# FILED October 20, 1995 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_______________________________________________ CHARLES K. NEWSOM, Pl ain tiff-Appe ll ant, Vs. Davidson Chancery #91-262 2-I C.A. No. 01A0

1-9504-CH-001 51 TEXTRON AEROSTRUCTURES, a division of Avco, Inc.; and GARY L. SMITH, Individually, Defendan ts-Ap pellees.

_________________________________________________________________________

FROM THE CHA NCERY COURT O F DAVIDSON COUNTY THE HONO RABLE IRVIN H. K ILCREASE, JR. , CHANC ELLOR

H. Rowan Leathers

II I of M anier, Herod, Ha llab aug h & S

mit h o f N ash vi lle For Appellant Ro be rt E. Bo st on an d St

ep henW . G ra ce o f N ash vi lle For Appellees

AFFIRMED Opinion filed:

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR: DAVID R. FARMER, JUDGE1 Plaintiff stipulates in his brief tha t he d oes not ap peal the d ism iss al as to defendant Gary Smith. 2 WILLIAM C. KOCH, JR., JUDGE This app eal involves a suit brought by a n employee against his employer asserting that

the employer's actions, in connect ion with th e employee's demotion and subsequent terminat ion, violated The Age Discriminat ion in Employment

Act (AD EA), 29

U.S.C. §§ 621-634, and the Te nne sse e Hu man Rig hts Act (THRA), T.C.A. § 4-21-101 (1991), et. seq . The employee also all eges that the

em ployer's

actions in connect

ion with the demot

ion and terminatio n wer e slanderous

and constituted outrageous c onduct. Plaintiff employee, Charles K. News om, appeals from the order of t he trial court grant

ing summary judgment to defendant, Textron Aerost ructur es, Inc., and Gary Smith, 1 and th e only issue

on appeal is whether the t rial court erred in so doing. The pert inent fact

s are as foll ows. The plaint

iff, Char les K. N ewsom, wa s born Fe bruary 14, 1933. Defendant Textron Aerost

ructur es is in t he busines

s of manufacturing aircraft parts and other large machineryfor b oth private buyers a nd the defense industry. Newsom was employed by

def end an t T

ext ro n o n Se pt

emb er 23, 1 957, as

an at -wi ll emp lo yee , and he worked at Text ron for thirt

y-four years unt

il he was discharg ed on March 27, 1992. During the course of Newsom's employment at Text ron he received regular promot ions, satisfact

ory performance evaluations, work commendations, and pay incr eases. Newsom eventually obtained a management posit ion and in April of 1988 he was promot ed to t he position of Senior C ompliance Analyst (SCA). As SCA Ne wso m was responsible for reviewing the "procurement package s"of

Text ron "buyers" and i nsuring t hat T extro n's pr oc ure men t o f t

oo ls and other part

s to be used in cont

racts with t

he federalgovernment complied with federal regula tions controll ing governm ent contracts. Textron created the2These procurement audits are p erformed by the federa l government to prevent fraud, waste, etc., by comp anies that contract

with the federal gove rnm ent.

3The "pre-CPSRs" are performed, bec ause fai ling a government CPSR ap pa ren tly

ca n r esu lt in a company's government cont racts being suspended. 3 SCA po sit

io n i n o rde r t

o e nsu re th at

Te xt ro n su cce ssf

ully pass ed government contr act "procure ment aud its " wh ich were performed by agencies of the federal gove rnm ent. 2

One of t

he major a udits Textro n was required to undergo was a Contractor Procurem ent System Review(CPSR). To e nsure that

Textron would successfull y pass its scheduled CPSR in November

of 1989, Textron performed a "pre-CPSR"in April of 1989. A "pre-CPSR" is Text ron's own inter

nal audit of it

s buyers procuremen t pac kages. 3 The r esu lts of the A pr il, 1989 "pre-CPSR" showed deficiencies in seventy percent of the buyer pac kages, and in Newsom's words the results were "not good." Following the CPSR, N ewsom was suspended w ithout pay for a period of one wee k

. Subseque ntly, on Au gust 10, 198 9, N ewsom wa s not

ifie d th at

he wa s bei ng demoted from SCA into t he position of

Buyer II. Newsom 's successor as Senior Compl iance Anal yst was Sherry Ri tchie, a femal e under the age of forty. O n August 30, 1989, Newsom was eval uated pursuan t to Textro n's annual employment

evaluation policy, and he was informed at t hat t ime that he was demoted because his performance in the posit ion of SCA was uns

atis factory. In the August 3

0, 1989 perfo rmance review, Textron st ated that

it demoted News om, because he did not "meet t he position requirement s for a Sen i or Compliance Analyst." The basis assert ed by Textron f

o r Newsom's deficient perfor mance was his pe rformance in the pre-CPSR in April, 1 989. Newsom contends that he was de moted becaus e of his age. Newsom app eal ed his unsatisfactor y performance appraisal and4

demotion pursuant t

o Textron's int

ernal appeal process. The appeal was heard bya supervisor

of the Senior Compl iance Anal yst position and another manager at Textron. In Janu ary of 1990 the Textron managers determined the demotion

was pro per and fai r, a nd t

he ma nag ers

ref used to rei nst

at e Ne wsom to th e position of SCA. On June 21 , 1990, Newsom filed an age discrim ination charge wit h the Equal Empl oyment Opportunity Comm ission (EEOC) com plaini ng of hi s demotion to Buyer II and other allegedly discrim inatory ac tion s on the part of Textron. In the cha rge, Ne wsom listed Aug ust 10, 1 989, a s the da te onwhich the most recent discrimination again st him had occ urred. On September 14, 199 0, Newsom amended his ch arge by inse rting the word "continuing" af ter t he August 10, 1989, date in order t o signifythat

the discrimination against him was continuing. On Ju ly 18, 1991, the EEOC det ermined that Newsom's age discrim ination cl aim was with out m eri t. Thereafter, on August 9, 1991, Newsom filed the present action against Textron al legin g, inter alia , that hi s de moti o n violated his rights under t he ADEA . Following Newso m's demotion and during the pendency of Newsom's age discrim ination action, he cont inued his employment at Textron in the position of Buyer II. Two o f News

om's dutie s as a Buyer II were procuring materials and supplies from tool vendors through compet itive price bidding and ensuring that Textron complied with the defense indust ry's initiat

ives regardin g fraud, waste, and abuse in govern ment contracts. In Au gust of 1990, Newsom was evaluated byhis supervi sors as "m eeting the standards" of the Buye r II position. In August of 1991, Newsom was again evaluated as "meetin g the stan dards" required of a Buyer I I. In l ate 1991 and earl y 1992, Textron decided to open a competitive bidding process to sel ect a c omp any to provide all of Textron's cutt ing tools. During t

he4The Anti-Kickback Enforcem ent Act of 1986 provides in per tinent part, " Whenever

a prime contracto r . . . has re asonable grou nds to bel ieve that a violation of section 53 of this title may have occ urred, the prim e contractor

. .

. sha ll prom ptl y rep ort the possibl e violation in w riting." 42 U.S.C. § 57(c)(1)(A)(1986). 5 bidding process, Textro n managers became aware that one c ompany , Tool Group Network, had obt ained $600,000 o f Textron's business in a short period of time. Dick Kot

tle r, Te xt ro n's Di rec to r o f Ma te ria ls, alle ge dlybecame concerned

over T oo l Group's rapid acquisition of Textron business, and he init iated an internalaudit of Text

ron's contract

s with Tool Group. Textr on' s l egal dep artm ent, which supervised the internal investigat ion, was required b y th e Anti -Kickba ck Enforcement

Act of 198

6, 41 U.S.C

. §§ 55-58 (1986) , to report the e xiste nce of the investigation to the fe der al gove rnm ent. 4

Subs equ ent to Te xtron 's r epor t, Newsom and other Text ron employees were interviewed by agents of t he federal government regarding Newsom's award of t he Too l Group contracts. During the course of t he Textro n investigation, an emp loyee of Textron who was

revi ewi ng the Tool Grou p con tracts dis cove red th at a numbe r of Textron cont

ract s had b een a wa rde d to Tool Group without competition a nd at hig her prices th an p rev iou s t ool c ont

rac ts , a nd t hat some of the Tool Gro up contr act docume ntation had apparently b een altered. The Textron investigat io n also disclosed ins

ta nces in w hich Tool Group had been underbid by a competitor, but Too l G roup red uce d its bid to sligh tly under that of a competito r, and was

there after

awa rde d the contr

act. The Text

ron investigat

ion showed that t

he two buyers who had been awarding the Tool Group cont racts were Mar

tha M artin and Newsom , and both buyers were questioned regarding t he contract

awards. Following th e investigat

ion, Textron allegedly believed that Newsom had been favoring Tool Group during the com petitive bidding proc ess, that Newsom had engaged in outside mee tings

with To ol G roup during the bidding competit ion, and that5 In his compl aint and amended complaint Newsom also asser ted a THRA cause of action "co nce rni ng ag e di scrim ina tion i n con nec tion w ith a demotion, perfor mance appraisal, appeal from that perf ormance appraisal, and failure to con side r hi m for open positions; . . .[ a] cause of act ion for breach of t

he implied covenant of good faith and f air dealing; and . . . [a] caus e of action .

. . for violation of Tenn. Code Ann. § 47-50-109. " Newsom does not contest the rulin gs of the chancel lor on these c auses of action. 6 Newsom had a wa rd ed Tool Gro up some Tex troncont

racts when Too l Group

was not t he lowest bidder on those cont racts. Text

ron investig ato rs also belie ved that Newsom had accepted ou tside entertainment from Tool Gro up and had enter

ed i nto a l ong te rm co ntract wit h Tool Group without his superviso r's

approval of the cont ract. Text

ron concluded that

Ne wsom had engaged in improper and potent ially il legal favori tism to ward Too l Group Network, and Text

ron fir ed Newsom on Mar

ch 27, 1992. Textron's st ated reason for Newsom's discharge was that he "violated

. . . company policies and f

ail[ed] to p erform jo b dutie s." Following his empl oyment termination, Newsom amended the complaint in this case on July 21, 1992, a lleging that his right s under t

he THRA wer

e violat ed, because he was discharged in retaliation f or fi ling his age discrimination suit against Textron in connection with his demot ion. The amended complaint also alleges that Textron's act

ions in connection wit h Newsom's demotion and term ina tion were sl and erou s an d co nsti tuted outra geou s co ndu ct. 5 A tr ia l c ourt should grant a mot ion for summary judgment only if the movant demonstrates t

hat t here are no genuine issues of mat erial fact

and that the moving pa rty is ent itled t o judgment

as a mat

ter of law. Tenn.R.Civ.P. 56.03; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving fo r summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. When a motion for summaryjudgment is made, the court must consider the motion in t

he same manner as a motion for directed ve rdict made at t he7

close of the plaintiff's proo f; that is, "the court

mu st take the str

onge st l egi tima te view of the evidence in favo r o f t he no nmo vi ng pa rt

y, allo w all r

ea so na ble inferences

in favor of that party, and discard all countervailing evidence. " Id . at 210-11. In Byrd , th e Tenness ee Supreme C ourt

stat ed: Once it is

shown b y the moving part y that there is no genuine issue of mat eri al fact, the no nm ovin g par ty must then demonstrat

e, by affidav its or discovery materia ls, that

ther e is a genuine, materialfact d isp ute to warrant a t

rial. [citations o mitted]. I n this regard, Rule 56.05 provides t

hat the nonmoving party cann ot sim ply rely upon h is pleadings but mu st se t forth specific facts

showing t

hat t here is a genuine issue of mat erial f act fo r t ria l. Id . at 211. (emphasis in origin al). The summ ary judgme nt process shoul d only be used as a m eans of concluding a case when there are no genuine issues of material fact, and t he

case can be re solved on t he legal issues a lone. Id . at 210 (citing Bellamy v. Federal Express Corp ., 749 S.W.2d 31, 33 (Tenn. 1988)). Summary jud gment is not to be used as a substitut e for a tria l of genuine and material factualissues. Byrd , 847S.W.2d at

210 (cit ing Blocker v. Regional Medical Ctr ., 722 S.W.2d 660, 660-61 (Tenn. 1987)). Where a genuine disput e exists as to any material fact or as to t he conclusions

to be drawn from those facts, a court must deny a m otion for

summ ary judgme nt. Byrd , 847 S.W.2d at 211 (citing Dunn , 833 S.W.2d at 80). I. ADEA Cause of Action We will first

address Newso m's

claim that Textro n violated the ADEA. 29 U.S. C. § 62 3(a)(1) p rovi des in pe rtine nt par

t: It shall be unl awfu l for an empl oyer --(1) to fail or refuse to hire or to discharge any in dividual or othe rwise disc rimi n ate ag ain st any ind ivid ual with respect to his compensa tion, t er ms, cond itions, or privileges of empl oy ment, b ecause of such individual's age . . . . Newsom contends that Textron's actions surrounding hi s demotion on August 10, 1989, his performanc e revie w on August 30, 19 89, and his6We say "apparently" because bot h Newsom's brief and his reply brief are ut te rly void of any argum ent or authorit y supporting Newsom's posit ion that the charge was

ti mely f iled. In his reply br

ief, Ne wsom's counsel merely st ates, "Newsom's

1989 p erforman ce appraisal occurred o n August 30, 1989, and the denial of his appeal therefrom in January, 199 0, both actions within t hree hundred (30

0) days o f

his EEOC c harge, as requi red by 29 U.S.C. § 626(d)." Appell ant's repl y brief at 3. 8 perfor mance review appeal in January of 1990, all viol ated the ADEA. News om conte nds

that Tex tron d em ote d him from SCA to Buyer II because of his age, and that

Textron's st

ated reason for t

erminating h is em plo yme nt was mer ely pretextual. Textron a rgues

that Newsom is bar

red from as

serti ng an AD EA claim because he did not file a charge with t he E EOC within 30

0 days of the alleged discrim ination as required by 29 U.S. C. § 626( d)(1985 ) . 29 U .S.C. § 626(

d) prov ide s in perti nen t part:

No civil action may be commenced byan individual under this section until 60 days after a charge alleging unlawfuldiscrimination has been filed with the Equal Employment

Opport unity Commission. Such a ch a rge sha ll be filed . . . withi n 300 days aft er the alleged un lawful practice occurred, or wit hin 30 days af

te r receipt by the individual of no tice of termination of proceedin gs under State law, whic hever is earl ier. Te xt ro n a sse rt

s t ha t N ews

om w as awa re th at

he wou ld be demoted from SCA to Buye r I I o n Au gus

t 10, 1989, bu t he did n ot file a charge with t he EEOC until 307 days l ater on June 21, 1990; therefore, his ADEA cl aims are tim e-barred. Newsom, on the ot he r hand, contends t hat his June 21, 1990 charge was ti mely filed since it was fi led w ithin 300 days of Textro n's internal appealruling in Januaryof 1990 and within 300 d ays of Newsom 's empl oyee evalu ation on August 30, 1989

. Newsom is apparentl y arguing that Textron "continuousl y" violated the ADEA when i t did no t reverse its demotion decision in t he employee evalua tion or through Textron's int ernal appeals procedure; 6 therefore, the 300 daytime limit for filing the EEOC charg e did not begin t o run unt

il one of t

hose7 Newsom does no t spec ify onwhich of t he two dates

his cause of actio n accrued

. 9 dates (both of which are w ithin 300 days of the charge fi ling). 7 We think plaintiff's

ADEA cl aims are ba rred by section 626( d)' s t ime lim itation for filing an EEOC charge, because Newsom did not file h is charge within 300 days of t

he alleged discrim ination. Newsom knew on August 10, 19 89 that he would be demoted, but he did not file an EEOC charge until307 days later on June 21, 1 990. The t imely filing of a charge o f age dis criminat ion is a conditio n preceden t to maintaining an ADEA l awsuit. Jackson v. Richards Medical Co. , 961 F.2d 57 5, 578 (6th Cir. 1 992). Altho ugh the 300 d ay lim itation period is not ju risdict ional in nature, and like a stat ute of limitatio ns, may be tolled for equitable reasons, failure to file within the lim itations period will bar an ADEA action unless some equitable ground exi sts for tolling the filing deadline. Id. The limita tion s period begins t o run when the pl aintiff's cause of action

accrues. In Vaught v. R.R. Donnelly & Sons Co. , 745 F .2d 407 (7th C ir. 1 984), the Se venth Circuit Co urt of Ap pe als

consider

ed a question very similar to that presented by the case sub judice. In Vaught , the 59 year old plaintiff brought a n ADEA age discri mination suit

after he was demoted and replaced by a younger employee. In October of 1 979 the plaintif f learned that he was bein g demoted from Depart ment Manager to Communication Syst ems Analyst, and that he was being replaced by a younger employee who plaintiff believed to be out side the ADEA pro tected ag e category. The defend ant company's s tated reason for demoting plaintiff was that plaintiff's work performan ce in the position of Department

Man ag er ha d be en uns at isf act or y. W henth e p lai nt

if f le ar ned of his dem otion he m et wi th on e o f t he co mpa ny 's e xec ut iv es who to ld the plaintiff that he (t he executive) would investigat e the demotion. The plain tiff waited for8. The Vaught case was comme nced in I ndiana. The appl icabl e time li mit for filing EEOC charges in Indiana and other stat es which are no t "def erral sta tes" is 180 days rat

her than 300 days. 29 U.S.C. § 626(d) (1). A deferral state is one in which the sta te has enact ed its own laws prohibiting age disc rimination in employment

and has

autho rize d a s

tate age ncyto see k rel ief f or the cl aim ant. "The purpose of the l onger [300 day] lim itation period is t o give deferral states ti me to a ct upo n the ADEA complaint, in accor dance with Congress's intent that "informal meth ods

of co nci li ation , con fere nce , and persuasion"be us ed to el im ina te the discriminatorypractice before an ac tion is initiated in the courts." Jackson v. Richards Medical Co ., 961 F.2d 575, 578 (6t h Cir. 1992)(

quoting 29 U.S.C. § 626(b)(1985)). Tennessee is a deferralstate. T.C.A. § 4 -2-101 (1 991)("It is the purpose and intent of the gener

al ass embly by [the enactment o f the Tennessee Hum an R igh ts Act] to [p]rovide f

or execution withinTennessee of the policies embodie d in the . . . Age Discrim ination in Emp loyme nt Act of 1967, as amende d . . . .). 10 the executive to "get back to [him]" regarding the invest igation, but

the executive apparently never com me nce d an y inv esti gatio n in to the demotion. Id

. at 410. In Dec em ber of 1980 the p la intif f l earn ed th at in a ddi tion to demoting him, the defendant company ha d also been removing a number of middl e-level managers over the age o f fifty. The plaintiff t hen fi led an ag e discrim ination charge with the EEOC on March 6, 1980, and an AD EA lawsuit in federal district court shor tly thereaft

er. The dist

rict court held that

plaintif f's ADEA lawsuit

was time-barred, because the plaintiff fil ed his EE OC charge m ore than 180 days 8 af te r the plaintiff knew

or shou ld have knownfacts that would su pport a discrim ination charge. Id . at 410-11. The court held that plaintiff was aware of facts whi ch woul d su ppor t a discrim ination charge in October of 1979 and tha t the 180 day time limit began running at t

hat time rather t

han December of 1980; t herefore, the March 6, 1980, filing was unt

imely and plaint

iff's AD EA suit

was barre d. The Seventh C ircuit affirmed, stat ing: The filing deadline w ith the EEOC is tolled until the ti me when fact

s tha t would su pport a charge of discri min ation were apparent or should have been apparent

to a person wi th a reasonably prudent regard for his right s . . . .' [ Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5t h Cir. 197 5)].9 Appell ants have neither asse rted nor offered any e vidence that News om inquired as to who would replace him, or that Text ron answered such an inquiry with false or

mis leading information, or ot herwise attempt

ed to conceal the ide ntityof Newso m's

successor. Thus, with respect to t he issue of wh en Newsom had or sh oul d ha ve ha d kn owl edg e of th e id entity of his successor, there is no 11 * * * I n October 1979

