# FILED

September 13, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WE ST ER N S EC TION AT N AS HVILLE

EDNA FO RBES, Plaintiff-Appellee, Vs. Wilson Chancery No. 9325 C.A. No. 01A01-9602-CH-00089 WILSON COUNTY EMERGENCY COMMUNICATION DISTRICT 911 BOARD and W. J. McCLUSKEY, Defend ants-App ellants.

CONCURREN CE IN

PART, DI SSENT I

N PART

HOL LY KI RBY LI LL ARD , J. I wr ite sepa rately to concur in part with the majo

rity ’s Opinion , and to dis sent in pa rt. I concur with the majority ’s holding that the record supports a finding that the Ope n Meetings Act was violated and that the remedy under Tenn. Code Ann. § 8-44-105 is to declare the demotion of the plaintiff “void and of no effect.” Howe ver, I dissent from the majority ’s holding that this precludes the plaintiff from recovering damages under Tennessee’ s handicap discrimination statute, Tenn. Code Ann. § 8-50-103. Consequently , I would address issues raised by a ppellant under the discrimin ation stat

utes, inc luding w

hether t he fact s are suf

ficient t o support a finding that the plaintiff was “handicapped” and whether punitive damages are

recove rable under the a

pplicabl e Tenne ssee sta

tutes. Because the demotion of the plaintiff is declared “void and of no effect” under the Ope n Meeting Act, the majority concludes that there was no demotion and therefore no act occurred upon which a claim of discrimination could be predicated. This case pr esents a unique situation, and the case law is sparse on whether a n employment claim may be based on an act that is later declared void under another statute. There is no Tennessee case law on point, and little case law elsewhere. In Miller v. United States , 717 F.2d 109 (3d Cir. 1983), a civilian Army employee was appointed to a position, and it was later determined that he was overqua lified for the position. Id. at 110-11. His appointment was declared void ab initio , and his employment was terminated. Id. at 111. He sought to appeal the discharg e to the Merit Systems Protection Boa rd. Id. The Board ruled that, because the pla intiff’s employment had bee n ruled void, he could not2

appeal the termination. Id. On appeal to the Third Circuit Court of Appeals, the Army argued that bec ause the

plaintiff ’s appoin tment wasnever va

lid, the te rmination of his emp loyment did not constitute an “adverse action.” Id. at 112. The Court rejected this argument, noting that the plaintiff had been working in the position for two y ears when the Army

told him he no longer had a job. Id. The Court stated: “It is hard for us to imag ine action against an individual that could be more ‘adverse.’ ” Id. at 113. Ten nes see law is unc lea r on whe th er a voi d ac t m ay be th e pr edi cat e fo r a c lai m. In Adams v. Tennessee Farmers Mutual Insu rance Co. , 898 S.W.2d 216 (Tenn. App. 1994), even though a n insurance policy w as void ab initio , the insurer could nevertheless sue the insured for a bad faith claim. But see , e.g. Coulter v. Hendricks , 918 S.W.2d 424 (Tenn. App. 1995) (the effect of a void marriage ). In this case, the issue is whether the de motion later declared void is nevertheless an adverse employ

ment action under Tennessee’s handicap discr imination statute. In Howze v. Virginia Polytechnic , 901 F. Supp. 1091 (W.D.Va. 1995), the district court held that when a university final revie

w panel reversed a prior termination dec ision of a lower review panel, there was no adverse employ

ment action on which plaintiff could base a retaliatory discrimination claim under Title VII

. Id. at 1096-97. The court reasoned that “[o]nly the final decision is the ultimate act,” finding that no legal effe ct resulted from the initial actions. Id at 1097 ; see Page v. Bolger , 645 F.2d

227, 233 (4th Cir.) (

holding t hat “the re are many interlocutory

or media te decisions having no immediate effect upon employ ment conditions” under Title VII ), cert. denied , 454 U.S. 892 (1981). Unlike an interim employment action which is later reconsidered and reversed by the employer, in this case the decision to demote the plaintiff was final from the employ er’s stand poin t. The plain tiff w as requ ired t o file a laws uit t o obt ain rel ief. W hile t he Open Meeti ngs Act emplo ys t

he lega l fiction o f later d

eclaring the action “void” as thoug h it never happene d, to the plaintiff it actually happe ned, and the humiliation and embarrassment on which the jury awarded damages wa s certainly re al. I would find that the demotion, though void under the O pen Meetings Act, can nevertheless be the basis for a claim under Tennessee’s handic ap discrimination statute. However, the remedy of front pay w ould not be available since the Open Meetings Act mandates that the action in question be declar ed void, and the plaintiff must be3

