Porsha Perkins v. Metropolitan Government of Nashville and Davidson County

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 14, 2012 Session

PORSHA PERKINS v. METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Davidson County

No. 08C733 Barbara N. Haynes, Judge

____________________

No. M2010-02021-SC-R11-CV - Filed August 22, 2012

____________________

An employee of an agency of the Metropolitan Government of Nashville and Davidson

County (“Metro”) was discharged after she filed complaints with the Equal Employment

Opportunity Commission and a lawsuit against Metro alleging employment discrimination.

The employee appealed her termination to the Metro Civil Service Commission and

eventually settled the appeal, receiving backpay and other consideration in exchange for her

agreement not to apply for or accept future employment with the agency that discharged her.

The employee subsequently filed a complaint against Metro alleging, among other things,

retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”)

and the Age Discrimination in Employment Act (“ADEA”). Metro filed a motion seeking

summary judgment. The trial court granted the motion, reasoning that the employee could

not establish that her termination constituted an adverse employment action because she had

accepted backpay and agreed not to be reinstated as part of the settlement of her Civil Service

Commission appeal. The Court of Appeals affirmed. We conclude that the employee’s

acceptance of the settlement does not preclude her from establishing that her termination

constituted an adverse employment action for purposes of her federal retaliatory discharge

claims. We reverse the judgment of the Court of Appeals, vacate the judgment of the trial

court granting Metro summary judgment, and remand this matter to the trial court for further

proceedings consistent with this decision.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Judgment of the Trial Court Vacated and Case Remanded

C ORNELIA A. C LARK, C.J., delivered the opinion of the court, in which J ANICE M. H OLDER,

G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Joseph Howell Johnston, Nashville, Tennessee, for the appellant, Porsha Perkins.

Saul Solomon, Director of Law, Department of Law of the Metropolitan Government of

Nashville and Davidson County; J. Brooks Fox and Christopher M. Lackey, Assistant

Metropolitan Attorneys, Nashville, Tennessee, for the appellee, Metropolitan Government

of Nashville and Davidson County.

William B. Ryan and Bryce W. Ashby, Memphis, Tennessee; Justin S. Gilbert, Jackson,

Tennessee; Jennifer B. Morton, Knoxville, Tennessee; and Wade B. Cowan and Douglas B.

Janney, III, Nashville, Tennessee, for the Amicus Curiae, Tennessee Employment Lawyers

Association.

OPINION

Factual and Procedural Background

In 2001, Porsha Perkins (“Plaintiff”) began working as a Family Services Specialist

for the Metropolitan Action Commission (“MAC”), an agency of Metro responsible for

administering the Head Start Program for underprivileged children. Plaintiff is an African-

American female over the age of forty. In September of 2004, MAC terminated Plaintiff for

allegedly falsifying her time card. On October 28, 2004, Plaintiff filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”) and the Tennessee Human Rights

Commission (“THRC”), alleging that her termination resulted from age-based discrimination.

On December 3, 2004, MAC reinstated Plaintiff but imposed a one-day suspension

without pay for allegedly coercing her co-worker to make a false statement. On

December 20, 2004, Plaintiff filed a second EEOC complaint,1 this time alleging that the

one-day suspension was in retaliation for her initial EEOC complaint.

On October 31, 2005, Plaintiff filed a lawsuit against MAC and Metro in the Chancery

Court for Davidson County, alleging that the one-day suspension constituted employment

discrimination based on her age and race and that the suspension had been imposed in

retaliation for her EEOC and THRC complaints.

Plaintiff’s lawsuit and complaints remained unresolved when two incidents allegedly

occurred on November 16, 2005. Plaintiff reported that a co-worker struck a child with a

broom, while the co-worker reported that Plaintiff pinched a child of pre-school age, leaving

a visible mark on his arm. MAC began an internal investigation, and on November 21, 2005,

MAC placed Plaintiff on paid administrative leave pending the outcome of its investigation

1

This second EEOC complaint is not in the record, but it is mentioned in the complaint that Plaintiff

filed on October 31, 2005, which is part of the record on appeal.

