             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                         February 1, 1999

CARL G. BERNING,                          )             Cecil W. Crowson
                                          )            Appellate Court Clerk
       Petitioner/Appellant,              )
                                          )   Appeal No.
                                          )   01-A-01-9804-CH-00180
VS.                                       )
                                          )   Davidson Chancery
                                          )   No. 97-129-I
STATE OF TENNESSEE,                       )
DEPARTMENT OF CORRECTION,                 )
                                          )
       Respondent/Appellee.               )


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

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



WILLIAM KENNERLY BURGER
SunTrust Bank Building, Suite 306
201 E. Main Street, P. O. Box 1969
Murfreesboro, Tennessee 37133-1969
      Attorney for Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

WILLIAM J. MARETT, JR.
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee 37243-0490
       Attorney for Respondent/Appellee




                           AFFIRMED AND REMANDED




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

CONCUR:
KOCH, J.
TODD, J.




                                OPINION
               The Tennessee Civil Service Commission upheld the termination of a

veteran supervisory employee for sexual harassment, conduct unbecoming a state

employee, and failure to maintain a satisfactory and harmonious working relationship

with fellow employees.    The Chancery Court of Davidson County affirmed the

Commission’s order. On appeal the employee asserts that he was denied progressive

discipline prior to termination, and that he was denied due process of law. On the

strength of the proof, he also claims that his conduct does not fit the definition of

“conduct unbecoming” or support a conclusion that he failed to maintain a harmonious

working relationship, and that his conduct was constitutionally protected. We affirm

the trial court.



                                          I.



               Carl Berning, the manager of the Department of Correction’s

Murfreesboro probation office, was a twenty-three year state employee at the time of

his termination in April of 1995. The charges against Mr. Berning surfaced in an

anonymous letter to the Department alleging sexual harassment conditions in the

Murfreesboro office, which created a stressful work environment for the employees.

The Deputy Commissioner referred the letter to Bobby Halliburton, an assistant

commissioner in charge of community corrections, and asked Mr. Halliburton to talk

to each person in the Murfreesboro office and to report the results.



               Upon receiving Mr. Halliburton’s report, the Deputy Commissioner

requested an Internal Affairs investigation, and Mr. Halliburton placed Mr. Berning on

administrative leave with pay. Following the Internal Affairs report, Mr. Halliburton

notified Mr. Berning that he was facing disciplinary action and that a due process

hearing would be held on April 18, 1995.       After the due process hearing, Mr.

Halliburton terminated Mr. Berning, and Mr. Berning requested a hearing before the

Civil Service Commission.




                                        -2-
              An administrative law judge conducted the hearing in March of 1996 and

filed a twenty-seven page order. After making extensive findings of fact, the ALJ

concluded that the facts justified Mr. Berning’s dismissal. The initial order became

final on November 12, 1996.       Mr. Berning appealed to the Chancery Court of

Davidson County and the chancellor upheld the dismissal.



                                          II.

         PROGRESSIVE DISCIPLINE UNDER THE TENNESSEE PERSONNEL LAWS



              Mr. Berning asserts that state statutes and regulations compel the

implementation of progressive discipline prior to termination.      He relies on the

provisions of Tenn. Code Ann. § 8-30-330(a) and (c):

              (a)    The supervisor is responsible for maintaining the
              proper performance level, conduct, and discipline of the
              employees under the supervisor’s supervision. When
              corrective action is necessary, the supervisor must
              administer disciplinary action beginning at the lowest
              appropriate step for each area of misconduct.

              ...

              (c)    When corrective action is necessary, the
              supervisor must administer disciplinary action beginning
              at the step appropriate to the infraction or performance.
              Subsequent infractions or poor performance may result in
              more severe discipline in accordance with subsection (a).



              In addition, the Rules of the Department of Personnel mirror the

statutory requirements. See Rule 1120-10-.07 Tenn. Register.



              The legislative mandate should be scrupulously followed, and we have

expressed our approval of the use of progressive discipline in other settings, Adams

TV of Memphis vs. IBEW, No. 02A01-9410-CV-00225 (Jackson April 29, 1996); Allen

v. Neel, No. 87-255-II (Nashville March 9, 1988), but the key word in the statute is

“appropriate.” As the chancellor concluded, “the language of these provisions does

not mandate application of discipline in a routine fashion without regard to the nature




                                         -3-
or severity of the behavior it is intended to address. The supervisor has discretion to

determine what punishment fits the offense.”



              Since Mr. Berning has attacked the appropriateness of the punishment

in another section of his brief, we will defer our discussion of whether under the facts

in this record termination was appropriate.



                                           III.

                                      DUE PROCESS

                             A.    THE ANONYMOUS LETTER



              Mr. Berning insists that he was denied due process because the

investigation against him was launched on the basis of an anonymous letter. He does

not cite any authority for that position except this excerpt from Tenn. Code Ann. § 8-

30-222(c):

              (c) No employee of the department, examiner, or other
              person shall defeat, deceive or obstruct any person in
              such person’s right to examination, eligibility, certification
              or appointment under this chapter, or furnish to any
              person any special or secret information for the purpose
              of affecting the rights or prospects of any person with
              respect to employment in the career service.



              We, however, reject the contention that this statute prevents a

department of the State from launching an investigation based on anonymous

sources. If Mr. Berning’s termination had been based on the letter, he would have

had a compelling argument, but the facts in the letter itself are not cited in the ALJ’s

order or in the chancellor’s memorandum.



                              B.   VAGUENESS AND DELAY



              Mr. Berning alleges that he was denied due process because of the

absence of detailed times, places, and other pertinent facts concerning the charges.


                                          -4-
Tenn. Code Ann. § 8-30-331(b)(1). The record reflects that the initial charges against

Mr. Berning included allegations of inappropriate sexual conduct occurring over a

period of five or six years, and involving five of his female employees. Prior to the

hearing before the ALJ, the list was supplemented with a list containing ten names

and relating graphic details of Mr. Berning’s conduct on specific occasions.



             Mr. Berning does not specifically point out how he was prejudiced by any

alleged lack of details of the time and place of his transgressions. We think the

information given him prior to the hearing satisfied the requirements of due process.



             It is true that the charges against Mr. Berning covered a period of

several years. It is also true that the Department received word of a specific charge

by another female employee in 1991 or 1992, and that the Department took no action

at that time. In the meantime, certain Departmental records have been lost or

routinely destroyed. The ALJ, however, found that much of the conduct Mr. Berning

asserts he could have rebutted through time records or other documents was conduct

he either admitted or did not deny. The chancellor also found that most of the

offensive conduct involved only Mr. Berning and the victim. So, the lack of any

records did not unduly prejudice Mr. Berning.



              After a review of the record, we add our conclusion that Mr. Berning’s

due process rights were not violated by the fact that some of the Department’s records

had been discarded.




                           C.   AN UNBIASED INVESTIGATOR



              Mr. Halliburton, the Assistant Commissioner who conducted the initial

investigation and placed Mr. Berning on administrative leave, also conducted the due

process hearing provided by Tenn. Code Ann. § 8-30-331. After that hearing Mr.



                                        -5-
Berning was terminated. Mr. Berning alleges that Mr. Halliburton had a special

relationship with Crystal Durham, who was one of Mr. Berning’s principal accusers,

and who was bitter over being denied a promotion.



              There are facts in the record from which one could infer that Crystal

Durham did indeed have a grudge against Mr. Berning, and that Mr. Halliburton and

Crystal Durham had a close relationship. From those inferences one might also infer

that Mr. Halliburton had decided to be unfair to Mr. Berning and that his participation

in the disciplinary proceedings violated Mr. Berning’s basic due process rights.



              That determination, however, is committed in the first instance to the

Civil Service Commission. Tenn. Code Ann. § 8-30-331(c) provides that, “The

commission shall determine as a preliminary matter to the merits of a grievance, a

grievant’s allegation of denial of minimum due process.” Mr. Berning raised that issue

before the Commission, and the ALJ made the following finding and/or conclusion:

“Mr Halliburton was a better friend with the grievant (Mr. Berning) than with Ms.

Durham and is not found to have acted anything other than impartially in the actions

he took.” The record does show that Mr. Berning and Mr. Halliburton were close

friends, and Mr. Berning does not point to any specific act on Mr. Halliburton’s part

that demonstrates his bias or prejudice. All we have are the inferences that might be

made. Since the ALJ declined to infer any bias or prejudice on Mr. Halliburton’s part

and the finding of Mr. Halliburton’s friendship with Mr. Berning is supported by

substantial and material evidence in the record, see Tenn. Code Ann. § 4-5-322(h)(5),

we think the ALJ’s conclusion must be sustained. The chancellor made the same

judgment.



                                          IV.

                                     THE EVIDENCE

                               A.   SEXUAL HARASSMENT




                                         -6-
             Mr. Berning admits that his conduct was in poor judgment and bad taste,

but he argues that it does not meet the definition of sexual harassment. The

Tennessee Department of Personnel policies defined sexual harassment in the

following way:

             1.    Sexual harassment is a violation of Title VII
                   of the Civil Rights Act of 1964 and it is
                   against the policies of the State of
                   Tennessee Department of Personnel for
                   any employee, male or female, to sexually
                   harass another employee by:

                   a.      Making unwelcomed sexual
                           advances or requests for
                           sexual favors or other verbal
                           or physical conduct of a
                           sexual nature as a condition
                           of employment, or continued
                           employment, or

                   b.      Making submission to or
                           rejections of such conduct the
                           basis for administrative
                           decisions         affecting
                           employment, or

                   c.      Creating an intimidating,
                           hostile or offensive working
                           environment by such conduct.

             2.     Sexual harassment does not refer to
                    behavior or occasional compliments of a
                    socially acceptable nature. It refers to
                    behavior that is not welcome, that is
                    personally offensive, that fails to respect the
                    rights of others, that lowers morale and that
                    therefore, interferes with our work
                    effectiveness. Sexual harassment may
                    take different forms. One specific form is
                    the demand for sexual favors. Other forms
                    of harassment include:

                    C      Verbal - Sexual innuendos,
                           suggestive comments, jokes of a
                           sexual nature, sexual propositions,
                           threats.

                   C       Non-Verbal - Sexually suggestive
                           objects or pictures, graphic
                           commentaries, suggestive or
                           insulting sounds, leering, whistling,
                           obscene gestures.

                   C       Physical - Unwanted physical
                           contact, including touching, pinching,
                           brushing the body, coerced sexual
                           intercourse, assault.


                                         -7-
              Sexual harassment may be overt or subtle. Some
              behavior which is appropriate in a social setting may not
              be appropriate in the work place. But whatever form it
              takes, verbal, non-verbal or physical, sexual harassment
              can be insulting and demeaning to the recipient and will
              not be tolerated in the work place.

              Sexual harassment by any employee, director, supervisor,
              or non-employee will not be tolerated. All employees,
              directors, supervisors and non-supervisors alike, will be
              expected to comply with this policy and take appropriate
              measures to ensure that such conduct does not occur.



              The ALJ made eighty-six findings of fact, filling nineteen legal-sized

pages of type, detailing the atmosphere in the Murfreesboro office and Mr. Berning’s

role in it. The ALJ found that Mr. Berning “set the tone by telling dirty jokes, and by

making comments to women of a sexual nature.” Although the record shows that

many women in the office tolerated Mr. Berning’s behavior and even engaged in

telling bawdy stories themselves, the ALJ details the deleterious effect of Mr.

Berning’s behavior on many of his employees. The chancellor summarized the

numerous findings in the following way:



              A common scenario described involved the petitioner
              being alone with a female employee; steering the
              conversation toward his interest in oral sex; graphically
              describing the act; and propositioning the female
              employee to allow him to perform the described act on
              her. Several employees testified that the petitioner
              inappropriately touched them: sliding his hand between
              two buttons of one woman’s dress at her midriff; pinning
              one woman against a desk as he attempted to kiss her;
              and rubbing his thumb across one woman’s nipple.

              ....

              As a result of the petitioner’s behavior, many of the
              employees testified that they began to avoid him, even
              when their work required them to interact with the
              petitioner. One employee stated that the petitioner’s
              behavior caused her so much stress that she began to
              take her work home with her and report to the office only
              when she knew the petitioner would not be there. At least
              three employees resigned and one volunteer quit because
              of the plaintiff’s behavior. A prospective employee
              refused to report for an interview because of statements
              the petitioner made to her during telephone calls he
              inappropriately made to her.



                                          -8-
              We concur in the chancellor’s assessment of the evidence. Having

come to that conclusion, we cannot see how Mr. Berning could seriously contend that

his conduct did not amount to sexual harassment.



                          B.   CONSTITUTIONAL PROTECTION



              Finally, Mr. Berning argues that the Commission’s action violated his

right to free speech under the United States Constitution (Amendment I) and the

Tennessee Constitution (Article I § 19). Presumably his argument is that no matter

how gross or intimidating his actions were, they fell within the scope of protected

speech.



              But even the seemingly absolute language of the First Amendment

(“Congress shall make no law . . . abridging the freedom of speech”) does not protect

pornography nor obscenities. Miller v. California, 413 U.S. 15 (1973); Roth v. U.S.,

354 U.S. 476 (1957). Apparently it is so obvious now that the First Amendment is not

a defense in sexual harassment cases that it is seldom raised. See Burlington

Industries, Inc. v. Ellerth, ____ U.S. ____ (1998).



              With respect to the Tennessee Constitution, we should pay careful

attention to the words: “The free communication of thoughts and opinions, is one of

the invaluable rights of man, and every citizen may freely speak, write, and print on

any subject, being responsible for the abuse of that liberty.” Art. 1 § 19 Tennessee

Constitution. That provision protects speech and not conduct. State v. Lakatos, 900

S.W.2d 699 (Tenn. Cr. App. 1994). Where the protected speech is merely incidental

to the offensive conduct, the Constitution does not provide a defense. Id. To the

extent that Mr. Berning’s conduct included unwelcome touching, fondling, and kissing

of his employees, he cannot escape condemnation by claiming his rights of free

speech.




                                         -9-
             The judgment of the trial court is affirmed and the cause is remanded

to the Chancery Court of Davidson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.




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


CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
HENRY F. TODD, JUDGE