, Vaught

knew more than enough facts to establish a prima facie case: he knew that he was fifty nine years ol d; he knew that he had al ways received verygood job performance evaluations and , so far as he knew, he had no reason t o suspect tha t his job was in dang er; he knew tha t he wa s d emoted; and he knew that he was being replaced by a man he beli eved to be twenty years his jun ior. It is app aren t that in October 1979 Vaught knew facts that would su pport a discrim ination charge . . . yet he failed to go to t he EEOC. Id. at 410-11 . The co urt f urthe r held, Vaught 's use of an informal grievance procedure, by itself, does not st

op t he s tatute of limitations from run ni ng. "[T

]he p ende ncy

of a gr

iev anc e or

some other method of

collateral review of an empl oyment decision, does not t

oll the runni ng of t

he limitations period." Delaware State College v. Ricks, 449 U. S. 250, 261, 101 S.Ct. 4

98, 505, 6

6 L.Ed.2d 431 (1980)(

citing Int'l Union of Electrical Radio and Machin e Wor kers v. Robbins & Myers, Inc ., 429 U. S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976)). Id. at 412. Applying Vaught to t

he case sub judice , we conclude that Newsom knew

or s ho uld have known su fficient facts on Augus t 10, 1989, to file a charge of discriminat

ion wit h the EEOC. On August 10, 19 89, Newsom knew

that he was within the prot

ected age categ ory, tha t he had received favorable evaluations

as a Senior Compliance Analyst in 1988, and t hat he was being demoted. The record is unclear as to exactly when Newsom knew that he was being replaced

as SCA by Sherry Ritchie, however, Newsom has offered no evi dence tha t he

co uld not have discovered, b y the exercis e of r easonable diligence, that he

was being replaced by Sherry Ritchie when he received notice of his demot ion. 9evidence of any act ion on the part of em ployer Textron t hat would justify eq uit ab le estoppel. See All en v. Di ebold, Inc., 807 F. Supp. 1 308 (N.D . Ohio 1992)(discussing the difference betwee n equit able tolling an d equi tabl e estoppel). 12 Therefore, his c laim accrued on August 10, 1989. This conclusion finds support in the de cisi on s o f f ed er al c ou rt s. In Allen v. Diebold, Inc ., 807 F. Supp. 1308 (N.D. Ohio 1992 ), the plaint

iffs were informed on October

2, 1989, tha t

the ir jo bs wo uld be t

er min at ed . InNovember of 1990, t he plaintiffs learned that t he defendant company had hired younger in div idu als to replac e them. The plain tiff's argued, inter alia , that

their EEOC charges were ti mely filed b ecau se the y were filed wit hin 300 days of the t ime tha t plaint

iff's learned that they were being repl aced by younger empl oyees. The cou r t rejected the plaintiffs' argument that the 300 day period should have been eq uit ab lytolled until plaintiffs suspicions of age discrimination were confirmed when they learned that they were being replaced by younger employees. The court held that

the 3 00 day limit

atio n period began t

o run when the employees received n otice of t

heir t erminat ion. T he court stat ed: Plaintiffs have of

fere d no facts, apa rt from the remote ness

of the Sout

hern facilities, to explain why th eydid not

earlier disco ver t he defenda nt's employment

practices

at some earlier time. This court is in clined to believe that such fact s should be forthcoming in order to sat isfy the due diligen c e requirement

of equitable tol ling. See Wall v. National Broadcasting Co., Inc ., 768 F. Supp. 470, 476 (S.D. N.Y. 1991)( summaryjudgment ap pr opriate when plaintiff has "failed to set fort

h evidence demonstrating t hat he co uld not have discovered t he alleged dis

criminatory act at an earlier date in t he exercise of re asonab le dili gence.") Allen , 807 F. Supp . at

1317. The cou rt fu rther stat ed: Moreover, there is

authorit y, albeit not

-controlling, for the proposition t

hat t he ADEA filing limit may not be tolled until the plaintiff disc overed the hiring of a younger replac ement when the empl oyer had not used the timing delay in hiri ng a rep lacement as a means to delay pl aintiff's fil ing. English v. Pabst13 Brewing Co ., 828

F.2d 1047 , 1050-51 (4th Cir. 1987 ) cer t. denied, 486 U.S. 10

44, 108 S.C t. 2037, 100 L.Ed.2d 621 (1988). Id . at 131 7-18. Newsom has failed to set forth any

evidence showing that he could not have discover

ed on Augu s

t 10, 1989, t

hat he was being replaced by Sherry Ritchie. It

is necessaryto place a burd en of reasonabl e inquiry/d ilige nce upon Newsom to prevent him (and other ADEA pl aintiffs) from "sitting on his ( their) rights."Were we to hold otherwise , the limit atio ns perio d for fi ling an ADEA charge of

ag e discr

imi na tion wou ld ne ve r co mmen ce u nt il a pl ain ti ff

fo rt uit ou sly learned of the identity of his/her suc cessor. In ad dition, the lim itations period

co uld be easily circumvented bya plaintiff conveniently assert ing that he/she

never had knowledge of the identit y of his/her successor untila date within 300 days pre ceding t

he charge filing. T

hus, we concl ude that on August 10, 19 89, Newsom kn ew o r sh ou ld ha ve kn own suf fi cie nt fa ct s t o f ile a charge o f discrim ination wi th the EEOC; therefore, any c ause of action whi ch News om had against Text

ron accrued on that

date. The appellants contend that Newsom's EEOC charge was timely, because it

was filed within 300 days

of his employment evaluation on August 30, 1989, and Text ron's denial of his eval uation/dem otion appeal in January of 1990. We must reject this cont

ention, because as

previousl y stated, if Newsom h ad a cause of action at a ll against

Textron, such caus

e of action accrued on August 10, 19 89. Text ron's actions in demoting Newsom, evaluating him pursuant to its policy of annual employee eva luation, and denyi ng Newsom's internalappeal, were not sep arate or continuing a cts of discrimination. Rather, Textron's employment evalua tion and denial of Newso m's appeal merely af firmed Text

ron's decision to demote Ne wsom. I n his demotion/evaluation appeal, Newsom was contesting Textron's dem otion and essential ly askin g Textron to rei nstate him. This10For other a uthorit y supportin g this concl usion see Delaware State College v. Ricks, 449 U.S. 2

50, 26 1, 101 S.Ct

. 498, 506 n. 15, 6

6 L.Ed. 2d 431 (19 80)(" Mere req ues ts to r econsider

. . . cannot exten d the li mi tation s pe riod s app li cab le to the civil rights laws."); Collins v. United Airline s, Inc ., 514 F.2d 594, 59 6 (9t h Cir. 1975) (A denial of a re quest for rei nstate me nt doe s not c ons titute a continuing violation or a new and separate discrimina tor y act, because "[a] discharged employee who s

eeks to be reinst

ated is really litigating the unf airness of his originaldischarge . . . .") (quot ing NLRB v. Textile Mach. Works, 214 F.2d 929, 932 (3rd Cir. 1954)).

11 In light of t

his holding, we do not consider Newsom's other ADEA arg uments. 14 being the case, Text

ron's "failure to reinstat e or rehire does not . . . constit ute an act io na ble new act

of discrimination or cont inuing discrim ination so as to all ow the li mi ta tions period t o begin at t

he time the . . . employee reques t s reinstatement." Redd v. Fisher , 814 F. Supp. 547, 550 (W.D.Tex. 1992) aff'd 35 F. 3rd. 61 (1st Cir. 1994). 10

Therefore, we conclude th at Ne wsom's June 21 , 1990 , EEOC filing was unt

imely, and, t

herefor e, his AD EA claims i n this cas e are ba rred. 11

II. THRA Cause of Action In addi tio n to assert

ing an ADEA claim, Newsom al leges that his discharge

on March 27, 1992, was i n retaliation for his filing an EEOC age di scrimi nation charg e and age discrimination lawsuit against T extron. Newsom argues t hat Textron discharged him because he took these a ctions and that

such discharge violate d T.C. A. § 4-21-30 1(1 )(1 991), which prov ides: Discriminatory

Pract ic es.--It is a discrimina tory pract ice for a person or for two (2) or more pe rsons to: (1) Re tal iate o r di scrim ina te in a ny m ann er ag ain st a person because such perso n has op posed a pract ice declared dis

cri mi nator

y by thi s ch apte r or becau se such pe rso n h as mad e a cha rg e, fi le d a com pl ain t, test ified, assisted or

participat

ed in anymanner in any investigat

io n, proceeding or hearing under this chapter . . . . In ord er to establish a prima facie case of retaliato ry discharge under the THRA a plaintiff must prove t he following: (1) the plaintif f en gaged in a protect ed activi ty; (2) t

he exercise of the plaintiff 's protected civil right s was12The pur pose of the THRA is e sse ntial lyide ntic al to the ADEA; therefore, federal autho rityinterpret

ing the ADEA is oft

en utilized by courts of this stat e in applying the THRA. Bruce v. Western Auto Supply Co. , 669 S.W.2d 95 (Tenn. App. 1984). 15 knownto t

he defendant; (3) the defendant thereaft

er took an employment

a ction adv erse to the plaintiff; and (4) that there was a caus

al conn ection between the protected activity and the adverse em ploym ent action. Haynes

v. Knoxville Utilities Bd ., C/A No. 03A0 1-9209-CH-362

, 1993 Tenn. App. Lexis 260, at *2 (Tenn. App. April 8, 1993); see also Canitia v. Yellow Freight Sys., Inc ., 903 F.2d 1064, 1066

(6t h Cir. 1990), cert denied 498 U.S. 98 4, 111 S.Ct

. 516, 112

L.Ed.2d 528 (1990 )(hol din g that a p la intif f mu st pro ve the se s ame four

el em ents

to estab lish a retalia tory disch arge in viol ation of Title VII ). 12 Once a plaintiff est ablishe s a p rima facie case of re taliation, the burden of pr oduction shi fts to the defendant to "articul ate some l egitimate, non discrim inatory reason . . ."for discharging the plaintiff. Canitia, 903 F.2d at 1066 (quo ting McDonnell Douglass Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 , 36 L.Ed. 668 (1973

)). The burden then shifts back to the plaintiff em ployee to dem on s trat e that the employer's

proffered reason for t ermination was merely pretextual and that the adverse employment decision was motiva t ed by a de sire t

o ret aliate a gainst the empl oyee. Canitia , 903 F.2d at 1066. Textron apparently concedes that the first t

hree elements of establishing

a THRA retaliatory

dis cha rg e cla im a re sat

isf ied , t hus th e o nly el em ent in dispute is whether a causal connection exist s between Newsom's discharge i n Marc h of 1992 and his fil ing of the age d isc rim ina ti o n suit in August o f 1991 and/or his filing of the EEOC charge in June o f 1990. Newsom asserts t ha t a ca us

al connection exists between t he two events, because only seven months tr anspired betwee n Newsom's filing of t he suit and his disc harge, and tha t Text ron's proffered reason for his discharge was a pret ext. Newsom also argues that a causalconnection exis ts, because Textron base d Newsom 's disc harge on16

his receipt of meals from vend ors d uring t he compet

itive bidding p rocess. Newsom asserts that

th is r ea so n is o bv io usly

a p ret ext , b eca use ot

her "si mila rly situa ted"

Textron employees received meals but wer e not disciplined in any way. Newsom assert s tha t Te xtro n's

stated rea son for his

termination (

that he "violated . . . company po licies and fail[ed] to perform job duties") is only a pre text, because the official company guidelines which he was all eged to have violated (tho se forbidding receipt of g ratuities a n d k ickbacks during a competitive bidding process) were not enforced aga inst ot he r emp loyees of Textron who also vio lated t he guidelines. Newsom argu es tha t Te xtro n's stated

reason for discharging him was because he accepted certain meal s from Tool Group Network during the bidding process, and that Textron's st

ated reason is ob vi ou sly

a pretext

since other employees received meals during the bidding process, yet t

heywere not

disciplined/discha rged for the r eceipt of such mea ls. Our review of

the r ecord r eve als that Text

ron's stat

ed reason for discharging Newsom was not because he accept ed meal s, but ra ther because Ne wsom was favoring Tool Group durin g the bidding proc ess. Text ron's proof establishes that the reason Newsom was fired wa s because he awa rde d co nt

ra ct s t o T oo l Gr ou p wh en To ol G ro up was no t t he lo wes

t bidder, he awarde d long- term contracts to Too l Group without t he required

concurren ce from his supervisor, and he had out side meet

ings wit h Tool Gro up of fi cia ls during th e com petitive bidding process. Newsom has not offered sufficient

evidence which would show t hat T extro n's above sta ted r eason s for his dismi ssal w ere mere ly pretextual

. As proof that the reason stated by Textron fo r his dismissal was a pret ext, Newsom off

ers his ownaffidav it an d evidence that variou s Textron officials received meal s from tool vendors during the bidding process but wer

e not disciplined fo r the receipt of su ch meal s. N ewsom also offers "Textro n Business Conduct Guidelines" which state,17 Rea so na ble and customarybusiness enterta inment is accep ta ble. Meals or entertainment, whether paid for by Textron employees or another part y, should be in conjunction with b usiness activity . The e xpe nse involved, the identit y of the p articipant s and the duration and extent of the ent ertainment should be rea so na ble in rela tion to t he business conduct and the business purpose.

Newsom argues that this guideline establishes that it was acceptable for him to rec eive busine ss m eal s du rin g the b idd ing proc ess, and that e ven if the

re ceipt of such me als was not acceptable , he was the onl y empl oye e disciplined /t

erminated for violating the g uideline. Th erefore , Text ron's termination of Newsom for receiving business meals was mer el y a su bterf

uge to term ina te him for f

il ing the d isc rim ina tion s uit. This argu me nt fai ls, bec aus e as stated abov e, Ne wso m ha s fai le d to produce any evidence that he was in fact t

ermina ted f

or receiv ing busin ess meals. The only evid ence that Newsom has offered that Textron discharged him for receivin g business

mea ls (rat her than for f

avoring Tool Group in t he bidding process)is parag raph 19 of his a ffidavi t in which he st ates, I was termina ted from the position of Buyer II on March 27, 19 92. T extro n s t at es tha t I was term inated for "violation of company policies and fail ure to perform job duties." I believe the real reas on was my filing of a [sic] age d isc rim ina tion l awsuit ag ain st T e xtron in Aug ust, 1991. The specific policy which I w as accused of violating is conta ined in Text ron's Business C onduct Guidelines

and concerned the receipt o f gratuit ies an d kic kba cks

. . . . Spe cif

ica lly, i t w

as my understanding that

various business meal s in volving myself, other

Textron employees and a vendor which were paid for bythe vendor forme d the basis of Text ron's conclusion that I was accepting grat uities and/or kickbacks and being improperly influenced by the vendor. I never received gratuit ies or k ickbacks and was never improperly influenced by a vendor. Further, I did not violate Textro n's procurement regulations

in s el ecti ng ve ndo rs to p rovi de T extro n wi th materia ls, suppl ies or

tools. At

al l ti me s I com pl ied with Text ron's requ ire me nts

and my super

visor's instr uctio ns. Newsom's mere "belie[f]" or "underst anding" t

hat h e was dischar

ged f o r18

receiving busine ss m eal s is ins uffi cie nt to cr

eate a genuine issue of materialfact. The record provides no evidence that creates a factual dispute as

to whether Text ron's stated discharge gro unds wer e me rely a pretext fo r terminating Newsom because he filed an age discrimination suit against Textron. Therefore, the trial court's gra nt of summar y judgmen t to Textron on Newsom's THRA cau se of action was proper

. III Outrageous Conduct Cause of Action In Co unt

VI o f his ame nded comp lain t, News om c onten ds th at T

extro n's actions surroundi ng his t

erminat ion were o utrag eous

and cau sed h im extr eme humil iation and emba rrassment . Newsom avers th at T extro n report

ed his action s in the co mpetit

ive biddin g proces

s to th e f ede ra l go ve rnm ent

wit ho ut pr ob ab le

cause and before a thorough investigat ion of the f

acts on which the repo rt was based. In addit

ion, Ne wsom stat

es: After ter minat ing h im, T

ext ron p rovided hi m wi th a large brown plastic garbage bag i nto wh ich he was required to place his per sonal posses

sions, which had been accumulated during just under th irty-five years of emp lo yme nt wi th Textron. He was the n usher ed to the exit t

hrough a common area at Text ron where he was required to walk in front o f his work peers and associates wh o he had know n for many years

. Newsom co n tends that these actio ns are "beyond the pale of decency" and constitute outrageous conduc t. The to rt of out

rageous conduct "exists o nly where (1) the c ond uct o f the def end ants has beenso out

rageous in chara cter, and so extreme in degree, as to be beyond the pale of dec ency, an d t o b e r eg ar ded as at ro cio us a nd u tt

erly int ole ra ble in a civilized society, and (2) the conduct results in serious mental injury." Bring le v. Methodist Hosp. , 701 S.W.2d 622, 625 (Tenn. App. 1985); Swallows

v Western Elec. Co ., 543 S.W.2d 581, 582 (Tenn. 19

76). Furt hermore, this Court , comment

ing on t he to rt o f out

rageous conduct

, has st ated: It has not been enough that the defendant ha s acted19 with an intent

which is tortious o r even criminal, or that he has intended to inflict emotional distress, or even that his condu ct has been charac terized by 'mal ice,' o r a degree of aggravat ion which would entitle th e plaintiff to punit ive dam ages

for a nothe r tort. Liab il ity has been found only where the co nduct has beenso outr ageous in character, and so ext reme i n degree, as to go be yo nd a ll possible bo unds of de cen cy, a nd to be regarded as utter ly int ole rable in a civilized comm unity. General ly, the cas e is one which the recitation of the fact

s to an avera ge me mber of the comm uni tywould arouse his resentment against t he actor, and lea d him to excl aim, 'Outrageou s!' Blair v. Allied Maintenance Corp ., 756 S.W.2d 26

7, 273 ( Tenn. App. 1988

)(quot ing Restatement

(Sec ond ) of To rts

§ 46 c mt. d (1965)). The record in t his case does not reveal c onduct that would support a charge of outrage ous

cond uct, because the a ction s complained of do not rise t o the level of out

rageous

, beyond the pale of decency, and atro cious and utterly int

olerable in a civilized society. IV. Defamation Cause of Action Finall y, in Co un t

VIIof his amend ed compl aint, Newsom asserts that Textron defamed him when it report ed him to the federal government because of his actions in connection with T

ool Group during t

he compet

itive bidding p rocess. Newsom asserts tha t

Textron's report

of his actions t

o the Depart

ment of Def ense pursuant

to t he Anti-Kickback Act , 41 U.S.C. §§ 51, et. seq

. was "without fact ual sup port"and caused Newsom serious emotional distress. We need not r each the merits o f Newsom's ar gument, because Newsom has f ail ed to provide any evidence identifying t he nature of t

he allegedl y defamatory st atements or t

hat anydefamatory st

atements were in fact mad e i n con nec tion w ith the repo rt. Since Newsom apparently does not even kno w what stat ements were made to the government in connect ion with the report, he cert ainly cannot prove t

hat the s tatements were fal se or caused him actual damages

. See Sullivan v . Young , 678 S.W.2d 90 6, 91 0 ( Te nn. Ap p. 19

84 )("T he pla int

if f mu st no t o nly

prove20

publi cation of

a false statement

to a t hird person, but he must a lso prove actual damages."). Acco rdi ngl y, th e order of the trial cou rt gra nting sum mar y jud gme nt to defendant

Textron is af

firmed. Costs of t

his appeal are assessed against the appe ll ant.

____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

________________________________ DAVID R. FARMER, JUDGE

________________________________ WILLIAM C. KOCH, JR., JUDGE