2

of the alleged incident. MAC also reported the allegation to the Tennessee Department of

Children’s Services (“DCS”) and the Tennessee Department of Human Services (“DHS”),

as required by law.2 These agencies also investigated the alleged incident.3

Although Plaintiff denied the allegation from the beginning, DCS and DHS found

probable cause that Plaintiff had pinched the child. On the recommendation of DHS, MAC

adopted a temporary safety plan on November 22, 2005, that prohibited Plaintiff from being

left alone with children. Based on a mistaken belief that the investigation had been

concluded, DHS later advised MAC that Plaintiff posed a risk to small children and would

be subject to a permanent safety plan prohibiting her from being left alone with children.

Plaintiff retained counsel and requested an evidentiary hearing. Thereafter, DHS sent a letter

to MAC, dated January 12, 2006, stating that the investigation into the allegation against

Plaintiff had not been completed, as previously mistakenly reported, and that the

November 22, 2005 temporary safety plan should be reinstated.

However, in a letter dated January 13, 2006, MAC terminated Plaintiff’s employment,

citing the permanent safety plan and explaining that, as a small agency, MAC could not

assume the burden of guaranteeing that Plaintiff would not be left alone with children.

Plaintiff appealed her termination to the Metro Civil Service Commission.4 Plaintiff

also filed a third EEOC complaint on September 11, 2006, amended September 20, 2006, in

which she alleged that her termination constituted retaliation for her previous EEOC

complaints and October 31, 2005 lawsuit against Metro.

Meanwhile, by a letter dated February 2, 2007, DCS advised Plaintiff that, as the

result of an administrative hearing, it had reviewed the investigation that identified her as the

perpetrator of child abuse and had determined that the allegation of child abuse against her

was “unfounded.” DCS provided a copy of this letter to MAC and advised MAC that “all

restrictions” in the November 22, 2005 safety plan had been lifted and were null and void.

On August 2, 2007, eighteen months after her termination, the parties signed a Release

and Settlement Agreement (“Settlement”), which provided in relevant part:

2

Tenn. Code Ann. § 37-1-403(a)(1) (2010).

3

The record indicates these agencies conducted a joint investigation.

4

The parties do not dispute that Plaintiff appealed her termination to the Metro Civil Service

Commission, but the record in this appeal does not include any documents from that appeal.

3

The undersigned, PORSHA PERKINS, enters into this settlement

agreement and release of liability for the consideration of Forty-five Thousand

($45,000.00) Dollars paid to her, the receipt of which is acknowledged, do

indemnify, release, and forever discharge THE METROPOLITAN

GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, its agents,

servants, and successors or assigns, from any and all actions, claims and

demands including but not limited to claims or actions exercising subrogation

rights, for contribution, and/or indemnity of whatever nature now existing,

including any consequences thereof now existing or which may develop,

whether or not such consequences are known or anticipated, and including all

costs of litigation (discretionary or otherwise) or which may hereafter arise out

of allegations described below:

....

The undersigned, PORSHA PERKINS, hereby further acknowledges the

following as the complete terms of this settlement set out below:

1. Forty-Five Thousand ($45,000) Dollars issued by check to Joseph

H. Johnston, attorney for Porsha Perkins, and Porsha Perkins;

2. The Metropolitan Action Commission (MAC) will expunge her

personnel file of references to: dishonesty and child abuse. The “Security

Alert” memo will not be circulated again;

3. Ms. Perkins’ complaint filed with the EEOC is not a part of this

agreement;

4. Ms. Perkins retains any right she has accrued in a pension from the

Metropolitan Government;

5. Ms. Perkins will never apply for and never be rehired by MAC (or

whatever it may subsequently be named). If[] Ms. Perkins ever has a reason

to enter onto the premises of MAC (o[r] any facilities which it operates) as a

visitor or employee of another entity, she will provide reasonable notice to the

Executive Director of MAC;

