# FILED
February 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

CARL G. BERNING, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9804-CH-00180 VS. ) ) Davidson Chancery ) No. 97-129-I STATE OF TENNESSEE, ) DEPARTMENT OF CORRECTION, ) ) Respondent/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

WILLIAM KENNERLY BURGER SunTrust Bank Building, Suite 306 201 E. Main Street, P. O. Box 1969 Murfreesboro, Tennessee 37133-1969 Attorney for Petitioner/Appe llant JOHN KNOX WALKUP Attorney General and Repor ter WILLIAM J. MARETT, JR. Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, Tennessee 37243-0490 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. TODD, J.


## O P I N I O N- 2 - The Tennessee Civil S ervic e Commis sion uph eld the t

ermination of a veteran supervisory employee for sexual harassment, conduct unbecoming a state employee, and failure tomaintain a satisfactory and harmonious working relationship with fellow employees. The Chancery Court of David s on County affirmed the Commission’s order. On appeal the employ ee asserts that

he was denied progressi ve disciplineprior to termination, and that he wasdenied due process of law. On the strength of the proof, he also claims that his con duct does not fit the definition of “conduct unbecoming” or support a conclusion that he failed to maintain a harmoniou s working relations hip, and that his conduct was cons titutionally protected. We affirm the trial court.

I.

Carl Berning, the ma nager of the Department of Correction’s Murfreesboro probation office, was a twenty-three year state employee at the time of his termination in April of 1995. The charges against Mr. Berning surfaced in an anonymous letter to the Department all e ging sexual harass ment conditions in the Murfreesboro office, which created a stressful work environment for the employees. The Deputy Commissioner r eferred the letter to Bobby H alliburton, an assistant commissioner

in charge of community corrections, and asked Mr. Halliburton to talk to each person in the Murfreesboro office an d to report the results.

Upon receiving Mr. Ha llib urton’s report, the Deputy Commissioner requested an Internal Affairs investi gation, and Mr. Halliburton placed Mr. Berning on adminis trative leav e with pa y. Following the Internal Affairs report, M r. Halliburton notified Mr. Be rning that he was facing disciplinary action and that a due process hearing would be held on April 18, 19 95. After the due process hearing, Mr. Halliburton terminated Mr. Berning,and Mr. Berning req uested a hearing before the Civil Servic

e Commission.- 3 - An administrative law

judge conducted the hearing in March of 1996and filed a twenty-seven page ord er. After makin g extensive findin gs o f fact, the ALJ concluded that the facts justified Mr. Berning’s dism iss al. The initial order became final on November 12, 1996. Mr. Berning appealed to th e Chancery Court of Davidson County and the chancellor upheld the dismissal.

II. P ROGRESSIVE D ISCIPLINE U NDER THE T ENNESSEE P ERSONNEL L AWS

Mr. Berning asserts that state statutes and regulations c ompe l the implementation of progressive disci pline prior to termination. He relies on the provisions of Tenn. Code Ann. § 8-30-330(a) and (c):

(a) The supervisor is r esponsible for maintaining the proper performance level, conduct, and discipline of the emp loyeesunder the supervisor’ s supervision. Whe n corrective action is necessary, the supervisor must administer

disciplinary action beginning at the lowest appropriate step for each area of mis conduct.

. . . (c) When corre c tive action is necessa ry, the supervisor

must administer discipli nary action beginn in g at th e step appropriate to the infraction or performa nce . Subsequent

infractions or poor

performance may result in more severe discipline in accordanc e with subsection(a).

In a ddition, the Rules of the Department of Personnel mirror the statutory requirements

. See Rule 1120-10-.07 Tenn. Register.

The legislative mandate s hould be scrupulously follow ed, and we have expressed our approval of the use of progressive di scipline in other setti ngs, Adams TV of Memphis vs. IBEW

, No. 02A01-9410-CV-00225 (Jackson April 29, 1996) ; Allen
v. Neel , No. 87-255- II (Nashvill e March 9, 1988), but the key word in the statute is “appropriate.” As the chancellor concluded , “the language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature- 4 -

or severity of the behavior it is intende d to address. The supervis or has discretion to determine what punishment fits the offense.”

Since Mr. Berning has attack ed the appropriateness of the punishment in another section of his brief, w e will defer

our discussion of whether under the facts in this record terminati on was appropriate.

III. D UE P ROCESS
A . T HE A NONYMOUS L ETTER

Mr. Berning insi sts that he was denied due pr ocess because the investigationagainst him was launched on the basis of an anonymous letter. He does not cite any authority for that position except thi s excerpt from Tenn. Code Ann. § 8- 30-222(c): (c) No employee of the d epa rtment, examiner, or other

person shall def eat, dec eive or obs truct any p ers on in such person’s right to

examinat ion, eligi bility, certification or appointment under this ch apt er, or furnish to any person any special or

secret information for the purpose of affectin g the ri ghts or prospects of any person with respect to employment in the c areer service.
We, however, re ject the c ontenti on that t his statu te preve nt s a departmentof the State from launching an inv estigation based on anonymo us sources. If Mr. Berning’s ter mination had been based on the letter,he wou ld have had a compelling argument, but the facts in the letter itself are not cited in the ALJ’s order or in

the chancell or’s memoran dum.

