                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 14, 2002 Session



          KAREN MOUNTJOY, ET AL. v. CITY OF CHATTANOOGA

                     Appeal from the Chancery Court for Hamilton County
                        No. 99-0132    Howell N. Peoples, Chancellor

                                      FILED APRIL 23, 2002

                                  No. E2001-02017-COA-R3-CV




D. Michael Swiney, dissenting


               I respectfully dissent from the Majority’s Opinion in this case. As I believe there is
no material evidence in the record to support the jury’s verdict that the City retaliated against Ms.
Mountjoy for filing a complaint for sexual harassment against her supervisor, I would reverse the
judgment and enter judgment in favor of the City.

               As discussed by the Majority, the first issue raised by the City is as follows:

               Was there material evidence to support the jury’s verdict that the City
               retaliated against Ms. Mountjoy for filing a complaint for sexual
               harassment against her supervisor?

The Majority holds there is material evidence in the record to support the jury’s verdict that the City
retaliated against Ms. Mountjoy. I respectfully disagree.

              This Court in Austin v. Shelby County Government, 3 S.W.3d 474, 480 (Tenn. Ct.
App. 1999) clearly set forth the four elements Plaintiff must satisfy to sustain a claim for retaliatory
discharge under the THRA as follows:

        (1) that the plaintiff engaged in an activity protected by the statute; (2) that the
        defendant had knowledge of the plaintiff’s exercise of protected activity; (3) that the
        defendant thereafter took an employment action adverse to the plaintiff; and (4) that
        a causal connection existed between the protected activity and the adverse
        employment action.
                I believe there is no material evidence supporting the jury’s decision that elements
three and four are satisfied. What cannot be ignored is that the jury returned a verdict in favor of the
City on Plaintiff’s charge of sexual harassment. In short, the jury found Plaintiff failed to prove she
was sexually harassed in violation of the THRA. It is undisputed from the record that the City did
not require Plaintiff to transfer to the new job. It is undisputed that the City simply gave Plaintiff
a choice to return to her original position where, according to the jury, she had not been sexually
harassed, or to take the transfer. Plaintiff chose the transfer rather than returning to her original
position, a position in which, according to the jury, she had not been sexually harassed.

                 As held by the United States Supreme Court, a “tangible employment decision
requires an official act of the enterprise, a company act.” Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 762, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1998). If the City had insisted Plaintiff transfer
to the lesser paying job, there would have been material evidence to support the jury’s verdict. The
City, however, made no such demand. The City only gave Plaintiff an additional option. The City
gave Plaintiff the option of returning to a position in which, according to the jury, she had not been
sexually harassed, or transferring to a lesser paying job. Plaintiff chose to leave her position where
she had not been sexually harassed and transfer to the lesser paying position. As argued by Plaintiff
in her brief, she felt she “had no choice in making this decision as she was afraid of repercussions
if she went back to work under John Henderson.” Plaintiff assumed future wrongful acts by the City
through its employee, John Henderson, would occur. Plaintiff, however, “has ‘an obligation not to
assume the worst, and not to jump to conclusions too fast.’” Wilson v. Firestone Tire & Rubber Co.,
932 F.2d 510, 515 (6th Cir. 1991)(citations omitted). Plaintiff assumed that the City might sometime
in the future take an employment action adverse to her. The only “act” the City actually “took” was
to give Plaintiff an additional option. I believe the act of the City to give Plaintiff an additional
option without requiring her to choose that additional option can in no way be an act that is “adverse
to the [P]laintiff. . . .”

                 I believe the Majority’s decision punishes the City for giving Plaintiff an option to
transfer if she wished to do so. In light of the Majority’s Opinion, the City would have been better
off not to have offered Plaintiff the transfer option but instead to have insisted she either remain in
the position where it believed she had not been sexually harassed, a belief validated by the jury’s
verdict, or quit. Rather than do this, the City gave Plaintiff a third option which Plaintiff voluntarily
chose. Therefore, I respectfully dissent as I believe there is no material evidence in the record to
support the jury’s verdict that the City retaliated against Plaintiff as there is no material evidence
showing that giving Plaintiff an additional option was an employment action adverse to Plaintiff.




                                                        ______________________________
                                                        D. MICHAEL SWINEY, JUDGE


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