Carla Suzanne Jackson v. City of Cleveland

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 4, 2016

CARLA SUZANNE JACKSON V. CITY OF CLEVELAND

Appeal from the Circuit Court for Bradley County

No. V-14-586 Lawrence H. Puckett, Judge

No. E2015-01279-COA-R3-CV-FILED-AUGUST 22, 2016

Plaintiff, who had served as a police officer for the City of Cleveland Police Department

since 1990, was fired on September 12, 2011, eleven months after filing a charge of

discrimination with the Equal Employment Opportunity Commission. Four months after

her termination, Plaintiff filed suit in federal court asserting, inter alia, claims of sexual

discrimination, hostile work environment, and retaliation against the City of Cleveland

under the Tennessee Human Rights Act. She asserted that the discriminatory acts

continued until January 18, 2012, when she was interviewed by the Tennessee Bureau of

Investigation for allegedly filing false timesheets while employed by the Department. All

claims in the federal court action were dismissed without prejudice on August 13, 2013.

On August 12, 2014, Plaintiff commenced this action in the Circuit Court for Bradley

County asserting the same state-law claims. After answering the complaint, the city filed

a motion for summary judgment seeking the dismissal of all claims based on the one-year

statute of limitations. Plaintiff opposed the motion contending the action was timely filed

due to the combined effect of the continuing violation doctrine, see Booker v. The Boeing

Co., 188 S.W.3d 639, 649 (Tenn. 2006), and 28 U.S.C. § 1367(d), which suspends the

running of the state statute of limitations while a federal suit is pending and for 30 days

after dismissal. The trial court dismissed all claims as time-barred upon the finding that

they arose from the discrete act of terminating Plaintiff’s employment in September

2011. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS

R. FRIERSON, II and KENNY W. ARMSTRONG, JJ., joined.

W. Gerald Tidwell, W. Adam Izell, and Todd A. Davis, Chattanooga, Tennessee, for the

appellant, Carla Suzanne Jackson.

Ronald D. Wells and Keith H. Grant Chattanooga, Tennessee, for the appellee, City of

Cleveland.

OPINION

Carla Suzanne Jackson (“Plaintiff”) began working as a reserve police officer for

the City of Cleveland Police Department (“the Department”) in 1990. She was hired as a

fulltime police officer in 1992. In October 2010, Plaintiff mailed a charge of

discrimination to the Equal Employment Opportunity Commission (“EEOC”) claiming

she was being subjected to sexual discrimination. The Department terminated Plaintiff’s

employment on September 12, 2011.1

On January 24, 2012, Plaintiff filed a complaint in the Federal District Court for

the Eastern District of Tennessee (“federal complaint”) against the City of Cleveland

(“Defendant”) claiming she was subjected to repeated retaliatory and discriminatory

conduct by other members of the Department. The federal complaint alleged claims

under both federal and state law. Subsequently, Plaintiff filed a motion to voluntarily

dismiss her federal claims and asked the federal court to remand her state-law claims to

state court. The court granted Plaintiff’s motion with respect to the federal claims but

determined that it could not remand the case to state court because Plaintiff had not

previously filed the case in state court. The federal court declined to exercise

supplemental jurisdiction over Plaintiff’s state-law claims and dismissed the complaint

without prejudice on August 13, 2013.

On August 12, 2014, Plaintiff filed a complaint in the Circuit Court of Bradley

County, Tennessee (“state complaint”) in which she alleged that the Department

discriminated against her because of her sex and retaliated against her because she filed a

charge with the EEOC.2 With one exception, every incident referenced in Plaintiff’s state

complaint occurred before her employment was terminated on September 12, 2011. The

lone post-termination incident is addressed in two paragraphs of the state complaint:

19. In retaliation for filing a complaint of sexual harassment with the

Equal Employment Opportunity Commission on February 14, 2011, an

offense report was prepared by [a lieutenant in the Department] making

false and misleading allegations against the plaintiff regarding timesheet

and [sic] discrepancies in 2008 and 2009. The plaintiff was never informed

1

The reason for terminating Plaintiff’s employment is disputed, but this fact is not material to the

dispositive issue on appeal, the statute of limitations defense.