6. The matter before the Civil Service Commission (Docket No. 43.02-

093130J) regarding the termination of Porsha Perkins from MAC, is dismissed

with prejudice, under separate Order;

4

7. The matter before the Chancery Court of Davidson County (Docket

No. 05-2681-I) regarding the alleged violation of Porsha Perkins by MAC due

to retaliation arising from a one-day suspension, is dismissed with prejudice

under separate Order. The Metropolitan Government will pay any pending

court costs in this matter; and

8. The matter before the Chancery Court of Davidson County (Docket

No. 07-677-III) regarding the alleged denial of the procedural due process

rights of Porsha Perkins for lack of hearing[,] notice[,] and incorrect burden

of proof in a hearing regarding a one-day suspension from MAC is dismissed

with prejudice under separate Order.5 The Metropolitan Government will pay

any pending court costs in this matter.

She further acknowledges:

(1) That no additional promise or agreement has been made as

consideration for this Release and the signing thereof has not been induced by

any representation of the parties released, or by anyone on their behalf,

concerning the nature, extent or duration of the injuries or damages sustained,

if any, or any other matter.

(2) That the parties have denied wrongdoing or liability in whole or in

part, and that the payment and other consideration acknowledged in this

Release was made without admission of wrongdoing or liability and received

in discharge, compromise, settlement and satisfaction of all actions, claims and

demands heretofore described.

On March 10, 2008, approximately seven months after the Settlement, Plaintiff filed

a complaint against Metro in the Circuit Court for Davidson County.6 Plaintiff alleged, as

relevant to this appeal, that her termination on January 13, 2006, amounted to retaliation for

the charges she had filed with the EEOC and for her October 31, 2005 employment

discrimination lawsuit against Metro. Plaintiff asserted that her retaliatory discharge violated

Title VII, 42 U.S.C. § 2000e (2006), and the ADEA, 29 U.S.C. §§ 623-634 (2006).

5

The record on appeal does not include any documents from this case (Docket No. 07-677-III).

6

Plaintiff also named Ms. Cynthia Croom, Executive Director of MAC, and Ms. Cassandra Johnson-

Payne, Human Resources Director of MAC, as defendants. However, Ms. Croom and Ms. Johnson-Payne

were dismissed from the lawsuit by an agreed order filed June 10, 2010, and are not parties to this appeal.

5

Relying on Title VII and 42 U.S.C. § 1981a (2006), Plaintiff sought “back pay (less

a set-off of $45,000.00 pursuant to her previous settlement of her civil service appeal),” front

pay, lost benefits, and “compensatory damages not to exceed $300,000 . . . for public

humiliation, embarrassment, and mental distress against [Metro].” Under the ADEA,

Plaintiff sought “back pay (less any set-off by the previous $45,000.00 settlement of [her]

civil service appeal),” front pay, and lost benefits, “plus an award of liquidated damages

against [Metro] under 29 U.S.C. § 626(b) in an amount equal to the amount of back pay so

awarded.” 7

Metro moved for summary judgment, and on June 21, 2010, the trial court granted

Metro summary judgment on two grounds. First, the trial court, consistent with the law in

effect at the time,8 held that Plaintiff had failed to carry her burden to show that the

nondiscriminatory reasons proffered by Metro for her termination were merely “pretextual.”

Second, the trial court noted that Plaintiff had already received “back pay over this incident

and agreed not to be reinstated, both to her satisfaction.” Therefore, the trial court held that

Plaintiff, “as a matter of law, cannot prove that she was ‘adversely affected’ by her

employment termination in this case in any material way.”

On appeal, Metro conceded that the first basis for the trial court’s grant of summary

judgment was error in light of Gossett; however, Metro relied on the second ground cited by

the trial court—that Metro had negated a necessary element of Plaintiff’s retaliatory

discharge causes of action. Relying on federal decisions holding that an employee who

voluntarily transfers or resigns may not claim that the transfer or resignation constituted an

adverse employment action, Metro argued that an employee who voluntarily agrees not to be

reinstated as part of a settlement should be precluded from arguing that her termination

constituted an adverse employment action.

