Newsom v. Textron Aerostructures

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

FILED

_______________________________________________ October 20,

1995

CHARLES K. NEWSOM,

Cecil Crowson, Jr.

Plaintiff-Appellant, Appellate Court Clerk

Vs. Davidson Chancery #91-2622-I

C.A. No. 01A01-9504-CH-00151

TEXTRON AEROSTRUCTURES,

a division of Avco, Inc.; and

GARY L. SMITH, Individually,

Defendants-Appellees.

_________________________________________________________________________

FROM THE CHANCERY COURT OF DAVIDSON COUNTY

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

H. Rowan Leathers III of Manier, Herod,

Hallabaugh & Smith of Nashville

For Appellant

Robert E. Boston and Stephen W. Grace of Nashville

For Appellees

AFFIRMED

Opinion filed:

W. FRANK CRAWFORD, PRESIDING

JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

WILLIAM C. KOCH, JR., JUDGE

This appeal involves a suit brought by an employee against his employer

asserting that the employer's actions, in connection with the employee's

demotion and subsequent termination, violated The Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Tennessee Human Rights

Act (THRA), T.C.A. § 4-21-101 (1991), et. seq. The employee also alleges that the

employer's actions in connection with the demotion and termination were

slanderous and constituted outrageous conduct. Plaintiff employee, Charles K.

Newsom, appeals from the order of the trial court granting summary judgment

to defendant, Textron Aerostructures, Inc., and Gary Smith,1 and the only issue

on appeal is whether the trial court erred in so doing. The pertinent facts are as

follows.

The plaintiff, Charles K. Newsom, was born February 14, 1933. Defendant

Textron Aerostructures is in the business of manufacturing aircraft parts and other

large machinery for both private buyers and the defense industry. Newsom was

employed by defendant Textron on September 23, 1957, as an at-will employee,

and he worked at Textron for thirty-four years until he was discharged on March

27, 1992.

During the course of Newsom's employment at Textron he received regular

promotions, satisfactory performance evaluations, work commendations, and

pay increases. Newsom eventually obtained a management position and in

April of 1988 he was promoted to the position of Senior Compliance Analyst

(SCA). As SCA Newsom was responsible for reviewing the "procurement

packages" of Textron "buyers" and insuring that Textron's procurement of tools

and other parts to be used in contracts with the federal government complied

with federal regulations controlling government contracts. Textron created the

1

Plaintiff stipulates in his brief that he does not appeal the dismissal as to

defendant Gary Smith.

2

SCA position in order to ensure that Textron successfully passed government

contract "procurement audits" which were performed by agencies of the

federal

government.2 One of the major audits Textron was required to undergo was

a Contractor Procurement System Review (CPSR).

To ensure that Textron would successfully pass its scheduled CPSR in

November of 1989, Textron performed a "pre-CPSR" in April of 1989. A "pre-CPSR"

is Textron's own internal audit of its buyers procurement packages.3 The results

of the April, 1989 "pre-CPSR" showed deficiencies in seventy percent of the buyer

packages, and in Newsom's words the results were "not good." Following the

CPSR, Newsom was suspended without pay for a period of one week.

Subsequently, on August 10, 1989, Newsom was notified that he was being

demoted from SCA into the position of Buyer II. Newsom's successor as Senior

Compliance Analyst was Sherry Ritchie, a female under the age of forty. On

August 30, 1989, Newsom was evaluated pursuant to Textron's annual

employment evaluation policy, and he was informed at that time that he was

demoted because his performance in the position of SCA was unsatisfactory.

In the August 30, 1989 performance review, Textron stated that it demoted

Newsom, because he did not "meet the position requirements for a Senior

Compliance Analyst." The basis asserted by Textron for Newsom's deficient

performance was his performance in the pre-CPSR in April, 1989. Newsom

contends that he was demoted because of his age.

Newsom appealed his unsatisfactory performance appraisal and

2

These procurement audits are performed by the federal government to

prevent fraud, waste, etc., by companies that contract with the federal

government.

3

The "pre-CPSRs" are performed, because failing a government CPSR

apparently can result in a company's government contracts being suspended.

3

demotion pursuant to Textron's internal appeal process. The appeal was heard

by a supervisor of the Senior Compliance Analyst position and another manager

at Textron. In January of 1990 the Textron managers determined the demotion

was proper and fair, and the managers refused to reinstate Newsom to the

position of SCA.

On June 21, 1990, Newsom filed an age discrimination charge with the

Equal Employment Opportunity Commission (EEOC) complaining of his

demotion to Buyer II and other allegedly discriminatory actions on the part of

Textron. In the charge, Newsom listed August 10, 1989, as the date on which the

most recent discrimination against him had occurred. On September 14, 1990,

Newsom amended his charge by inserting the word "continuing" after the

August 10, 1989, date in order to signify that the discrimination against him was

continuing. On July 18, 1991, the EEOC determined that Newsom's age

discrimination claim was without merit. Thereafter, on August 9, 1991, Newsom

filed the present action against Textron alleging, inter alia, that his demotion

violated his rights under the ADEA .

Following Newsom's demotion and during the pendency of Newsom's age

discrimination action, he continued his employment at Textron in the position of

Buyer II. Two of Newsom's duties as a Buyer II were procuring materials and

supplies from tool vendors through competitive price bidding and ensuring that

Textron complied with the defense industry's initiatives regarding fraud, waste,

and abuse in government contracts. In August of 1990, Newsom was evaluated

by his supervisors as "meeting the standards" of the Buyer II position. In August

of 1991, Newsom was again evaluated as "meeting the standards" required of

a Buyer II.

In late 1991 and early 1992, Textron decided to open a competitive bidding

process to select a company to provide all of Textron's cutting tools. During the

4

bidding process, Textron managers became aware that one company, Tool

Group Network, had obtained $600,000 of Textron's business in a short period of

time. Dick Kottler, Textron's Director of Materials, allegedly became concerned

over Tool Group's rapid acquisition of Textron business, and he initiated an

internal audit of Textron's contracts with Tool Group. Textron's legal department,

which supervised the internal investigation, was required by the Anti-Kickback

Enforcement Act of 1986, 41 U.S.C. §§ 55-58 (1986), to report the existence of the

4

investigation to the federal government. Subsequent to Textron's report,

Newsom and other Textron employees were interviewed by agents of the

federal government regarding Newsom's award of the Tool Group contracts.

During the course of the Textron investigation, an employee of Textron

who was reviewing the Tool Group contracts discovered that a number of

Textron contracts had been awarded to Tool Group without competition and

at higher prices than previous tool contracts, and that some of the Tool Group

contract documentation had apparently been altered. The Textron investigation

also disclosed instances in which Tool Group had been underbid by a

competitor, but Tool Group reduced its bid to slightly under that of a competitor,

and was thereafter awarded the contract.

The Textron investigation showed that the two buyers who had been

awarding the Tool Group contracts were Martha Martin and Newsom, and both

buyers were questioned regarding the contract awards. Following the

investigation, Textron allegedly believed that Newsom had been favoring Tool

Group during the competitive bidding process, that Newsom had engaged in

outside meetings with Tool Group during the bidding competition, and that

4

The Anti-Kickback Enforcement Act of 1986 provides in pertinent part, "

Whenever a prime contractor . . . has reasonable grounds to believe that a

violation of section 53 of this title may have occurred, the prime contractor . .

. shall promptly report the possible violation in writing." 42 U.S.C. §

57(c)(1)(A)(1986).

5

Newsom had awarded Tool Group some Textron contracts when Tool Group

was not the lowest bidder on those contracts. Textron investigators also

believed that Newsom had accepted outside entertainment from Tool Group

and had entered into a long term contract with Tool Group without his

supervisor's approval of the contract. Textron concluded that Newsom had

engaged in improper and potentially illegal favoritism toward Tool Group

Network, and Textron fired Newsom on March 27, 1992. Textron's stated reason

for Newsom's discharge was that he "violated . . . company policies and fail[ed]

to perform job duties."

Following his employment termination, Newsom amended the complaint in

this case on July 21, 1992, alleging that his rights under the THRA were violated,

because he was discharged in retaliation for filing his age discrimination suit

against Textron in connection with his demotion. The amended complaint also

alleges that Textron's actions in connection with Newsom's demotion and

termination were slanderous and constituted outrageous conduct.5

A trial court should grant a motion for summary judgment only if the

movant demonstrates that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law. Tenn.R.Civ.P. 56.03;

Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80

(Tenn. App. 1992). The party moving for summary judgment bears the burden

of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d

at 210. When a motion for summary judgment is made, the court must consider

the motion in the same manner as a motion for directed verdict made at the

5

In his complaint and amended complaint Newsom also asserted a THRA

cause of action "concerning age discrimination in connection with a demotion,

performance appraisal, appeal from that performance appraisal, and failure

to consider him for open positions; . . .[ a] cause of action for breach of the

implied covenant of good faith and fair dealing; and . . . [a] cause of action .

. . for violation of Tenn. Code Ann. § 47-50-109." Newsom does not contest the

rulings of the chancellor on these causes of action.

6

close of the plaintiff's proof; that is, "the court must take the strongest legitimate

view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence." Id. at

210-11. In Byrd, the Tennessee Supreme Court stated:

Once it is shown by the moving party that there is no

genuine issue of material fact, the nonmoving party

must then demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute

to warrant a trial. [citations omitted]. In this regard,

Rule 56.05 provides that the nonmoving party cannot

simply rely upon his pleadings but must set forth

specific facts showing that there is a genuine issue of

material fact for trial.

Id. at 211. (emphasis in original).

The summary judgment process should only be used as a means of

concluding a case when there are no genuine issues of material fact, and the

case can be resolved on the legal issues alone. Id. at 210 (citing Bellamy v.

Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary judgment is not

to be used as a substitute for a trial of genuine and material factual issues. Byrd,

847 S.W.2d at 210 (citing Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 660-61

(Tenn. 1987)). Where a genuine dispute exists as to any material fact or as to the

conclusions to be drawn from those facts, a court must deny a motion for

summary judgment. Byrd, 847 S.W.2d at 211 (citing Dunn, 833 S.W.2d at 80).

I. ADEA Cause of Action

We will first address Newsom's claim that Textron violated the ADEA. 29

U.S.C. § 623(a)(1) provides in pertinent part:

It shall be unlawful for an employer --(1) to fail or

refuse to hire or to discharge any individual or

otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's

age . . . .

Newsom contends that Textron's actions surrounding his demotion on

August 10, 1989, his performance review on August 30, 1989, and his

7

performance review appeal in January of 1990, all violated the ADEA. Newsom

contends that Textron demoted him from SCA to Buyer II because of his age,

and that Textron's stated reason for terminating his employment was merely

pretextual.

Textron argues that Newsom is barred from asserting an ADEA claim because

he did not file a charge with the EEOC within 300 days of the alleged

discrimination as required by 29 U.S.C. § 626(d)(1985). 29 U.S.C. § 626(d)

provides in pertinent part:

No civil action may be commenced by an individual

under this section until 60 days after a charge alleging

unlawful discrimination has been filed with the Equal

Employment Opportunity Commission. Such a charge

shall be filed . . . within 300 days after the alleged

unlawful practice occurred, or within 30 days after

receipt by the individual of notice of termination of

proceedings under State law, whichever is earlier.

Textron asserts that Newsom was aware that he would be demoted from SCA

to Buyer II on August 10, 1989, but he did not file a charge with the EEOC until

307 days later on June 21, 1990; therefore, his ADEA claims are time-barred.

Newsom, on the other hand, contends that his June 21, 1990 charge was

timely filed since it was filed within 300 days of Textron's internal appeal ruling in

January of 1990 and within 300 days of Newsom's employee evaluation on

August 30, 1989. Newsom is apparently arguing that Textron "continuously"

violated the ADEA when it did not reverse its demotion decision in the employee

evaluation or through Textron's internal appeals procedure;6 therefore, the 300

day time limit for filing the EEOC charge did not begin to run until one of those

6

We say "apparently" because both Newsom's brief and his reply brief are

utterly void of any argument or authority supporting Newsom's position that the

charge was timely filed. In his reply brief, Newsom's counsel merely states,

"Newsom's 1989 performance appraisal occurred on August 30, 1989, and the

denial of his appeal therefrom in January, 1990, both actions within three

hundred (300) days of his EEOC charge, as required by 29 U.S.C. § 626(d)."

Appellant's reply brief at 3.

8

dates (both of which are within 300 days of the charge filing).7

We think plaintiff's ADEA claims are barred by section 626(d)'s time

limitation for filing an EEOC charge, because Newsom did not file his charge

within 300 days of the alleged discrimination. Newsom knew on August 10, 1989

that he would be demoted, but he did not file an EEOC charge until 307 days

later on June 21, 1990. The timely filing of a charge of age discrimination is a

condition precedent to maintaining an ADEA lawsuit. Jackson v. Richards

Medical Co., 961 F.2d 575, 578 (6th Cir. 1992). Although the 300 day limitation

period is not jurisdictional in nature, and like a statute of limitations, may be

tolled for equitable reasons, failure to file within the limitations period will bar an

ADEA action unless some equitable ground exists for tolling the filing deadline.

Id. The limitations period begins to run when the plaintiff's cause of action

accrues.

In Vaught v. R.R. Donnelly & Sons Co., 745 F.2d 407 (7th Cir. 1984), the Seventh

Circuit Court of Appeals considered a question very similar to that presented by

the case sub judice. In Vaught, the 59 year old plaintiff brought an ADEA age

discrimination suit after he was demoted and replaced by a younger employee.

In October of 1979 the plaintiff learned that he was being demoted from

Department Manager to Communication Systems Analyst, and that he was

being replaced by a younger employee who plaintiff believed to be outside the

ADEA protected age category. The defendant company's stated reason for

demoting plaintiff was that plaintiff's work performance in the position of

Department Manager had been unsatisfactory. When the plaintiff learned of

his demotion he met with one of the company's executives who told the plaintiff

that he (the executive) would investigate the demotion. The plaintiff waited for

7

Newsom does not specify on which of the two dates his cause of action

accrued.

9

the executive to "get back to [him]" regarding the investigation, but the

executive apparently never commenced any investigation into the demotion.

Id. at 410. In December of 1980 the plaintiff learned that in addition to

demoting him, the defendant company had also been removing a number of

middle-level managers over the age of fifty. The plaintiff then filed an age

discrimination charge with the EEOC on March 6, 1980, and an ADEA lawsuit in

federal district court shortly thereafter.

The district court held that plaintiff's ADEA lawsuit was time-barred, because

the plaintiff filed his EEOC charge more than 180 days8 after the plaintiff knew

or should have known facts that would support a discrimination charge. Id. at

410-11. The court held that plaintiff was aware of facts which would support a

discrimination charge in October of 1979 and that the 180 day time limit began

running at that time rather than December of 1980; therefore, the March 6, 1980,

filing was untimely and plaintiff's ADEA suit was barred.

The Seventh Circuit affirmed, stating:

The filing deadline with the EEOC is tolled until the time

when facts that would support a charge of

discrimination were apparent or should have been

apparent to a person with a reasonably prudent

regard for his rights . . . .' [Reeb v. Economic

Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.

1975)].

8.

The Vaught case was commenced in Indiana. The applicable time limit for

filing EEOC charges in Indiana and other states which are not "deferral states"

is 180 days rather than 300 days. 29 U.S.C. § 626(d)(1). A deferral state is one in

which the state has enacted its own laws prohibiting age discrimination in

employment and has authorized a state agency to seek relief for the claimant.

"The purpose of the longer [300 day] limitation period is to give deferral states

time to act upon the ADEA complaint, in accordance with Congress's intent that

"informal methods of conciliation, conference, and persuasion" be used to

eliminate the discriminatory practice before an action is initiated in the courts."

Jackson v. Richards Medical Co., 961 F.2d 575, 578 (6th Cir. 1992)(quoting 29

U.S.C. § 626(b)(1985)). Tennessee is a deferral state. T.C.A. § 4-2-101 (1991)("It is

the purpose and intent of the general assembly by [the enactment of the

Tennessee Human Rights Act] to [p]rovide for execution within Tennessee of the

policies embodied in the . . . Age Discrimination in Employment Act of 1967, as

amended . . . .).

10

***

In October 1979, Vaught knew more than enough

facts to establish a prima facie case: he knew that he

was fifty nine years old; he knew that he had always

received very good job performance evaluations and,

so far as he knew, he had no reason to suspect that his

job was in danger; he knew that he was demoted;

and he knew that he was being replaced by a man

he believed to be twenty years his junior.

It is apparent that in October 1979 Vaught knew

facts that would support a discrimination charge . . .

yet he failed to go to the EEOC.

Id. at 410-11. The court further held,

Vaught's use of an informal grievance procedure, by

itself, does not stop the statute of limitations from

running. "[T]he pendency of a grievance or some

other method of collateral review of an employment

decision, does not toll the running of the limitations

period." Delaware State College v. Ricks, 449 U.S. 250,

261, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980)(citing Int'l

Union of Electrical Radio and Machine Workers v.

Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50

L.Ed.2d 427 (1976)).

Id. at 412.

Applying Vaught to the case sub judice, we conclude that Newsom knew

or should have known sufficient facts on August 10, 1989, to file a charge of

discrimination with the EEOC. On August 10, 1989, Newsom knew that he was

within the protected age category, that he had received favorable evaluations

as a Senior Compliance Analyst in 1988, and that he was being demoted. The

record is unclear as to exactly when Newsom knew that he was being replaced

as SCA by Sherry Ritchie, however, Newsom has offered no evidence that he

could not have discovered, by the exercise of reasonable diligence, that he

was being replaced by Sherry Ritchie when he received notice of his demotion.9

9

Appellants have neither asserted nor offered any evidence that Newsom

inquired as to who would replace him, or that Textron answered such an inquiry

with false or misleading information, or otherwise attempted to conceal the

identity of Newsom's successor. Thus, with respect to the issue of when Newsom

had or should have had knowledge of the identity of his successor, there is no

11

Therefore, his claim accrued on August 10, 1989.

This conclusion finds support in the decisions of federal courts. In Allen v.

Diebold, Inc., 807 F. Supp. 1308 (N.D. Ohio 1992), the plaintiffs were informed on

October 2, 1989, that their jobs would be terminated. In November of 1990, the

plaintiffs learned that the defendant company had hired younger individuals

to replace them. The plaintiff's argued, inter alia, that their EEOC charges were

timely filed because they were filed within 300 days of the time that plaintiff's

learned that they were being replaced by younger employees. The court

rejected the plaintiffs' argument that the 300 day period should have been

equitably tolled until plaintiffs suspicions of age discrimination were confirmed

when they learned that they were being replaced by younger employees. The

court held that the 300 day limitation period began to run when the employees

received notice of their termination. The court stated:

Plaintiffs have offered no facts, apart from the

remoteness of the Southern facilities, to explain why

they did not earlier discover the defendant's

employment practices at some earlier time. This court

is inclined to believe that such facts should be

forthcoming in order to satisfy the due diligence

requirement of equitable tolling. See Wall v. National

Broadcasting Co., Inc., 768 F.Supp. 470, 476 (S.D.N.Y.

1991)(summary judgment appropriate when plaintiff

has "failed to set forth evidence demonstrating that he

could not have discovered the alleged discriminatory

act at an earlier date in the exercise of reasonable

diligence.")

Allen, 807 F. Supp. at 1317. The court further stated:

Moreover, there is authority, albeit not-controlling, for

the proposition that the ADEA filing limit may not be

tolled until the plaintiff discovered the hiring of a

younger replacement when the employer had not

used the timing delay in hiring a replacement as a

means to delay plaintiff's filing. English v. Pabst

evidence of any action on the part of employer Textron that would justify

equitable estoppel. See Allen v. Diebold, Inc., 807 F. Supp. 1308 (N.D. Ohio

1992)(discussing the difference between equitable tolling and equitable

estoppel).

12

Brewing Co., 828 F.2d 1047, 1050-51 (4th Cir. 1987) cert.

denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d 621

(1988).

Id. at 1317-18.

Newsom has failed to set forth any evidence showing that he could not

have discovered on August 10, 1989, that he was being replaced by Sherry

Ritchie. It is necessary to place a burden of reasonable inquiry/diligence upon

Newsom to prevent him (and other ADEA plaintiffs) from "sitting on his (their)

rights." Were we to hold otherwise, the limitations period for filing an ADEA

charge of age discrimination would never commence until a plaintiff fortuitously

learned of the identity of his/her successor. In addition, the limitations period

could be easily circumvented by a plaintiff conveniently asserting that he/she

never had knowledge of the identity of his/her successor until a date within 300

days preceding the charge filing. Thus, we conclude that on August 10, 1989,

Newsom knew or should have known sufficient facts to file a charge of

discrimination with the EEOC; therefore, any cause of action which Newsom

had against Textron accrued on that date.

The appellants contend that Newsom's EEOC charge was timely, because it

was filed within 300 days of his employment evaluation on August 30, 1989, and

Textron's denial of his evaluation/demotion appeal in January of 1990. We must

reject this contention, because as previously stated, if Newsom had a cause of

action at all against Textron, such cause of action accrued on August 10, 1989.

Textron's actions in demoting Newsom, evaluating him pursuant to its policy of

annual employee evaluation, and denying Newsom's internal appeal, were not

separate or continuing acts of discrimination. Rather, Textron's employment

evaluation and denial of Newsom's appeal merely affirmed Textron's decision

to demote Newsom. In his demotion/evaluation appeal, Newsom was

contesting Textron's demotion and essentially asking Textron to reinstate him. This

13

being the case, Textron's "failure to reinstate or rehire does not . . . constitute an

actionable new act of discrimination or continuing discrimination so as to allow

the limitations period to begin at the time the . . . employee requests

reinstatement." Redd v. Fisher, 814 F. Supp. 547, 550 (W.D.Tex. 1992) aff'd 35 F.3rd.

61 (1st Cir. 1994).10 Therefore, we conclude that Newsom's June 21, 1990, EEOC

filing was untimely, and, therefore, his ADEA claims in this case are barred.11

II. THRA Cause of Action

In addition to asserting an ADEA claim, Newsom alleges that his discharge

on March 27, 1992, was in retaliation for his filing an EEOC age discrimination

charge and age discrimination lawsuit against Textron. Newsom argues that

Textron discharged him because he took these actions and that such discharge

violated T.C.A. § 4-21-301(1)(1991), which provides:

Discriminatory Practices.--It is a discriminatory practice

for a person or for two (2) or more persons to:

(1) Retaliate or discriminate in any manner against a

person because such person has opposed a practice

declared discriminatory by this chapter or because

such person has made a charge, filed a complaint,

testified, assisted or participated in any manner in any

investigation, proceeding or hearing under this

chapter . . . .

In order to establish a prima facie case of retaliatory discharge under the

THRA a plaintiff must prove the following: (1) the plaintiff engaged in a

protected activity; (2) the exercise of the plaintiff's protected civil rights was

10

For other authority supporting this conclusion see Delaware State College

v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 506 n. 15, 66 L.Ed.2d 431 (1980)("Mere

requests to reconsider . . . cannot extend the limitations periods applicable to

the civil rights laws."); Collins v. United Airlines, Inc., 514 F.2d 594, 596 (9th Cir.

1975) (A denial of a request for reinstatement does not constitute a continuing

violation or a new and separate discriminatory act, because "[a] discharged

employee who seeks to be reinstated is really litigating the unfairness of his

original discharge . . . .")(quoting NLRB v. Textile Mach. Works, 214 F.2d 929, 932

(3rd Cir. 1954)).

11

In light of this holding, we do not consider Newsom's other ADEA arguments.

14

known to the defendant; (3) the defendant thereafter took an employment

action adverse to the plaintiff; and (4) that there was a causal connection

between the protected activity and the adverse employment action. Haynes

v. Knoxville Utilities Bd., C/A No. 03A01-9209-CH-362, 1993 Tenn. App. Lexis 260,

at *2 (Tenn. App. April 8, 1993); see also Canitia v. Yellow Freight Sys., Inc., 903

F.2d 1064, 1066 (6th Cir. 1990), cert denied 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d

528 (1990)(holding that a plaintiff must prove these same four elements to

establish a retaliatory discharge in violation of Title VII).12 Once a plaintiff

establishes a prima facie case of retaliation, the burden of production shifts to

the defendant to "articulate some legitimate, non discriminatory reason . . ." for

discharging the plaintiff. Canitia, 903 F.2d at 1066 (quoting McDonnell Douglass

Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed. 668 (1973)). The

burden then shifts back to the plaintiff employee to demonstrate that the

employer's proffered reason for termination was merely pretextual and that the

adverse employment decision was motivated by a desire to retaliate against

the employee. Canitia, 903 F.2d at 1066.

Textron apparently concedes that the first three elements of establishing

a THRA retaliatory discharge claim are satisfied, thus the only element in dispute

is whether a causal connection exists between Newsom's discharge in March

of 1992 and his filing of the age discrimination suit in August of 1991 and/or his

filing of the EEOC charge in June of 1990. Newsom asserts that a causal

connection exists between the two events, because only seven months

transpired between Newsom's filing of the suit and his discharge, and that

Textron's proffered reason for his discharge was a pretext. Newsom also argues

that a causal connection exists, because Textron based Newsom's discharge on

12

The purpose of the THRA is essentially identical to the ADEA; therefore, federal

authority interpreting the ADEA is often utilized by courts of this state in applying

the THRA. Bruce v. Western Auto Supply Co., 669 S.W.2d 95 (Tenn. App. 1984).

15

his receipt of meals from vendors during the competitive bidding process.

Newsom asserts that this reason is obviously a pretext, because other "similarly

situated" Textron employees received meals but were not disciplined in any

way. Newsom asserts that Textron's stated reason for his termination (that

he "violated . . . company policies and fail[ed] to perform job duties") is only a

pretext, because the official company guidelines which he was alleged to have

violated (those forbidding receipt of gratuities and kickbacks during a

competitive bidding process) were not enforced against other employees of

Textron who also violated the guidelines. Newsom argues that Textron's stated

reason for discharging him was because he accepted certain meals from Tool

Group Network during the bidding process, and that Textron's stated reason is

obviously a pretext since other employees received meals during the bidding

process, yet they were not disciplined/discharged for the receipt of such meals.

Our review of the record reveals that Textron's stated reason for discharging

Newsom was not because he accepted meals, but rather because Newsom

was favoring Tool Group during the bidding process.

Textron's proof establishes that the reason Newsom was fired was because

he awarded contracts to Tool Group when Tool Group was not the lowest

bidder, he awarded long-term contracts to Tool Group without the required

concurrence from his supervisor, and he had outside meetings with Tool Group

officials during the competitive bidding process. Newsom has not offered

sufficient evidence which would show that Textron's above stated reasons for

his dismissal were merely pretextual. As proof that the reason stated by Textron

for his dismissal was a pretext, Newsom offers his own affidavit and evidence

that various Textron officials received meals from tool vendors during the bidding

process but were not disciplined for the receipt of such meals. Newsom also

offers "Textron Business Conduct Guidelines" which state,

16

Reasonable and customary business entertainment is

acceptable. Meals or entertainment, whether paid

for by Textron employees or another party, should be

in conjunction with business activity. The expense

involved, the identity of the participants and the

duration and extent of the entertainment should be

reasonable in relation to the business conduct and the

business purpose.

Newsom argues that this guideline establishes that it was acceptable for him

to receive business meals during the bidding process, and that even if the

receipt of such meals was not acceptable, he was the only employee

disciplined/terminated for violating the guideline. Therefore, Textron's

termination of Newsom for receiving business meals was merely a subterfuge to

terminate him for filing the discrimination suit.

This argument fails, because as stated above, Newsom has failed to

produce any evidence that he was in fact terminated for receiving business

meals. The only evidence that Newsom has offered that Textron discharged him

for receiving business meals (rather than for favoring Tool Group in the bidding

process) is paragraph 19 of his affidavit in which he states,

I was terminated from the position of Buyer II on March

27, 1992. Textron states that I was terminated for

"violation of company policies and failure to perform

job duties." I believe the real reason was my filing of a

[sic] age discrimination lawsuit against Textron in

August, 1991. The specific policy which I was accused

of violating is contained in Textron's Business Conduct

Guidelines and concerned the receipt of gratuities

and kickbacks. . . . Specifically, it was my

understanding that various business meals involving

myself, other Textron employees and a vendor which

were paid for by the vendor formed the basis of

Textron's conclusion that I was accepting gratuities

and/or kickbacks and being improperly influenced by

the vendor. I never received gratuities or kickbacks

and was never improperly influenced by a vendor.