B . V AGUENESS A

ND D ELAY

Mr. Berning alleg es that he was denied due proc ess because of the absence of detailed times, places, and other pertinent facts

concerning the charges.- 5 -

Tenn. Code Ann. § 8-30-331(b)(1) . The record reflects that the initial charges against Mr. Bern ing i ncluded allegations of inappropriate sexual conduct occurring over a period of five or six years , and involving fiv e of his female employees. Prior to the hearing before the ALJ, the list w as supplemented with a lis t containing ten names and relating graphic details of Mr. Berning’s conduct on specific occasions.

Mr. Berning does not

specifically point out how he was prejudiced by

any alleged lack of details of the time and plac e of hi s trans gressions. We think the information given him prior to the hearing satisfied the requirements of due process.

It is true that the charg es against Mr. Berning covered a period of several years. It is al so true that the Depart ment rec

eived w ord of a specific charge byanother

female employee in 1991 or 1992, and that the Department took no action at that time. In the meantime, cer tain Departmental records hav e been lost or routinelydestroyed. The ALJ, however, found that much of the conduct Mr. Berning assertshe could have rebutted throug h time records or other documents was

conduct he either admitted or did not de ny. The chancellor also found that most of the offen sive conduct involved on ly M r. Berning and the victi m. So, the lack of any records did not u nduly prejudice Mr. Berning.

After a review of the recor

d, we add ou r conclusion that Mr. Berning’s due process rights were not v iolated by the fact that some of the Department’s records had been discarded.

C . A N U NBIASE D I NVESTIGA TOR

Mr. Halliburton , th e Assistant Commissioner w ho conducted the initial investigationand placed Mr. Berning on adminis trative leave, als

o conducted thedue process hearing provided b y Tenn. Cod e Ann. § 8-30-331. After that hearing Mr.- 6 -

Berning was terminated. Mr. Berning alleges that M r. Halliburtonhad a special relationship with Crystal D urham, who was one of Mr.Berning’s principal ac cusers, and who was bitter ov

er being denied a promotion.

There are fact

s in the record fr om which one could infer that Crys tal Durham did indeed have a grudge against Mr. Berning, and that Mr. H alliburton and Crystal Durham had a close relations hip. From those inferences one mightalso infer that Mr. Halliburton had decided to be unfair to Mr. Berning andthat his participation in the disciplinary proceedings violated Mr. Berning’s basic due process rights.

That determination, however, is committed i n the first instance to the C iv il Service Commission. Tenn. Code Ann. § 8-30-331(c) pr ovides that, “The commission shall determine as a preli minary matter to the merits of a grievance, a grievant’s allegation of denial of minimum due process.” Mr. Berning raised that issue before the Commission , and the ALJ ma de the following f inding a nd/or con clusion: “Mr Halliburton was a better friend with the grievant (Mr. Berning) than with Ms. Durham and is not found to have acted any thing other than impartial ly in the actions he took.” The record doe s show that Mr. Berning and Mr. Halliburton were close friends , and Mr. Berning does not point to any specific act on Mr. Halliburton ’s part that demonstrates his bias or pr ejudice. All we have are the inferences that might be made. Since the ALJ declined to infer any bias or prejudice on Mr. Halliburton’s part and the finding of Mr. Hallib urton’s friendship with Mr. Berning is suppo rted by substantial and material evidence in the record, see Tenn. Code Ann. § 4-5-322(h)(5),
we t hink the ALJ’s conclusion must be sustained. The chancellor made the s am e judgment.

IV. T HE E VIDENCE
A . S EXUAL H ARASS MENT- 7 - Mr. Berning admits that

his conduct was in poor judgment and bad taste, but he argues that it does not me et the definition of sexual haras sment. The Tennessee Dep a rtment of Personnel policies defin ed sexual harassment in the followin g way:

1. Sexual harassment is a violation of Title VII of the C ivil Rights Act of 1964 and it is a ga inst the policies of the State of Tennessee Department of Personnel for any employ ee, male or fe male , to sexually harass an other em ployee by:
a. Making unwelcomed sexual advancesor requests for s exual favors or other verbal or physic al conduct

of a sexual nature as a condition of employment, or continued employment, or b. Making su bm ission to or rejectionsof such conduct the bas is for administrati v e decision s affectin g employment, or
c. Creating an i n timidating, hostile or offensive working environment

by s uch cond uct. 2. Sexual harassment does not refer to behavior or occasional co mpliment s of a soci a lly acceptable nature. It refers to behavior that is not welcome, that i s personallyoffensive, that fails to respect the rightsof others, that lowers morale and that there fore, in terferes with our w or k effectiveness. S exual harassment may take different forms. One specific form is the demand for sex

ual favors.Other forms of harassment include:

C Verbal

- S exual innuendos , suggestive comme nt s, jokes of a sexual n a ture, sexual propositions, threats.

C N o n-Verbal - Sexually su ggestive objects or pictures, grap hi c comm entaries, sugge stive o r insulting sounds, leering, whistl i ng, obscene gestures.

C Physical - U nwanted physical contact, including t ouching, pinch ing, brus hin g the body, coerced sexual intercourse, assault.- 8 - Sexual harassment ma y be overt

or subtle. Some behavior which is appropriate in a social setting may n ot be ap propriate i n the work place. But w hatever for

m i t takes, verbal, non-verbal or phys ical, sexual harassment can be ins ulting and demeaning to the recipient and will not be tolerated in the wor k place. Sexual harassme nt by any employee, director, supervis or, or non-employee will not be tolerated

. A ll employees, directors, supervisors and non-s upervisors alike, w ill be expected to comply with this policy and take appropri ate measures to ensure that such conduct does not occur.

The ALJ ma de eighty-six findi ngs of fact, filling nineteen l egal-sized pages of type, detailing the atmosphere in the Murfreesboro of fice and Mr. Berning’s role in it. The ALJ found that Mr. Ber ning “set the tone by

telling dirty j okes, and by making comment s to wo men of a sexual nature.” Althou gh the record shows that manywomen in the of fice tolerated Mr. Berning’s behavior and even engaged in telling bawdy stories themsel ves, the ALJ details the delet erious effect of Mr. Bern ing’s behavior on many of his empl oyees. The chancellor summar ized t h e numerou s findin gs in the f ollowing way:

A com mon scenario described inv olved the petitioner being alone with a female employee;steering the conversation toward his interest in oral sex; graphically describing the act; and propositioning the femal e employee to allow him to perform the descr ibed a ct on her. Several employees tes tified that the petition e r inappropriately touched them: sliding his hand between two buttons of one woman’s dress a t her mi driff; pinning one woman against a desk as he attempted to kiss her; and rubbing his thumb across one woman’s nipple.

. . . . As a result of the petitioner’s behavior, many of the employeestestified that they began to avoi d him, even when their work requi red them to inter act w ith the petitioner. One employee stated that the petitioner’s b ehavior caused her so much stress th at she began to take her work home with her and report to the office only when she knew the petitioner would not be there. At least three employees resigned and one volunteer quit because of the plaintiff’s behavior. A prospective employ ee refused to report for

an interview becaus

e of statements the petitioner made to her during telephone calls he inappropriately made to her.- 9 - We concur in the chancellor’s ass essment of the evidence. Having
come to that conclusion, we cannot see how Mr. Berning could seriously cont end that his conduct did not amount to sex ual harassment.

B . C ONSTITUTIONAL P ROTECTION
Finally, Mr. Berning argues that the Commission’s action violated his right to free speech under the United St ates Constitution (Amendment I) and the Tennessee Constitution (Articl e I § 19). Presumably his argument is that no matter how gross or intimida ting his actions w ere, they fell withi n the scope of protected speech.

But even the seemingly abs olute language of the Firs t Amendment (“Congress shall make no law . . . abridg ing the freedom of speech”) does not protect pornography

nor obscenities. Miller v. Cali for nia , 413 U.S. 15 (1973); Roth v. U.S. , 354 U.S. 476 (1957). Apparently it is so obvious now that the Fi rst Amendment is not
a defense in sexual harassment c ases that it is seldom rai sed. See Bur lington Industries, Inc. v. Elle

rth , ____ U.S. ____ (1998).

With respect to the Tennessee Constitution, we should pay ca ref ul attention to the words: “ The free communication of thoughts and opini ons, is one of the invaluable rights of man, and every citiz en may freely speak, wr ite, and print on any subject, being responsi ble for the abuse of that liberty .” Art. 1 § 19 Tennessee Constitution. That provision protects speech and not conduct. State v. Lakatos , 900 S.W.2d 699 (Tenn. Cr. App. 1994). Where the protected speech is merely inci dental to the offensive conduct, the Constitution doe s no t provide a defense. Id. To the extentthat Mr. Berning’s conduct included unwelcome touchin g, fondling, andkissing of his employees, he cannot esca pe condemna tion by claiming his rights of free speech.The judgm ent of t he trial court is affirmed and the cause is remanded

to the Chan cery Court o f Davidso n County f or any fur ther proc eedings n ecessary. Tax the costs on appeal to the appe llant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ HENRY F. TODD, JUDGE