### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Februar y 10, 2 006 Session
JOAN OA TES v. C HATTA NOOGA PUBLIS HING CO MPANY d/b/a CHATTANOOGA T IMES FREE PRE SS
Appeal from the Chancery Court for Hamilton County No. 04-0743 W. Frank Brown, III, Chancellor

No. E2005-00778-COA-R3-CV - FILED MARCH 21, 2006

Joan Oates (“Plaintiff”) was employ ed by the Chattanooga Publishing Company (“Defendant”) for ap proximate ly

twenty-three

years. I n January of 2004, Plaintiff was obser ved on Defendant’s security camera making obscene g estures with her m iddle finger toward the camera and then covering the security c amera with a cup for a period of time. Defendant terminated Plaintiff’s emplo yment

. Pl ai nt if

f f il ed th is la ws ui t a ll eg in g t ha t s he wa s t er mi na te d b ec au se of a d is ab il it y. Plaintiff also claimed that she was subjected to a hostile work environment and malici ous harassm e nt while employed by

Defendant. Plaintiff also sued for intentiona l an d/or negligent infliction of emotional distress. The Trial Court granted Defenda nt’s motion for summar

y judg ment on all of Plaintiff ’s claims . Plaintiff

appeals , and we a

ffirm.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Chancery Court Affirmed; Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which

C HARLES D. S USANO , J R ., and S HARON G. L EE , JJ., joined.

Richard A. Schulman and R. Jonathan Guthrie, Chattanooga, Tennessee, for the Appellant Joan Oates.

L. Micha el Zins er and M atthe w Sala da, Nas hvil le, Te nness ee, for the Ap pelle e Chat tanoo ga Publishing Company d/b/a Chattanooga Times Free Press.-2- OPINION
Background

InOctober

of 1966, Pl aintif

f was involved in a serious automobile accident and remained in a coma for approximately f orty-nine day

s. Plaintiff

was nine yea

rs old at the

time of thi s accident and required months of hospitalization and rehabilitation once she emerged from the c oma. A steel pla

te event ually was inserted into Plaintiff’s head to help protect her from further injury . As
a result of this accident, Plaintiff was partially paralyzed on the r

ight side of her bod y and had impairme nts to the use of he r right arm, hip and leg. Plaintiff also has a speech impediment and difficul ty talking. Notwithstanding Plaintiff’s injuries, Mr. Frank McDonald hire d Plaintiff to work for Defendant in June of 1980. For the first ten years of her employment, Plaintiff compose d stock market tables fo r publica tion in both

the Chattanooga Times and the Chattanooga News Free Pre ss. Plainti ff was transferred to a janitorial position sometime in 2000, and her employ ment was terminated in January of 2004.

In July of 200 4, P lai nt iff

fil ed t hi s s ui t i n t he H ami lt on C oun ty Ch anc ery C our t. In her complaint, Plaintiff claimed she was demoted in 2000 and then terminated in 2004 beca use of her age, her

sex, and her handicap. Plaintiff also cla imed that D efenda

nt’s employe es contin

ually harassed and mocked her because of her physical and mental disabilities. Plaintiff brought suit for handicap discrimination pursuant to the Tenn essee H andicap Act (“THA”), Tenn. Code Ann. § 8- 50- 103. Plaintiff

also brou

ght cla ims for sex discriminatio n, age discrimination, and malicious harassment

pursuant to the Ten

nessee H uman Rig

hts Act, T enn. Co de Ann. § 4-21-101 et seq. Plaintiff also sued for intentional and/or negligent infliction of emotional distress. Plaintiff sought compensatory

and pu niti ve dam age s, dama ges for embarrassment and humiliation, prejudg ment interest, and attorney

fees in a combined amount of not less than $750,000. Defendant answered the complaint, g enerally de nying the pe

rtinent allegations and assertingthat it had a legitimate and non-discriminatory re ason for transferring Plaintiff in 2000, and also for terminating her employ ment in 2004. Defendant also alleged that Plaintiff failed to comply
a nd coopera te with De fendant ’s internal investi gatory procedu res reg arding

her alle gations o f harassment.
Defendant filed a motion for

summary judgme

nt in October of

2004. Accompany

ing the motion was the affidavit of Byron Wooten (“

Wooten”), Defendant’s Human Resources Direc tor. According

t o Wooten, D efenda

nt had sev eral vid

eo came ras insta lled on its p

remises f or secur ity purpose s. One of th ese cameras wa s locate d on the se cond floor near t he restr ooms . Woote n explained that Defendant had experienced several instances of vandalism in the restrooms and hoped the camera

would reveal the perp etrator . The van dalism invo lved the u se of cle aning c hemicals to create graff iti. Bec ause Plai

ntiff wa s respons ible for c leaning the restr ooms and ha

d ready access to cleaning chemicals, Defenda nt suspected Plaintiff

may have be enresponsible for the graffiti. On January 8, 2004, the v ideo cam era captured Plaintiff obstructing the video ca mera with several different objects, including a broom, a box, and a Sty rofoam cup. The video camera also captured1 At oral argument , Defendant displayed a very large blown-up pict ure of Plai nti ff making t his g estur e wit

h her midd le finger to ward the cam era.

2 By the t ime of t

his appeal , Plai nti ff had abandoned her clai m that she was i mproperly demot ed to a jani tori al position in 200 0. Pla intiff also had abandoned all clai ms for sex and age discriminat ion. We will, ther efore, li mit our discu ssion o f Plaintiff’s de pos ition to he r rema ining claim s at issue o n app eal.
-3- Plaintiff making a gesture toward the c amera w ith her middle fing er at lea st seven t imes. 1 When Defendant

discovered what was on the surveillance tape, Woot

en met wit

h Plaintiff

to discuss her actions. Plaintiff

readily admitting

hitting the camer

a with her broom, covering up the camera, a nd making severa

l gestur es with he r middle f

inger. Accord

ing to Woot

en, following a c omplete investigation, Defend

ant’s Vic e Presi dent of Operations, Frank Anthony (“Anthony”)

made the decision to terminate Plaintiff’s employment.

Defendant

also filedAnthony’s aff idavit. According to Anthony , Plaintiff was transferred

to a janitorial position in 2000 when her then current job was eliminated, along with the jobs of sever

al other employ ees. Ant hony stated the

reorg anization a

nd job elimi

nation was necessitated

by a change in the production process. Rather than end Plaint

iff’s em ploy ment bec ause her job no longer existed, Anthony dec ided to transfer Plaintiff to a janito rial position with no corresponding

loss of pay or bene fits. Anthony then discussed the reason Plaintiff was terminated in200 4. In short, the reason Anthony gave for terminating Plaintiff’s employ ment was consistent
w i thWooten’s affidavit, i.e., Plaintiff making obscene gesture s toward the camera, hitting and covering up the camera, e tc.
Plaintiff’s deposition was taken prior to the hearing on Defe ndan t’s motion for summary judgmen t. 2 Plaintiff

testified that she placed a Sty rofoam cup over the camera because she wanted o ne ho ur without anyone wa tching her. Plaintiff also admitted first try ing to cover up the
camera with a box top , but when that did not work she placed a Sty rofoam cup over the camera. Plaintiff testified the Styrofoam cup f it over the camera “like a g love .” Plaintiff remembered “flipping them too” because she was stressed at work. Plaintiff cla imed she was not awareof a vandalis m problem, and in her opinion Defendant did not actually believe there wa s such a pr

oblem. According

to Plaintif

f, the al leged vandalism p roblem wa s Defen

dant’s excuse so it co ul d “ sp y” on her. Plaintiff

reache d this conclusi on even th ough she admitted a

t her dep osition to w

riting h er name onthe bathroom floor using cleaning che micals. P l aintiff stated that her writing her name on the floor with chemicals “wasn’t vandalism. I t was somebody who knows how to clean the bathroom.” P laintiff, however, also admitted to making tic-tack-toe patter ns on the floor with cleani n g chemica ls.

Plaintiff

acknowledged that she was sent home on January 8, 2004, because she placed a cup ove

r the ca mera. Pla

intiff wa s called

back to work late

r that af ternoon a nd met with several of Defendant’s representatives. At this meeting , Plaintiff stated that she covered up th e camera because she did not want people watching he r. Plaintiff was told she was being suspended pending an investigation and t hat she w as b eing suspended for covering up the camera. At her-4-

deposition, Plaintiff claimed Defendant was making upthe reason for her suspension and Defenda nt did not really believe she

had done any

thing wrong. Plaintiff stated Defendant wa s “faking it.”