Further, I did not violate Textron's procurement

regulations in selecting vendors to provide Textron with

materials, supplies or tools. At all times I complied with

Textron's requirements and my supervisor's instructions.

Newsom's mere "belie[f]" or "understanding" that he was discharged for

17

receiving business meals is insufficient to create a genuine issue of material fact.

The record provides no evidence that creates a factual dispute as to whether

Textron's stated discharge grounds were merely a pretext for terminating

Newsom because he filed an age discrimination suit against Textron. Therefore,

the trial court's grant of summary judgment to Textron on Newsom's THRA cause

of action was proper.

III Outrageous Conduct Cause of Action

In Count VI of his amended complaint, Newsom contends that Textron's

actions surrounding his termination were outrageous and caused him extreme

humiliation and embarrassment. Newsom avers that Textron reported his actions

in the competitive bidding process to the federal government without probable

cause and before a thorough investigation of the facts on which the report was

based. In addition, Newsom states:

After terminating him, Textron provided him with a

large brown plastic garbage bag into which he was

required to place his personal possessions, which had

been accumulated during just under thirty-five years

of employment with Textron. He was then ushered to

the exit through a common area at Textron where he

was required to walk in front of his work peers and

associates who he had known for many years.

Newsom contends that these actions are "beyond the pale of decency" and

constitute outrageous conduct.

The tort of outrageous conduct "exists only where (1) the conduct of the

defendants has been so outrageous in character, and so extreme in degree, as

to be beyond the pale of decency, and to be regarded as atrocious and utterly

intolerable in a civilized society, and (2) the conduct results in serious mental

injury." Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn. App. 1985);

Swallows v Western Elec. Co., 543 S.W.2d 581, 582 (Tenn. 1976). Furthermore, this

Court, commenting on the tort of outrageous conduct, has stated:

It has not been enough that the defendant has acted

18

with an intent which is tortious or even criminal, or that

he has intended to inflict emotional distress, or even

that his conduct has been characterized by 'malice,'

or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort. Liability

has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to

be regarded as utterly intolerable in a civilized

community. Generally, the case is one which the

recitation of the facts to an average member of the

community would arouse his resentment against the

actor, and lead him to exclaim, 'Outrageous!'

Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 273 (Tenn. App. 1988)(quoting

Restatement (Second) of Torts § 46 cmt. d (1965)). The record in this case does

not reveal conduct that would support a charge of outrageous conduct,

because the actions complained of do not rise to the level of outrageous,

beyond the pale of decency, and atrocious and utterly intolerable in a civilized

society.

IV. Defamation Cause of Action

Finally, in Count VII of his amended complaint, Newsom asserts that Textron

defamed him when it reported him to the federal government because of his

actions in connection with Tool Group during the competitive bidding process.

Newsom asserts that Textron's report of his actions to the Department of Defense

pursuant to the Anti-Kickback Act, 41 U.S.C. §§ 51, et. seq. was "without factual

support" and caused Newsom serious emotional distress. We need not reach

the merits of Newsom's argument, because Newsom has failed to provide any

evidence identifying the nature of the allegedly defamatory statements or that

any defamatory statements were in fact made in connection with the report.

Since Newsom apparently does not even know what statements were made to

the government in connection with the report, he certainly cannot prove that

the statements were false or caused him actual damages. See Sullivan v.

Young, 678 S.W.2d 906, 910 (Tenn. App. 1984)("The plaintiff must not only prove

19

publication of a false statement to a third person, but he must also prove actual

damages.").

Accordingly, the order of the trial court granting summary judgment to

defendant Textron is affirmed. Costs of this appeal are assessed against the

appellant.

____________________________________

W. FRANK CRAWFORD, PRESIDING

JUDGE, W.S.

CONCUR:

________________________________

DAVID R. FARMER, JUDGE

________________________________

WILLIAM C. KOCH, JR., JUDGE

20