The Court of Appeals recognized that the authority Metro cited was distinguishable,

as it involved voluntary transfers and resignations. Perkins v. Metro. Gov’t of Nashville &

7

On April 29, 2010, the trial court entered an agreed order granting Metro’s motion to “place this

matter under seal, for the reasons stated in the motion . . . . ” Metro’s motion is not in the record on appeal;

thus, we have no way of knowing the grounds for the motion; however, the record remains under seal.

8

See Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn. 1993) (adopting the burden-

shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973)). This Court later overruled the

Anderson decision by holding that the burden-shifting framework of McDonnell Douglas does not apply at

the summary judgment stage in Tennessee. Gossett v. Tractor Supply Co., 320 S.W.3d 777, 785 (Tenn.

2010). In response to this Court’s decision in Gossett, the General Assembly enacted Tennessee Code

Annotated section 4-21-311(e) (2011). This case does not require us to address or to reconcile Gossett and

Tennessee Code Annotated section 4-21-311(e).

6

Davidson Cnty., No. M2010-02021-COA-R3-CV, 2011 WL 3793498, at *6 (Tenn. Ct. App.

Aug. 25, 2011). Nevertheless, the Court of Appeals held that because Plaintiff had

surrendered her right to be reinstated in exchange for “valuable consideration equivalent to

back pay for all the months between her termination and the date of the settlement, her

termination can no longer be considered adverse.” Id. at *7. The Court of Appeals

determined that “the question is not one of sufficiency of damages. Instead, it is whether

there existed, after the settlement agreement, an adverse employment action.” Id. The Court

of Appeals held that the settlement foreclosed Plaintiff’s subsequent claims of retaliatory

discharge, despite the settlement provision, stating: “Ms. Perkins’ complaint filed with the

EEOC is not a part of this agreement.” Id. at *8. Accordingly, the Court of Appeals

affirmed the trial court’s decision granting Metro summary judgment.

We granted Plaintiff’s application for permission to appeal.

Standard of Review

Familiar standards govern Plaintiff’s appeal from the trial court’s order granting

Metro summary judgment. First, settlement agreements are contracts between the parties,

and the rules governing the interpretation of contracts apply to settlement agreements. See

Waddle v. Elrod, 367 S.W.3d 217, 222 (Tenn. 2012). Issues concerning contractual

interpretation are reviewed de novo. Allmand v. Pavletic, 292 S.W.3d 618, 624-25 (Tenn.

2009).

Second, summary judgment is appropriate only if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S. Ry., 271 S.W.3d

76, 83 (Tenn. 2008). The moving party bears the burden of establishing that no genuine

issues of material fact are in dispute and that summary judgment is appropriate as a matter

of law. Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The moving party may make the

required showing by either: (1) affirmatively negating an essential element of the nonmoving

party’s claim; or (2) showing that the nonmoving party cannot prove an essential element of

the claim at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). If the moving

party fails to satisfy this initial burden of production, the trial court must dismiss the

summary judgment motion. Id. If the moving party makes a properly supported motion,

however, then the nonmoving party must produce evidence of specific facts establishing the

existence of genuine issues of material fact. Martin, 271 S.W.3d at 84.

In adjudicating motions for summary judgment, courts must view the evidence in the

light most favorable to the nonmoving party and resolve doubts concerning the existence of

7

genuine issues of material fact in favor of the nonmoving party. Id. “A disputed fact is

material if it must be decided in order to resolve the substantive claim or defense at which

the motion is directed.” Byrd, 847 S.W.2d at 215. A disputed fact presents a genuine issue

if “a reasonable jury could legitimately resolve that fact in favor of one side or the other.”

