Session April 18, 2018
from the Circuit Court for Madison County No. C12-186 Kyle
medical product sales representative brought suit against her
former employer, a hospital, claiming retaliation in
violation of the Tennessee Human Rights Act. After a bench
trial, the trial court judge entered a verdict in favor of
the hospital, having concluded that the employee failed to
carry her burden of proof. In spite of dismissing the
employee's case, the trial court awarded the employee a
portion of her attorney's fees as "sanctions"
against the hospital for making an allegedly late-filed
motion to strike the employee's demand for a jury trial,
which the trial court granted. We affirm the trial
court's dismissal of the employee's retaliation
claim, and we reverse the trial court's order granting
the employee attorney's fees.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Reversed in Part, and
Charles M. Purcell and Andrew V. Sellers, Jackson, Tennessee,
for the appellant, