FILED

November 7, 1997

Cecil W. Crowson

Appellate Court Clerk

MAXINE NELSON, )

) Davidson County Chancery

Plaintiff/Appellant ) No. 95-2626-III

)

VS. ) Appeal No.

) 01A01-9703-CH-00141

PACESETTER CORPORATION, )

)

Defendant/Appellee )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

AT NASHVILLE, TENNESSEE

HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

James L. Harris

2400 Crestmoor Rd.

Nashville, TN 37215

ATTORNEY FOR PLAINTIFF/APPELLANT

John R. Tarpley

Susan R. High-McAuley

Lewis, King, Krieg, Waldrop & Catron, P.C.

SunTrust Center

424 Church Street, Suite 900

P. O. Box 198615

Nashville, TN 37219

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION

BEN H. CANTRELL, JUDGE

MAXINE NELSON, )

) Davidson County Chancery
2

Plaintiff/Appellant ) No. 95-2626-III

)

VS. ) Appeal No.

) 01A01-9703-CH-00141

PACESETTER CORPORATION, )

)

Defendant/Appellee )

O P I N I O N

This is a suit for damages for an alleged retaliatory discharge brought pursuant

to Tenn. Code Ann. § 50-1-304. As winnowed, the plaintiff alleges that she was

discharged because she refused to participate in gambling activities which were illegal

under Tenn. Code Ann. § 39-17-501.

The plaintiff was initially employed in November 1993. She resigned in August

1994 for reasons not relevant to this action and was reemployed in February 1995. She

was discharged on August 2, 1995.

The defendant filed its answer denying the allegations of the complaint. It

thereafter filed a motion for summary judgment which was granted. The plaintiff appeals

and presents for review the propriety of summary judgment. Our review is de novo with

no presumption of correctness of the trial court. Carbide Corp. v. Huddleston, 854

S.W.2d 87 (Tenn. 1993).

The defendant is engaged in the telemarketing business in various cities across

the country. Its offices compete with each other in the production of income, with

financial awards accruing to the winner. This competition involves various schemes,

one of which was the ‘1995 World Series’ designed to stimulate employee performance

in the Nashville office.

The plaintiff’s case focuses on this scheme. To describe it we defer to the

plaintiff’s testimony given in her discovery deposition:

Q: Tell me what you understand the World Series Promotion to

be. This is the first time from November ‘93 to August ‘94

that you were employed at Pacesetter [emphasis added].

A: They passed out the information about it, and it did have the

word “gambling” on it. It was a thing where you put in 5 or

10 or 20 [dollars] or whatever. The employees pooled their

money. The people, the management people like Joe

would of course make more money - - Mr. Kortcamp would

make more money - - I’m sorry - - and the employees such
3

as I would make, I believe, half of it or something if we 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 done through

getting appointments and getting the sales and so forth, and

whether we won or whether the Atlanta office won or

whether the Omaha office won or one of the others. And I

said, “I don’t want to do this. This does not have anything

to do with my job. I don’t want to write a check.” Well, they

just kept on and kept on and kept on the first time.

And so I thought about it a couple of days - -

Q: When you say “they” kept on and kept on, who is “they”?

A: Trying to get me to write a check.

Q: Who is “they”?

A: Joe would say, “Have you put your money in?” Monica

would say, “Have you put your money in? You’re holding

the group back. You’re going to cause us not to make our

money expectation.” So Joe had profited 3,600.00 [dollars]

from that particular 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 did 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 hounded me for several, several

days before that. Finally, I just said - - you know, they think

because I’m always saying, you know, or looking 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 things. I

finally said, “Well, here’s the money.” 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 my work.

Q: Did you articulate that at the time?

A: Yes. I told Joe, I said, “I don’t really, you know, care about

doing this.” I told Monica, “I don’t believe in this. This has

nothing to do with my ability to do my work.” But I did

compromise the first time.

Q: Did you feel like you were forced to participate?

A: Yes, most definitely.

The plaintiff argues that the foregoing described activity constituted the offense

of gambling under Tennessee law, and that her disapproval of it resulted in her

discharge in violation of Tenn. Code Ann. § 50-1-304 which provides:

(a) No employee shall be discharged or terminated solely for

refusing to participate in, or for refusing to remain silent about, illegal

activities.
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(b) As used in this section, “Illegal activities” means activities which

are in violation of the criminal or civil code of this state or the United

States or any regulation intended to protect the public health, safety or

welfare.

(c) Any employee terminated in violation of subsection (a) shall

have a cause of action against the employer for retaliatory discharge and

any other damages to which the employee may be entitled.

(d)(1) . . . . 

. . . . . 

 (2) . . . . 

(e)(1) This section shall not be used for frivolous lawsuits, and

anyone trying to do so is subject to sanction as provided in subdivision

(e)(2).

(2) If any employee files a cause of action for retaliatory discharge

for any improper purpose, such as to harass or to cause needless

increase in costs to the employer, the court, upon motion or upon its own

initiative, shall impose upon the employee an appropriate sanction, which

may include an order to pay the other party or parties the amount of

reasonable expenses incurred, including the reasonable attorney’s fee.

Gambling, an illegal activity in Tennessee, is defined by statute:

39-17-501. Definitions. - The following definitions apply in this part,

unless the context otherwise requires:

 (1) “Gambling” means risking anything of value for a profit whose return

is to any degree contingent on chance, but does not include a lawful

business transaction;

 (2) “Gambling bet” means anything of value risked in gambling;

 (3) “Gambling device or record” means anything designed for use in

gambling, intended for use in gambling, or used for gambling;

 (4) “Lawful business transaction,” as used in subdivision (1), includes

any futures or commodities trading;

 (5) “Lottery” means the selling of anything of value for chances on a prize

or stake; and

 (6) “Profit” means anything of value in addition to the gambling bet. [Acts

1989, ch. 591, § 1; 1990, ch. 945, § 1.]

The trial judge ruled that the promotional ‘1995 World Series’ was not a gambling

event as defined by statute. She also ruled that the plaintiff’s position was terminated

for a valid reason, which was uncontroverted by the plaintiff.

We pretermit the issue of whether the described 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 more properly directed to the issue of

whether summary judgment was properly granted because the plaintiff presented no

proof that she was not terminated for valid, non-discriminatory reasons, since she was

an employee at will.
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The Rule 56 motion was supported by the testimony of Joseph Kortkamp,whose

deposition was taken by the plaintiff. He testified that the plaintiff was reemployed as

manager of the rehash department [which follows up on contacts previously made]; that

she worked about ten hours a week because “there wasn’t anything to do”; that she was

terminated because the position was terminated in Nashville; that the position was not

reestablished, and “it didn’t warrant having somebody full-time do that job”; that he

offered the plaintiff “another job as a communicator if she’d like to stay on,” and that she

never responded.

The affidavit of Steve Jensen, an employee of the defendant, was filed in support

of the motion. He testified that he was responsible for the rehash program; that the

plaintiff was employed as rehash manager in February 1995; that she made net sales

of less than $10,000.00 through July 1995, the second lowest in any office with a fulltime manager; that it was apparent the position was not profitable and could not be

continued; and that it was eliminated in August 1995, and no person replaced the

plaintiff as rehash manager.

The plaintiff testified that Joseph Kortkamp told her that her position was being

eliminated and no other reason was given or alluded to. She offered no proof whatever

to refute the testimony of Kortkamp and Jensen that the position of rehash manager

was being eliminated as a business decision.

In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), the Supreme Court explained that

the issues relevant in the evaluation of a motion for summary judgment are (1) whether

a factual dispute exists, (2) whether the disputed fact is material, and (3) whether the

disputed fact creates a genuine issue for trial. When a properly supported motion is

made, the burden shifts to the nonmoving party to set forth specific factors, not

conclusions, by using affidavits or discovery materials establishing that there are indeed

disputed material facts creating a genuine issue for trial.

The thrust of the plaintiff’s response is that “she believed” she was terminated

because of her opposition to the gambling or betting scheme. A mere belief does not

create a genuine issue. Newsom v. Textron Aerostructures, 924 S.W.2d 409 (Tenn. Ct.

App. 1995). In summary, the defendant’s proof that the plaintiff’s position, and hence
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her job, was eliminated for a legitimate, nondiscriminatory reason is not controverted,

and summary judgment was therefore proper. Anderson v. Standard Register Co., 857

S.W.2d 559 (Tenn. Ct. App. 1993).

The judgment is affirmed at the costs of the appellant and the case is remanded.

____________________________________

William H. Inman, Senior Judge

CONCUR:

______________________________________

Henry F. Todd, Presiding Judge, Middle Section

______________________________________

Ben H. Cantrell, Judge