
       treatment of female employees in general.
       According to Plaintiff, all of these events, when
       combined with her not being promoted to store
       manager at East Ridge, create intolerable working
       conditions. We find that Plaintiff has created a
       genuine issue of material fact as to whether she
       was constructively discharged.

Even so, such other comments must meet the requirements of
the Rules of Evidence before such can be used as evidence at
trial. At this stage in the process, forcing AutoZone to defend
itself against a hostile work environment claim would be
unfairly prejudicial and would result in a series of mini trials
encompassing Ms. Bellomy’s entire work history.

For these reasons, the court finds that Ms. Bellomy may not
introduce testimony or evidence concerning claims that were
already dismissed on summary judgment, Ms. Bellomy may not

                                -9-
              introduce testimony or evidence from individuals who were not
              the alleged decision makers in this case, and Ms. Bellomy may
              not introduce testimony or evidence regarding the claim of
              hostile work environment. Nonetheless, Ms. Bellomy may
              introduce testimony and evidence concerning AutoZone’s
              failure to promote her in April of 2004 as it relates to her
              constructive discharge claim as well as statements made by Mr.
              Huddleston since there is a genuine question as to his role in the
              decision making process at issue in this case.

(Citations to the record and legal citations omitted.)

       AutoZone also moved the trial court to exclude any evidence concerning promotions
“except open store manager positions in April of 2005 in the Chattanooga, Tennessee
District.” This was based on the alleged policy of “not promoting an employee to store
manager if that person was currently employed at the same store.” AutoZone argued that
evidence should be limited to “showing what stores the employees selected to fill the open
manager positions had worked in immediately before they were promoted.” The court held
that “Ms. Bellomy should be allowed access to personnel files pertaining to any decisions
made by Mr. Poole regarding store managers up to the time it was decided not to employ Ms.
Bellomy as the East Ridge store manager.”

       AutoZone also asked the court to preclude “Ms. Bellomy . . . from eliciting any
testimony or producing any evidence regarding any alleged harassment or discrimination
towards other individuals and by individuals other than Scott Poole, the decision maker in
this case . . . .” The court agreed with AutoZone that the testimony of Connie Hatten,
apparently an alleged victim of racial discrimination, “should be excluded.” As to witnesses
named Tamara Clayton and Walter Arrowood, Autozone asked that their testimony be
excluded “since neither allege[s] to have experienced or observed any discrimination
pertaining to Ms. Bellomy or emanating from . . Mr. Poole.” The court held that because of
the dispute as to whether Mr. Poole or Mr. Huddleston was the decision maker in this case
“Ms. Clayton and Mr. Arrowood’s testimony will be allowed but limited to Mr. Poole and
Mr. Huddleston.” The court further limited Mr. Arrowood’s testimony depending on the
particulars of statements he, Arrowood, allegedly overheard.

       Against this background, the trial court made the following comments in the Second
Dismissal Order regarding AutoZone’s renewed motion for summary judgment of the
constructive discharge claim:




                                             -10-
Here, AutoZone argues that Ms. Bellomy’s reasons for leaving
her employment with AutoZone had nothing to do with
AutoZone or any intolerable working conditions created by
AutoZone with the intent of forcing Ms. Bellomy to quit. In
support, AutoZone notes the timeline of events, documented by
various exhibits it offered in support of its renewed motion, as
follows. First, Ms. Bellomy applied for a position with McKee
on September 9, 2004. On September 13, 2004, Ms. Bellomy
had a telephone interview with McKee. On October 12, 2004,
Ms. Bellomy had an in-person interview with McKee. At this
time, Ms. Bellomy wrote on an application form to McKee that
she wanted to step down from a management position because
she wanted “less stress” and to “g[o] back to school.” These
events occurred two months before [the] Plaintiff learned, in late
November of 2004, that a Red Bank store manager position had
become available and had been filled.

On March 24, 2005, Ms. Bellomy was offered a position with
McKee. She accepted the position with McKee the same day
she received the offer and agreed to begin her full-time
employment with McKee on April 11, 2005 by attending a
three-day orientation for which she was paid. On April 8, 2005,
Ms. Bellomy asked Mr. Huddleston for time off from AutoZone
in order to attend the orientation at McKee. It was at this time
that AutoZone learned Ms. Bellomy was pursuing a full-time job
with McKee. After completing her orientation at McKee on
April 14, 2005, [the] Plaintiff asked Mr. Huddleston whether
any decision had been made with respect to the East Ridge store.
It was at this time that Mr. Huddleston advised [the] Plaintiff
that Mr. Norton had been selected as store manager. Ms.
Bellomy turned in her letter of resignation within hours of this
discussion.

This court finds the above timeline of events extremely
persuasive in disaffirming Ms. Bellomy’s claim that AutoZone
created intolerable working conditions with the intention of
forcing Ms. Bellomy to quit. Ms. Bellomy sought employment
with McKee an entire two months before she learned that the
Red Bank store manager’s position was open and subsequently
filled and over seven months before she learned that she did not

                              -11-
receive the East Ridge store manager position. In addition, her
proffered reason for seeking employment with McKee was that
she wanted less stress and she wanted to go back to school. This
court finds it difficult to believe that Ms. Bellomy was forced to
resign due to any intolerable working conditions created by
AutoZone with the intent of forcing Ms. Bellomy to quit when
it was Ms. Bellomy who sought other employment before the
earliest of the promotion decisions at issue in this case,
specifically the Red Bank store manager position in November
of 2004. Moreover, it would seem logical to believe that there
would be “more stress” in being a store manager than being a
parts sales manager.

Further, AutoZone asserts that Ms. Bellomy cannot base her
constructive discharge claim on a failure to receive a promotion.
The court agrees. . . .

                            *    *     *

Ms. Bellomy, on the other hand, contends that AutoZone’s
Renewed Motion for Partial Summary Judgment should be
denied as a result of the Court of Appeals decision in 2009.
Specifically, Ms. Bellomy notes page 18 . . . which states:

       Plaintiff’s constructive discharge claim is not
       premised solely on her failure to get the East
       Ridge store manager position. Rather, her claim
       is premised on being qualified, which is
       undisputed, and not being selected for store
       manager position when less qualified males were
       selected. Plaintiff claims this occured in 2004 and
       2005. Her claim also is premised upon comments
       pertaining to treatment of female employees in
       general. According to Plaintiff, all of these
       events, when combined with her not being
       promoted to store manager at East Ridge, created
       intolerable working conditions. We find that
       Plaintiff has created a genuine issue of material
       fact as to whether she was constructively
       discharged.

                                -12-
Ultimately, Ms. Bellomy contends that her constructive
discharge claim encompasses more than her failure to promote
claim and further, that the facts surrounding her constructive
discharge claim have not changed since the Court of Appeals
rendered its decision. While Ms. Bellomy is correct that the
facts known to the Court of Appeals have not changed since it
rendered its Opinion, this court must point out that discovery
continued after the remand and the Court of Appeals did not
discuss the timeline of events relative to the promotion decisions
made by AutoZone and Ms. Bellomy’s voluntary pursuit of
alternative employment. Accordingly, this court is unable to
deny the persuasiveness of the timeline of events and the
apparent contradictions in Ms. Bellomy’s positions, even in light
of the Court of Appeals’ opinion. Further, this court specifically
addressed the above portion of the Court of Appeals’ decision
in its September 8, 2010 Memorandum Opinion and Order and
held that any alleged treatment of other females must still satisfy
the Rules of Evidence in order to be admissible during trial, and
further, that forcing AutoZone to defend against such evidence
would be unfairly prejudicial and would result in a series of mini
trials encompassing Ms. Bellomy’s entire work history.

                           *   *      *

After her resignation, Ms. Bellomy contacted an attorney, who
then wrote to AutoZone. Based upon such, AutoZone offered
Ms. Bellomy the store manager position at the East Brainerd
store. Ms. Bellomy rejected the offer and maintained her
employment with McKee. This action by AutoZone could be
viewed as an attempt to work with Ms. Bellomy in an effort to
resolve her grievance about not being promoted to store
manager. . . .

Finally, Ms. Bellomy’s additional allegations concerning the
incident with Chuck Jenkins . . . and Mr. Huddleston’s alleged
repeated statements about the lack of turnover in store manager
positions do not support her claim for constructive discharge in
light of the contrary evidence in Ms. Bellomy’s own deposition
testimony. In regards to Mr. Jenkins’ gender inappropriate
comment(s) in 2000, Ms. Bellomy admitted that after

                               -13-
complaining to Mr. Huddleston, Mr. Jenkins was fired and that
she was satisfied with AutoZone’s response. In regards to the
allegedly repeated statements about the lack of turnover in store
manager positions, Ms. Bellomy also admitted in her deposition
that the only conversations she had with Mr. Huddleston
regarding this issue was in 2002 and in the Spring of 2005.
Further, the court agrees with AutoZone that while failure to
promote alone cannot be the basis of a constructive discharge
claim, the failure to inform an employee of a position would also
be insufficient.

As a result, this court finds that the above two allegations are
insufficient to support Ms. Bellomy’s claim for intolerable
working conditions, as are the 2004 and 2005 promotions of
other persons to be store managers. Additionally, Ms.
Bellomy’s attempt to rely on discrete acts that occurred years
before she decided to quit her employment with AutoZone is
inappropriate in light of this court’s previous holding that such
evidence would be unfairly prejudicial and result in a series of
mini-trials encompassing Ms. Bellomy’s entire work history. In
further support, this court finds that there is no underlying claim
and/or discriminatory act which would support Ms. Bellomy’s
claim of constructive discharge in light of Coffey v.
Chattanooga-Hamilton County Hosp. Auth. No. 98-6230, 1999
WL 824870 (6th Cir. Oct. 6, 1999), which limits the amount of
time that an employee has to resign after the last discriminatory
act occurs in order to have an actionable claim for constructive
discharge.

Ultimately, AutoZone has shown through its Exhibits and
supporting documents that Ms. Bellomy’s only claim in support
of constructive discharge is based upon her failure to promote
claim. AutoZone has cited several cases which specifically hold
that a failure to promote, by itself, is not sufficient to support a
claim of constructive discharge. Ms. Bellomy has not cited any
cases which hold to the contrary. Further, AutoZone has
convinced this court that Ms. Bellomy can point to no other
discriminatory act to support her constructive discharge claim or
show that AutoZone did anything to “force” Ms. Bellomy to



                               -14-
              resign. For these reasons, AutoZone’s Renewed Motion for
              Summary Judgment is granted.

(Citations to the record and some legal citations omitted; emphasis added.)

       The Second Dismissal Order also dismissed the constructive discharge claim,“as a
sanction for disobeying the court’s evidentiary rulings and causing a mistrial.” We will
endeavor to summarize the reasons stated in the Second Dismissal Order for dismissing that
claim as a sanction for contempt. Broken down into five components, they are as follows:

       1. The September 2010 Order provided that the Plaintiff could “not introduce
testimony or evidence regarding the claim of hostile work environment.” In violation of this
order, counsel “referred to the Highway 58 manager, Paul Conley, making some
inappropriate remarks to [the Plaintiff] . . . in 2000.”

       2. The trial court held in its September 2010 Order that the Plaintiff’s witness, Connie
Hatten, could not testify. “During opening statement, Ms. Bellomy mentioned on three
separate occasions that Ms. Hatten would be a witness for her.”

        3. “The court had ruled [in the September 2010 Order] that it was only the store
manager position that could be discussed and not any other positions. [Counsel for the
Plaintiff] violated the court’s ruling in this regard by mentioning in her opening statement
that Scott Poole and Tony Mullins were promoted from a parts sales manager . . . to assistant
manager within the same store.” “Further, the court . . . had ruled that qualifications were
not the issue, as Ms. Bellomy was qualified, and that the various applicant[s’] qualifications
were not going to be compared. [Counsel for the Plaintiff] told the jury that Mr. Norton, who
was promoted to store manager at East Ridge, did not have the qualifications Ms. Bellomy
had and she had his personnel file to prove it.”

        4. In the September 2010 Order, the “court had limited the failure to promote issue
to the East Ridge store in April of 2005 and the Red Bank store in November of 2004. . . .
[Counsel for the Plaintiff] in her opening statement said she counted 11 store managers
replaced between June 13, 2004 and April 18, 2005. She also told the jury that Ms. Bellomy
had not been promoted to store manager in eight years, so why should you continue to work
there.”

       5. Following the mistrial on October 5, 2010, the Plaintiff sought clarification and
guidance from the court as to what she could and could not introduce as evidence under the
court’s rulings on AutoZone’s several motions in limine. After a hearing, the court
memorialized its decrees by the entry of an order on November 24, 2010, stating, in part,

                                             -15-
“[g]enerally, the Plaintiff may not introduce any evidence or testimony concerning
promotions to positions other than store manager positions.” (Emphasis added.) When the
Second Dismissal Order was later entered on February 2, 2011, that order made specific
reference to the November 24, 2010, order:

              This order [of November 24, 2010] appears to be based upon
              the hearing held on September 30, 2010. On page 50 of the
              September 30, 2010 transcript, the court ruled that “we’re not
              going into other stores. We’ve got two stores, East Ridge, East
              Brainerd.”

(Emphasis added.) Apparently, the trial court used its November 24, 2010, order to support
its holding that the Plaintiff’s reference at the trial on October 5, 2010, to promotions to
assistant manager violated a ruling of the court (a) even though, as can be seen, that order
was entered long after the mistrial was declared on October 5, 2010, and (b) even though the
order of November 24, 2010, relied upon a statement made by the court as set forth in a
transcript of a hearing on September 30, 2010, which statement (1) was made in the context
of a discussion of the Plaintiff’s damages and (2) did not expressly refer to assistant manager
positions.

       The trial court found in the Second Dismissal Order that the above offending
statements were willful and prejudicial to AutoZone. It agreed with AutoZone that dismissal
was an appropriate sanction; it further found that a monetary sanction was not appropriate.
The court declined to dismiss the failure to promote claim. It certified the Second Dismissal
Order as a final judgment pursuant to Tenn. R. Civ. P. 54.02. Both parties filed a notice of
appeal. The Plaintiff filed her notice first.

                                              II

       The Plaintiff identifies the following issues:

              Whether the trial court erred in granting [AutoZone’s] motion
              for civil contempt [and dismissing the constructive discharge
              claim on that basis].

              Whether the trial court erred in granting summary judgment in
              favor of [AutoZone] on [the] Plaintiff’s claim of constructive
              discharge.




                                             -16-
AutoZone raises, as an alternative issue in the event we do not find affirm the dismissal
based on contempt, whether the trial court erred in declining to award a monetary sanction
equal to AutoZone’s attorney fees and costs.

                                              III.

        A trial court’s decision on a motion for civil contempt is reviewed under an abuse of
discretion standard. Flowers v. Tennessee Trucking Association Self Insurance Group
Trust, 209 S.W.3d 602, 610 (Tenn. Ct. App. 2006). The practical effect of this standard is
that the

              discretionary decision will be reviewed to determine: (1)
              whether the factual basis for the decision is supported by the
              evidence, (2) whether the trial court identified and applied the
              applicable legal principles, and (3) whether the trial court’s
              decision is within the range of acceptable alternatives.

Id. (citation omitted). “An abuse of discretion is found when the trial court's ruling falls
outside the spectrum of rulings that might reasonably result from an application of the correct
legal standards to the evidence found in the record.” Id.

       A trial court’s decision on a motion for summary judgment is reviewed de novo with
no presumption of correctness. Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 84
(Tenn. 2008). “[W]e are required to review the evidence in the light most favorable to the
nonmoving party and to draw all reasonable inferences favoring the nonmoving party.” Id.
We are to make an fresh determination whether the requirements of Tenn. R. Civ. P. 56 have
been met. Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997).

                                              IV.

       The Plaintiff argues that the trial court’s ruling – that she could not introduce evidence
of a hostile work environment – amounted to a sua sponte dismissal of some of the
allegations in the complaint and was in direct conflict with our holdings in Bellomy I.
Paragraphs 11 and 13 of the complaint, respectively, state as follows:

              Plaintiff was denied equal opportunity in the terms and
              conditions of her employment with defendant on account of her
              sex creating a hostile work environment.




                                              -17-
               Defendant failed to provide the plaintiff with a work
               environment free of sexual discrimination even after the plaintiff
               repeatedly complained of such behavior.

Our characterization in Bellomy I of the Plaintiff’s action as a whole was that “Plaintiff
claimed Defendant failed to promote her because she was a female and that Defendant
otherwise created a hostile environment for female employees.” 2009 WL 4059158 at *1.
Plaintiff argues, however, that out of respect for the trial court’s September 2010 Order, she
was avoiding offering evidence that related solely to hostile work environment; rather, the
“evidence was actually presented . . . to show intolerable working conditions in support of
her claims for constructive discharge.” We hold that this approach would be entirely
consistent with our holding in Bellomy 1 that the Plaintiff had created a genuine issue of
material fact “as to whether she was constructively discharged” through her evidence of
being repeatedly passed over for promotions to manager as well as evidence “pertaining to
treatment of female employees in general.” Id. at *13.

        AutoZone contends that the Plaintiff’s arguments regarding the various evidentiary
rulings amount to a collateral attack, after the fact, on rulings that have become unassailable
and that her challenge falls far short of the necessary showing that the trial court abused its
discretion in holding her in contempt. We agree with AutoZone that “[a]n order is not
rendered void or unlawful simply because it is erroneous or subject to reversal on appeal.”
The quoted language is verbatim from Konvalinka v. Chattanooga-Hamilton Cty. Hosp.,
249 S.W.3d 346, 355 (Tenn. 2008). We do not, however, agree that we cannot consider the
propriety of the trial court’s September 2010 Order in this appeal. The order entered on the
various motions in limine was an interlocutory order that did not become subject to appeal
as of right until such time as the court dismissed the “constructive discharge” portion of the
case and certified the judgment as final pursuant to Tenn. R. Civ. P. 54.02. See Tenn. R.
App. P. 9(a) (“[A]n appeal by permission may be taken from an interlocutory order of a trial
court . . . only upon application and in the discretion of the trial and appellate court.”); Tenn.
R. App. P. 3 (a) (“In civil actions every final judgment entered by a trial court . . . is
appealable as of right.”). Because an interlocutory order cannot be appealed as of right, the
appeal of the final judgment necessarily gives rise to the ability to challenge interlocutory
orders that affect the judgment. See Tenn. R. App. P. 36(b).

        We also believe that AutoZone attempts to oversimplify the situation. We perceive
the Plaintiff’s arguments, both to the trial court and now before us, to be not only that the
trial court was in error on some of its rulings, but also that the trial court was acting in
conflict with our holdings in Bellomy I. The effect of the trial court’s rulings was to place
counsel in the untenable position of zealously prosecuting an action using all of the evidence
we had discussed in Bellomy I, in the face of the exclusion of all of that evidence except the

                                              -18-
2004 promotion at Red Bank and the one at East Ridge in 2005. As the Plaintiff states in her
brief, this placed her in the position of thinking “that there had to be some misunderstanding.
Plaintiff would not have gone into trial on a constructive discharge claim believing that she
was not entitled to present any evidence on that claim.” We believe, and so hold, that the
trial court’s September 2010 Order, as applied in the Second Dismissal Order, was so
obviously in conflict with our holdings in Bellomy I that, in the understanding of the Plaintiff
and her counsel, it would necessarily leave a “reasonable basis for doubt regarding [its]
meaning” so as to preclude a finding of contempt for its violation. Konvalinka, 249 S.W.3d
at 356.

              A person may not be held in civil contempt for violating an
              order unless the order expressly and precisely spells out the
              details of compliance in a way that will enable reasonable
              persons to know exactly what actions are required or forbidden.
              The order must, therefore be clear, specific and unambiguous.

              Vague or ambiguous orders that are susceptible to more than
              one reasonable interpretation cannot support a finding of civil
              contempt. . . .

Id. at 355-56 (citations omitted).

        Before we identify the areas of conflict between the trial court’s orders on remand and
Bellomy I, it is important to understand the effect of Bellomy I. When this Court decided
in Bellomy I that the Plaintiff had mustered the evidence to create a genuine issue of material
fact as to whether she was constructively discharged from her job, that decision became the
law of this case – one which the trial court was obligated to follow on remand. “The phrase
‘law of the case’ refers to a legal doctrine which generally prohibits reconsideration of issues
that have already been decided in a prior appeal of the same case.” Memphis Publishing Co.
v. Tennessee Petroleum Underground Storage Tank Board, 975 S.W.2d 303, 306 (Tenn
1998). Our decision in Bellomy I also became the law of the case as to the admissibility of
the evidence upon which we based our decision because “[t]he doctrine applies to issues that
were actually before the appellate court in the first appeal and to issues that were necessarily
decided by implication.” Memphis Publishing, 975 S.W.2d at 306. “The substance of
evidence . . . submitted by the parties to support and to oppose a summary judgment motion
must be admissible at trial.” Davis v. McGuigan, 325 S.W.3d 149, 168 (Tenn. 2010). Our
decision in Bellomy I, thus necessarily determined, by implication, that the evidence upon
which we based our decision was admissible. This includes not only the Plaintiff’s
interactions with Scott Huddleston regarding the manager positions at Red Bank, East Ridge
and East Brainerd, as well as her resignation, but also interactions with male superiors such

                                              -19-
as Richard Adair, lack of support of female sales personnel that is typically provided to
males, and other evidence of “intolerable working conditions” and “comments pertaining to
treatment of female employees in general.” Bellomy I at *3-5, 13.

       With this background, we can be more specific about the trial court’s rulings on
remand that are in conflict with our opinion in Bellomy I. We will begin with the September
2010 Order. The trial court’s order that the Plaintiff could not introduce evidence of a hostile
work environment is in conflict with our acknowledgment in Bellomy I that the constructive
discharge claim was premised, in part “upon comments pertaining to treatment of female
employees in general” which, when combined with other events “create intolerable working
conditions.” Id. at *13. We also note that the trial court stated that, notwithstanding
anything we wrote in Bellomy I, “any alleged treatment of other females must still satisfy the
Rules of Evidence in order to be admissible during trial.” This statement ignores the effect
of the Bellomy I being the law of the case as to the admissibility of the evidence we
discussed in Bellomy I.

         Moving now to the Second Dismissal Order, we also find conflict there with Bellomy
I. The trial court stated “that discovery continued after the remand and the Court of Appeals
did not discuss the timeline of events relative to the promotion decisions made by AutoZone
and Ms. Bellomy’s voluntary pursuit of alternative employment.” We do not question that
discovery continued after remand, but we would note that we clearly discussed the
importance of timing, including the importance of AutoZone’s knowledge as of April 8 or
9, before the Plaintiff’s resignation, that she had accepted a job at McKee; AutoZone’s
knowledge well before the decision with regard to the East Ridge store that the Plaintiff
would resign if she was turned down for that promotion; and AutoZone’s knowledge that
the Plaintiff planned to resign her employment at McKee if she received the promotion at the
East Ridge store. We also discussed the questionable aspect of Huddleston’s testimony with
regard to whether the Plaintiff was told she was being considered for the East Brainerd store
when she was informed that she was not being given the East Ridge store and the timing of
her being told she could have the East Brainerd store after AutoZone heard from the
Plaintiff’s attorney. The only thing that the trial court identified missing from the Bellomy
I discussion that has been supplemented by discovery is the timing of the Plaintiff’s
applications and interviews with McKee. However, it should not have been a surprise to
AutoZone, or the trial court for that matter, that the Plaintiff submitted an application to
McKee sometime before she was hired. They should also not be surprised that someone who
is in a hostile work environment will apply with another employer even before the employee
makes the decision that he or she has no choice but to leave. We fully acknowledge that we
are construing the facts and inferences in the Plaintiff’s favor, but that is our obligation at the
summary judgment stage. Martin, 271 S.W.3d at 84.



                                               -20-
         Before leaving this discussion, we note the trial court’s comments about finding “the
above timeline of events extremely persuasive in dissafirming Ms. Bellomy’s” constructive
discharge claim. (Emphasis added.) As discussed above, Bellomy I is law of the case.
Furthermore, the trial court’s comments make it sound as if the court was weighing the
relative strength of the Plaintiff’s evidence when compared with that of AutoZone. A trial
court must refrain from weighing the evidence at the summary judgment stage; any conflict
at all in the evidence must be resolved against the moving party. Martin, 271 S.W.3d at 84,
87. Another example of impermissible weighing appears in the following statement in the
Second Dismissal Order:

              After her resignation, Ms. Bellomy contacted an attorney, who
              then wrote to AutoZone. Based upon such, AutoZone offered
              Ms. Bellomy the store manager position at the East Brainerd
              store. Ms. Bellomy rejected the offer and maintained her
              employment with McKee. This action by AutoZone could be
              viewed as an attempt to work with Ms. Bellomy in an effort to
              resolve her grievance about not being promoted to store
              manager.

(Emphasis added.) The proper approach is as illustrated in our decision in Bellomy I, i.e.,
construe the facts in the Plaintiff’s favor to support the conclusion that the Plaintiff was
offered the East Brainerd job as a pretext or afterthought to cover up the discrimination.

        We also note that in Gossett v. Tractor Supply Co., 320 S.W.3d 777, 785 (Tenn.
2010) the Supreme Court abandoned the “McDonnell Douglas framework”of shifting the
burden of production at the summary judgment stage to an employee once the employer
offers a “legitimate” reason for its actions. The Court characterized the new approach as a
“totality of the evidence” approach compared to a “compartmentalization of evidence”
approach which causes courts to “put on blinders.” Id. at 783. We believe our approach in
Bellomy I was more consistent with Gossett than the trial court’s analysis.

        Based on the erroneous findings and conclusions we have discussed, the court held
for a second time that the constructive discharge claim was based solely on the Plaintiff’s
failure to receive a promotion. This holding is directly in conflict with our holding to the
contrary in Bellomy I and thus cannot stand. The trial court erred in granting summary
judgment in favor of AutoZone on the constructive discharge claim.

        We will now discuss the specifics of the dismissal based on contempt. The trial court
held the Plaintiff in contempt for referring to inappropriate comments allegedly made by one
of the Plaintiff’s supervisors in 2000. The sole basis for the ruling was that the Plaintiff was

                                              -21-
ordered not to “introduce testimony or evidence regarding the claim of hostile work
environment.” We have already held that such a ruling was in conflict with Bellomy I. Even
if the Plaintiff did not have a “stand alone” claim for hostile work environment, under our
holding in Bellomy I, she was entitled to try to prove that a hostile work environment was
part of the reason why she was forced to resign.

        The trial court held the Plaintiff in contempt for saying that she was better qualified
than Shane Norton who was made the manager of the East Ridge store instead of her. The
court based its ruling on the fact that the Plaintiff was unquestionably qualified. The mere
fact that the Plaintiff was qualified does not preclude her from showing that she was, in fact,
better qualified than the male who was given the job. Furthermore, the language in the
September 2010 Order does not prohibit a comparison of the Plaintiff’s qualifications to
those of the male who was given the job. The court prohibited one witness, Mr. Arrowood,
from talking about the Plaintiff’s qualifications because

              the court [held] that Ms. Bellomy’s qualifications are not at
              issue. Both sides have conceded that she was qualified to hold
              a store manager position. Therefore, Mr. Arrowood’s testimony
              on this matter is collateral and unnecessary.

There is simply no way the above order “expressly and precisely spells out” that any
comparison of the Plaintiff’s qualifications to the man who was given the job she wanted was
forbidden. Konvalinka, 249 S.W.3d at 355. It was a clear abuse of discretion to hold that
the ruling in limine as to Mr. Arrowood should have put the Plaintiff’s counsel on notice that
she could not compare the Plaintiff’s qualifications with Mr. Norton’s through any channel.

        The court held the Plaintiff in contempt for stating that numerous persons had been
promoted to assistant manager from other positions within their own store. The court held
that such statements were in violation of its order that “only the store manager position . . .
could be discussed and not any other positions.” We have read the September 2010 Order
carefully and conclude that, while it is possible to reach that conclusion, the language in the
September 2010 Order by no means provides clear warning that any mention of assistant
manager promotions is forbidden. The part of the September 2010 Order at issue relates to
“AutoZone’s Motion in Limine No. 2” which was “denied.” The discussion was in the
context of whether the Plaintiff could discover personnel files to be able to counter
AutoZone’s assertion that she was not qualified for promotion to manager at the East Ridge
store because she worked in that store. Supposedly, AutoZone, or possibly Huddleston or
Mr. Poole, had a policy of not promoting managers from within a store because it does not
want a manager to be responsible for supervising former co-workers. The trial court held
that the Plaintiff could have access to the “personnel files pertaining to any decisions made

                                             -22-
by Mr. Poole regarding store managers up to the time it was decided not to employ Ms.
Bellomy as the East Ridge store manager.” Arguably, the court’s ruling prohibited discovery
of any personnel files not related to those persons in consideration for store manager.
However, we do not think this is the kind of clear and unambiguous order that would support
a finding of contempt.

       Moreover, if the court’s order is construed so broadly, we believe it was clearly
erroneous and would have been subject to being misunderstood by a reasonable attorney.
Evidence that employees are promoted to assistant store manager from lower positions in the
same store is clearly relevant to whether AutoZone in fact had a policy against promoting
managers from the lower ranks of the store they will manage. The fact at issue is whether
AutoZone, or its local district manager, has decided that a person cannot be an effective
supervisor of his or her former co-workers. If the Plaintiff can show that assistant managers
are promoted over their co-workers, it becomes “less probable” that AutoZone had such a
policy for managers. See Tenn. R. Evid. 401 (definition of relevant evidence). In short, we
hold that insofar as the September 2010 Order restricted the evidence at trial to managers
only, it was an abuse of discretion and less than clear that it also applied to assistant
managers. We further hold that it was an abuse of discretion to hold the Plaintiff in contempt
for mentioning in opening statement that persons were promoted to assistant manager from
within their own store.3

        The trial court held the Plaintiff in contempt for stating that “she counted 11 store
man[a]gers replaced between June 13, 2004 and April 18, 2005.” This was held to be in
violation of the limitation in the September 2010 Order of “the failure to promote issue to the
East Ridge store in April of 2005 and the Red Bank store in November of 2004.” Again, the
context in which the order was made is important. AutoZone had asked that the Plaintiff be
prevented from offering evidence “of other alleged promotion decisions or employment
decisions unrelated to the East Ridge store in April of 2005.” The court was unwilling to go
that far. It held that “other alleged promotion and/or employment decisions unrelated to the
East Ridge store in April of 2005 may be relevant to show constructive discharge and are
therefore admissible.” Based upon the statement in Bellomy I that “Plaintiff claims this
occurred in 2004 and 2005,” the trial court specifically found in the September 2010 Order
that “the promotion decision of 2004 may be relevant to Ms. Bellomy’s constructive
discharge claim and will not be precluded.” In concluding its discussion of the issue, the trial
court stated, “Ms. Bellomy may introduce testimony and evidence concerning AutoZone’s
failure to promote her in April of 2004 as it relates to her constructive discharge claim.”


