             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                            FILED
                                                               May 25, 1999
BILL MASON and                               )
JOHN McKNIGHT,                               )
                                                            Cecil Crowson, Jr.
                                             )
                                                           Appellate Court Clerk
       Plaintiffs/Appellants,                )
                                             )   Appeal No.
                                             )   01-A-01-9806-CH-00283
VS.                                          )
                                             )   Davidson Chancery
                                             )   No. 92-3614-II
METROPOLITAN DEVELOPMENT                     )
AND HOUSING AGENCY, et al.,                  )
                                             )
       Defendants/Appellees.                 )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

              THE HONORABLE CAROL L. McCOY, CHANCELLOR



DAVID L. COOPER
COLUMBA A. MCHALE
1000 Northchase Drive, Suite 110
P. O. Box 749
Goodlettsville, Tennessee 37070-0749
       Attorneys for Plaintiffs/Appellants

GEORGE E. BARRETT
217 Second Avenue North
Nashville, Tennessee 37201
      Attorney for Defendants/Appellees




                            AFFIRMED AND REMANDED




                                                      BEN H. CANTRELL,
                                                      PRESIDING JUDGE, M.S.


CONCUR:
CAIN, J.
COTTRELL, J.

                                 OPINION
              Two employees of the Metropolitan Housing and Development Agency

(MDHA) brought suit against their supervisor, the agency, and the agency’s director,

claiming that the supervisor had discriminated against them in violation of federal and

state laws. The trial court dismissed the claims. We affirm the trial court.



                                 I. The Complaint



              Bill Mason and John McKnight, both African-Americans, were veteran

employees in the paint department of MDHA, with over forty years of experience

between them. After William Hickey became director of operations for the agency, Mr.

Mason was demoted from paint supervisor to paint leader, though he was not

reprimanded and not subjected to any disciplinary proceeding. His supervisory duties

were reduced so that he eventually wound up supervising only one man, Mr.

McKnight.



              John McKnight had previously worked with individuals of all races at

different MDHA facilities. Under Mr. Hickey, he was put on permanent station at Vine

Hill Homes, where he was assigned to a crew made up of himself, Mr. Mason, and

one other African-American painter. Later, he and Mr. Mason were transferred to the

Hadley Park Towers.



              In November of 1991, Mr. Mason applied for a supervisory position. The

agency appointed a younger man to that position, a white male named Ed Cothran,

who had less seniority at MDHA than Mr. Mason, and less supervisory experience.



              Mr. Mason’s duties included evaluating Mr. McKnight’s performance.

In February of 1992, Mr. Mason prepared an evaluation that rated Mr. McKnight’s

performance as “above standard.” Mr. Hickey objected to the rating, and prevailed

upon Mr. Mason to lower it to “standard.” Mr. Hickey declined to sign the evaluation.


                                         -2-
              On December 12, 1992, the plaintiffs filed suit, claiming that Mr. Hickey’s

actions were part of a larger pattern of racial discrimination at MDHA, undertaken with

the “demonstrated intention to make the painter position at MDHA a predominately

‘white’ job.” Mr. Mason also claimed that the failure to promote him amounted to age

discrimination.   The plaintiffs asked for actual damages, and for punitive and

compensatory damages of $250,000, pursuant to Title VII of the Civil Rights Act of

1964, and to the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.

They later dropped their claims under federal law, and agreed to make the Tennessee

Human Rights Act the sole basis of their action.



                         II. Proceedings in the Trial Court



              After the complaint was filed, the lawsuit progressed at a snail’s pace.

It was dismissed once for lack of prosecution, and subsequently reinstated, before it

was finally dismissed on summary judgment on October 22, 1996.



              Most of the delay can be attributed to Mr. Drummond, the plaintiffs’

attorney. He drafted and filed numerous motions (including four to be allowed to

withdraw as the attorney of record) but they were frequently ineffectual, either

because he filed his motions in an untimely way, failed to schedule hearings on the

motions, failed to file supporting documents to support the motions, or failed to serve

opposing counsel. Disputes over discovery also hampered progress on this case.

The following account is a bare outline of those proceedings which moved the case

forward. It omits most of the filings and maneuvers which ultimately served only to

delay the final resolution.



              MDHA responded to the complaint on May 13, 1993. The agency

claimed that the plaintiffs’ allegations as to the defendants’ intentions or motives


                                          -3-
amounted to conjecture and supposition, and did not state facts to which an

appropriate response could be made. They also advanced two affirmative defenses:

that the plaintiffs had failed to exhaust their administrative remedies, because they

had failed to file grievances in accordance with the procedures outlined in the

Affirmative Action Plan for MDHA; and that the one-year statute of limitations for filing

a claim under Tenn. Code Ann. § 4-21-101 had passed before they filed.



