# FILED
May 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

BILL MASON and ) JOHN McKN IGHT, ) ) Plaintiffs/Appellants, ) ) Appeal No. ) 01-A-01-9806-CH-00283 VS. ) ) Davidson Chancery ) No. 92-3614-II METROPOLITAN DEVELOPMENT ) AND HOUSING AGENCY , et al., ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. Mc COY, CHANCELLOR

DAVID L. COOPER COLUMBA A. MCHALE 1000 Northchase Drive,Suite 110 P. O. Box 749 Goodlettsville, Tennessee 3 7070-0749 Attorneys for Plaintiffs/Appell ants GEORGE E. BA RRETT 217 Second Avenue North Nashville, Tennessee 37201 Attorney for Defendants/Appellees

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: CAIN, J. COTTRELL, J. 

## O P I N I O N- 2 - Two employeesof the Metropolitan Housing and Development Agency (MDHA) brought suit against their supervisor, the agenc y, and the agency’s director, claiming thatthe supervisor had dis criminated against them in violation of federal and state laws. The trial court dismissed the claims . We affirm the trial court.
I. The Complaint

Bill Mason and John McKnight, b oth African-Americans, were veteran employeesin the paint department of MDHA, with over forty years of experience between them. After William Hickey became director of operations for the agency, Mr. Mason was demoted from paint supervisor t o pain t leader, though he was n ot reprimanded and not subjected to any disciplinary pro ceeding. His supervisory duties
were reduced so that he eventuall y wound up sup ervising only one man, Mr. McKnight.

John McKnight had previou sly worked with indi viduals of all races at different MDHA faci lities. Un der Mr. Hick ey, he was put on permanent station at Vine Hill Homes, where h e was a ssigned to a crew made u p of himself, Mr. Mason, and
one other African-Americanpainter. Later, he and Mr. Mason were transferred to the Hadley Park Towers.

In November of 1991, Mr. Mason applied for a supervisory

position. The agency appointed a young er man to that position, a w hite male named Ed Cothran, who had less seniority

at MDHA than Mr. Mason , and less supervisor y experience.

Mr. Mason’s duties included evaluating Mr. McKnight’s per formance. In February of 1992, Mr. M ason prepared an evaluation that rated Mr. McKnight’s performance as “above standard.” M r. Hickey objected to the rating, a nd prevail ed upon Mr. Mason to lower it to “standard.” Mr. Hic key declined to sign the evaluation.- 3 - On Decem ber 1 2, 1992, the plaintiffs filed suit, claiming that Mr. Hickey’s actions were part of a

larger pattern of racial

discrimination at MDHA, undertaken with the “dem onstrated intention to make the painter position at MDHA a predominately ‘white’ job.” Mr. Masonalso claimed that the failure to promote him am ounted to age discrimination. The plaintiffs asked for actual damages , and for p unitive and compensatory damages of $250,000, pursuant to Title V II of the C ivil Rights Act of 1964, and to the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et se q. Theylater dropped their clai ms under federal law, and ag reed to make the Tennessee Human Rights Act the sole basis of their action.
II. Proceedings in the Trial Court
After the complaint was filed, the lawsuit progressed at a snail’s pace. It was dismissed once for lack of prosecution, and subsequently reinstated, before it was finally dismiss

ed on summary judgment on Octobe r 22, 1996.

Most of the delay can b e attributed to Mr. Drummond, the plaintiffs’ attorne y. He drafted an d fi led numerous motions (includi ng four to be allowed to withdraw as the attorney of record) but they were frequently

ineffectual, either because he filed his motions in an untimely way, failed to schedule hearings on the motions, failed t o file su pporting documen ts to supp ort the m otions, or failed to serve opposing counsel. Disputes over discovery also hampered progress o n this case. The following account is a bare outline of those proceedings which moved the case for ward

. It omits most of the filings and maneuvers which ulti mately served only to delay the final resolution.

MDHAresp onded to the complaint on May 13, 1993. The agency claimed t hat the p laintif fs’ alleg ations as to the de fendan ts’ inten tions or m otive s- 4 -

amo unted t o conjecture and supposition, and did not state facts to whi ch an appropriateresponse could be made. They also advancedtwo affirmative defenses: that the plaintiffs had failed to exh aust their administrativ e remedies, because they had failed to file grievances in acc ordance wit h the procedures outlined in the Affirm ative Action Plan for MDHA; and th at the one-year statute of limitations for filing a claim under Tenn. Code Ann. § 4-21- 101 had passed before they filed.

On July 17, 19 94, the defendants filed a motion for judgment on the pleadings under Tenn. R. Civ. P. R ule 12.03. A hearing on the motion was scheduled forSeptember 16, 1994. At 4:14 P.M., on t he day before t he scheduled h earing, the plaintiffs filed a motion to amend their complaint, and for the court to defer its ruling
on the def endants’ motion until after amendment of the c omplaint. A copy of the amended complaint was not attached to the motion.

