FILED

February 1, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

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 CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

WILLIAM KENNERLY BURGER

SunTrust Bank Building, Suite 306

201 E. Main Street, P. O. Box 1969

Murfreesboro, Tennessee 37133-1969

Attorney for Petitioner/Appellant

JOHN KNOX WALKUP

Attorney General and Reporter

WILLIAM J. MARETT, JR.

Assistant Attorney General

425 Fifth Avenue, North

Nashville, Tennessee 37243-0490

Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

TODD, J.

O P I N I O N
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The Tennessee Civil Service Commission upheld the termination of a

veteran supervisory employee for sexual harassment, conduct unbecoming a state

employee, and failure to maintain a satisfactory and harmonious working relationship

with fellow employees. The Chancery Court of Davidson County affirmed the

Commission’s order. On appeal the employee asserts that he was denied progressive

discipline prior to termination, and that he was denied due process of law. On the

strength of the proof, he also claims that his conduct does not fit the definition of

“conduct unbecoming” or support a conclusion that he failed to maintain a harmonious

working relationship, and that his conduct was constitutionally protected. We affirm

the trial court.

I.

Carl Berning, the manager 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 alleging sexual harassment conditions in the

Murfreesboro office, which created a stressful work environment for the employees.

The Deputy Commissioner referred the letter to Bobby Halliburton, an assistant

commissioner in charge of community corrections, and asked Mr. Halliburton to talk

to each person in the Murfreesboro office and to report the results.

Upon receiving Mr. Halliburton’s report, the Deputy Commissioner

requested an Internal Affairs investigation, and Mr. Halliburton placed Mr. Berning on

administrative leave with pay. Following the Internal Affairs report, Mr. Halliburton

notified Mr. Berning that he was facing disciplinary action and that a due process

hearing would be held on April 18, 1995. After the due process hearing, Mr.

Halliburton terminated Mr. Berning, and Mr. Berning requested a hearing before the

Civil Service Commission.
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An administrative law judge conducted the hearing in March of 1996 and

filed a twenty-seven page order. After making extensive findings of fact, the ALJ

concluded that the facts justified Mr. Berning’s dismissal. The initial order became

final on November 12, 1996. Mr. Berning appealed to the Chancery Court of

Davidson County and the chancellor upheld the dismissal.

II.

PROGRESSIVE DISCIPLINE UNDER THE TENNESSEE PERSONNEL LAWS

Mr. Berning asserts that state statutes and regulations compel the

implementation of progressive discipline prior to termination. He relies on the

provisions of Tenn. Code Ann. § 8-30-330(a) and (c):

(a) The supervisor is responsible for maintaining the

proper performance level, conduct, and discipline of the

employees under the supervisor’s supervision. When

corrective action is necessary, the supervisor must

administer disciplinary action beginning at the lowest

appropriate step for each area of misconduct. 

. . .

(c) When corrective action is necessary, the

supervisor must administer disciplinary action beginning

at the step appropriate to the infraction or performance.

Subsequent infractions or poor performance may result in

more severe discipline in accordance with subsection (a).

In addition, the Rules of the Department of Personnel mirror the

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

The legislative mandate should be scrupulously followed, and we have

expressed our approval of the use of progressive discipline in other settings, Adams

TV of Memphis vs. IBEW, No. 02A01-9410-CV-00225 (Jackson April 29, 1996); Allen

v. Neel, No. 87-255-II (Nashville 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
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or severity of the behavior it is intended to address. The supervisor has discretion to

determine what punishment fits the offense.”

Since Mr. Berning has attacked the appropriateness of the punishment

in another section of his brief, we will defer our discussion of whether under the facts

in this record termination was appropriate.

III.

DUE PROCESS

A. THE ANONYMOUS LETTER

Mr. Berning insists that he was denied due process because the

investigation against him was launched on the basis of an anonymous letter. He does

not cite any authority for that position except this excerpt from Tenn. Code Ann. § 8-

30-222(c):

(c) No employee of the department, examiner, or other

person shall defeat, deceive or obstruct any person in

such person’s right to examination, eligibility, certification

or appointment under this chapter, or furnish to any

person any special or secret information for the purpose

of affecting the rights or prospects of any person with

respect to employment in the career service.