2

The state complaint is substantially the same as the federal complaint with two exceptions: (1)

individual defendants who were sued in the federal complaint were not made parties to the state action

and (2) the federal claims were omitted.

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of the report and had no knowledge of the report until July 2011 when the

plaintiff stumbled on the report by accident. Police department policy states

that any employee is to be informed whenever an employee is under an

internal affairs investigation . . . .

....

31. Since [Plaintiff’s] termination, the [Department] has undertaken

to continue an investigation into falsification of timesheets which has no

factual basis or truth regarding the allegations of falsification of timesheets

two and three years earlier and prior to her complaint. The [Department]

undertook a course of action that is retaliatory in nature by requesting that

an investigation be conducted and said investigation is being conducted by

the department through the use of the Tennessee Bureau of investigation

[sic]. [On] January 18, 2012, the plaintiff was interviewed regarding the

allegations of falsification of timesheets. The plaintiff alleges that

department [sic] is motivated to retaliate against the plaintiff in that out of

this motivation the department referred the allegations for further

investigation by the District Attorney’s office. . . .

After answering the state complaint, Defendant filed a “Motion to Dismiss and/or

for Summary Judgment,” arguing that Plaintiff’s claims accrued on September 12, 2011

and were therefore barred by the one-year statutes of limitations in the Tennessee Human

Rights Act (“THRA”) and Governmental Tort Liability Act (“GTLA”).3 See Tenn. Code

Ann. §§ 4-21-311(d), 29-20-305(b). Plaintiff filed responses to the motion, arguing that

the Department’s conduct amounted to a continuing discriminatory act and that her

claims did not accrue until she was interviewed by the TBI on January 18, 2012.

Plaintiff’s responses included a letter that the Chief of Police sent to the District

Attorney General for the 10th Judicial District. The letter states that Plaintiff submitted

several timesheets that were inconsistent with the time she worked and concludes by

stating: “In light of the current circumstances surrounding [Plaintiff’s] complaints with

the City Manager and the EEOC, I [the Chief of Police] am asking that you [the district

3

After Defendant filed its answer and its motion to dismiss, Plaintiff filed a motion to amend her

complaint. See Tenn. R. Civ. P. 15.01. The amended complaint added a cause of action for interference

with business relationships and included additional allegations about the Department’s conduct in

December 2013. Defendant opposed the motion, and the record does not contain any indication that the

trial court granted Plaintiff’s motion to amend her complaint. Additionally, Plaintiff has not presented any

argument that she was or should have been granted permission to amend her complaint. Consequently,

this issue has been waived. See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)

(“The failure of a party to cite to any authority or to construct an argument regarding his position on

appeal constitutes waiver of that issue.”).

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attorney general] review these timesheets and document evidence for the possibility of a

criminal investigation.”

The trial court treated Defendant’s motion as a motion for summary judgment.

Based upon the entire record, the court found that “because Plaintiff’s complaint arises

from a discreet act of discrimination, her allegedly wrongful and discriminatory discharge

from employment, the continuing tort doctrine does not apply to extend the statute of

limitations.” The court found that Plaintiff’s claims were barred by the statute of

limitations and granted summary judgment to Defendant. Plaintiff appealed.

STANDARD OF REVIEW

This court reviews a trial court’s decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997)). Accordingly, this court must make a fresh determination that the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955

S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “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. When defendants move for

summary judgment based on an affirmative defense such as the statute of limitations,

they must establish the elements of the affirmative defense before the burden shifts to the

nonmovant. See Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991) (“Since

. . . a statute of limitations defense is an affirmative defense and no prima facie showing

of the running of the statute of limitations is made by the record, the burden of

establishing that the statute has run is upon the defendant.”); Campbell v. Grand Trunk

Western R. Co., 238 F.3d 772, 775 (6th Cir. 2001) (“Because the statute of limitations is

an affirmative defense, the burden is on the defendant to show that the statute of

limitations has run. If the defendant meets this requirement then the burden shifts to the

plaintiff to establish an exception to the statute of limitations.”).

Once the moving party has made a properly-supported motion, the burden shifts to

the nonmoving party to “set forth specific facts at the summary judgment stage showing

that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks

omitted; emphasis in original). A disputed fact is “material” if it “must be decided in

order to resolve the claim or defense at which the motion is directed.” Byrd v. Hall, 847

S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could

legitimately resolve that fact in favor of one side or the other.” Id.

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ANALYSIS

Plaintiff asserts claims for discriminatory termination, hostile work environment,

retaliation, intentional infliction of emotional distress, negligent infliction of emotional

distress, and malicious harassment. Defendant contends that all of these claims are time-

barred under the relevant statutes of limitations.

I. STATUTE OF LIMITATIONS

The statute of limitations for claims made pursuant to either the THRA or the

GTLA is one year. See Tenn. Code Ann. §§ 4-21-311, 29-20-305. The complaint,

however, only mentions the THRA. There is no reference to the GTLA. “The substance

of any ordinance or regulation relied upon for claim or defense shall be stated in a

separate count or paragraph and the ordinance or regulation shall be clearly identified.”

See Tenn. R. Civ. P. 8.05(1). Consequently, we will analyze Plaintiff’s claims under the

THRA.

Although Defendant is a governmental entity, the broad definition of “employer”

in the THRA “evidences a clear legislative intent to place governmental employers in the

same standing as private employers” and to “remove whatever immunity a governmental

entity may have had under the [GTLA].” Sneed v. City of Red Bank, Tenn., 459 S.W.3d

17, 27 (Tenn. 2014) (quoting Easton v. Memphis Light, Gas & Water Div., 866 S.W.2d

952, 955 (Tenn. Ct. App. 1993)) (internal quotation marks omitted; alteration in original).

Under the THRA, plaintiffs must file suit “within one (1) year after the alleged

discriminatory practice ceases . . . .” Tenn. Code Ann. § 4-21-311(d). In some situations,

Tennessee’s general savings statutes provide plaintiffs with additional time to refile a

complaint after the dismissal of previous action. See Tenn. Code Ann. §§ 28-1-105, -115.

However, these general savings statutes are inapplicable to suits against the State or other

governmental entities. See Sneed, 459 S.W.3d at 28-29 (discussing a “long line” of

Tennessee cases holding that “general savings statutes do not apply to suits against the

State or other governmental entities unless the statute waving sovereign immunity

expressly permits their application.”); Lynn v. City of Jackson, 63 S.W.3d 332, 337-38

(Tenn. 2001) (“[T]he general rule in Tennessee is that savings statutes may not be applied

to extend the period within which an action must be filed under the GTLA.”); Whitmore

v. Shelby Cnty. Gov’t, No. W2010-01890-COA-R3-CV, 2011 WL 3558285, at *7 (Tenn.

Ct. App. Aug. 15, 2011) (“Absent an express, clear, and unmistakable intent to the

contrary, the saving statute cannot be used to extend the period within which to file suit

against the County under the THRA.”).

The foregoing notwithstanding, certain provisions of federal law can toll the

running of the statute of limitations for claims brought against the political subdivisions

of a state. 28 U.S.C. § 1367(d); Jinks v. Richland Cnty., S.C., 538 U.S. 456, 465-67

(2003). When federal courts exercise supplemental jurisdiction over a state-law claim, the

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relevant limitations period for that claim “shall be tolled while the claim is pending and

for a period of 30 days after it is dismissed unless State law provides for a longer tolling

period.” 28 U.S.C. § 1367(d).

Courts have identified three possible interpretations of 28 U.S.C. § 1367(d). See

Gottschalk v. Woods, 766 S.E.2d 130, 136-38 (Ga. Ct. App. 2014); City of Los Angeles v.

Cnty. of Kern, 328 P.3d 56, 65 (Cal. 2014); In re Vertrue Inc. Mktg. & Sales Practices

Litig., 719 F.3d 474, 480-81 (6th Cir. 2013). In this case, neither party has made any

argument about which interpretation Tennessee should adopt. Instead, both parties have

assumed that the approach adopted by the Sixth Circuit, which is called the “suspension

approach,” is applicable to this case. See In re Vertrue Inc., 719 F.3d at 481. Under that

approach, the state statute of limitations is suspended while the federal suit is pending

and for 30 days after dismissal. Id. After the 30-day period stated in 28 U.S.C. § 1367(d)

expires, the remaining portion of the state statute of limitations begins to run again. See

id.

Of the three possible interpretations of 28 U.S.C. § 1367(d), the suspension

approach provides Plaintiff with the most time in which to file the state complaint.4

However, Plaintiff concedes that the suspension approach alone will not save the state

complaint if her claims accrued on September 12, 2011. If Plaintiff’s claims accrued on

that date, the statute of limitations ran for about four months until Plaintiff filed the

federal complaint on January 24, 2012, at which time it was tolled pursuant to 28 U.S.C.

§ 1367(d). Plaintiff’s federal complaint was dismissed on August 13, 2013, at which time

approximately eight months remained on the state statute of limitations. Under 28 U.S.C.

§ 1367(d), the statute of limitations began running again 30 days after the federal

complaint was dismissed. Therefore, Plaintiff had approximately nine months from the

dismissal of the federal complaint in which to file the state complaint. However, she did

not file the state complaint until August 12, 2014, almost twelve months after her federal

complaint was dismissed. Therefore, Plaintiff’s claims are time-barred under the

suspension approach if they accrued on September 12, 2011.

Plaintiff attempts to avoid this result by arguing that her claims did not accrue

until January 18, 2012, based on the continuing violation doctrine. The continuing

violation doctrine “relieves a plaintiff from the burden of proving that the entire violation

occurred within the limitations period.” Spicer v. Beaman Bottling Co., 937 S.W.2d 884,

889 (Tenn. 1996), overruled on other grounds by Booker v. The Boeing Co., 188 S.W.3d

639, 649 (Tenn. 2006). Under this doctrine, plaintiffs can bring claims for discriminatory

4

As discussed below, we have concluded that Plaintiff’s claims are time-barred even if the

suspension approach applies. Because the suspension approach provides Plaintiff with the most time in

which to file the state complaint, Plaintiff’s claims are also time-barred under the other two approaches to

28 U.S.C. § 1367(d). Therefore, it is not necessary for us to determine which of the three approaches

applies in Tennessee state courts.

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conduct that occurred outside of the limitations period if that conduct is sufficiently

related to conduct that occurred within the limitations period. Booker, 188 S.W.3d at 643.

The discriminatory conduct is treated as one continuing violation that ends within the

limitations period. See id. Thus, when plaintiffs demonstrate the existence of a continuing

violation, they are “entitled to have a court consider all relevant actions allegedly taken

pursuant to the employer’s discriminatory policy or practice, including those that would

otherwise be time barred.” Trent v. Anderson, No. E2009-02064-COA-R3-CV, 2010 WL

3155193, at *4 (Tenn. Ct. App. Aug. 10, 2010) (quoting Sharpe v. Cureton, 319 F.3d

259, 266-67 (6th Cir. 2003)).

Our courts have recognized only two situations in which the continuing violation

doctrine applies. Booker, 188 S.W.3d at 643. The first situation arises when “there has

been a longstanding and demonstrable policy of discrimination such as an established and

repeated pattern of paying men more than women.” Id. (quoting Spicer, 937 S.W.2d at

889-90). The second situation arises when there is some evidence of present

discriminatory activity giving rise to a claim of a continuing violation. Id. “Key to

establishing this exception is proof that at least one of the forbidden discriminatory acts

occurred within the relevant limitations period.” Spicer, 937 S.W.2d at 889.

The THRA’s statute of limitations states that suits must be filed “within one (1)

year after the alleged discriminatory practice ceases . . . .” Tenn. Code Ann.

§ 4-21-311(d) (emphasis added). The term “‘ceases’ connotes and contemplates an

ongoing course of conduct.” Booker, 188 S.W.3d at 648. Thus, by using the word

“ceases” the General Assembly incorporated the continuing violation doctrine into the

THRA’s statute of limitations. Id. Continuing violations, such as a discriminatory pay

rate, “cease” when the conduct at issue ends. See id. In contrast, discrete discriminatory

acts cease “as of the time [they] occur[], not as of the time the consequences of the act[s]

cease.” Id. at 645. Consequently, the THRA’s statute of limitations “does not operate to

extend the limitations period on discrete acts of discrimination.” Id. at 647.

Historically, Tennessee courts have considered three factors to determine whether

a defendant’s conduct was a series of discrete acts or a continuing violation. See id. at

644 (discussing and quoting Spicer, 937 S.W.2d at 890).

The first is subject matter. Do the alleged acts involve the same type of

discrimination, tending to connect them in a continuing violation? The

second is frequency. Are the alleged acts recurring (e.g., a bi-weekly

paycheck) or more in the nature of an isolated work assignment or

employment decision? The third factor, perhaps of most importance, is

degree of permanence. Does the act have the degree of permanence which

should trigger an employee’s awareness of and duty to assert his or her

rights, or which should indicate to the employee that the continued

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existence of the adverse consequences of the act is to be expected without

being dependent on a continuing intent to discriminate?

Spicer, 937 S.W.2d at 890 (quoting Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971,

981 (5th Cir. 1983)). Although Spicer indicates that the third factor is “perhaps of most

importance,” the Tennessee Supreme Court has overruled Spicer “to the extent that it

imposed a ‘discovery rule’ on continuing violation claims.”5 Booker, 188 S.W.3d at 649.

As our Supreme Court stated, continuing violations cease when they end, “not when the

employee’s awareness of [them] should alert him or her to assert his or her rights.” Id. at

649.

Plaintiff contends that all of her claims should be connected as a single, continuing

violation that did not accrue until January 2012; however, we have determined that each

of Plaintiff’s claims must be analyzed separately. Although some of the alleged conduct

might form the basis for multiple claims (e.g., actions taken in retaliation for filing the

EEOC complaint might also contribute to the creation of a hostile work environment),

each of the claims has different elements and thus the accrual of each claim must be

discussed separately. See Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 382

(Tenn. 2014) (retaliation); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 31-32 (Tenn.

1996) (hostile work environment); Tenn. Code Ann. § 4-21-401(a)(1) (discriminatory

termination).

A. NOTICE OF TERMINATION – A DISCRETE ACT

A claim based on the termination of one’s employment is a claim based on a

discrete act. See Booker, 188 S.W.3d at 645 (“Where the alleged discriminatory practice

is a discrete act, such as the decision to terminate an employee, the continuing violation

doctrine is inapplicable to extend the THRA’s statute of limitations.” (emphasis added)).

Termination of employment occurs “when the plaintiff is given unequivocal notice of the

employer’s termination decision, even if employment does not cease until a designated

date in the future.” Id. (quoting Weber v. Moses, 938 S.W.2d 387, 391-92 (Tenn. 1996)).

Here, it is undisputed that the last possible date on which Plaintiff could have been

given “unequivocal notice” of her employer’s termination decision was September 12,

2011, the date her employment terminated. See id. Consequently, the statute of

limitations for claims based on Plaintiff’s termination began to run on September 12,

2011. As discussed above, Plaintiff’s claims are time-barred if they accrued on that date.

5

Consequently, it appears that the “degree of permanence” is no longer a significant part of

continuing-violation analysis. See Booker, 188 S.W.3d at 648-49.

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B. HOSTILE WORK ENVIRONMENT

Hostile work environment claims are based on conduct that “has the purpose or

effect of unreasonably interfering with an individual’s work performance or creating an

intimidating, hostile, or offensive working environment.” See Bazemore v. Performance

Food Grp., Inc., 478 S.W.3d 628, 635-36 (Tenn. Ct. App. 2015) (emphasis added)

(quoting Campbell v. Fla. Steel Corp., 919 S.W.2d at 31), perm. app. denied (Tenn. Nov.

24, 2015). The discriminatory conduct that creates a hostile work environment

necessarily ceases to create such an environment when a plaintiff’s employment ends.

See id.

Plaintiff’s employment ended on September 12, 2011. Thus, Defendant’s conduct

could not have interfered with Plaintiff’s work performance or created an intimidating

work environment for her after that date. See id. Consequently, Plaintiff’s hostile work

environment accrued on September 12, 2011, and based on that date, this claim is time-

barred.

C. RETALIATION

Under the THRA, it is a discriminatory practice for “a person or for two (2) or

more persons” to:

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

Tenn. Code Ann. § 4-21-301(a)(1) (emphasis added). The term “person” includes, among

other entities, “individuals, governments, [and] governmental agencies . . . .” See Tenn.