       3
          As we noted on pages 15-16 of this opinion, the trial court’s specific reference to evidence of
promotions “other than store manager positions” is contained in an order entered November 24, 2010, long
after the court declared a mistrial on October 5, 2010.

                                                  -23-
        Our analysis of this ruling is much like our analysis of the “assistant manager”
evidence. The September 2010 Order can arguably be read to exclude any evidence other
than the 2004 Red Bank promotion and the 2005 East Ridge promotion, but that is by no
means clear from the language of the order. The order simply identifies evidence that will
be admitted without saying exactly what will not be allowed with regard to promotions.
Moreover, we are convinced that, to the extent the September 2010 Order excluded evidence
of other manager positions that came open in the Chattanooga area in the 2004-2005 time
frame, it was clearly in error and would have created confusion in the mind of most
practicing attorneys. The Plaintiff had made her superiors aware that she wanted desperately
to be a manager and that if she continued to be passed over she would leave. There is
evidence in the record that she was not told of the Red Bank manager opening until after the
position was filled. There is evidence that she was not even told of the East Brainerd
opening as she tendered her resignation. Evidence of other manager openings in the same
area in the same time frame, of which she was not told, would make it “more probable” that
AutoZone did not tell her of the openings because they did not want a female manager. We
hold that the trial court abused its discretion in holding the Plaintiff in contempt for
statements in opening to the effect that eleven other manager jobs came open in the 2004 to
2005 time frame.

       The only other basis of which we are aware for holding the Plaintiff in contempt is the
mention of Mr. Hatten as a witness. The court clearly held in the September 2010 Order that
Ms. Hatten could not testify. In the Second Dismissal Order, the trial court states that Ms.
Hatten was mentioned in opening. Based on our review of the record, it was during voir dire,
and not opening statement, that counsel for the Plaintiff mentioned Ms. Hatten’s name to
inquire whether jurors might know her. The substance of Ms. Hatten’s potential testimony
was not mentioned. Counsel stated as an officer of the court that she kept Ms. Hatten’s name
on her witness list so that she would remember to make an offer of proof and that the
mention of her name to the jury was purely accidental and a matter of oversight. We agree
with the trial court that Ms. Hatten was excluded by the trial court’s ruling and that her name
should not have been mentioned to the jury. However, in the absence of any mention of the
witness’s potential testimony, we cannot see how the mere mention of her name during voir
dire would prejudice AutoZone. The trial court did not articulate a separate basis for this one
violation. It merely held that all the violations together were prejudicial. As we have
overruled the trial court regarding the other alleged contemptuous actions, we hold that, in
the absence of evidence to dispute counsel’s explanation of innocent oversight on her part,
it was an abuse of discretion to hold the Plaintiff in contempt and dismiss her constructive
discharge claim on this basis alone.

       We have considered AutoZone’s argument that the Plaintiff should be made to pay
over $30,000 as an alternative to dismissal. We find no merit in the argument.

                                             -24-
       Before concluding, we wish to reiterated that we are not reversing the finding of
contempt simply because we have overruled portions of the September 2010 Order. We
acknowledge that a trial court’s rulings must be obeyed even if they are in error. See
Konvalinka, 249 S.W.3d at 355. We are holding that, under the circumstances of this case,
a reasonable person in the position of the Plaintiff and her counsel would not have known
“exactly what actions [were] required or forbidden” given the background of our opinion in
Bellomy I and certain ambiguities in the September 2010 Order. See id. at 355. We further
hold that conflicts between the September 2010 Order and Bellomy I would have created a
“reasonable basis for doubt regarding [the] meaning” of the September 2010 Order, even to
the extent it was otherwise clear. Id. at 356.

                                              V.

        In many respects, this has been a difficult case for the parties, the trial court, and
this Court. It is obvious to the Court that Chancellor Brown has expended a great deal of
time in a sincere effort to ensure that both sides are treated fairly in this search for the
truth. With all due respect to the chancellor, the Court believes that the interests of the
Plaintiff and the Defendant will be best served by the assignment of a new judge to hear
this case on remand. Accordingly, the trial court is directed to take the necessary steps to
secure the assignment of a new judge to hear all proceedings on remand.

                                              VI.

       The judgment of dismissal of the trial court and all other orders of that court that
are inconsistent with this opinion, including the finding of civil contempt, are vacated.
Costs on appeal are taxed to the appellee, AutoZone, Inc. This case is remanded,
pursuant to applicable law, for further proceedings.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                             -25-
