### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 30, 2001 Sessi

on
JENNIFER GREGG v. SHIRLEY MCKAY , DIANE FARLEY, and MICHAEL D. FLOYD
Appeal from the Circuit Court for Sevier County No. 99-549-IV O. Duane Sloane, Judge

FILED MAY 30, 2001

No. E2000-01754-COA-R3-CV

This is a sui t se eki ng da mage s fo r se xua l ha ras sme nt f ile d by the Plaintiff/Appellant, Jennifer Gregg, in the Circuit Court f or Sevier County

against the Def

endants/Appelle

es, Shirley McKay

and Diane Farley. T

he Trial Court susta

ined the Defenda

nts' motion for summary

judgment . We vac

ate th e judgment of the T

rial Court and rem

and for further

proceedings c

onsistent with this op

inio n
. Costs of appeal are adjudged against the Defendants. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Vacated; Cause Remanded

H OUSTON M. G ODDARD , P.J., de livered the op inion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined.

Scott D. Ha ll, Sevier ville, Ten nessee, for the Appell ant, Jenn ifer Gregg.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellees, Shirley McK ay and Diane Farl ey.
OPINION

This is an appeal from

the Sevier County

Circuit Court's or

der sustain

ing t he motion for summary judgment filed by the Defendants/Appellees, Shi rley McKay and Diane Farley and dismissi ng the suit f or sexual h arassment f iled by the Pl aintiff/A ppellant, Jennifer G regg.
The soleissue presented for our review, which we restate, is whether the Trial Court erred in granting summary judgment in favor of the Defe ndants.

On July 6, 1 999, the Plaintiff f iled a complaint in t

he Circuit Court for

Sevier County alleging that she experienced unlawful sexual harassment while employed as a waitress at Trotter's Res t aurant. The Plaintiff named Shirley McKay and Dia ne Farley, individual owners of the1 Michael Fl oyd was also named as a defendant in the suit; however, t his appeal relates only to the summary judgmen t on the Plaintiff's claims against M s. McK ay and M s. Farley.
-2- restaurant,

as defendants in the suit. 1 In her complaint, the Plaintiff alleged that, during her employment

at Trotter's, Michael Floyd, another employ ee of the restaurant, often harassed her by making sexually explicit and suggestive comments to her, by fondling her and by rubbing his body against her. The Plaintiff further alleged that she was lockedin a clo set dur ing w hic h ti me M r. Fl oyd stated that he intended to rape her or "pull a train" on her with other employ ees. The Plaintiff

stated that she reported the harassment to the restaurant's management staff, that she specifically

informed her supervisors of the haras sment, a nd that the Defendants knew, or should have known, of the hostile work environment to which she was subjected. The Plaintiff claimed that the acts or inaction of the Defendants resulted in the sexual harassment to which she was subject , entitli ng her to damages.

On August 17, 1999, the D efendants f iled their answer to th e Plainti ff's complaint, in which the y, i nter alia , denied that Mr. F loyd was eith

er a manager

of the restaura

nt or the Plain

tiff' s supervisor, andasserted that they did not know, and had no reason to know, of Mr. Floyd's allege d inappropriate

behavior until July 6, 1998, when the Plaintiff reported such behavior to the restaurant manager, David Thurston. Th e D efendants further asserted that on July 6, 1998, Mr. Thurston confronted

Mr. Floyd concerning the Plaintiff's allega tions, that Mr. Floyd then l e ft the restaurant andthat his employment was terminated when h e next returned to

the restaurant three days later. The Defendants

further denied

all claims of liabil

ity. Therea

fter, on Februa

ry 11, 2000, t

he Defendants filed a motion for summary judgment which was granted by the Court pursuant to its order entered June 22, 2000.

The standard governing our review of a trial court's

decision to gran

t a motion for summary judgment is well settled. Because the trial court's judgment involves purely a question of law, it is notentitled to a presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995). Our sole task in reviewing such a judgment is to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure hav e been met. See Mason v. Seaton, 942 S.W.2d 470 (Tenn. 1997).

As stated by the

Supreme Court of th

is State in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993) at page 214:

Rule 56 comes in to play only when t here is no ge nuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thus, the issues that lie at the hea

rt of evaluating

a summa ry judgmen

t m otion are: (1) whether a factualdispute exists; (2) wh ether the dispute

d fact is materialto the outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial. (emphasis i

n original)-3-

The law in Tennesseeholds that an employer is vicariously liable for sexual harassment by
a supervisor with immediate authority over the victimized employee. See Parker v. Warren County Utility District , 2 S.W.3d 170 (Tenn. 1999 ). Howe ver, absent tangible employment action, the employer may avoid liability in such a case by showing by

a preponderance of the evidence that: (a) t he employer e

xercised reasona

ble care to prev

ent and promptly

correct the sexua

lly harassin

g conduct and (b) that the plaintiff employee neglected either to take advantage of any preventive or correct i ve opportunities whic

h the employe

r has provided or

unreasonably

neglected to oth

erwise avoid the harm. See Parker v. Warren County Utility District , ibid.