Plaintiff testified to the treatment she claimed cre ated a hostile work envir onment. Plaintiff testified that a coworker told her that no one would date her. One or more of Plaintiff’s coworkers told

her than an employee named Daniel did not like her. Plaintiff testified that several of her coworkers did not like her. When asked why some of her coworkers did not like her, Plaintiff stated:

A. [Because] no on e l ik es th em . T he y h ave to go out and find

somebody to talk to. But me, they , they come to me.
Q. So they

don’t like

you because no one like s them?

A. Yeah....
Q. I’s asking you

why they don’t like you. You said because no one likes them, and I’m asking you is that the only

reason?

A. Yeah.

Plaintiff testified that

she complained about

harassment approximately three or four times. One of these complaints involved Plaintiff complaining that her super visor wasa lw ays around her and that he y

elled at her. However, Plaintiff acknowledged that he r supervisor ye lled at the other em

ployees as w ell, just not as much. Plaintiff testifie d that her

supervis o r y elle d at her
more because she fought b ack. Plai ntiff als o complained several y ears ago about being suspende d. When asked why he

r supervisor suspende d he r, Plaintiff repeatedly stated that he suspended her because “he could.” Plaintiff testified that she was bullied and ma de fun of primarily by two coworkers named Annette and Elizabeth. When asked why Plai nti ff believed these coworkers bullied her, Plaintiff responded:

A. [E]ven though I am cripp led – gu ys like me, and I have a better body than they

do. I have teet

h. On e of them don’t have teeth.... Stuff like that. It’s just like they ’re just jealous....
Q. Uh-huh. Okay. So if I understand correctly , Annette and Elizabeth–

A. Are jea

lous.
Q. Are jea

lous.

A. That’s w

hat it is.-5-

Plaintiff also acknowledged that

after she compl ained ab out the wa y she was be ing tre ated by these two coworkers, they

were instructed by

Defendant to stop their behavior. While they did not complete ly

stop being critical of

Plaintiff, it slowed down and Plaintiff made no further complain ts about their behavior.

Defendant

h as an Electronic Communication and Observation Policy (the “ECOP Policy”) that was posted throughout its facility . This policy addresses the use of company computers, telephones, etc . As rele vant to this

appeal, the ECOP Pol icy provides as follow s:
All business equipment, i ncludi ng but no t limited to c omputers , comput er networks, telecommunications systems, surve illance sys tems and

all communications and stored information transmitted, received or contained in the Compa ny’ s business systems are the Company’spropert

y a nd are to be used for job-related

pu rp os es on ly. All us er s a re ob li ga te d t o u se th es e r es ou rc es re sp on si bl y, professionally, ethica

lly, and lawfully

.... The Co mp any maintains electronic video surveillance of company property a

nd stores e lectron

ic imag es from it s surveillance for the safe ty a nd secur ity o f its employe es, visitor s and p ro pe rt y. Employeesshould have NO expectationof priva cy in work or

public areas of the Company ’s property....

Violations of this policy will be taken s eriously and may result indisciplina

ry action up to and including termination, and civil and
cr im in al li ab il it y.

After reviewing the relevant evidenc e, the Trial Court granted Defendant’s motion for summa

ry judgmen t. Plaintif

f appea ls raising the follow

ing issue s:
I. Was the Defendant motiva t ed to terminate Joan Oates from her janitorial position because her disabilities limited her a bility to walk, use her right arm, and communicate?

II. Did

the D efen dant create a hostile work environment where Jo anOates was harassed because of her physica

l and menta l disabilitie s?

III. Did the Def

endant’s employe es maliciously harass Joan O ate s because she was disabled?-6- IV. Is the Defend an t respons ible for i ntentiona lly or negli gently
ca usi ng Joa n O at es em oti ona

l di str es s?

Discussion

In Blair v. W

est Town Ma ll , our Supreme Court recently reiterated t

he standar ds applica ble when appellate courts are reviewing a motion for summa

ry judgmen t. Blair v. W

est Town Mall , 130 S.W.3d 761 (Tenn. 2004). In Blair , the Cour t stated:

The standards governing an appe llate court’s review of a
mo tion for summary judg ment are well settled. Since our inquiry involves purely a que stion of law, no presumption of cor r ectness attaches to the lowe

r court’ s judgme

nt, and ou

r task is c onfined t

o reviewing th e record to determine whether the requir ements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc ., Inc. , 15 S.W.3d 83 , 88 (Ten n. 2000); Hunter v. Brown , 955 S .W.2d 49 , 50-51 (T enn. 1997 ); Cowden v. Sovran Bank/Central

South , 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Pro cedure

56.04 pro vides tha

t summa ry judgmen

t is appropr iate where: 1 ) there

is no gen

uine is sue wi th regard to the material facts relevant to the claim or defense contained in the motion, and 2) the moving party is entitled to a judg ment as a matter of law on the undisputed facts. Staples , 15 S.W.3d at 88.

* * *

When the party

seeking summary judgmen t makes a properl y supported motion, the

burden sh

ifts to the nonmoving

party to set forth specific fact s establishing the existence of disputed, materia

l facts w hich must be resolved

by the trier of fact.

To properly support its motion, the moving party must either affirma tively negate an essen

ti al element of the
non-m ovi ng party’s cla im or conclusively establish an affirmative d efense. If the moving party f

ails to negate a claimed basis for the sui t, the non- moving pa rty ’s burde

n to produce evidence establishing the existence of a g enuine is sue for trial is not triggered and the motion for summary judgme

nt must fail. If the moving

party successfully ne gates a claimed basis for the a

ction, the non-movin

g party may not simply

rest uponthe pleadings, b ut must offer proof to establish the existence of the essential elements of the claim.-7-

Blair , 130 S .W.3 d at 76 3-64, 767 (q uoti ng Staples , 15 S.W.3d at 88-89).

Our Supreme Court also has provided instruction regarding assessing the evidence when d ealin g with a moti on for summ ary judgme nt, s tati ng:

The stand ards governing the assessment of e vidence in the summary judgmen t context ar

e also we ll est abli shed. Cour ts must viewthe evide

nce in the light most

favora ble to the nonmoving

party and must also draw all reasonabl e infe rences in the nonmoving party’s favo r. Se e Robinson v. Omer , 952 S.W.2d a t 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the fac

ts and the inferences to be draw n fromt he fact s permit a reasonable person to reach only one conclusi on. S

ee McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Staples v. CBL & Assocs., Inc

. , 15 S.W.3d 83, 89 (Tenn. 2000).

We first add

ress whe ther the Trial Cour

t corre ctly

determi ned thatDefendant was entitled to summary judgment on Plaintiff’s c laim that her employment was terminated in violation of the Te nnessee Handica p Act, whi ch prohib its:

discrimination in the hiri

ng, fir ing and other te rms and conditions of employmen

t of th e s ta te of

Te nn es se e o r a ny d ep ar tm en t, ag en cy, institution or politic al subdivi si on of the sta te, or of any private employer, against any

applica nt for emp loy

me nt b ased solely upon any phy sical, mental or visual handicap of the applicant, unless such handicap to some de gree p revents the applicant from performing the duties required

by the employ

ment sought

or impairs the performance of the work involved. Tenn. Code Ann. § 8-5-103(a).

Anindividua

l alleg ing handicap dis crimi nation under the THA must demonstrate: (1) th at she was qualified for the position; (2) that she was disabled; and (3) that she suf fered an adverse employment action because of that disability. Barnes v. The Goodyear Tire and Rubber Co. , 48 S.W.3d 698, 705 (Tenn. 2000)(emphasis added). For purposes of this appeal, we will assume that the first two elements have been met. As to the thir d elemen t, it is undisputed that Plaintiff suffered
anadverse employ

ment action when

she was terminated. The primary issue surrounds the causation aspect of t he th ir d e le me nt , i .e ., wh et he r P la in ti ff wa s t er mi na te d “ be ca us e o f” he r d is ab il it y. I n Barnes , our Supreme Court gave thef ollowing discussion on the causation aspect of the third element:-8- The third element of

the analysis furthe

r requires a claimant to establish that a prohibited motivation made a difference in the adverse employment decision. There are two evidentiary methods for establishing this "but for" causation. A claimant may e ither use the direct method or the indirect method. Matthews v . Commonwe