The trial court declined to defer its hearing. It found the defe ndants’ motion for judgment on the pleading s to be well-taken, and d ismissed all of the plaintiffs’ claims as time-b arred, except fo r Mr. McKnigh t’s cla im relating to the loweringof his evaluation in 1992. Shortly thereafter pl aintiffs filed amotion to alter or amend the judgment, whic h stated, “[p]rior to the hea ring of this motion, plainti ffs will submit a copy of the proposed amended co m plaint.” A proposed amended complaint was filed on Dece mber 7, 1994.

However, Mr. Drummond did not schedul e a hear ing on t he plaintiffs’ motion until April of 1996. Following that hearing, the trial court denied the motions to alter an d amend the judgment, for additional findi ngs of fact, and to amend the complaint, because of undue delay and futility. The court fo und that the pro pos ed amended complaint lackedspecificity, and did not allege conduct by the defendants occurring withi n the limitations period.- 5 - On May 13, 1996, the defendants filed a Motion for Summary Judgment
on t he remaining claim of Mr. McKnight. After a hearing, the trial court gra nte d summary judgment to the defendants, and it dismissed the action on July 11, 1996.

T he plaintiffs subsequently fil ed a motion to alter or am end th e judgment, and the defendants moved the court to impo se Rule 11 sanctions upon Mr. Drummond for rule violations. A hearing was held on both motions, and on October 22, 1996, the trial court dismiss ed the plaintiffs’ motion to alter or amend, an d imposed sanctionsof $2,000 in attorney fees upon Mr. Drummond for rule v iolations during the course of liti gation.

Mr. Drummond filed a notice of appeal from the order of sanctions. He failed to file a brief, despite being granted an extension

of time, and we accordingly di smissed that appeal. Mr. Mason and M r. McKnight filed pro- se notices of appeal from th e dism issal of their claims. They subsequently engage

d another attorney to argue their case.

The appellees have raised an i ssue as to whether this court ca n even consider this present appeal, argu ing that the notices of appeal were not timely filed

. Without getting into too much det ail, we f ind that the plaintiffs’ motion to al ter or amend, while defective in s ome respects, was timely, and that it thus served t o toll the time limit for filing a notice of appeal, rendering that notice tim ely as well.
III. The Motion to Amend and the Judgment on the Pleadings
Appellantsargue that the trial court abused its discretion by rendering
a judgme nt on the p leadings without firs t considering the motion to amend the complai nt. However, in vi ew of the fact that their late- filed motion was not accompanied by the proposed amended complaint,and that they failed to schedule- 6 -

a hearing on the mo tion, we can find no abuse of discretion in the trial court’s acti on. If we found that such a tardy and insubstantial effort barred th e court from proceeding with its previously scheduled heari ng , we would be placin g a tool for delay in the hands of those who wish to hi nder the work of the court s ol ely for the ir own advantage.
Turning to the judgment itself, we mus t first note that in ruling

on a Rule 12.03 m otion, the trial court must take as true all the facts alleged in the compla int , and determine whether those facts state a cause of action that sh ould be decided by a jury. Gray v. McDonald’ s Corporation , 874 S.W.2d 44 (Tenn. App. 1993).

The statute of limitations for filing complaints under the Tennesse e Human Rights Ac

t is one yea r. Tenn. Code Ann. § 4-21-311(d). Th e origina l complaint only cited actions by Mr. Hickey that occurred more than one year before the complaint was filed, w ith the exception of

his role in getting Mr. Mason to lower the evaluation of Mr. McKnight. Thus, ass uming the truth of all the allegations of fact stated by the plaintiffs, the trial court was c orrect in granting judgment to the defendants on all issues excep t for the evaluation.

The appellants argue, howev er, that the trial court erred, because under the continuing violati on doctrine, it could consider all of the alleged discriminatory acts, without regard to the statute of limitations. That doctr ine was first developed by the federal courts in their interp retation of federal anti-discriminati on legislation, and w as subsequently adopted by the Tennessee Supreme Court in Spicer v. Beaman Bottl ing Co ., 937 S.W.2d 884 (Tenn. 1996). The gist of the doctrine is that a plaintiff may
c hal lenge “an ongoing, continuous series of discriminatory acts, as long as one of those discriminatory acts falls within the l imitations period.” 937 S.W.2d at 886.- 7 - However, the Court also stated in the Spicer case that there are only two circumstances

in which the continuing violation doctrine appl ies. 937 S.W.2d at 889. The first is when “there is some evidence of present discriminatory activity giving rise to a claim of a con tinuing violation. ” The second is whe n “there has bee n a longstanding and demonstrable policy of di scrimination.” In order to make a claim under this second circumstance, “The pla intiff must clearly demonstrat e some ‘overarching policyof discr i mination,’ and not merely the occurrence of an isolated inc ident of discriminatory conduc

t.”

