Allen v. McPhee, No. M2005-00202-COA-R3-CV (TN 5/12/2006)

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Unpublished Opinion

TAMMIE C. ALLEN v. SIDNEY McPHEE, ET AL.

No. M2005-00202-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

October 14, 2005 Session.

Filed May 12, 2006.

Appeal from the Circuit Court for Rutherford County; No. 49684; Tom Gray, Judge.

Judgment of the Circuit Court Affirmed.

Steven E.Sager, L. Gilbert Anglin, Murfreesboro, Tennessee, for the appellant, Tammie C. Allen.

Barbara J. Moss, Nashville, Tennessee, for the appellee, Sidney McPhee, in his individual capacity.

Paul G. Summers, Attorney General and Reporter; William J. Marett, Jr., Sr. Counsel, Civil Litigation and State Services Division; for the appellees, State of Tennessee, Tennessee Board of Regents, Middle Tennessee State University, Charles Manning in his official capacity as Chancellor of the Tennessee Board of Regents, and Sidney McPhee in his official capacity as President of Middle Tennessee State University.

William B. Cain, J., delivered the opinion of the court, in which Frank G. Clement, Jr., J., joined. Patricia J. Cottrell, J., did not participate.

OPINION

WILLIAM B. CAIN, Judge.

State employee sued the State of Tennessee, Middle Tennessee State University, its Chancellor, and the Tennessee Board of Regents for gender-based discrimination in the form of a sexually hostile work environment and for retaliation in violation of the Tennessee Human Rights Act. Employee also sued the President of MTSU individually for sexual harassment and for retaliation in violation of the Tennessee Human Rights Act. The trial court granted the President of MTSU and the State's motions for summary judgment on all issues. We affirm the decision of the trial court in all respects.

In September 1992, the State of Tennessee ("the State") hired Tammie C. Allen ("Allen") as a Secretary at Middle Tennessee State University ("MTSU"). Allen assumed the position of Executive Secretary in the President's Office in August 1999, and was later promoted to Administrative Assistant. At that time, Dr. James Walker was the President of MTSU. Upon Dr. Walker's resignation, Dr. R. Eugene Smith was appointed as Interim President. Sidney McPhee ("Dr. McPhee") became President of MTSU in August 2001, and Allen thereafter began working for him.

On October 6, 2003, Allen filed a sexual harassment Complaint against Dr. McPhee with the Tennessee Board of Regents for the State of Tennessee and Community College System (TBR) and its Chancellor, Charles W. Manning ("Chancellor Manning"). Allen alleged that in August 2002, Dr. McPhee began engaging in inappropriate and unwanted sexual misconduct towards her. Allen asserted in her Complaint that the first incident of harassment occurred in August 2002, when Dr. McPhee invited her to play golf at Cedar Crest Golf Club in Rutherford County. Allen alleged that during the round of golf, Dr. McPhee attempted to kiss and touch her and that all of his actions were offensive and unwanted. According to the Complaint, Dr. McPhee engaged in similar conduct during golf outings on two other occasions, on August 26, 2002, and on October 2, 2002.

Allen asserted that sexual harassment also occurred on Saturday, February 15, 2003, when Dr. McPhee called Allen at her home and requested that she report to work. Allen claimed that while assisting with routine administrative matters in Dr. McPhee's office, Dr. McPhee shut the door and asked her to dance. Allen alleged that she unwillingly complied with Dr. McPhee's multiple requests to dance throughout the day and that during the last dance, Dr. McPhee touched her in an offensive manner. According to Allen, Dr. McPhee called her at home again the next day and requested that she report to work. Allen claimed that she attempted to call Dr. Duane Stucky ("Stucky"), a former MTSU employee, in order to seek advice about how she should handle the situation, but she was unable to reach him. Allen reported to work and claimed that shortly after she arrived, Dr. McPhee began playing music again and asked her to dance. Allen claimed that she complied with Dr. McPhee's multiple requests but that she conveyed to him that it made her feel uncomfortable.

Allen asserted that after leaving the office, she spoke with Stucky and revealed the general circumstances surrounding the alleged harassment. Allen claimed that she also spoke with Dr. Watson Hannah, Director, Office of the Executive Vice President and Provost for MTSU, Dr. Richard Hannah, a faculty member of MTSU, and Dr. Bob Eaker, a faculty member of MTSU and Interim Executive Vice President and Provost, about the alleged incidents of sexual misconduct. She considered these individual friends whom she believed could offer support and advice. Allen claimed that none of the individuals advised her to report Dr. McPhee's conduct to the EO/AA Director.

Allen alleged that the harassment worsened in August 2003. Allen claimed that during that time Dr. McPhee asked her to play golf on several occasions and that during these occasions Dr. McPhee asked her personal and sexually explicit questions and urged her to ask the same of him. Allen admitted that although she usually attempted to avoid the questions, at times she engaged in the conversations out of fear of jeopardizing her employment.

Allen asserted that Dr. McPhee's conduct continued on September 7, 2003, when he invited her to play golf after the Georgia football game. Allen claimed that while they were riding in the golf cart, Dr. McPhee offensively touched her and expressed a desire to engage in sexual acts with her. Allen claimed that similar offensive touching and comments were made by Dr. McPhee while riding on the President's bus, returning from both the South Carolina and Missouri football games.

Allen claimed that Dr. McPhee thereafter began acting distant towards her. She claimed that he did not invite her participate in the annual Neill-Sandler golf tournament in October 2003, although he had included her the previous year. Allen alleged that on September 29, 2003, Dr. McPhee called her into his office and told her that he was going to leave her alone and not "fool around" with her anymore. She claimed that he stated that he was not mad at her but that he did not want to be wasting her time and that he had sensed that she had been "pulling away" from him. She also asserted that Dr. McPhee said that he would no longer include Allen in any golf tournaments nor extend invitations to travel on the President's bus to the MTSU football games. Allen claimed that she told Dr. McPhee that she enjoyed playing golf but that the conduct on the golf course made her feel uncomfortable.

Allen claimed that the next day, Dr. McPhee approached her desk and told her that he felt bad about their conversation the day before, that he had difficulty expressing himself, and that some people had trouble knowing when they had crossed the line. Dr. McPhee allegedly stated that he did not want to push himself on Allen and that he understood that she might have trouble telling him "no." Allen claimed that she then reiterated that she enjoyed playing golf but that the prior misconduct made her feel uncomfortable.

Based upon Allen's allegations, the TBR and MTSU directed that an investigation be conducted under the supervision of Christine Modisher (Modisher), General Counsel for the TBR. Modisher assigned the investigation to Debbie G. Johnson (Johnson), the Assistant Vice Chancellor for Human Resources at the TBR, who conducted the investigation from October 8, 2003 through October 29, 2003.

Dr. McPhee was informed of Allen's Complaint on October 9, 2003, and instructed by TBR officials not to return to his office. Dr. McPhee categorically denied all allegations of sexual harassment. Beginning on October 10, 2003, Allen was placed on administrative leave with pay through October 17, 2003, with the agreement of Allen and her attorney, in order to remove Allen from any further contact with Dr. McPhee. Allen withdrew her original Complaint upon the request of Dr. McPhee because of a medical emergency and the possibility of private resolution. However, Allen refiled her original Complaint as well as additional Complaints for retaliation and constructive discharge on October 20, 2003. Dr. McPhee filed a written response to the original Complaint on October 20, 2003 and an amended response on October 29, 2003.

On October 16, 2003, Dr. McPhee issued a press release to the media where he acknowledged that a harassment complaint had been filed against him and stated that he would not address the specific allegations contained therein in order to protect the mediation process. He also asked that the media exercise restraint. Dr. McPhee sent an email to MTSU staff and students stating that he had issued a press release and asking that the recipients focus on their work, on the University, and not to become distracted.

On October 17, 2003, counsel for TBR spoke with Allen's attorney, who was told that Allen should report to work on Monday, October 20, 2003, in the Development Office at MTSU with the same job title, job classification, and rate of pay. The alleged purpose of the transfer was to ensure that Allen was working in an environment free from harassment and any retaliation pending the outcome of the investigation. Allen refused temporary reassignment and notified TBR that she intended to report to the President's Office on Monday morning. That was not acceptable to TBR, and thus Allen was allowed to remain on administrative leave with pay.

According to the report filed by Johnson on November 23, 2003, there were no witnesses to the alleged incidents of harassment. Johnson found no independent corroborating evidence to support or disprove Allen's allegations and found no other sexual harassment complaints regarding Dr. McPhee documented by his previous TBR employers, the University of Memphis, the Board of Regents Central Office or MTSU. Furthermore, Johnson identified no supervisory...