### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on

Brief M arch 31, 2003 NINA SUE HOLLAND v. CITY OF MEMPHIS, ET AL 

### . Direct Appeal from the Chancery Court for Shelby County

No. 98-0604-2 Floyd Peete, Jr ., Judge

No. W2002-01529-COA-R3-CV - Filed June 10, 2003

Plaintiff filed a su

it alleg ing gender discrimination and malicious harassment in violation of the Tenness e e Human Right s Act . The tria l cou rt aw arde d summ ary

judg ment t

o Def enda nts. We affirm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. Lewis K. Garrison, Memphis, Tenne ssee, for the appellant, Nina Sue Holland.
KarenS. Koplon and John C. Mo rrow, Memphis, Tennessee, for the appellee, Me mphis Housing Au th or it y.
OPINION
Plaintiff Nina Sue H olla nd (Ms. Holland) was employe d as a security officer with the Memphis Housing

Auth orit y (“MHA” ) from February 1987 until she was discharged on July 30, 1997. In 1993, she applied for a position as manager

of security, whic

h was filled by Cly

de Venson. In 1995, she

applied f or a supe rvisor po si tion, wh ich was filled by How ard Terry . In July 1997, MHA investigated Ms. Holland for alleged misconduct, including falsifying

eviction r ecords an d overpaying

eviction worker s. Ms. Holland was notified of the investigation and received a hearing prior to her discharge on July 30.
Ms. Holland f

iled a co mplaint ag ainst the C i ty of Memph is, MHA, the commissioners of MHA, Ho wa rd Te rr y, Clyde Venson and F rank Pope on July 10, 1998. In he r complaint, she alleged gender discri minat ion and malicious harassment in violation of the Tennessee Human Rights Act (“THRA”) as codified

at Tenn. Code Ann. § 4-21-101, et seq . Ms. Holland voluntarily dismissed her action against MHA commissioners Hunter L ane, Martha Johnson, Elma Mardis, Rosalyn Gray-2-

and Michael Ritz in M ay 1999. The City of Memphis was voluntarily non-suited pursua nt to a consent order filed in June 1999.
In August 2002, the remaining defendants, MHA a nd MHA employees, ( co lle ct iv el y, “MHA”) filed a

motion for

summary judgmen t. In its motion, MHA asserted that Ms. Holland had stated in her deposition of August 2001 that her claim was one for g ender discrimination only, and that she was not asserting sexual harassment. MHA further a sserted that Ms. Holland’s claim for gend erdiscri mination was barred by the one-ye ar statute of limitations imposed by the THRA. MHA additiona

lly c ontended

that it wa s a gove

rnmenta l entity not subject to su it un der the Tennes see Governmental Tort Liability Act (“ GTLA”); that notwithstanding the GTL A, Ms. Holland
was an at-wi ll employ

ee terminated fo

r miscond uct; that d espite the at-wil l employment relati onship, Ms. Holland was given notice, a hearing and an opportunity to be hea rd regarding the alleg ations against her.
The order of

the trial court re flects that a

hearing on MHA’s motion for summary judgment
was held on October

12, 2001. Howeve

r, Ms. Holl and did no t file a tr anscrip t of the he aring i n this Court. The trial court’s order also indicates that Ms. Holland filed a response to MHA’ s motion for summary judgment, althou gh Ms. Holland likewise did not include this response in the record transmitted to this Court. The trial court awarded summary judgment

to MHA on March 8, 2002, and Ms. Holland perfected a timely appeal.
Issues Presented
The determinative issue presented by this appeal, as we perceive it, is whether the trial court erred by awarding summary

judgment to MHA.

Standard of Review
We review a trial court’s award of summary judgment

de novo , with no presumption of
correctness. Guy v. M

utual of Omaha Ins. Co. , 79 S.W.3d 528, 534 (Tenn. 2002). Summary judgment should be awarded when the moving party can demonstrate that

there are no genuine issues regarding materia l facts a nd that it is entitled t

o judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall , 847 S.W.2d 2 08, 214 (T enn. 1993 ); McCarley v. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn. 1998). Mere assertions that the nonmoving party has no evidence does not suffice to entitle the movant to summary judgme nt. McCarley , 960 S.W.2d at 588. The moving party must either conclusi vely

demonstr ate an a ffirmat ive defe nse or af firmativ ely

negate an essential element of the nonmoving party ’s claim. Id. If th e moving party can demo nstrate

that the n onmoving

party will be unable to carry

its burden of proof

on an essential element, summary judgment is appropriate. Id.
When a party

makes a m

otion for summary judgment i n accor

dance w ith Tenn. R . Civ. P. 56, the burde

n shifts to t

he nonmoving par

ty to establish the existence of disputed material facts or that the moving

party is not entitled to judgment as a matter of law. Id. ; Staples v . CBL & Assocs. ,-3-

15 S.W.3d 83, 89 (Tenn. 2000). The nonmo ving pa rty cannot me

rely rely on the ple adings, but must demonstr ate essentia

l element s of a claim by: 1) pointing to evidence that creates a fac tual dispute; 2) re-enforcing evidenc e c ha llenged by the moving party ; 3) offering additional evidence which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the need for additional time for discovery