Id. We review de novo with no presumption of correctness a trial court’s decision on a

motion for summary judgment. Martin, 271 S.W.3d at 84.

Analysis

The narrow issue in this appeal is whether the courts below erred in concluding that

Metro negated an essential element of Plaintiff’s retaliatory discharge claims under Title VII

and the ADEA. Title VII’s antiretaliation provision states:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed any

practice made an unlawful employment practice by this subchapter, or because

he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (2006). The antiretaliation provision serves to prevent “an employer

from interfering (through retaliation) with an employee’s efforts to secure or advance

enforcement of [Title VII’s] basic guarantees.” Burlington N. & Santa Fe Ry. v. White, 548

U.S. 53, 63 (2006); see also Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)

(recognizing that the “primary purpose” of Title VII’s antiretaliation provision is

“[m]aintaining unfettered access to statutory remedial mechanisms”).

A prima facie claim of retaliatory discharge under Title VII consists of four elements:

(1) the employee engaged in activity protected under Title VII; (2) the employer knew the

employee had engaged in protected activity; (3) the employer subsequently took an adverse

retaliatory action against the employee or the employee was subjected to severe or pervasive

retaliatory harassment by a supervisor; and (4) the protected activity and the adverse action

were causally connected. Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 736 (6th

Cir. 2006) (citing Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004); Morris v.

Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000)).

The ADEA also includes an antiretaliation provision that prohibits an employer from

“discriminat[ing] against any of his employees . . . because such individual . . . has made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

litigation under this chapter.” 29 U.S.C. § 623(d) (2006). A prima facie claim of retaliatory

discharge under the ADEA also consists of four elements: (1) the employee engaged in

8

activity protected by the ADEA; (2) the employer knew the employee had engaged in

protected activity; (3) the employer thereafter took adverse action against the employee; and

(4) a causal connection exists between the protected activity and the adverse action. Spengler

v. Worthington Cylinders, 615 F.3d 481, 491-92 (6th Cir. 2010) (citing Fox v. Eagle Distrib.

Co., 510 F.3d 587, 591 (6th Cir. 2007)).

Plaintiff argues that the courts below erred by concluding that Metro negated the third

element of her retaliatory discharge claims—adverse employer action. Our resolution of this

issue necessarily begins with Burlington Northern, in which the United States Supreme Court

clarified both the scope of Title VII’s antiretaliation provision and the standard for

determining whether a plaintiff has satisfied the “adverse action” element of a retaliation

claim.9 The Burlington Northern Court first held that the scope of Title VII’s “antiretaliation

provision, unlike the substantive provision, is not limited to discriminatory actions that affect

the terms and conditions of employment.” 548 U.S. at 64.10

While the Court broadly interpreted the scope of the antiretaliation provision to

“extend[] beyond workplace-related or employment-related retaliatory acts and harm,” id.

at 67, the Court emphasized that the provision only protects against “retaliation that produces

an injury or harm.” Id. “An employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor annoyances that often take place

at work and that all employees experience.” 548 U.S. at 68. Rather, protection extends to

“employer actions that are likely to deter victims of discrimination from complaining to the

EEOC, the courts, and their employers.” Id. (internal quotation marks omitted).

The Court adopted an objective standard to differentiate petty slights from retaliatory

action. Id. To satisfy this standard, “a plaintiff must show that a reasonable employee would

have found the challenged action materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. (internal quotation marks omitted). “By focusing on the materiality of

the challenged action and the perspective of a reasonable person in the plaintiff’s position,”

9

Although Burlington Northern was a Title VII case, federal courts have applied its definition of

adverse action when analyzing ADEA retaliation claims as well. See, e.g., Spengler, 615 F.3d at 491;

Harman v. Unisys Corp., 356 F. App’x 638, 641 (4th Cir. 2009); Brown v. Northside Hosp., 311 F. App’x

217, 224 (11th Cir. 2009); Fox, 510 F.3d at 591; Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d

199, 201 (2d Cir. 2006). Metro has not argued that Burlington Northern is inapplicable to Plaintiff’s ADEA

retaliation claim.

10

This Court applied the Burlington Northern holdings in Allen v. McPhee, 240 S.W.3d 803, 820

(Tenn. 2007), abrogated on other grounds by Gossett, 320 S.W.3d at 783-84.

9

the Burlington Northern standard “screen[s] out trivial conduct while effectively capturing

those acts that are likely to dissuade employees from complaining or assisting in complaints

about discrimination.” Id. at 69-70.

Particularly pertinent to this appeal is the Burlington Northern Court’s application of

the objective standard it adopted to the facts before it. Sheila White, the female employee

in Burlington Northern, had previous experience operating forklifts and was hired as a

railroad “track laborer,” a job that entailed “removing and replacing track components,

transporting track material, cutting brush, and clearing litter and cargo spillage from the

right-of-way.” 548 U.S. at 57. She was immediately assigned to operate a forklift. Although

she performed some of the other duties of a track laborer, operation of a forklift remained her

primary responsibility until she complained to company officials about sexual harassment by

her male supervisor. Id. at 57-58. After her complaint, the employer removed White from

forklift duty and assigned her to perform only “standard track laborer tasks,” while more

senior male employees were assigned to perform the less difficult and cleaner job of forklift

operator. Id. at 58.

White filed two complaints with the EEOC, the first of which claimed that the

reassignment of her duties amounted to unlawful gender-based discrimination and retaliation

for her earlier complaint, and the second of which claimed retaliatory supervisor harassment.

Id. A few days after White filed the second EEOC complaint, she was suspended without

pay for alleged insubordination. Id. White invoked the employer’s internal grievance

procedures, which resulted in a finding that she had not been insubordinate. Id. The

employer reinstated White and awarded her backpay for the thirty-seven days she had been

suspended. Id. at 58-59.

White thereafter filed an additional retaliation complaint with the EEOC based on the

thirty-seven day suspension, and after exhausting administrative remedies, she sued the

employer, alleging a Title VII retaliation claim. Id. at 59. A jury returned a verdict in

White’s favor, finding that the employer’s reassignment of White from forklift duty to

standard track laborer tasks and White’s thirty-seven day suspension without pay amounted

to retaliation. Id. at 70.

Before the United States Supreme Court, the employer argued that White’s thirty-

seven day suspension without pay “lacked statutory significance” because the company

“ultimately reinstated White with backpay.” 548 U.S. at 71. The employer contended that

“‘it defies reason to believe that Congress would have considered a rescinded investigatory

suspension with full back pay’ to be unlawful, particularly because Title VII throughout

much of its history, provided no relief in an equitable action for victims in White’s position.”

Id. at 71-72. The United States Supreme Court rejected these arguments:

10

We do not find Burlington’s last mentioned reference to the nature of

Title VII’s remedies convincing. After all, throughout its history, Title VII has

provided for injunctions to bar like discrimination in the future, an important

form of relief. And we have no reason to believe that a court could not have

issued an injunction where an employer suspended an employee for retaliatory

purposes, even if that employer later provided backpay. In any event,

Congress amended Title VII in 1991 to permit victims of intentional

discrimination to recover compensatory (as White received here) and punitive

damages, concluding that the additional remedies were necessary to help make

victims whole. We would undermine the significance of that congressional

judgment were we to conclude that employers could avoid liability in these

circumstances.

Neither do we find convincing any claim of insufficient evidence.

White did receive backpay. But White and her family had to live for 37 days

without income. They did not know during that time whether or when White

could return to work. Many reasonable employees would find a month without

a paycheck to be a serious hardship. And White described to the jury the

physical and emotional hardship that 37 days of having “no income, no

money” in fact caused. (“That was the worst Christmas I had out of my life.

No income, no money, and that made all of us feel bad. . . . I got very

depressed”). Indeed, she obtained medical treatment for her emotional

distress. A reasonable employee facing the choice between retaining her job

(and paycheck) and filing a discrimination complaint might well choose the

former. That is to say, an indefinite suspension without pay could well act as

a deterrent, even if the suspended employee eventually received backpay. . . .

Thus, the jury’s conclusion that the 37-day suspension without pay was

materially adverse was a reasonable one.

548 U.S. at 72-73 (internal citations and quotation marks omitted).

Relying on Burlington Northern, Plaintiff maintains that if an employee’s loss of

income for thirty-seven days followed by reinstatement and backpay constitutes a materially

adverse action for purposes of a Title VII retaliation claim, then her January 13, 2006

termination and subsequent loss of income for eighteen months constitutes a materially

adverse action as well, notwithstanding the terms of the Settlement.

As in the Court of Appeals, Metro relies upon decisions holding that voluntary

transfers and resignations cannot be cited as adverse action. See, e.g., Tusing v. Des Moines

Indep. Cmty. Sch. Dist., 639 F.3d 507, 521 (8th Cir. 2011); Pownall v. City of Perrysburg,

11

63 F. App’x 819, 823 (6th Cir. 2003); Hammon v. DHL Airways, Inc., 165 F.3d 441, 447

(6th Cir. 1999); Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir. 1998). As in the

courts below, Metro analogizes Plaintiff’s acceptance of the Settlement to a voluntary

resignation and argues that, having agreed to “never apply for and never be rehired by

MAC,” Plaintiff “cannot cite the termination now as a ‘materially adverse action by her

employer.’” Metro argues that Burlington Northern is distinguishable because the employee

there had “no say” in the reinstatement and backpay she received. We agree with Plaintiff

that Burlington Northern is controlling.

Burlington Northern instructs that whether a particular action is materially adverse

must be “judged from the perspective of a reasonable person in the plaintiff’s position.” 548

U.S. at 71 (internal quotation marks omitted).11 Termination is the archetypal example of

adverse employment action. We have no doubt that a rational trier of fact could conclude

that a reasonable person in Plaintiff’s position on January 13, 2006, would have viewed the

termination as materially adverse. As the United States Supreme Court held in Burlington

Northern, “[a] reasonable employee facing the choice between retaining her job (and

paycheck) and filing a discrimination complaint might well choose the former.” Id. at 73.

We also find Metro’s attempt to distinguish Burlington Northern unpersuasive. While

this case is factually distinct from Burlington Northern, those differences actually support

Plaintiff’s position on appeal. For example, while the employee in Burlington Northern lived

without an income for only thirty-seven days, Plaintiff lost her income for almost eighteen

months.12 While the employee in Burlington Northern was merely suspended, Plaintiff was

terminated.

The factual similarities between this case and Burlington Northern also bolster

Plaintiff’s position on appeal. The employee in Burlington Northern successfully challenged

her suspension through the employer’s internal grievance procedure and received

reinstatement and backpay when she prevailed on her grievance. Yet the Supreme Court

rejected the employer’s argument that her acceptance of reinstatement and backpay

retroactively erased the adverse action—her unpaid suspension.

11

In contrast, the Court of Appeals in this case framed the issue as “whether there existed, after the

settlement agreement, an adverse employment action.” Perkins, 2011 WL 3793498, at *7 (emphasis added).

12

After her termination, Plaintiff sought unemployment benefits, and her claim was approved. Metro

appealed, contending that she was not eligible for benefits because she had been discharged for work-related

misconduct. A full hearing resulted in a finding of insufficient evidence of work-related misconduct, and

Plaintiff received unemployment benefits. Perkins, 2011 WL 3793498, at *3 n.3.

