TONYA A. PARKER,              )

     Plaintiff/Appellant,
                              )
                              )
                              )
                                     Appeal No.   FILED
                                     01-A-01-9807-CV-00386
v.                            )                      July 20, 1999
                              )      Montgomery Circuit
CONWOOD COMPANY, L.P.,        )      No. C12-288 Cecil Crowson, Jr.
                              )                  Appellate Court Clerk
     Defendant/Appellee.      )
                              )


                 COURT OF APPEALS OF TENNESSEE


              APPEAL FROM THE CIRCUIT COURT FOR
                    MONTGOMERY COUNTY
                  AT CLARKSVILLE, TENNESSEE


           THE HONORABLE JAMES E. WALTON, JUDGE




STEVE R. DARNELL
Bateman, Bateman & Darnell
101 North Third Street
Clarksville, Tennessee 37040
      ATTORNEY FOR PLAINTIFF/APPELLANT



ROGER A. MANESS
114 South Second Street
P. O. Box 1149
Clarksville, Tennessee 37041-1149
      ATTORNEY FOR DEFENDANT/APPELLEE




                     AFFIRMED AND REMANDED




                                      WILLIAM B. CAIN, JUDGE
                            OPINION
           Appellant Tonya Parker began work for Conwood, L.P., in the Garrett
Building of Conwood’s facility in Clarksville on or about July 22, 1994. In
October of 1996, Ms. Parker filed a formal complaint with Conwood General
Foreman Tommy Porter which alleged in essence that Ms. Parker had been the
victim of offensive sexual touching at the hands of Samuel Anderson, one of
Conwood’s employees. This offensive contact had apparently occurred on or
about October 7, 1996, in the presence of at least one other coworker and one of
her supervisors, Mr. Bruce Beizer. The most direct result of this complaint was
a written warning issued to Mr. Anderson, referencing Conwood’s sexual
harassment policy and threatening termination if his behavior did not improve.


           The October 1996 complaint unleashed a flood of insinuations,
accusations and innuendo, both stemming from and flowing to Ms. Parker. In
response to Ms. Parker’s complaint, Mr. Anderson complained that Ms. Parker
had offensively touched him. His complaint, in turn launched an investigation
which resulted in three suspensions. Mr. Anderson, Ms. Parker, and one Carolyn
Parchmann were suspended due to what was characterized by Conwood’s Plant
Manager and Vice President as “inappropriate horseplay.” In the course of this
investigation, prior to suspension, and apparently in connection with her first
complaint, Ms. Parker brought more instances of inappropriate behavior to
Porter’s attention, one of which involved offensive contact from one Billy Stuart.
These complaints in turn were investigated. It appears from the affidavits in the
record that at all times these investigations were conducted under the direction
of Conwood’s Human Resources Manager Wayne Kirby, the Plant Manager
Bryce Sanders, and Lester Groves, Conwood’s Vice President.


           On October 18, 1996, the decision to suspend was made. On October
23, upon their return from suspension, the previously referenced employees,
including Ms. Parker, were advised of Conwood’s “zero-tolerance policy”
regarding workplace harassment.1 Ms. Parker was back at work five days before
she filed another complaint regarding another incident of hostile treatment at the
hands of Billy Stuart. Conwood investigated this complaint on the same day it


       1
        Although the litigants dispute the length of suspension ordered, the trial court
considered, and we agree that this dispute is not material to Appellant’s claims of hostile work
environment under state law.

                                              -2-
was filed, discussing it with all of the alleged witnesses. No one could
completely corroborate Ms. Parker’s version of the facts. This investigation was
conducted by Wayne Kirby and Tommy Porter. On December 19, Ms. Parker
became involved in an altercation concerning the use of a tow motor on
Conwood’s premises. This altercation occurred with yet another employee in
front of yet another supervisor. It was on this day that Ms. Parker resigned her
position.


            Suit was eventually brought in Montgomery County Circuit Court. We
note that of the multiple offending entities listed above, Ms. Parker sued only
Conwood Company, L.P. In response to Conwood’s motion for summary
judgment, Ms. Parker filed an affidavit in which she not only recounts the above
circumstances, but alleges a litany of sins of alleged discrimination and “cold-
shoulder treatment” on the part of Conwood employees dating back to July of
1994.2


            The trial court rendered summary judgment for Conwood, finding, in
pertinent part:
                Without discussing all of the elements the plaintiff must
            establish to succeed in this case, the Court will focus on the
            one element which is fatal to the plaintiff’s claim on the
            sexual harassment charge. The fact that sexual harassment
            occurred is not disputed. However, for the defendant to be
            liable to the plaintiff, the plaintiff must establish that the
            defendant knew or should have known that the sexual
            harassment was going on, but failed to respond with prompt
            and appropriate action to stop the harassment.

                                             ***

                The plaintiff claims that the defendant knew or should
            have known of the other claimed sexual harassment because
            certain supervisors observed what happened and what was
            said. For the defendant to be put on notice that the plaintiff
            felt she was being sexually harassed, when the plaintiff made
            no complaint, would require the supervisors to be mind

       2
        Appellee would urge this court to disregard Ms. Parker’s subsequent affidavit. It is
clear and well settled that this court cannot so disregard evidence in the face of Rule 56 of the
Tennessee Rules of Civil Procedure. See Byrd v. Hall, 845 S.W.2d 208 (Tenn. 1993).
Regarding the evidence at trial, the court must take the strongest legitimate view in favor of the
nonmovant Parker, to consider if there are any material issues of fact which would prevent the
movant Conwood from succeeding.

                                               -3-
         readers. There is no evidence to establish that the defendant
         was on notice concerning conduct about which the plaintiff
         made no complaint. With regard to the three (3) complaints
         the plaintiff made, it is clear that the defendant responded
         adequately with prompt and appropriate action.

         Therefore, as to the general claim of sexual harassment, the
         plaintiff has failed to establish a critical element of her claim.


         The issues raised by Ms. Parker on appeal are as follows:
         I.    Whether the trial court erred in finding that the Defendant was not
on notice of the sexually hostile environment of its work place?
         II.   Whether the trial court erred in finding no material issue of fact
concerning Plaintiff’s allegations of retaliatory conduct?
         III. Whether the trial court erred in finding no material issue of fact
concerning Plaintiff's allegations of constructive discharge.


         I. NOTICE
         Since no presumption of correctness attaches to the trial court’s finding
on summary judgment, this court must make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been
met.   See Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744
(Tenn.1991). Viewing the evidence in the light most favorable to Ms. Parker, we
find as the trial court did. Although Ms. Parker argued at trial, as well as on
appeal, that notice to her employer Conwood flowed by nature of the alleged first
hand knowledge of supervisory personnel at Conwood, the burden of proof for
this type of sexual harassment claim is clear in this jurisdiction. The situation
related by Ms. Parker's evidence below is one of either coworker-created or
supervisor-created hostile work environment. As the trial court recognized,
harassment did occur; of this fact there can be no doubt. However, as has been
noted throughout this case, Ms Parker is suing her employer. In such a situation,
she must come forward with the showing described by our supreme court in Carr
v. United Parcel Service. The opinion, drafted by Justice Holder on behalf of the
majority, reads as follows:

                      CO-WORKER HARASSMENT
              An employer’s liability for a hostile work environment
         created by non-supervisory employees (co-workers) is based

                                        -4-
         on a theory of negligence and not respondeat superior. To
         prevail on a claim of co-worker harassment, a plaintiff must
         assert and prove:

              (1) the employee was a member of a protected
              class; (2) the employee was subjected to
              unwelcomed sexual harassment; (3) the
              harassment occurred because of the employee’s
              gender; (4) the harassment affected a “term,
              condition or privilege” of employment; and (5) the
              employer knew or should have known of the
              harassment and failed to respond with prompt and
              appropriate corrective action.

               Spicer v. Beaman Bottling Co., 937 S.W.2d 884, 888
         (Tenn. 1996). An employer, therefore, is liable for the
         conduct of non-supervisory employees only as a by-product
         of its reaction to the employee’s conduct and not as a direct
         result of the action conduct. Accordingly, § 4-21-401
         liability under a co-worker harassment theory is premised on
         the employer’s reaction and not on the co-worker’s harassing
         conduct.
                                     ***
                 Supervisor Created Hostile Work Environment

               Supervisor created hostile work environment cases
         differ from quid pro quo harassment in that the supervisor
         does not use or attempt to use supervisory authority to obtain
         sexual favors from an employee. The supervisor merely
         creates a hostile work environment in the same manner as an
         employee with no supervisory authority. Whether the
         employer is liable for its supervisor's actions in hostile work
         environment claims depends on:              "(1) whether the
         supervisor's harassing actions were foreseeable or fell within
         the scope of employment; and (2) even if they were, whether
         the employer responded adequately and effectively to negate
         liability." Pierce v. Commonwealth Life Ins. Co., 40 F.3d
         796, 803 (6th Cir.1994). Accordingly, the employer's
         liability is predicated on its reaction to the discriminatory
         conduct.

Carr v. United Parcel Service, 955 S.W.2d 832, 836, 838 (Tenn. 1997). In
response to Conwood’s statement of undisputed facts, number 9 regarding notice
to the employer, Ms. Parker asserts the following:
         Plaintiff [Parker] did not need to “complain” to her
         supervisors, because much of the conduct occurred in the
         presence of her supervisors, Rodney Turner and Bruce Beizer
         on a regular basis. Supervisors, Rodney Turner and Bruce
         Beizer, participated to some extent in the verbal conduct.


                                      -5-
           If Ms. Parker is attempting to travel on a co-worker harassment theory,
mere knowledge of the supervisors will not be imputed to Conwood, especially
in light of the ongoing investigation conducted by Conwood employees relative
to this alleged conduct. Should Ms. Parker assert that her supervisors created the
environment, there is no showing that, again in light of the ongoing investigation
conducted by Messrs. Kirby and Porter, Conwood could have foreseen this
conduct at the outset. There is no showing that such offensive conduct was
within the scope of these coworkers 'or supervisors' employment, and no
showing that the employer did anything but investigate the claims and discipline
those responsible.3


            Since Ms. Parker failed in satisfying her burden with respect to the
action filed, summary judgment was proper.


           II. RETALIATORY CONDUCT
           Ms. Parker argues that the record shows retaliatory conduct on the part
of the defendant Conwood, against her for filing a sexual harassment complaint.
Inasmuch as her theory in this respect echoes the problems listed regarding
notice, this court must affirm the trial court’s finding. There is no showing that
Conwood knew or should have known of any cold-shoulder treatment without
a complaint, and no showing that once a complaint was made, Conwood made
inadequate or inappropriate response. See Campbell v. Florida Steel Corp., 919
S.W.2d 26, 31-32 (Tenn. 1996).


           III. CONSTRUCTIVE DISCHARGE
           As the trial court correctly pointed out in its memorandum opinion,
“notice” is Ms. Parker’s watchword.                 Ms. Parker claims that Conwood
constructively discharged her from its facility. To succeed in meeting her initial
burden, she must show that “a reasonable employer would have foreseen the



       3
         Although, the U.S. Supreme Court has found recently that an employer can be held
vicariously liable for a hostile work environment created by a plaintiff’s supervisor; Burlington
Industries, Inc. v. Ellerth, ___U.S.___, 118 S.Ct. 2257 (1998); Faragher v. City of Boca Raton,
___U.S.___, 118 S.Ct. 2275 (1998); inasmuch as the environments in those cases were solely
created by supervisors’ affirmative acts foreseeable by employers and not situations of alleged
tacit approval absent complaints; this court finds the case at bar distinguishable on its facts
from those authorities.

                                              -6-
employee’s resignation, given the intolerable conditions of employment.” See
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 34(Tenn. 1996). Our supreme
court has stated with regard to this standard of proof:
         ...[I]n the context of a hostile work environment claim, that
         standard requires a plaintiff claiming constructive discharge
         to demonstrate that the harassment is so severe or pervasive
         that work conditions were intolerable, a showing greater than
         the minimum required to prove hostile work environment.

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 34(Tenn. 1996). Ms. Parker
reported no “cold-shoulder treatment” to Conwood that remained uninvestigated.
And she failed to show that Conwood knew or should have known of such
treatment. It necessarily follows that if Ms. Parker failed to prove hostile work
environment, she therefore fails to prove constructive discharge.


         Under authorities and according to the principles cited above, this court
affirms the summary judgment of the trial court, and remands this case to the
trial court for further proceedings as necessary. Costs on appeal are taxed
against Appellant.




                               ________________________________________
                               WILLIAM B. CAIN, JUDGE


CONCUR:



_________________________________________
WILLIAM C. KOCH, JR., JUDGE


_________________________________________
PATRICIA J. COTTRELL, JUDGE




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