. McCarley , 960 S.W.2d at 588. The Summary Judgment Award
The record

before us conta ins no response filed by

Ms. Holland in opposition to MHA’s August 20, 2001, motion for

summary judgmen t. The Tennessee rule of civil procedure governing motions for

summary judgmen t provide s:
In order to assist the Court in as certain

ing whe ther the re are any materia l facts in dispute, any motion for summary judgment made pu rsuant t o Rule 56 of the Tennessee Rules of Civil Proce dure sha ll be acc ompanied

by a separa te conci se statement of the material facts as to whi ch the m oving party contends there is no genuine issue for trial. Each fact shall be set forth is a separate, numbered para graph. Each fact shall be supported by a specific citation to the record. Any party opposing the motion f

or summar

y ju dgment must , not l ater than five days befor

e the hearing, serve and f i le a response to each fact set forth by the movant either (i) agreement that the fa ct is undisputed, (ii) agreeing that the f act is undisputed for purposes of ruling on the motion for summa ry judgmen t only , or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation t

o the rec ord. Such

response sh all be filed with the pa pers in opposition

to the motio n for summa ry judgmen t.
In addition, the non-mova nt’s res ponse may contain a concise statement of any additiona l facts th at the non -movant c ontends a re mate rial and as to which the non-movant contends there exists a genuine issue to be tried. . . . Tenn. R. Civ. P. 56.03 (emphasis added).
Courts consistently have

empha size d that a party opp osin g a motion for summary judgme nt may not simply

rest on itspleading s, but must affirmatively oppose

the motion. See, e.g., Staples , 15 S.W.3d at 89 ; McCarley , 960 S.W.2d at 588. Suc h oppositio n may

be made b y po inting to

the evidence in the record which indicates disputed material facts. McCarley , 960 S.W.2d a t 588. Rule 56.03 require s that a

party opposing

a motion for summary judg ment must serve and file a respon se to the motion.
The statements of material facts submitted by the parties on a motion for summary judgment
are “intendedto alert the court to precisely what factual questions are in dispute and point the court to specific

evidence in the record that supports a party ’s position on each of these questions. They-4-

are, in short, roadmaps, and without the

m the cour

t should not

have to pr

oceed f urther, regar

dless of how readily it might be

able to distill the relevant information from the record on its own.” Owens v. Bristol Motor Spe edwa y, Inc. , 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001)(perm app. denied)(quoting with approval, Waldridge v. American Hoechst Cor

p . , 24 F.3d 918, 923 (7 th Cir. 1994)). Although the trial court may , at its discretion, waive the requirements of the rule where appropriate, the cour

t may also ref use to con sider the

factua l content ions of a n on-compl

yin g party even where such facts are asc ertainable by the record. Id . Thus the materia l facts set forth

in th e statement of the moving party ma

y be dee med admitted in the absence of a statement controverting them by the opposing pa rty. See R OBER T B ANKS , J R

. & J UN E F. E NTMAN , T ENNESSEE C IVIL P ROCEDURE , § 9-4( i)(19 99)(q uoti ng Midwest Imports, Ltd. v. Coval , 71 F.3d 1311, 1313 n.1 (7 th Cir. 1995))

. Acc ordingly, f

ailure to file a response in opposition to a motion for summary judgment generally will prove fatal in the trial court and upon appeal. See Mark VII Transp. Co. v. Belasco , No. W2002-004 50-COA- R3-CV, 200 2 WL 318 95714, at *4-5 (Te nn. Ct. App. Dec. 30, 2002) ( no perm. app. filed

).
The trial court’s order awarding summary judgment to MHA st ates tha t the cau se came

to be heard upon, inter

alia , MHA’s motion for summary judgment and Ms. Holland’s response to that motion. We thus ass ume Ms. Holland filed a response opposing summary judgment as required by Rule 56. However, nei

ther Ms. H olla nd’s response nor the transcript of the hearing on summary judgmen t is inthe record before

this Court. Without them, we are unable to determine upon what basis Ms. Holland opposed MHA’s moti on for sum mary j udgment, what issues she asserted as material and in dispute, or to what evidence she pointed to demonstrate dispute. I t is well settled that it is the appellant’s obligation to provide this Cou rt with an adeq uate record upon which we may review the judgment of the trial court. I n the ab sence o f an adequate record to revie w, the appeal must fail. See, e.g., In

re Linville , No. M2000-01097-COA-R3-CV, 2000 WL 1785991, at *5 (Tenn. Ct. App. Dec. 7, 2000) ( no perm. app. filed ).
In light of the fore going , we can

determine no err

or in the tr

ial cour t’ s award o f summary judgment to MHA. Judgment of

the trial court awarding summary judgment to MHA is affirmed. Costs of this appeal are taxed to Nina Sue Holland, and her surety, for w

hich execution may issue if necessary

.

___________________________________ DAVID R. FARMER, JUDGE