We, however, reject the contention that this statute prevents a

department of the State from launching an investigation based on anonymous

sources. If Mr. Berning’s termination had been based on the letter, he would have

had a compelling argument, but the facts in the letter itself are not cited in the ALJ’s

order or in the chancellor’s memorandum.

B. VAGUENESS AND DELAY

Mr. Berning alleges that he was denied due process because of the

absence of detailed times, places, and other pertinent facts concerning the charges.
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Tenn. Code Ann. § 8-30-331(b)(1). The record reflects that the initial charges against

Mr. Berning included allegations of inappropriate sexual conduct occurring over a

period of five or six years, and involving five of his female employees. Prior to the

hearing before the ALJ, the list was supplemented with a list 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 place of his transgressions. We think the

information given him prior to the hearing satisfied the requirements of due process.

It is true that the charges against Mr. Berning covered a period of

several years. It is also true that the Department received word of a specific charge

by another female employee in 1991 or 1992, and that the Department took no action

at that time. In the meantime, certain Departmental records have been lost or

routinely destroyed. The ALJ, however, found that much of the conduct Mr. Berning

asserts he could have rebutted through time records or other documents was conduct

he either admitted or did not deny. The chancellor also found that most of the

offensive conduct involved only Mr. Berning and the victim. So, the lack of any

records did not unduly prejudice Mr. Berning.

After a review of the record, we add our conclusion that Mr. Berning’s

due process rights were not violated by the fact that some of the Department’s records

had been discarded.

C. AN UNBIASED INVESTIGATOR

Mr. Halliburton, the Assistant Commissioner who conducted the initial

investigation and placed Mr. Berning on administrative leave, also conducted the due

process hearing provided by Tenn. Code Ann. § 8-30-331. After that hearing Mr.
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Berning was terminated. Mr. Berning alleges that Mr. Halliburton had a special

relationship with Crystal Durham, who was one of Mr. Berning’s principal accusers,

and who was bitter over being denied a promotion.

There are facts in the record from which one could infer that Crystal

Durham did indeed have a grudge against Mr. Berning, and that Mr. Halliburton and

Crystal Durham had a close relationship. From those inferences one might also infer

that Mr. Halliburton had decided to be unfair to Mr. Berning and that his participation

in the disciplinary proceedings violated Mr. Berning’s basic due process rights.

That determination, however, is committed in the first instance to the

Civil Service Commission. Tenn. Code Ann. § 8-30-331(c) provides that, “The

commission shall determine as a preliminary 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 made the following finding and/or conclusion:

“Mr Halliburton was a better friend with the grievant (Mr. Berning) than with Ms.

Durham and is not found to have acted anything other than impartially in the actions

he took.” The record does 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 prejudice. 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. Halliburton’s friendship with Mr. Berning is supported by

substantial and material evidence in the record,see Tenn. Code Ann. § 4-5-322(h)(5),

we think the ALJ’s conclusion must be sustained. The chancellor made the same

judgment.

IV.

THE EVIDENCE

A. SEXUAL HARASSMENT
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Mr. Berning admits that his conduct was in poor judgment and bad taste,

but he argues that it does not meet the definition of sexual harassment. The

Tennessee Department of Personnel policies defined sexual harassment in the

following way:

1. Sexual harassment is a violation of Title VII

of the Civil Rights Act of 1964 and it is

against the policies of the State of

Tennessee Department of Personnel for

any employee, male or female, to sexually

harass another employee by:

a. Making unwelcomed sexual

advances or requests for

sexual favors or other verbal

or physical conduct of a

sexual nature as a condition

of employment, or continued

employment, or

b. Making submission to or

rejections of such conduct the

basis for administrative

decision s affectin g

employment, or

c. Creating an intimidating,

hostile or offensive working

environment by such conduct.

2. Sexual harassment does not refer to

behavior or occasional compliments of a

socially acceptable nature. It refers to

behavior that is not welcome, that is

personally offensive, that fails to respect the

rights of others, that lowers morale and that

therefore, interferes with our work

effectiveness. Sexual harassment may

take different forms. One specific form is

the demand for sexual favors. Other forms

of harassment include:

C Verbal - Sexual innuendos,

suggestive comments, jokes of a

sexual nature, sexual propositions,

threats.

C Non-Verbal - Sexually suggestive

objects or pictures, graphic

commentaries, suggestive or

insulting sounds, leering, whistling,

obscene gestures. 

C Physical - Unwanted physical

contact, including touching, pinching,

brushing the body, coerced sexual

intercourse, assault.
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Sexual harassment may be overt or subtle. Some

behavior which is appropriate in a social setting may not

be appropriate in the work place. But whatever form it

takes, verbal, non-verbal or physical, sexual harassment

can be insulting and demeaning to the recipient and will

not be tolerated in the work place.

Sexual harassment by any employee, director, supervisor,

or non-employee will not be tolerated. All employees,

directors, supervisors and non-supervisors alike, will be

expected to comply with this policy and take appropriate

measures to ensure that such conduct does not occur.

The ALJ made eighty-six findings of fact, filling nineteen legal-sized

pages of type, detailing the atmosphere in the Murfreesboro office and Mr. Berning’s

role in it. The ALJ found that Mr. Berning “set the tone by telling dirty jokes, and by

making comments to women of a sexual nature.” Although the record shows that

many women in the office tolerated Mr. Berning’s behavior and even engaged in

telling bawdy stories themselves, the ALJ details the deleterious effect of Mr.

Berning’s behavior on many of his employees. The chancellor summarized the

numerous findings in the following way:

A common scenario described involved the petitioner

being alone with a female employee; steering the

conversation toward his interest in oral sex; graphically

describing the act; and propositioning the female

employee to allow him to perform the described act on

her. Several employees testified that the petitioner

inappropriately touched them: sliding his hand between

two buttons of one woman’s dress at her midriff; 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

employees testified that they began to avoid him, even

when their work required them to interact with the

petitioner. One employee stated that the petitioner’s

behavior caused her so much stress that 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 employee

refused to report for an interview because of statements

the petitioner made to her during telephone calls he

inappropriately made to her.
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We concur in the chancellor’s assessment of the evidence. Having

come to that conclusion, we cannot see how Mr. Berning could seriously contend that

his conduct did not amount to sexual harassment.

B. CONSTITUTIONAL PROTECTION

Finally, Mr. Berning argues that the Commission’s action violated his

right to free speech under the United States Constitution (Amendment I) and the

Tennessee Constitution (Article I § 19). Presumably his argument is that no matter

how gross or intimidating his actions were, they fell within the scope of protected

speech.

But even the seemingly absolute language of the First Amendment

(“Congress shall make no law . . . abridging the freedom of speech”) does not protect

pornography nor obscenities. Miller v. California, 413 U.S. 15 (1973); Roth v. U.S.,

354 U.S. 476 (1957). Apparently it is so obvious now that the First Amendment is not

a defense in sexual harassment cases that it is seldom raised. See Burlington

Industries, Inc. v. Ellerth, ____ U.S. ____ (1998).

With respect to the Tennessee Constitution, we should pay careful

attention to the words: “The free communication of thoughts and opinions, is one of

the invaluable rights of man, and every citizen may freely speak, write, and print on

any subject, being responsible 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 incidental

to the offensive conduct, the Constitution does not provide a defense. Id. To the

extent that Mr. Berning’s conduct included unwelcome touching, fondling, and kissing

of his employees, he cannot escape condemnation by claiming his rights of free

speech.
The judgment of the trial court is affirmed and the cause is remanded

to the Chancery Court of Davidson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.

_________________________________

BEN H. CANTRELL, 

PRESIDING JUDGE, M.S.

CONCUR:

_____________________________

WILLIAM C. KOCH, JR., JUDGE

_____________________________

HENRY F. TODD, JUDGE