12

Similarly, Plaintiff pursued a remedy available to her as an employee of Metro by

appealing her termination to the Metro Civil Service Commission. Plaintiff’s pursuit of the

appeal culminated in the Settlement by which she received backpay of $45,000 and other

consideration and agreed not to seek future employment with MAC. Nevertheless, Plaintiff’s

acceptance of the Settlement did not and could not alter the fact that she was terminated from

her job and paycheck on January 13, 2006, and remained terminated for almost eighteen

months before the Settlement. For purposes of her retaliation claims, Plaintiff’s acceptance

of the Settlement is not distinguishable from the Burlington Northern employee’s acceptance

of backpay and reinstatement.13 Like the United States Supreme Court in Burlington

Northern, we conclude that Plaintiff’s acceptance of the Settlement does not preclude her,

as a matter of law, from establishing the adverse employment action element of her

retaliatory discharge claims.

Our holding in this regard is consistent with the intent of Plaintiff and Metro as

reflected by the Settlement, which expressly excluded Plaintiff’s EEOC complaints, stating:

“Ms. Perkins’ complaint filed with the EEOC is not a part of this agreement.” Admittedly,

the first paragraph of the Settlement uses broad language that, if read in isolation, arguably

could be viewed as precluding all claims arising from Plaintiff’s termination. Contract

provisions are not read in isolation, however. Rather, courts must construe contracts as a

whole and ascertain the parties’ intent from the “‘usual, natural, and ordinary meaning of the

contractual language.’” Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 342 (Tenn.

2005) (quoting Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). All provisions of

a contract “should be construed in harmony with each other, if possible, to promote

consistency and to avoid repugnancy between the various provisions of a single contract.”

13

As the United States Supreme Court pointed out in Burlington Northern, an employee may be able

to obtain injunctive relief or other monetary relief under Title VII, in addition to backpay and reinstatement.

548 U.S. at 72. As already noted, Plaintiff is seeking damages pursuant to a federal statute which authorizes

the recovery of compensatory damages, including “future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” up to $300,000.

42 U.S.C. § 1981a (b)(3)(D). This same statute authorizes parties seeking compensatory damages to demand

a jury trial on a Title VII retaliation claim. 42 U.S.C. § 1981a (c)(1). Under the ADEA, Plaintiff is seeking

“back pay (less any set-off by the previous $45,000.00 settlement of Plaintiff’s civil service appeal),” front

pay, and lost benefits, “plus an award of liquidated damages . . . under 29 U.S.C. § 626(b) in an amount equal

to the amount of back pay so awarded.” Additionally, should Plaintiff prevail on either of her claims, she

may seek to recover reasonable attorney’s fees. See 42 U.S.C. § 1988(b) (2006); 42 U.S.C. § 2000e-5(k)

(2006). Although Metro and Plaintiff entered an agreed order stipulating that Plaintiff has no separate cause

of action under 42 U.S.C. § 1981a, that same agreed order recognizes that § 1981a provides remedies for

violations of Title VII. Accordingly, Plaintiff’s consent to the agreed order cannot be deemed a waiver of

her right to seek damages pursuant to § 1981a.

13

Guiliano, 995 S.W.2d at 95. Read as a whole, the Settlement evinces Plaintiff’s and Metro’s

intent to exclude Plaintiff’s Title VII and ADEA claims.14

Conclusion

Because the Settlement neither alters the fact of Plaintiff’s termination nor reflects the

parties’ intent to resolve Plaintiff’s Title VII and ADEA claims, we conclude that the courts

below erred in holding that Metro negated the adverse employment action element of

Plaintiff’s retaliatory discharge claims.15 Accordingly, the judgment of the Court of Appeals

is reversed, and the trial court’s order granting summary judgment to Metro is vacated. This

matter is remanded to the trial court for further proceedings consistent with this opinion.

Costs of this appeal are taxed to the Metropolitan Government of Nashville and Davidson

County, for which execution, if necessary, may issue.

_____________________________________

CORNELIA A. CLARK, CHIEF JUSTICE

14

We also note that a release of ADEA claims is not effective unless it specifically refers to the

ADEA claims to which it applies. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28 (1998).

15

By this disposition, we intimate no view as to either the ultimate resolution of Plaintiff’s retaliatory

discharge claims or the resolution of any other issues that may arise on remand.

14