returned to her original job position. Consequently, I

would reach the issues presented by the parties with respect to the Tennessee handicap discrimination statutes. First, the employ er argues that the plaintiff’s condition, colon cancer, is not a “handicap” within the meaning of the statute. Under the definitio n of “handicap” c ontained in Tenn. Co de Ann. § 4 -21-102 ( 9) and un der the c omparab le federal statutes, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (West 1988), and the Am er ic an s w it h D is ab il it ie s A ct , 4 2 U .S .C . § § 1 21 01 -1 22 13 (S up p. 19 96 ), ca nc er is cl ea rl y a handicap. See 28 C.F.R. § 41.31 (b)(1) (1996); 28 C .F.R. §§ 35 .104, 36.1 04 (1996) and 49 C.F. R. § 37.3 (1 996). The

refore , this arg

ument is without meri

t. The employer

also asserts that the jury’ s award of $250,000 for humiliation and embarrassment is excessive. In this case , the jury rejected the plaintiff’s contention that the demotion from a supervisory position was because of her cancer . The jury conc luded that the decision to place the plaintiff in a part-time position instead of a full-time position was motivated by her ca ncer, and there is sufficient evidence in the record to support this finding. However, the award o f $250,00 0 for com pensator y da mages f or humilia

tion and e mbarra ssment see

ms excessive, since the damages are only for the decision to place the plaintiff in a part-time, rather than full-time, position. Finally, the employ

er argues that punitive damage s are unavailable to the plaintiff under the appli cable st

atutes. T he plaint iff cite s Hodges v. S. C. Toof & Co. , 833 S.W.2d 896 (Tenn. 1992) and Wood v. Emerson Electric Co. , No. 01-A-01-9310-CH0067, 1994 WL 716270 (Tenn. App. Aug. 12, 1994), as establishing that punitive damag es may be a warded in this case. However, Hodges is inapplicable since it holds that punitive damages are available in a retaliatory discha

rge action because the plaintiff ma y recove r the damages for the common law

tort as we ll as the st

atutory violation. In thi s case, a

claim for handica p discrimination is a creature of statute only , and the damages available must be deter mined by refe

rence to the applicable statutes. Wood v. Emerson Electric Co. als o do es n ot add res s t he i ss ue p res ent ed i n t hi s ca se. In Wood , the Court affirmed the trial court’s grant of the defendant’s motion for judgment notwithstanding the verdict on the issue of punitive damages, and f ound that the evidence did not support an award of punitive damages. The court did not address whether punitive damages4

were available under the statutes. Tenness ee’s ha

ndicap di scrimina

tion statut e, Tenn. Code Ann. § 8-50-10 3, express ly incorporates the rights and remedies provide d in Tenn. Code Ann. §§ 4-21-302 through 311. See Tenn. Code Ann. § 8-50-103(b)(2). The pertinent statutes do not provide f or punitive damages. See Tenn. Code Ann. § 4-21-306(7) and (8) and § 4-21-311. This wa s noted by this court in Taff v. Media General Broadcast Services, Inc. , No. 32, 1986 WL 12240, 11 T.A.M. 52-1 (Tenn. App. Nov. 03, 1986) and Gifford v. Premier Manufacturing Corp. , No. 18, 1989 WL 85752, 14 T.A.M. 36-2 (Tenn. App. Aug. 01, 1989). Recent cha nges to Tenn. Code Ann. § 4-21-311 support this conclusion. The statute now provides specifically that a plaintiff in a case involving discrimin atory

housing practic es may

recove r punitive damage s; howeve

r, punitiv e damag es in other ca ses are

still not men

tioned. Te

nn. Code A

nn. § 4-21 -311 (Sup

p. 1995). As stated

in Taff , “if the Legislature intended to provide for some form of punishment the Act would have done so specifically .” Taff , 11 T.A.M. 52-1, at p. 9. Consequently, I would reverse the award of punitive d amage s. In sum, I concur with the majority’ s analysis of the Ope n Meetings Act and the conclusion that the employer ’s demotion of the plaintiff must be declared void under the Act. I dissent from the majority’s conc lusion that the employer’s action, later declared void, cannot be the basis for a claim under the Tennessee ha ndicap discrimination statutes. Consequently, I would reach the issues presented under the handic ap discrimination claim, and would affirm the trial court’s holding that the plaintiff’s condition is a “handicap” under the statutes, would reduce the award of compensatory damages for humiliation and embarrassment, and would r everse the trial court’s determination that punitive damages are a vailable under the applicable Tennessee discrimin ation stat

utes.

HOL LY KI RBY LI LL ARD , J.