The Defendants contend that Mr. Floyd was not t he Plainti ff's supervisor, but merely a coworker, at least with re spect to the Plaintiff. Accordingly, the Defendants argue, the law of coworker harassm

ent should

apply in this c

aseand the Plaintiff, therefore, must prove the following elementsas set forth in citing Spicer v. Beaman Bottling Co. , 937 S.W. 2d 884 (Tenn . 1996) at p age 888: (1) The employe e was a member of

a prote cted c lass; (2) the employee was subjectedto unwelcomed sexua l h ara ssment; (3) the har

assment occurre

d because of the employee's gender; (4) the hara ssment affected a "ter

m, condition or privilege" of employment; (5 ) the emplo yer knew or should have known of the harassment

and failed

to respond with prompt

and appropriate corrective action.

The Defendants maintain that, whet h er this case is an

alyzed unde

r the standard ap

plicable to supervisor harassment or the standard applicable to co-worker harassment, they cannot be found liable unless it is shown that they

failed to respond promptly to eliminate the harassing conduct after being advised of it. The

Defendants asse

rt th at the undisputed evidence shows that, upon notification of the harassing conduct, they responded promptly and effectively to eliminate it, there is no genuine issue of material fact and their motion for summary judgment was properly granted.

In its order of June 20, 2000, the Trial Court sets forth the bas is for its grant of the Defendants' mo

tion for summary

judgment as follo

ws: Spe cif ica lly, the Court finds that the Defendants' Motion For Summary Judgment should be granted based upon the principle of

jud ici al e sto ppe l an d, a lte rnat ive ly, because the Plaintiff did not demonstrate, or specify, when,prior to July 6, 1998, supervisors at Trotter's Restaurant became aware of any sexual misconduct. The Courtfinds that Defendants McKay and Farley had taken reaso

nable action and had exe rcised reasonable care to prevent sexual harassing behavior fro m occurrin

g andexercisedreasonable care to correct any unlawful sexual behavior by Michael Floyd by terminating his employ ment on July 9, 1998.

The Trial Court's application of judicial estoppel in this case derives from the occasion of the Plaintif f's failure to state that any incidents of sexual harassment occurred, or were reported, prior to July 6, 1998, in her r e sponses to a Tennessee Human Rights Commission Employment-4-

Discrimination Comp

laint Questionnair

e which she signe

d under oath

on November 20, 1998. In support of the Trial Court's finding of estoppel, the Defendants argue that the Plaintiff's responses to the questionnaire

are in conflict w

ith the affidavits

filed on April

24, 2000, and May

18, 2000, in support of her opposition to the Defendants' motion for summary judgment. The Plaintiff's a ffidavits declarethat incidents of se xual harassment oc

curred, and we

re reported to he

r supervisors, pr

ior to July 6, 1998. The Def

endants con tend that the Plaintiff is estopped from creating a factual issue regarding any such alleged

prior incidents of

harassment beca

use of her earli

er sworn respons

es to the questionnaire.

It is well settled that, under the do ctrine of judicia

l estoppel, a party to a lawsuit who states by pleading, deposition, oral testimony or otherwise, tha t a given fact

is true will

not be permitted to deny that fact in subsequent litigation. See Gilley v. Jernigan , 597 S.W.2d 313 (Tenn. Ct. App. 1979). However, our review of the Plaintiff's responses to the questionnaire does not show that any of those responses contradict statements in her affidavits t hat she was subjected to, and reported, incidents of sexual harassment prior to July 6, 1998.

In their brief, the D

efendants set forth the following questions from the questionnaire signed by the Plaintiff: Q: Did you report to anyone that the hara ssing conduct was unwelcome? A: Yes. Q: If so, name and title of that person. A: David Thurston. Q: When did you

report this? A: July 6, 1998. Q: How often and for how long has the conduct occurred? A: [No response]

In summary, the Plaintiff has simply stated that she reported unwelcome harassing conduct to David Thurston on July 6, 1998, and nothing more. The Plaintiff make s no statement, eith

er in th e portion cited or elsewhere in the questionnaire, that no incidents of harassment occurred prior to July 6, 1998, or

that she did

not report

any incidents of harassment prior to that date. It might be inferred that the Plaintiff f

ocused on the date

of July 6,1 998, because tha t date marked the

most recent incident of

the alleged harassment and, perhaps, the most traumatic, that being the date the Plaintiff alleges she was locked in a closet and threa

tened with rape.

We will not impute

meaning to the Plaintiff's failure to de s cribe what may or may not have occurred prior to July 6 ,1998. Nothing less than a willfully false statement of fact, in the sense of

conscious perjury, is sufficient to give rise to an estoppel. See State, ex rel. Sco tt v. Brown , 937 S.W.2d 934 (Tenn. Ct. App. 1996). Acco rdi ngly, it is our conclusion that the Trial Court erred in applying the doctrine of

judicial estoppel in this case.-5-

We also find that the Trial Court erred in granting the motion for summary judgment based
on its determination th

at the Plaintiff " did not demonstrate , or specify

, when , prior to July

6, 1998, supervisor s at Trotter's Restaurant became aware of any unlawful sexual misconduct." It is our finding that the Plaintiff'

s attestation, as se

t forth in her affidavits, that she was subjected to sexual harassment

during the course of her employment prior to July 6, 1998, and that such harassment was reported to her supervisor

s prior to that date, is sufficiently specific. The Plaintiff was not required to set forth the precise dates of the alleged occurrences in order to withstand a motion for summary judgment. See Byrd v. Hall, supra.
We determine that the Trial Court also erred in basing its grant of summary judgment on its finding that the Defendants "had taken reasonable action and had exercise d reasonable ca

re to prevent sexual harassing

behavior from oc

curring and exe

rcised reasona

ble care to

corre ct any unlawful sexual behavior by Michael Floyd by terminating his employment on July 9, 1998."

Whether the Defendants e

xercised reasona

ble care in

this case is

related to a disputed issue of a material fact, i.e., did the Plaintiff report any incidents of harassmen t to her supervisors prior to July 6, 1998? The Plaintiff attests that she did report incidents of harassment prior to July 6, 1998. The Defendants present evidence that she did not. Resolution of t his issue nec essarily re

quires a weighing of evidence and determination of credibility, both of which are jury functions andnot the proper function of a judge ruling on a motion for summary judg ment. See Byrd v. Hall, supra.
The Defendants also

contend that the a

ffidavits file

d by the Plaintiff in oppositi on to their motion for summary judgment are insufficient to create a ge

nuine issue of mate

rial fact beca

use they are not based on the Plaintiff's personal knowledge. We disagree.

Our review of the Plaintiff's affidavits shows that several alleg

ations set forth the

rein create genuineissues of materia l fact, if taken as true, and eac h of these alleg

ations, if taken a

s true, must necessarily have been based on the Plaintiff's persona l knowledge.

At paragraphs 3 and 4 of the

affidavit filed by the

Plaintiff on April 4, 2000, she respec tively asserts that "Mr. Floyd was recognized by me, based on what I was told by my superiors and how he was ad dressed by the Restaurant's front manager s and David Thurston, as a supervisor or manager." and " I was to

ld by wa itr ess man ager s th at M ich ael D. Fl oyd had the authority to fire me." In the affidavit filed by

the Plaintiff on May 18, 2000, she additionally states at paragraph 5 th

at " Based on directions giv

en to me by my immed

iate supervisors and the acts of Mr. Thurston, I understoodthat

I was subject to the authority of Michael D. Floyd." Each of these allega tions creates
a genuine issue of material fact as to the supervisory or manage rial status of Mr. Floyd and bears directly upon the matter

of the Defendants' vicarious liability for sexual harassment by a supervisor.

The Plaintiff also

makes the followin

g statement in ea

ch of her affida

vits:-6- I had been subjected to sexual harassment at the Restaurant prior to July 6 , 1998, a nd reported such harassment prior to July 6, 1998. My reports we re made to my supervisors, including Donna Tr entham and Ba

rbara Molose, and they witnessedthe sexually suggestive comments and touching by Mr. Floyd. I asked Mr. Floyd to stop ha

r assing me and spe

cifically t old him that I co

nsidered his touching me and s

exually sugg

estive comments to b

e sexual harassme

nt.
These allegations als

o raise genuine

issues of materia

l fact relative t

o when the Defen

dants knew or should have known of Mr. Floy d's conduct and

the promptness

and reasonable

ness of their response. While it might be argued that that portion of the quoted material which pertains to what the Plaintiff's supe

rvis o rs witnessed could not be based on the Plaintiff's personal knowledge, we inf er that this statement is based on the Plaintiff's observation that her supervisors were in clos e visual and aural contact with the Plaintiff and Mr. Floyd during

the alleged incidents of harassment andher observation that their attention appeared to be directed toward her and Mr. Floyd at that time.

Fin all y, the Defendants cite the case of Parker v. Conwood Company, an unreported opinion of this Court, filed in Nashville on July 20, 1999, for the proposition that the asserted knowledge of supervisors does not equate to notice to the employer of harassing conduct. The Parker case involved
an action for co-worker harassment. In the case sub judice it

has not yet been determined whether Mr. Floyd was the Plaintiff's supervisor or her co-worker. F urthermore, in Park

er t he plaintiff claimedthat the defendant employer kn

ew or should have

known of the alleg

ed harassment be

cause supervisors saw and heard wh at was said, althou

gh th e plaintiff made no complaint. This Court affirmed the summary judgment of the trial court in favor of the def endant. In gr anting the defendant's motion for summary judgment the trial court stated that "[f]or the defendant to b e put on notice that the plaintiff felt she was being sexually harassed, when the plaintiff made no complaint, would require the supervisors to be mind readers.". Unlike the plaintiff i n P arker, the Plaintiff in this case asserts that she di d complai n of Mr. Floy d's behavior to h

er supervisors. Accordingly, we disagree that the Parker case is analogous to the case before us.

For the foregoing reasons, the judgment of the Trial Court is vacated and the cause remanded for proceedings not inconsistent with this opinion. Costs of appeal are adjudged ag ainst Shirley McK ay and Dia ne Fa rle y.

__________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE