# FILED

Novemb er 7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MAXINE NELSON, ) ) Davidso n Count y Ch ancery Plaintiff/Appellant ) No. 95-2626-I II ) VS. ) Appeal No. ) 01A01-9703-CH-00141 PACESETTER CORPORA TION, )

) Defendant

/Ap pellee )

IN THE COU RT OF A PPEA LS OF TENN ESSEE MIDDLE SECTION AT N ASHVILLE
APPEA L FROM THE DA VIDSON COUNTY CHA NCERY COURT AT NA SHVILLE, TE NNESSEE
HONORA BLE ELLEN HOBBS LY LE, CHA NCELLOR

James L. Harris 2400 Crestmoor Rd. Nashvil le, TN 37215 ATTORNEY FOR PLAINTIFF/APPEL LANT John R. Tarpley Susan R. Hig h-McAuley Lewis, King, Krieg, Waldrop & Catron, P.C. SunTrust Center 424 Church Street, Suite 900 P. O. Box 1986 15 Nashvil le, TN 37219 ATTORNEYS FOR

DEFENDAN T/APPELLEE



### AF FIRMED A ND REMA NDED

WILLIAM H. INMAN, SENIO R JUDGE

CONCUR: HENRY F . TODD, PRESID ING JUDGE, MIDDLE SEC TION BEN H. CAN TRELL, JUDGE MAXINE NELSON, ) ) Davidso n Count y Ch ancery2 Plaintiff/Appellant ) No. 95-2626-I II ) VS. ) Appeal No. ) 01A01-9703-CH-00141 PACESETTER CORPORA TION, )

) Defendant

/Ap pellee )



### O P I N I O N
This is a suit for

damages for an alleged retaliator y discharge brought

pursuant to Tenn. Code An n. § 50-1-304. As winnowed, the plainti ff alleges that sh e was discharged because she refused to participat e in gamblingactivities which were illegal under Tenn. Code Ann. § 39-17-501. The pla inti ff was ini tially employed in N ovember 1993. She resigned in August 1994 for reasons not

relevant to this acti on and was r eemployed in F ebruary 1995 . She was disc harged on Aug ust 2, 1995. The defendant filed its answer deny ing the all egations of the complaint. I t thereafter

filed a motion for summ aryjudgment which was granted. The plaintiff appeals and presents for review the propriety

of summary judg ment. Our review is de novo with
no presumptio n o f correctness of the trial cour t. Carbide Cor

p. v. Huddlest

on, 854 S.W .2d 87 (Tenn. 1993 ). The defendant is engag ed in the telemar keting busi ness in va rious cities across the country. Its offices compete w ith ea c h other in the pr oduction of income, w ith financial awards ac cruing to th e winner . This competition involves various schemes,
one of which was the ‘1995 World Series’ design ed to stimulate employee perf ormance in the Nashv ille office. The plaintiff’s cas e focus es on this sc heme. To describe it we defer t o the plaintiff’s testi mony given in her dis covery deposition: Q: Tell me what you understand the World Series Promotion to be. This is the fir

st time f rom No vemb er ‘93 to Aug ust ‘94 that you were employed at Pacesetter [emphasis added]. A: Theypassed out theinformation about i t, and it did have the word “g ambling” on it. It was a thing where you put in 5 or 10 or 20 [dollar

s] or whatever. Theemployees pool ed their mo ney. The people, the management people like J oe would of course make more mone y - - Mr. Kortcamp would make more money - - I’m sorry - - and the employees such3 as I would make, I believe, half of it or somet hing if w e won. And it was sort of a war. You know, they referred to it several times as a battle between one of the offices and another one. We would play off, and this was don e throu gh getting appointments and g etting the s ales and so forth, and whether we won or whether t he Atla nta office won or whether the Omaha office won or one of the others. And I s aid, “I don’t want to do this. This does not have a nythin g to do wi th my

job. I don’t want to w rite a check .” Well, they just kept on and kept on and kept on the first time. And so I thought about it a coup le of days - - Q: W hen you say “they” kept on and kept on, who is “they”? A: Trying to get me to write a check. Q: W ho is “they”? A: Joe would say, “Have you put your money in?” M onica would say, “Have you p ut your mo ney in? Yo u’re hol ding the group back. You’re going to cause us notto make our moneyexpectation .” So Joe had profite d 3,600.00 [dollars] from that particul ar one, and I went on - - and I think I put in $5, I believe. But I did it , you know - - I was not a happy camper about it. I went on and d id it to get those people away from me and just to . .

. . Q: Did you voice objections to it or did you just put in your $5? A: I put in my $5, but they had ho unded me for several, several days before that. Fin ally, I just said -- you know, they think because I’m alway

s saying , you know , o r look ing at somebody

when they

say the g - d - f or whatever they say -

- and that’s just only part of it; they said so many th ings. I finally said, “Well, here’s them one y. ” I didn’t really follow the situation that

much. I just at

that point wanted people to leave me alone so I could go on and do m y work. Q: Did you ar

ticulate that at the time? A: Yes. I told Joe, I said, “I don’t re ally, you know, car e about doing this. ” I told Monica, “I don’t believe in this. Thi s has nothing to do wit h my abili ty to d o my work.” But I did compromise the fir

st time. Q: Did you feel like you were forced to participat e? A: Yes, m ost d efi nite ly. The pla inti ff argues that the foregoing described ac tivity constituted the offense of gambling under Tenness ee law, and that her disappr oval of it resulted in her discharge in violation of Tenn. Code Ann. § 50-1-304 which provides:

(a) No employee shall be dis charged or terminated solel y for refusing to p artici pate in, or for r efusing to remai n silent about, illegal activities.4 (b) As used in this section, “Illegal activities” means activities which are in vio lati on of the criminal or civ il code of this state or the U nited States or any regul ation intended to protect the publ ic health, safety or welfare. (c) Any employee terminated in violatio n of subsection ( a) shall have a cause of action against the employer for retaliatory discharge and any other damag es to whic h the employee may be entitled. (d)(1) .

. . .

. . . . . (2) . . .

. (e)(1) This section s hall not be used for frivolous lawsuit s, and anyo ne trying to do so is s ubject to sanct ion as prov ided in sub divisio n (e)(2). (2) If any employee files a cause of acti on for retaliat ory discha rge forany improper

purpose, such as to harass or to cause needless increase in cos ts to the e mplo yer, t he co urt, upon moti on or upon its own initiative, shall impose upon the employe e an appropriatesanction, which mayinclude an order to pay the other party or partie s the a mount of reasonable ex penses incurr ed, includingthe reasonable attorney’s fee. Gambling, an i llegal ac tivity in Tennessee, is

defined by stat ute: 39 -17-501. Definitions. - The following definitions ap ply in this part , unless the context otherwise requires: (1) “Gambl ing” means r isking anything of value for a profit whose return is to any deg ree conting ent on chance, but does not include a l awful business tran saction; (2) “Gamb ling bet” m eans an ything of value riske d in gamb ling; (3) “Gambling device or record” means anything designed for use in gamblin g, intend ed for use in gam bling, or u sed fo r gamblin g; (4) “Law

ful business tr

ansaction,” as

used in subdiv ision (1), includes any fut ures or co mmod ities tra ding; (5) “Lotter

y” means the selling of anything of v alue for chances on a prize or stake; and (6) “Pr ofit” means anythingof value in add ition to thegambling bet. [Acts 1989, ch. 591, § 1; 1990, ch. 945, § 1.] The trial judg e ruled that the promotional ‘199 5 World Series’ was not a gambling eventas defined by statute. She a lso ruled that the plaintiff ’s position was termi nated for a val id reaso n, w hic h wa s uncontr ove rte d by

the p lai ntiff. We pretermit the issue o f whe ther the descr ibed promotional scheme was gambling within the purview of Tenn. Code Ann. § 39- 17-501 as being unnecessary to
a proper resolution of the case . Our focus is m ore properly directed to t he issue of whet he r summary judg ment was pro perly g ranted because the plaintiff presented n o proof that she wa s not terminated forvalid, no n-discri minatory reasons, since she was an employee at will.5 The Rule 56 motion w

as supported by

the testimony

of Joseph Kortkamp,whose deposition was taken by the plaintiff. He testified that th e plaintiff was reemployed as manager of the rehash departmen t [which follows up on contacts previously made]; that she worked abo ut ten hours a w eek because “there wasn’t a nything to do”; that she was terminated because the posi tion was t erminated in Nashv ille; that t he position was not reestablished , and “it didn’t warr ant having somebody full- time do that job” ; that he offered the plaintiff “ano ther job as a communicato r if she’d like to stay on,” and that she
never res ponded. The affidavit of Steve Jensen, an employeeof the defen dant, was filed in support of the m otion. He testified that he w as responsibl e for the rehash pr ogram; that the plai ntiff was employed as rehash manager in February 1995; that she made net sales of less than $10,000 .00 through Jul y 1995, the se cond lowest in any office w ith a fulltime manager; that i t was apparent th e posit ion was not profitable and cou ld not be continued; and that it was elim inated in Aug ust 1995, and no per son replaced th e plaintiff as rehash manager. The plaintiff testified t hat Joseph Kortkamp told her that her position was being eliminated and no other reas on was g iven or al luded to. She offered no proof whatever to refute the testimony of Kor tkamp and Jensen that the position of rehash manager was being eliminated as a business deci sion. In Byrd v. Hal

l, 847 S.W.2d 208 (Tenn. 1993), theSupreme Court e xplained that the iss ues r

elev ant i n theeva luat ion of a motion for summary judgment are (1) whether
a factual d ispute exi sts, (2) w hether the disput ed fact is materi al, and (3) w hether the disputed fact creates a g e nuine issue for trial. W hen a properly supported motion is
m ade, the burden shifts to the nonmovingparty to s et forth specific factors, not conclusions, by using affidavits or discovery materials establishing that there are indeed disputed material fa cts creating a genuine issue for trial. The thrust of the plai ntiff’s response i s that “she bel ieved” sh e was termi nated because of her opposi tion to the gambling or betting scheme. A mere bel ief does not create a genuine iss ue. Newsom v. Textron Aeros tructures, 924 S.W.2d 409 (Tenn. Ct. App. 1995). In summary, the def endant’s proof that the plai ntiff’s position, and hence6

her job, was eliminated for a l egitimate, nond iscriminat ory reas on is not controverted, and summary judg ment wastherefore proper

. Anderson v. Stand ard Register

Co., 857 S.W .2d 559 (Tenn. Ct. App . 1993). The judgment is affirmed at the costs of the appell ant and the case i s remanded.

_________

_ _________________________ _ W illiam H. I nman, Senior Ju dge CONCUR:

______________________________________ Henry F. Todd, PresidingJudge, Mi ddle Section

______________________________________ Ben H. Ca ntrell, J udge