alth Edison Co. , 941 F. Supp. 721, 724 (N.D. Ill. 1996). Under the direct method, the claimant simply relies on direct evidence of intentional discrimination. See Carter v. City of Miami , 870 F.2d 578, 581 (11 th Cir. 1989) ("Direct ev idence of discrimination would be evidence which, if believed, would prove the existence of a fact wi thou t inference or presum

pt ion."). Once direct evidence of intentional di scriminationis shown, the burden shifts to the employ er. Th e employer must then proffer

a non-discriminatory r

eason which, when standing alone, would have induced the employ er's action. Wall v. Trust Co. of Ga. , 946 F.2d 8 05, 809 (1 1th Cir. 199 1); see also Monette v. Electronic Data Systems Corp. , 90 F.3d 1 173, 1184 ( 6th Cir. 1996) (stat ing "n o need" for further burden shift whe n direct evidence is available.).

The indi re ct method

employs the burd

en-shif ting ana lys is developed

in Texas Dep't of Comm. Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981). The initial inquiry under the indirect burden-s h ifting a

naly sis is whet

her the c laimant c an estab lish
a prima fa cie case of disability discrimination. Wolf v . Buss America , 77 F.3d 914, 919 (7th Cir. 1996). Aprima faci e case o f disabili ty discrimination requires a showing that: (1) the claimant is a member of a protected clas s; (2 ) the claimant's work performanc e met the emplo yer's legitimate expectations; (3) the claimant sustained an adverse employment action; and (4) employees not in the protec t e d class were treated more favora bly. Mat thews , 941 F. Supp. at 724, 725; Wolf , 77 F.3d a

t 91 9. The elements of a prima facie case may vary dep en ding upon the method of discrimination and the unique circumstances of each case. Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 775 (8th Cir. 1995). The establishm ent o f a prima facie
ca se shall create a re buttable presumption of disability discrimination. Wolf , 77 F.3d at 919.

The next stage of

the i ndirect method imposes a burden of productionon the employer. If the claimant successfully establishes the pri m a facie

case, the employ

er must ar

ticulate a legit imate non-discriminatory re ason for the adverse employ ment action. Kiel
v. Select Artificials, Inc. , 169 F.3d 1131, 1135 (8th

Cir. 1999). The articulation

of a non-discriminatory re ason rebuts the presumption of-9- discrimination and shift s the burd en back to the cla

imant. Id. The last stage of the inquiry

re q uires the claimant to show that the emplo yer's proffered reasons for the employ ment decisionwer e pret ext for unlawful discrimination. Id. To establish pretext, the claimant can either

show: (1) that the employer was more likely than notmotivated by a discriminatory re as on; o r (2) t hat th e empl oyer's explanation was not credible. Wolf , 77 F.3d at 919.

Barnes , 48 S.W.3d at 708.

Since Plai ntiff has no direct evidence that she was terminated be cause of her di sa bi li ty, she is proceeding under the indirect method outlined above . Assuming f or present p urposes only that Plaintiff did establish a prima fac ie case of discrimination, it is clea r tha t Defendant

met i ts bu rden o f prod uctio n by artic ulati ng a legitimate and non-discriminatory re ason for Plaintiff ’s termination. The

presumpt ion of disc

rimination was, therefore, effectively rebutted. The burden then was on

Plaintiff to show that Defendant’s proffered re ason for her termination was pretextua l. To do this at the summary judgme ntsta ge, Plaintiff must create a ge nuine issue of material fact that either Defendant was more likely than not motivated by a discriminatory

reason, or Defendant’s explanation for Plaintiff’s termination was not credible. See Barnes , 48 S.W.3d at 708.

Plaintiff

argues there are two r

eas ons why there is a disputed issue of material fact regarding Defend ant’s moti vatio n for t ermin ating P lai ntiff. First, Plaintiff did not like being observed by the came

ras because of her

disabilities, and she never was specifically informed that she could not cover

up the ca

mera. Se cond, Pla

intiff cl aims term

inating her empl o yment for what occurred on Ja nu ar y 8, 2004, was altogether too severe and, be cause it was too severe, Defendant must have had discriminatory motives for the termination.