The complaint contains no evide nce to indicate that the supervisor is continuing to subject the plaintiffs to adverse personnel actions. In fact, th ere are no indicationsin the record that Mr. Hickey is still employed by

MDHA. Further, alth ough the complaint doesspeak of a pattern of discriminati on, and alleges that Mr. Hi ckey was determined not to hire or promote black supervisors, there a re no facts alleged
as to any specific qualifie d supervisory candi dates being denied employment or promotion on the basis of race, with t he exce ption of M r. Maso n. Thus, the plai ntiff has failed to clearly demonstr ate an overarching patte rn of discrim ination such as would require the appl ication of the continuing v iolation doctrine.
IV. Summary Judgment

The sole remaining claim in this case was stated in Para graph 14 of the plaintiffs’ complaint as follows:

14. Discriminatory Evaluation of black workers 14.1 MDHAhas insti tuted a p olicy a nd practice of givingblack workers g enerally lower ev aluations than tho se given white workers. Specifica l ly, in or around Febru ary of 1992, Hickey, acting in co ncer t with Cothran and Wright, soughtto inf lue nce Mason to re-do his ev aluation of McKnight

in such a way as to lower the overal l rating. Against his own judgment a nd pr eference, Mason agreed finally to lower the evaluat ion ratings in specific areas so as to lower the overal l rating on McKnight.- 8 - 14.2 Even with the lower ev aluation ofMcK night requested by Cothran of Maso n, Hickey refused to sign McKnight’s evalu ation. Hickey’s refusal to sign McKnight’s evaluation constitutes

a deliberat

e and ma li cious act of discrimination in that McKnight wi ll not be eligible for r aises and other benefits of employment, incl uding consideration for promotion because o f Hick ey’s refusal to endorse the evaluation.
Summary judgmentshould be granted when the re is nogenuine dispute
as to any material fact, and the moving party is entitled to judgment as a matter o f law. Tenn. R. Civ. P. Rule 56.0 3. When a properly-suppor ted moti on for summary judgmentis filed, t he non-m oving party may not rest upon the mere allegations or denials of its pleading, but must respond by setting forth specific facts t o show that there is a genuine issue for trial. Such facts may be established through sworn affidavits, whic h must be based upon personal knowledge. Tenn. R. Civ. P. Rule 56.05.

We have examined the defendants’ motion for summary judgment, the plaintiffs’ response, th e defend ant’s reply to that res ponse, the proposed amended complain t, and the affidavit of Mr. McKnig ht. There is no dispute that M r. Hickey refused to sign Mr. McKnig ht ’s evaluation, but the plainti ff has offered no evidence, either direct or indirect, t

o support Mr. McKnight’s allegations that black workers were generallygiven lower evaluations than white ones. There is also no evidence in the record that Mr. McKnight had been deni ed any pay raises that he was enti tled to, or that he had applied for any promotions. There is evidence, however, that because of
a back injury, Mr. McKnight missed a total o f 39 days of work during the eva luation period.
Judging from the foll ow ing excerpts from Mr. McKnight’s affidavit, it appears that the superv isor s’s actions against hi m were based upon personal animosi ty: 4. In October of 1990, after Mr. Hi ckey had taken over- 9 - . . . I said something in a meeting which apparently offended h im. [He] told me later that if the Agency were a pri vate company

and if he had his way, he wou ld have me fired. Specifi cally, he referred to ho w I had ‘jerked him around’ in that meeting, and said he woul d have me fired if hecould. It w a s after that I noticed a distinc t change in the way I was treated in the workplac e at MDHA.

. . . 6. After

the negative encounter with Mr. Hickey, I did something else that caus e d Mr. Hickey to tar get me for special treatment. Specifically,I noticed t hat Mr. Hickey began to treat me very differentl y after I participated in a grievance hearing that Mr. Maso n had initiated against Mr. Hickey. In that grievance hearing, I testified in behalf of Mr. Mason.

Mr. McKnight went on to s tate that it was after these n e gative encounters that Mr. Hickey as signed him to the all-bl ack crew at Vine Hill Homes, and manipulated his evaluation. He cl aimed that Hickey never even visi

ted the workplace at Vine Hill, a nd thus had no basis for evaluating his work. The plaintiff also stated that his performance evaluation meant a lot to him, and that he was insulted and humiliated by being si ngled out for such unfair treatment

.

If John McKnight’s allegations are true, we can at mos t conclude that William Hic ke y was a vindictive and incompetent administrator. However, Mr. McKnight

does not allege any adverse consequences related to his work. Therefore, he does not state a claim under th e Tennessee Human Rights Act.

V.

The judgment of the t rial co urt is a ffi rmed. Rema nd this cause to the ChanceryCourt of Davidson County, for further proceedings consistent with this opinion. Tax the costs on appeal to the appellants.

_________________________________- 10 - BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM B. CAIN, JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE