                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

                                           May 17, 2005 Session

             BABAJIDE FAMILONI v. THE UNIVERSITY OF MEMPHIS

                      An Appeal from the Chancery Court for Shelby County
                          CH-04-0937-1 Walter L. Evans, Chancellor


                       No. W2004-02077-COA-R3-CV - Filed August 29, 2005


This case is about subject matter jurisdiction. A professor employed by the University of Memphis
filed a lawsuit in chancery court against the University, alleging claims under the Tennessee Human
Rights Act and failure to execute a settlement agreement on his discrimination claims. The
University filed a motion to dismiss the complaint, asserting that the chancery court did not have
subject matter jurisdiction to hear contract claims against an agency of the State of Tennessee. The
trial court granted the motion, finding that it did not have subject matter jurisdiction to hear the
complaint. We affirm in part and reverse and remand, finding that the chancery court has subject
matter jurisdiction over claims for discrimination under the Tennessee Human Rights Act.

  Tenn. R. App. P. 3 Appeal as of Right; the Judgment of the Chancery Court is Affirmed
                            in part, Reversed in part and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., AND
DAVID R. FARMER , J., joined.

Robert L. J. Spence, Jr., Memphis, and Damon K. Griffin, Memphis, for plaintiff/appellant
Babajide Familoni

Julie Randall Pablo, Assistant Attorney General, Nashville, for defendant/appellee The
University of Memphis

                                       MEMORANDUM OPINION1

      Plaintiff/Appellant Babajide Familoni, Ph.D. (“Dr. Familoni”) is an engineering professor
employed by Defendant/Appellee The University of Memphis (“University”). Dr. Familoni, a native


         1
           This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. W hen a case
is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
of Nigeria, has been employed by the University since 1987. Dr. Familoni alleged that he
experienced discriminatory treatment from the University, in particular from his supervisor, the Dean
of the College of Engineering, Richard Warder, Jr. (“Dean Warder”). In compliance with University
procedure, Dr. Familoni registered his complaint about the discriminatory treatment by sending a
confidential letter to the President of the University, Dr. V. Lane Rawlins (“President Rawlins”).

        In January 2000, President Rawlins responded to Dr. Familoni’s concerns and advised him
to discuss the issues with the Provost, Dr. Legg (“Dr. Legg”), and the President of Legal and Internal
Affairs, Doris Kirby (“Kirby”). Based on this advice, Dr. Familoni wrote a letter to Kirby and Dr.
Legg, detailing the incidents of discrimination to which he had been subjected while at the
University.

       In February 2000, Dr. Familoni received a job offer from Dr. Sandra Singer (“Dr. Singer”)
with Purdue University Calumet to become the Dean of their Department of Electrical Engineering.
After Dr. Singer made the offer to Dr. Familoni, she asked for a reference from his supervisor, Dean
Warder.

       On February 14, 2000, Dean Warder told Dr. Familoni that he had spoken to Dr. Singer.
Dean Warder told Dr. Familoni that he had given him a glowing recommendation overall, but had
also mentioned concerns regarding Dr. Familoni’s ability to manage a budget. The next day,
February 15, 2000, Familoni met with Kirby to discuss his claims against the University and Dean
Warder. The following day, February 16, 2000, Familoni received a phone call from Dr. Singer,
withdrawing the job offer. Dr. Singer told Dr. Familoni that Dean Warder had told her that Dr.
Familoni had a bad reputation, that no one liked to work with him, and that Familoni had filed a
discrimination claim against him. Dr. Singer said that Dean Warder advised her that she could
confirm that Dr. Familoni had filed a discrimination claim by speaking to Dr. Legg. Dr. Singer
contacted Dr. Legg, who indeed confirmed to her that Dr. Familoni had filed a claim of
discrimination.

        Familoni continued to pursue his complaints of discrimination against the University by
mailing letters to Kirby and Dr. Legg on February 28, 2000, June 1, 2000, and June 15, 2000. In
January 2001, after allegedly receiving no response to his complaints, Dr. Familoni hired an attorney
to resolve the matter. On January 22, 2001, the attorney sent Kirby a letter, requesting a meeting
regarding Dr. Familoni’s complaints.

        Thereafter, the parties engaged in negotiations, apparently resulting in a tentative agreement
that Dr. Familoni would receive $5,000 and one semester of paid leave. The appellate record
contains a copy of an email sent August 31, 2001 from Kirby to Dr. Familoni’s counsel, outlining
the proposed settlement agreement. The record also contains a copy of a written settlement
agreement, which was signed by Dr. Familoni and dated December 21, 2002. The written settlement
agreement states that the University would provide Familoni with $5,000 in travel funds; however,
the agreement also states that Dr. Familoni would be granted one year of paid leave of absence rather
than one semester as stated in the email. In exchange for this, Dr. Familoni agreed to release his

                                                 -2-
claims against the University. This written agreement was never signed by a representative of the
University.

        In April 2002, Kirby requested that the proposed settlement agreement be modified to delete
the $5,000 in travel funds and change the one semester of paid leave to a full academic year of paid
leave. In return, Dr. Familoni would again agree to release his discrimination claims against the
University. The record includes a copy of this modified settlement agreement, signed by Dr.
Familoni and dated July 12, 2002. This modified agreement was likewise never signed by a
representative of the University.

        Despite many telephone conversations and the exchange of numerous letters, the University
never signed a written settlement agreement with Dr. Familoni. The University allegedly told Dr.
Familoni that the delay was attributable to the normal bureaucratic process of the University. Even
so, allegedly in reliance on the agreement, Dr. Familoni accepted a position with Savannah State
University for the academic year of 2004. After alerting the University that he intended to proceed
with the year of professional leave, Dr. Familoni alleges, the University told him that it would not
honor the agreement.

        On May 13, 2004, Dr. Familoni filed a complaint against the University in the Shelby County
Chancery Court, alleging that the University breached the settlement agreement and that the
University had violated the Tennessee Human Rights Act (“Human Rights Act”) by discriminating
against him.2 The complaint alleged that the University violated the Human Rights Act by preventing
Dr. Familoni from exercising his rights under the settlement agreement and that the University was
guilty of malicious harassment under Tennessee Code Annotated § 4-21-701 by inducing him into
waiving his claims for discrimination, then refusing to honor the settlement agreement. Dr.
Familoni’s complaint sought an award of actual damages of $150,000 for violations of the Human
Rights Act, as well as punitive damages and attorney’s fees. The complaint also requested a
permanent injunction to enjoin the University from wrongfully terminating Dr. Familoni’s rights
under the settlement agreement and from unlawfully discriminating against him.




         2
          The Tennessee Human Rights Act is codified at Tenn. Code Ann § 4-21-101 and reads as follows:
        (a) It is a discriminatory practice for an employer to:
        (1) Fail or refuse to hire or discharge any person or otherwise to discriminate against an individual
        with respect to compensation, terms, conditions or privileges of employment because of such
        individual's race, creed, color, religion, sex, age or national origin; or
        (2) Limit, segregate or classify an employee or applicants for employment in any way which would
        deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect
        the status of an employee, because of race, creed, color, religion, sex, age or national origin.
        (b) This section does not apply to the employment of an individual by such individual's parent, spouse
        or child or to employment in the domestic service of the employer.
T.C.A. § 4-21-101 (1998).




                                                        -3-
        In response to Dr. Familoni’s complaint, on May 28, 2004, the Tennessee Attorney General,
acting on behalf of the University, filed a motion to dismiss. The motion to dismiss, which included
a supporting memorandum of law, first alleged that the Chancery Court lacked jurisdiction to hear
the matter because the Tennessee Claims Commission has exclusive jurisdiction to hear contract
claims against the State. As such, the University maintained, the Chancery Court lacked subject
matter jurisdiction to hear a complaint against the State for breach of contract.

        The University’s motion to dismiss argued further that Dr. Familoni had failed to establish
a prima facie case of discrimination under the Human Rights Act. The motion stated that in order to
prove discrimination, a plaintiff must show that (1) the plaintiff belongs to a protected class, (2) the
plaintiff was subject to an adverse job action, (3) the employer treated similarly-situated employees
with other rules more favorably, and (4) the plaintiff was qualified to do his job. McDonnell Douglas
v. Green, 411 U.S. 792, 802 (1973). The motion noted that the complaint stated that Familoni was
from Nigeria but did not state his race. Further, the motion argued that the University’s refusal to
enter into a settlement agreement did not constitute a violation of the Human Rights Act and was not
an adverse job action under the discrimination statutes.

         In addition, the University’s motion to dismiss alleges that Dr. Familoni’s claims under the
Human Rights Act are barred by the applicable one-year statute of limitations. The motion contends
that the most recent alleged act of discrimination occurred in 2000, and that Dr. Familoni’s complaint,
filed in May 2004, was time barred. Further, the University noted that the parties could have agreed
that the statute of limitations would be tolled during negotiations, but never did so.

         In the motion to dismiss, the University also contended that Dr. Familoni’s complaint for
malicious harassment under Tennessee Code Annotated § 4-21-701 must be dismissed for failure to
state a claim upon which relief can be granted.3 The motion argued that Dr. Familoni presented no
evidence of “ill-will, hatred, or spite” nor did Dr. Familoni present evidence that the University
intimidated him from “the free enjoyment of a constitutional right” as required by Tennessee law.
Washington v. Robertson County, 29 S.W.3d 466, 473 (Tenn. 2000).

        Finally, the University asserted in the motion to dismiss that Dr. Familoni is not entitled to
injunctive relief because he had not posted bond, as required by Rule 65.05 of the Tennessee Rules
of Civil Procedure, and because Dr. Familoni cannot meet the requirements for injunctive relief set
forth in Christian Schmidt Brewing Co. v. G. Heilman Brewing Co., 753 F. 2d1354, 1356 (6th Cir.
1985). In particular, the University argued that Dr. Familoni could not show that he would suffer
irreparable harm without the injunction.

          3
          Tennessee Code Annotated § 4-21-701 states:
         (a) There is hereby created a civil cause of action for malicious harassment.
         (b) A person may be liable to the victim of malicious harassment for both special and general damages,
         including, but not limited to, damages for emotional distress, reasonable attorney's fees and costs, and
         punitive damages.
 Tennessee Code Annotated § 4-21-701 (1998).



                                                           -4-
        On June 1, 2004, the trial court held a hearing was to address Dr. Familoni’s request for a
temporary injunction because Dr. Familoni was scheduled to begin his academic leave on July 1,
2004. Prior to this hearing, the University filed an affidavit by Ralph Faudree (“Faudree”), Provost
of the University of Memphis, stating that the University would grant Dr. Familoni a year of leave
and that Dr. Familoni’s position would be available to him upon his return. However, Faudree’s
affidavit stated, pursuant to the University’s policy, that the year of leave would be unpaid.

       After some discussion of the merits of the complaint, the parties agreed that the matter would
be continued. In addition, pursuant to an agreement between the parties, the trial court entered a
consent order dated June 11, 2004, confirming that the University would grant Dr. Familoni one year
of unpaid leave and that the University would take no adverse employment action against Dr.
Familoni. All other issues were reserved for a later hearing.

        On August 6, 2004, Familoni filed an amended complaint in the Chancery Court.

        On August 11, 2004, the Chancery Court heard arguments on the amended complaint and the
University’s motion to dismiss. The parties first disputed whether the amended complaint could be
filed without permission from the trial court. The trial court found that the amended complaint was
substantially the same as the initial complaint, and was filed in an attempt to clarify the issues. As
a result, the trial court allowed Dr. Familoni to file the amended complaint.

        As to the University’s motion to dismiss, the trial court first heard arguments on the issue of
subject matter jurisdiction. The University characterized the action as a breach of contract claim and
contended that the Chancery Court did not have subject matter jurisdiction because, pursuant to
Section 9-8-307 of the Tennessee Code Annotated, the Tennessee Claims Commission has exclusive
jurisdiction to hear claims against a state agency for breach of contract.

        In response, Dr. Familoni asserted that Section 9-8-307 of the Tennessee Code Annotated only
applied to contracts that were executed – i.e. signed both parties to the contract. As a result, Dr.
Familoni alleged, had he filed a claim before the Tennessee Claims Commission, the Claims
Commission would refuse to hear the matter because the University never signed the settlement
agreement. As a result, Dr. Familoni contended, the Chancery Court is the only venue with
jurisdiction to hear his claim. Further, Dr. Familoni claimed, the University’s failure to execute the
settlement agreement was itself an act of discrimination.

         After hearing the arguments, the trial court concluded that it did not have subject matter
jurisdiction to hear the matter. The trial court reasoned that the “allegation regarding the racial
discrimination flows from the existence of a valid contract. And if there is no valid contract, then I
don’t even think that we reach the issue of discrimination for failing to abide by the contract.” In light
of this conclusion, the trial court did not address the other issues raised in the motion to dismiss, such
as whether the statute of limitations had run on Dr. Familoni’s claims under the Human Rights Act.
Therefore, the trial court dismissed Dr. Familoni’s complaint. From this ruling, Dr. Familoni now
appeals.

                                                   -5-
        On appeal, Dr. Familoni again asserts that his claim falls under the Human Rights Act and that
the Chancery Court has jurisdiction for claims of discrimination under this Act. Dr. Familoni argues
that he has been subjected to unlawful discrimination and that pursuant to Tennessee case law and
Tennessee statutory law, Chancery Court is the proper venue for his claim and the trial court erred
in dismissing his claim.

        The University again claims that this is a breach of contract action for which the Tennessee
Claims Commission has exclusive jurisdiction. The University notes that the State of Tennessee and
its agencies can only be bound by a written contract. See Tenn. Code Ann § 9-8-308. It maintains
that neither a written nor an oral contract existed between the parties and that the mere drafting of a
settlement agreement does not create a binding agreement. The University contends that Dr.
Familoni’s claims flow from an alleged breach of this contract, and that, as a result, Dr. Familoni has
no valid claim against the State.

       “Since a determination of whether subject matter jurisdiction exists is a question of law, our
standard of review is de novo, without a presumption of correctness.” Northland Ins. Co. v. State,
33 S.W.3d 727, 729 (Tenn. 2000).

        In order to determine the subject matter jurisdiction of the trial court in this case, we examine
Dr. Familoni’s initial complaint and the amended complaint. Both assert breach of contract as well
as discrimination under the Human Rights Act. In the initial complaint, Dr. Familoni alleges that he
has been subjected to racial discrimination under the Human Rights Act “including preventing [Dr.
Familoni] from exercising his rights under the . . . Settlement Agreement.” In the amended
complaint, Dr. Familoni asserts that the “actions of the [University] in trying to prevent [Dr.
Familoni] from exercising his rights under the . . . Settlement Agreement further evidence the history
of harassment [Familoni] has suffered during his employment with [the University].” Dr. Familoni
does not allege that a written contract exists with the University; to the contrary, he contends that the
University discriminatorily failed to sign the proposed settlement agreement. He alleges a “breach”
of the proposed settlement agreement, but also argues that the University engaged in intentional
misrepresentations in the course of the negotiations, and that he relied, to his detriment, on the
University’s actions in negotiation of the agreement - claims sounding in quasi-contract. Thus, the
claims are rooted in the original allegedly discriminatory conduct, and revolve around the later
contract negotiations, but are not exclusively contract claims.

        The University correctly asserts that the Tennessee Claims Commission had exclusive
jurisdiction to hear “[a]ctions for breach of a written contract between the claimant and the state
which was executed by one (1) or more state officers or employees with authority to execute the
contract.” T.C.A. § 9-8-307(a)(1)(K) (2004). Therefore, the Chancery Court would not have subject
matter jurisdiction to hear claims against the University for breach of a written contract.

        However, the Human Rights Act, in section 4-21-311 of the Tennessee Code Annotated, states
that “[a]ny person injured by any act in violation of the provisions of this chapter shall have a civil
cause of action in chancery or circuit court.” T.C.A. § 4-21-311(a) (1998). Additionally, the Human

                                                  -6-
Rights act defines “employer” to include “the state, or any political or civil subdivision thereof.”
T.C.A. § 4-21-102(4) (1998).

        This Court addressed this conflict between the statutes in Roberson v. University of
Tennessee, 1988 WL 74236 (Tenn. Ct. App. 1988). In Roberson, this Court was presented with the
same issue as the instant case – whether a chancery court has jurisdiction to hear a discrimination
claim against a state agency. Roberson, 1988 WL 74236, at *1. The Roberson court provided a
detailed analysis of the proper resolution of the conflicting statutes and we need not restate it here.
Id. at *1-*3. Under the holding of Roberson, a chancery or circuit court has jurisdiction to hear
claims against the state for claims arising under the Tennessee Human Rights Act. Id. at *3.
Therefore, to the extent that Dr. Familoni’s complaint alleges discrimination under the Human Rights
Act, the Chancery Court has subject matter jurisdiction, and the trial court erred in dismissing the
complaint.4

       The decision of the trial court is affirmed in part and reversed in part, and the cause is
remanded for further proceedings not inconsistent with this Opinion. Costs of this appeal are taxed
one-half to Plaintiff/Appellant Babajide Familoni, and his surety, and one-half to Defendant/Appellee,
the University of Memphis, for which execution may issue, if necessary.




                                                              ____________________________________
                                                              HOLLY M. KIRBY, JUDGE




         4
          W e do not address other defenses to which the University refers on appeal, such as whether any claims are
time-barred by the applicable statute of limitations or whether claims not based on a written contract can be asserted
against the State.

                                                        -7-