The cameras were installed by Defendan

t for sec urity purposes and be cause of problems Defend ant was having w

ith graffiti in

the bathrooms. Even if Defendant was not having theseproblems , Defen

dant had a

n absolute

right to install se curity camera s in its hall

way s. Defendant

did notinstall ca

meras in l ocations

where o nly Plaintiff could be o

bserved in an eff ort to “s py” on her. The cameras were in the ha llways and an

yone u sing those hallway s would be observed. While we understand that Plaintiff, and any other e mployee for

that matter, might not like being observed by

the cameras, Plaintiff’s dislike for the cameras of fers nothing whatsoever

toward establishing a discriminatory motive on the part of Defendant when terminating Plaintiff. Likewise, Defendant’s failure

to specific ally

tell Plaintiff that making obscene gestures towar d the cameras and covering them up was prohibited does nothing toward showing a discriminatory motive. Defendant does nothave tospecifically te ll an employee that making obscene gestures toward a se curity came ra and co vering th at camera up is prohibited conduct as that goes without say ing, especially

given Defendant’s ECOP Policy whic h was posted throughout its facility

.3 In light of this conclusion, we pretermit Defendant’s various argum ents claiming Plaintiff failed to establish a prim a facie c ase o f discrim ination.
-10-

Plaintiff ha d b ee n w ri tt en up se ve ra l t im es be fo re th e J an ua ry 2 004 incident . For example, in April

of 2001, Plaintiff was disciplined for being insubordinate. I n February

and then September

of 2002, Plaintiff was written u p a nd even suspended for being insubordinate to her supervisor. In May

of 2003, Plaintiff again was suspended for being insubordinate and

warned that dis respectful behavior toward management would no long er be tolerated. Notwithstanding thes e warning s, Plaintiff

proceeded in January

of 2004, to make numerous obscene gestur es to the s ecurity
camera and hit an

d then cov er up the

camera . In short, we reject Plaintiff’s argument that Defendant must have be en improp erly

motivated

in termina

ting Plai n tiff’s e mployment because tha t punishment was simply too harsh for what took plac e.

Withregard to Plaintiff’s claim that she wa s termina ted in violation of the THA, when viewing the evidence in the light most favorable to Plaintiff, we concludethat Plaintiff failed to offer any

evidence, circumstantial or otherwise, that her disability had any

impact whatsoever

on An th on y’ s decision t o terminate her employ ment. It necessarily

follows that Plaintiff has not established

the existence of a genuine issue o f material fact on this claim, and we affirm the Trial Court’s judgment on this issue. 3

The next issue is whether the Trial Court correctly granted s um ma ry judgmen t to Defendant on Plaintiff’s hostile environment claim. I n Sasser v. Quebec or Printing (USA) Corp ., 159 S.W.3d 579 ( Tenn. Ct. A pp. 2004) , this Court

discusse d the ele

ments of a hostile environment disability discrimination cla

im as follows:
A claim brought under the THA is analy zed under the same principles
as those utilized for the Americans with Disabilities Act ("ADA"). See, e.g. , Robersonv. Cendan t Travel Se rvices, Inc. , 252 F. Supp. 2d 573, 5 83 (M.D. Tenn. 2002) (citi ng Barnes v. Goodyear Tire & Rubber Co. , 48 S.W.3d 698, 705 (Tenn.2000)). To establish an ADA claim of hostile

work env

ironment b ased on d

isability , a plaint i f f
mus tprove tha

t: (1) "[he] was disa

bled; (2)[he] was sub

ject t o unwelc o me harassment; (3) t he hara ssment wa s based on [his] di sa bi li ty; (4) the harassment unre asonably interfe red with [h

is] work p erforman ce; and (5) the defendant either knew or should ha ve knownabout the harassment and failed to take corrective measure s." Trepka v. Bd. of Educ. , No. 00-4063, 2002 WL 104801, at * 4 (6th Cir. Jan. 24, 20 02). To prove a hostile work environment, the employee must show conduct

that is "'sufficiently

severe or pervasive to alt er the conditions of the victim's employ ment and create a n abusive work ing e nvironmen t.'" Harris v. Forklift Sys., Inc. , 510 U.S. 17 , 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993)(quoting Merito r Savings Bank, FSB v. Vinson , 477 U.S. 57, 67, 106 S. Ct. 2399 , 9 1-11- L.Ed.2d 49 (1986) ). Conduct that is " merely offensi ve" doe s not rise to the level of that which will support a claim of hostile work environment. Id.