Code Ann. § 4-21-102(14).

The words “in any manner” in the statute indicate that plaintiffs need not prove

that an adverse action affected their employment. See Allen v. McPhee, 240 S.W.3d 803,

820 (Tenn. 2007), abrogated on other grounds by Gossett v. Tractor Supply Co., Inc.,

320 S.W.3d 777, 783-85 (Tenn. 2010). Thus, employers may be held liable for retaliatory

actions that are not employment decisions. See id. In order establish a prima facie case of

retaliation under the THRA, plaintiffs must prove (1) that they engaged in activity

protected by the THRA; (2) that the employer knew about the protected activity; (3) that

the employer subsequently took a materially adverse action against the plaintiff; and (4) a

causal connection between the plaintiff’s protected activity and the resulting adverse

action. See Ferguson, 451 S.W.3d at 382.

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Although Plaintiff has alleged that the Department committed a number of

retaliatory acts, the only act that occurred after September 2011 was the TBI interview in

January 2012. Consequently, in order for Plaintiff’s retaliation claim to survive, the

Department’s pre-termination conduct must be linked with the post-termination

investigation. See Booker, 188 S.W.3d at 643. Regarding the investigation, Defendant

does not dispute that one of the Department’s employees sent a letter requesting that the

district attorney review Plaintiff’s timesheets for the possibility of a criminal

investigation “[i]n light of the current circumstances surrounding [Plaintiff’s] complaints

with the City Manager and the EEOC . . . .” It is also undisputed that the TBI conducted

an investigation that involved interviewing Plaintiff on January 18, 2012.

In some situations, an investigation may constitute a continuing violation. See,

e.g., Levy v. Pappas, 510 F.3d 755, 763 (7th Cir. 2007) (noting in dicta that for purposes

of a claim under 42 U.S.C. § 1983 “[a]n ongoing criminal investigation is less like a

singular event, such as being fired from a job or being beaten by a police officer, than it is

like being denied medical treatment, or suffering from a hostile environment, or being

maliciously prosecuted over an extended period of time.”), abrogated on other grounds

by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010). However, it is important to be

specific about the alleged discriminatory conduct that is at issue. See Booker, 188 S.W.3d

at 645 (“[W]e must first identify the alleged discriminatory practice.”) (quoting Weber,

938 S.W.2d at 390).

In this case, it is undisputed that the Department was not conducting the

investigation that was ongoing as of January 2012. Instead, the TBI conducted that

investigation. Plaintiff herself alleged that Defendant “request[ed] that an investigation be

conducted . . .” and that the investigation was conducted by the TBI. According to

Plaintiff, Defendant’s conduct consisted of making false allegations and referring those

allegations to the district attorney general for investigation. Neither the Department nor

Defendant had any authority to require the district attorney to investigate. Moreover,

neither of them could independently ask the TBI to conduct the investigation. See Tenn.

Code Ann. § 38-6-102(a) (“The director [of the TBI], upon the request of the district

attorney general of any judicial district, may assign the criminal investigators to aid that

district attorney general in the investigation of any crime committed in the district

attorney general’s judicial district, but only when the district attorney general requests

such aid.”) (emphasis added).

Under the facts of this case, the act of requesting the investigation was not a

recurring act like a bi-weekly paycheck. See Booker, 188 S.W.3d at 644. Requesting an

investigation was more akin to an isolated decision―a discrete act―than an ongoing

course of conduct. As a result, the TBI investigation is a consequence of the

Department’s request rather than a continuation of any conduct by the Department or

Defendant. See id. at 645.

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Discrete discriminatory acts cease as of the time they occur, not as of the time the

consequences of the acts cease. See id. Because the Department’s conduct (i.e., the

request for an investigation) is a discrete act, the continuing violation doctrine does not

allow Plaintiff to link the Department’s conduct to the TBI investigation and interview.6

Aside from the TBI interview, the last retaliatory act alleged in the complaint occurred on

September 12, 2011. Consequently, Plaintiff’s retaliation claim accrued, at the latest, on

that date, not January 18, 2012.

II. PLAINTIFF’S OTHER CLAIMS

Plaintiff also asserted claims of intentional infliction of emotional distress and

negligent infliction of emotional distress.7 These claims are based on the same conduct

that forms the basis of Plaintiff’s other claims. Because Plaintiff’s other claims are time-

barred, her claims for negligent and intentional infliction of emotional distress are time-

barred as well.

Additionally, Plaintiff asserted a claim of malicious harassment. The THRA

provides plaintiffs with a cause of action for “malicious harassment.” Tenn. Code Ann.

§ 4-21-701(a). Neither “malicious” nor “harassment” is defined in the THRA. See

Washington v. Robertson Cnty., 29 S.W.3d 466, 471 (Tenn. 2000). After reviewing the

legislative history of this section, our Supreme Court concluded that a claim of malicious

harassment requires a plaintiff to demonstrate (1) that the defendant acted maliciously

from “ill-will, hatred or spite” and (2) that the defendant “unlawfully intimidated another

from the free exercise or enjoyment of a constitutional right by injuring or threatening to

injury or coercing another person or by damaging, destroying or defacing any real or

personal property of another person.” Id. at 473.

In addition to these elements, plaintiffs must also prove that the defendant was

motivated by the plaintiff’s race, color, religion, ancestry, or national origin. See Bowman

v. City of Memphis, 329 S.W.3d 766, 768-69 (Tenn. Ct. App. 2004). Notably, this list

does not include motivation based on the plaintiff’s sex, and this court has previously

declined to expand the definition of “malicious harassment” to include such claims. See

6

Because the continuing violation doctrine does not apply to the request to conduct an

investigation, the discovery rule may apply. See Booker, 188 S.W.3d at 648-49; Redwing v. Catholic

Bishop for Diocese of Memphis, 363 S.W.3d 436, 457-59 (Tenn. 2012) (discussing the discovery rule).

However, Plaintiff has not made any argument about the discovery rule. Consequently, that issue has been

waived. See Newcomb, 222 S.W.3d at 401.

7

One of the headings in Plaintiff’s complaint references a claim for reckless infliction of

emotional distress. Intentional infliction of emotional distress can be proved by a showing of reckless

behavior. Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 n.6 (Tenn. 2012). Consequently, reckless

infliction of emotional distress is not a separate tort from intentional infliction of emotional distress. See

id.

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Levy v. Franks, 159 S.W.3d 66, 81 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. Dec.

6, 2004); Surber v. Cannon, No. M1998-00928-COA-R3-CV, 2001 WL 120735, at *5

(Tenn. Ct. App. Feb. 14, 2001).

Here, Plaintiff alleged that discrimination occurred based on her sex, and she has

not identified any facts indicating that the Department’s employees were motivated by

her race, color, religion, ancestry, or national origin. Thus, this claim could have been

dismissed on this ground in addition to the fact it was time-barred.

III. THE POSSIBILITY OF NEW, DISCOVERABLE EVIDENCE

Plaintiff contends that her claims should not have been dismissed because “there is

the possibility of new, discoverable discriminatory behavior on the part of [Defendant]

related to the TBI investigation.” This argument is not persuasive. Summary judgment is

appropriate when “the nonmoving party’s evidence at the summary judgment stage is

insufficient to establish the existence of a genuine issue of material fact for trial.” Rye,

477 S.W.3d at 265 (emphasis in original). When faced with a motion for summary

judgment, nonmovants may request additional time for discovery by “submitting an

affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule

56.06.” McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)

(quoting Byrd, 847 S.W.2d at 215 n.6). The record does not contain such an affidavit.

Moreover, Plaintiff had ample time to investigate her case because her federal

complaint was pending for nearly 18 months before it was dismissed. Indeed, the record

reveals that Plaintiff obtained a copy of the TBI’s file about the timesheet investigation

before her federal complaint was dismissed. One of Plaintiff’s responses to Defendant’s

motion for summary judgment states that: “Since appearing in court Monday, counsel

discovered that prior to the dismissal of the federal lawsuit the TBI investigation file on

the Plaintiff was acquired by counsel.” (Emphasis added).

For the foregoing reasons, we affirm the dismissal of all claims.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against Carla Suzanne Jackson.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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