              On July 17, 1994, the defendants filed a motion for judgment on the

pleadings under Tenn. R. Civ. P. Rule 12.03. A hearing on the motion was scheduled

for September 16, 1994. At 4:14 P.M., on the day before the scheduled hearing, the

plaintiffs filed a motion to amend their complaint, and for the court to defer its ruling

on the defendants’ motion until after amendment of the complaint. A copy of the

amended complaint was not attached to the motion.



              The trial court declined to defer its hearing. It found the defendants’

motion for judgment on the pleadings to be well-taken, and dismissed all of the

plaintiffs’ claims as time-barred, except for Mr. McKnight’s claim relating to the

lowering of his evaluation in 1992. Shortly thereafter plaintiffs filed a motion to alter

or amend the judgment, which stated, “[p]rior to the hearing of this motion, plaintiffs

will submit a copy of the proposed amended complaint.” A proposed amended

complaint was filed on December 7, 1994.



              However, Mr. Drummond did not schedule a hearing on the plaintiffs’

motion until April of 1996. Following that hearing, the trial court denied the motions

to alter and amend the judgment, for additional findings of fact, and to amend the

complaint, because of undue delay and futility. The court found that the proposed

amended complaint lacked specificity, and did not allege conduct by the defendants

occurring within the limitations period.




                                           -4-
              On May 13, 1996, the defendants filed a Motion for Summary Judgment

on the remaining claim of Mr. McKnight. After a hearing, the trial court granted

summary judgment to the defendants, and it dismissed the action on July 11, 1996.



              The plaintiffs subsequently filed a motion to alter or amend the

judgment, and the defendants moved the court to impose Rule 11 sanctions upon Mr.

Drummond for rule violations. A hearing was held on both motions, and on October

22, 1996, the trial court dismissed the plaintiffs’ motion to alter or amend, and

imposed sanctions of $2,000 in attorney fees upon Mr. Drummond for rule violations

during the course of litigation.



              Mr. Drummond filed a notice of appeal from the order of sanctions. He

failed to file a brief, despite being granted an extension of time, and we accordingly

dismissed that appeal. Mr. Mason and Mr. McKnight filed pro-se notices of appeal

from the dismissal of their claims. They subsequently engaged another attorney to

argue their case.



              The appellees have raised an issue as to whether this court can even

consider this present appeal, arguing that the notices of appeal were not timely filed.

Without getting into too much detail, we find that the plaintiffs’ motion to alter or

amend, while defective in some respects, was timely, and that it thus served to toll the

time limit for filing a notice of appeal, rendering that notice timely as well.



         III. The Motion to Amend and the Judgment on the Pleadings



              Appellants argue that the trial court abused its discretion by rendering

a judgment on the pleadings without first considering the motion to amend the

complaint.    However, in view of the fact that their late-filed motion was not

accompanied by the proposed amended complaint, and that they failed to schedule


                                           -5-
a hearing on the motion, we can find no abuse of discretion in the trial court’s action.

If we found that such a tardy and insubstantial effort barred the court from proceeding

with its previously scheduled hearing, we would be placing a tool for delay in the

hands of those who wish to hinder the work of the court solely for their own

advantage.



              Turning to the judgment itself, we must first note that in ruling on a Rule

12.03 motion, the trial court must take as true all the facts alleged in the complaint,

and determine whether those facts state a cause of action that should be decided by

a jury. Gray v. McDonald’s Corporation, 874 S.W.2d 44 (Tenn. App. 1993).



              The statute of limitations for filing complaints under the Tennessee

Human Rights Act is one year. Tenn. Code Ann. § 4-21-311(d). The original

complaint only cited actions by Mr. Hickey that occurred more than one year before

the complaint was filed, with the exception of his role in getting Mr. Mason to lower the

evaluation of Mr. McKnight. Thus, assuming the truth of all the allegations of fact

stated by the plaintiffs, the trial court was correct in granting judgment to the

defendants on all issues except for the evaluation.



              The appellants argue, however, that the trial court erred, because under

the continuing violation doctrine, it could consider all of the alleged discriminatory acts,

without regard to the statute of limitations. That doctrine was first developed by the

federal courts in their interpretation of federal anti-discrimination legislation, and was

subsequently adopted by the Tennessee Supreme Court in Spicer v. Beaman Bottling

Co., 937 S.W.2d 884 (Tenn. 1996). The gist of the doctrine is that a plaintiff may

challenge “an ongoing, continuous series of discriminatory acts, as long as one of

those discriminatory acts falls within the limitations period.” 937 S.W.2d at 886.




                                           -6-
              However, the Court also stated in the Spicer case that there are only two

circumstances in which the continuing violation doctrine applies. 937 S.W.2d at 889.

The first is when “there is some evidence of present discriminatory activity giving rise

to a claim of a continuing violation.” The second is when “there has been a long-

standing and demonstrable policy of discrimination.” In order to make a claim under

this second circumstance, “The plaintiff must clearly demonstrate some ‘overarching

policy of discrimination,’ and not merely the occurrence of an isolated incident of

discriminatory conduct.”



              The complaint contains no evidence to indicate that the supervisor is

continuing to subject the plaintiffs to adverse personnel actions. In fact, there are no

indications in the record that Mr. Hickey is still employed by MDHA. Further, although

the complaint does speak of a pattern of discrimination, and alleges that Mr. Hickey

was determined not to hire or promote black supervisors, there are no facts alleged

as to any specific qualified supervisory candidates being denied employment or

promotion on the basis of race, with the exception of Mr. Mason. Thus, the plaintiff

has failed to clearly demonstrate an overarching pattern of discrimination such as

would require the application of the continuing violation doctrine.



                               IV. Summary Judgment



              The sole remaining claim in this case was stated in Paragraph 14 of the

plaintiffs’ complaint as follows:

              14.     Discriminatory Evaluation of black workers

                      14.1 MDHA has instituted a policy and practice of
              giving black workers generally lower evaluations than those
              given white workers. Specifically, in or around February of
              1992, Hickey, acting in concert with Cothran and Wright,
              sought to influence Mason to re-do his evaluation of
              McKnight in such a way as to lower the overall rating.
              Against his own judgment and preference, Mason agreed
              finally to lower the evaluation ratings in specific areas so as
              to lower the overall rating on McKnight.


                                           -7-
                     14.2 Even with the lower evaluation of McKnight
              requested by Cothran of Mason, Hickey refused to sign
              McKnight’s evaluation. Hickey’s refusal to sign McKnight’s
              evaluation constitutes a deliberate and malicious act of
              discrimination in that McKnight will not be eligible for raises
              and other benefits of employment, including consideration for
              promotion because of Hickey’s refusal to endorse the
              evaluation.



              Summary judgment should be granted when there is no genuine dispute

as to any material fact, and the moving party is entitled to judgment as a matter of law.

Tenn. R. Civ. P. Rule 56.03. When a properly-supported motion for summary

judgment is filed, the non-moving party may not rest upon the mere allegations or

denials of its pleading, but must respond by setting forth specific facts to show that

there is a genuine issue for trial. Such facts may be established through sworn

affidavits, which must be based upon personal knowledge. Tenn. R. Civ. P. Rule

56.05.



              We have examined the defendants’ motion for summary judgment, the

plaintiffs’ response, the defendant’s reply to that response, the proposed amended

complaint, and the affidavit of Mr. McKnight. There is no dispute that Mr. Hickey

refused to sign Mr. McKnight’s evaluation, but the plaintiff has offered no evidence,

either direct or indirect, to support Mr. McKnight’s allegations that black workers were

generally given lower evaluations than white ones. There is also no evidence in the

record that Mr. McKnight had been denied any pay raises that he was entitled to, or

that he had applied for any promotions. There is evidence, however, that because of

a back injury, Mr. McKnight missed a total of 39 days of work during the evaluation

period.



              Judging from the following excerpts from Mr. McKnight’s affidavit, it

appears that the supervisors’s actions against him were based upon personal

animosity:

              4.     In October of 1990, after Mr. Hickey had taken over

                                            -8-
             . . . I said something in a meeting which apparently offended
             him. [He] told me later that if the Agency were a private
             company and if he had his way, he would have me fired.
             Specifically, he referred to how I had ‘jerked him around’ in
             that meeting, and said he would have me fired if he could. It
             was after that I noticed a distinct change in the way I was
             treated in the workplace at MDHA.
             ...
             6.       After the negative encounter with Mr. Hickey, I did
             something else that caused Mr. Hickey to target me for
             special treatment. Specifically, I noticed that Mr. Hickey
             began to treat me very differently after I participated in a
             grievance hearing that Mr. Mason had initiated against Mr.
             Hickey. In that grievance hearing, I testified in behalf of Mr.
             Mason.



             Mr. McKnight went on to state that it was after these negative

encounters that Mr. Hickey assigned him to the all-black crew at Vine Hill Homes, and

manipulated his evaluation. He claimed that Hickey never even visited the workplace

at Vine Hill, and thus had no basis for evaluating his work. The plaintiff also stated

that his performance evaluation meant a lot to him, and that he was insulted and

humiliated by being singled out for such unfair treatment.



             If John McKnight’s allegations are true, we can at most conclude that

William Hickey was a vindictive and incompetent administrator.         However, Mr.

McKnight does not allege any adverse consequences related to his work. Therefore,

he does not state a claim under the Tennessee Human Rights Act.



                                         V.



              The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County, for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellants.




                                         _________________________________

                                        -9-
                                 BEN H. CANTRELL,
                                 PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM B. CAIN, JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




                                - 10 -