Sasser , 159 S.W.3d at 584.

Plaintiff testified to a few speci fic incident s which sh e claims c reated a hostile environm ent

. Plaintiff testified that coworkers told her that no one would date her and that a n employee named Daniel did not like her. However, Plaintiff testifie d these c omments were made by coworkers because these cowor kers were not liked and no one would talk to them whi le people would talk to Plaintiff. Thus, Plaintiff admits these comments were not made beca u se of her di sa bi li ty. Plaintiff

also testified that

she was r idiculed constant ly by two cowork

ers name d Annette and Elizabeth. Howeve

r, once a gain Pla intiff ac knowledg ed that th

is ridicul e was not because of her disability , but beca use they were je alous of Pl aintiff b ecause Plaintiff has “a better body than they do” and more teeth. Plaintiff further claimed that her supervisor was “a round her” a lot

and yelled at her, but Plaintiff

did not believe this took

place because of her disability and even acknowledged that her supervisor yelled at the other employees. If Plaintiff herself does not believe these inc idents took place be cause of

her disa bil ity , we are at a loss as to how she can claim that the Tria l Court erred in granting summary

judgment

on he r hostile environment claim. Finding no genuine issue of materia l fact pe rtaining to Plaintif

f’s h osti le environment claim, we affirm the Trial Court’s judgment on this issue as well.

The next issue is

w heth er the Trial Court erred in granting summary judgme

nt on Plaintiff’s malicious harassment claim. In 1989 , the Tenness ee Legislature enacted Tenn. Code Ann. § 39-17-30 9 which criminalize s certa in action s which int

imidate ot hers fr om exercis ing thei

r civil rights. This statu

te was pa ssed bec ause “it is the rightof every

person regardless of rac e, color,
an ce st ry, religion or nationalorigin, to be secureand protected from fear, intimidation, harassment and bodily injury caused by the activit

ies of g roups and individ ua ls.” Tenn. Code Ann. § 39-17- 309(a). This crimi

nal statut e has a civil counterpart found at Tenn. CodeAnn. § 4-21-701, which is the statute upon which Plaintiff brings her malicious harassment claim.

There have been several cases de cid ed by this Court holding that a civil malicious harassment

claim under

Tenn. Code Ann. § 4-21-701 must be premised upon the specific categories set forth in the criminal statute, i.e., “race, color, anc estry, religion or national origin.” In L evy v

. Franks , 159 S.W.3d 66 (Tenn. Ct. App. 2004), this Court discussed several of these cases including Surber v. Cannon , No. M1998-00928-COA-R3-CV, 200 1 WL 120735 (Tenn. Ct. App. Feb. 14, 2001), perm. app. denied July 2, 2001 (refusing to extend the reach of Tenn. Code A nn. § 4-21-701 to in clud e claims of gender based har assment) and Parr v. Middle Tenn. State Univ. , No. M1999-01442-COA-R3-CV, 1999 WL 1086451, at *4 (Tenn. Ct. App. Dec. 3, 1999), perm. app. denied May 15, 2000 (holding that a plaintiff failed to state a claim under § 4-21- 701 when she alleged harass ment on the basis of a disability ). After reviewi ng the a pplicabl e law, thi s Court in Levy upheld the trial court’s dismissal of the plaintiff’s malicious harassment claim which was not-12-

premised upon harassment due to “race, color, ancestry , re ligion or national origin.” Levy , 159 S.W.3d at 81. Returning to the present case, Plaintiff’s malicious harassment claim must fail fo r tw o reasons

. First, harassment based on disability is not based on “race, color, ances try , reli gion or national origin” and, therefore, is not cover ed by the civil statute. Second, even if harassment based
ondisability

was cove

red by this civil s t atute, Pl aintiff’s own testimony shows that this claimed harassment

was not based on her disability, but wa s based instead on other factors discussed at length above such as Plaintiff’s having a “better body ”, etc. Accordingly, we affirm the Trial Court’s judgment granting Defendant’s motion for summar y judgment on Plaintiff’s malicious harassment claim.

The next issue is whether the Trial Court erred in granting De fendant summary judgment on Plaintif

f’s claims for intentional and/or negligent infliction of emotional distress. There are thr ee esse ntial ele ments to a c ause of action for outrageous conduct or intentional infliction of emotional distress. These elements are: “(1) the conduct complain ed of must be intentional or reckless; (2) the conduct

must be sooutrageous that it is not tolerated by civilized society; and (3) the conduct complained

of must result in serious mental injury.” Bain v. Well s , 936 S.W.2d 618, 622 (Tenn. 1997). As discussed by the Court in Bain , this is not an easy bur den to meet. Accord

ing to Bain : [T] his Court has adopted and applied the high threshold stan dar d

describ ed in the Re statemen t (Second ) of Tort s as follow s:
The cases thus far decided have found liability only where the defend ant's conduct has been extreme and outrageous. It ha s notbeen en oug h that the defendant has acted with an intent which istortious or even

criminal , or that he has inte nded to inflictemotional distress, or even that his conduct has been charac teriz edb y 'ma

lice,' or a degre e of aggrava tion which would entit le the plaintiff to punitive damages for another tort. Liability

has been found only

where the condu ct has been so outrag eous in characte r, and so extreme in degree, as to go bey ond all bounds of decency , and to be reg arded as atrocious an d u tt er ly i nt ol er ab le in a c iv il iz ed co mm un it y. Ge ne ra ll y, the case is one in which the recitation of the facts to an aver

age me mb er of the

community

would ar ouse his resentment

against the acto

r, and le ad him to exclaim, 'Outra geous. '

Bain , 936 S.W.2d at 622-23.-13- The Bain Court also

discussed the tort of negligent infliction of emotiona l distress , stati ng:
Re ce nt ly, in Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996),

we revisited the tort of negligent infliction of emotion al distr ess to consider the continuing viability of the " physical manifestation" or "i nj ur y" rule. Co ncl udin g that t he rul e had p roven to be c onfus ing, rigid, and inadequate in practice, we ab andon ed the physical injury rule and adopted instead

the general neglig ence approach. Id. , 915 S.W.2d. at 446. To avo id summary judgment unde r the general negligence

approac h, a plain tiff must present ma

terial e vidence as to each of th e f iv e e le me nt s o f n eg li ge nc e – du ty, breach of duty , injury
or loss, causation in fact, and pr oximate, or legal cause. Id. Moreover, recove

ry is only appropr iat e for "serious" or "se

vere" emotional injury

which is e stablishe d by

expert med

ical or sc ientific proof. Id.

Bain , 936 S.W.2d at 624.

Thus, both inten

tional inf liction of emotiona

l dis tress and negligent infliction of emotional distress r

equire a showing of sever e emotional injury . When the T rial C ourt gran ted Defendant’s motion for summa ry judgmen t on these claims, it

did so bec ause Plai

ntiff fa iled to create a genuine issue of material fact a s to whether she suffered severe e motional injury. The Trial Court added:

The Plaintiff never sought or received any

counseling or treatment for her alleged emotionaldistress and did not allege any

way in which he

r emotional distress manifests itself. As such the rec ord is com

pletely devoid of evidence of a serious mental injury and summary judgme

nt is appropriate.

Onappeal, Plaintiff offers nothing to dispute this ruling of the Trial Court. Rather, Plaintiff argues there is a disputed issue as to whether the alleged hara ssment was severe enough to be covered

by these torts. I f there is no serious emotional injury, the n it is irrelevant

whether or not the alleged conduct is severe enoug h to be deemed negligent or even outrageous. The Trial Court concluded

that Plaintiff failed to create a genuine issue of material fact

as to whether she suffered any severe or serious emotional injury , and on appeal Plaintiff is unable to direct this Court to any evidence in the record which disputesthis finding. Accordingly , we must affirm the TrialCourt’s grant of summary

judgment to Defendant on these claims as well.

Due to our resolution of the above issues, any remaining issues raised by Defendant in its brief are pretermitted.-14- Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Courtfor collection

of the costs below. Costs on appeal are taxed to the Appellant, Joan Oates, and he r s ur et y.

___________________________________ D. MICHAEL

SWINEY, JUDGE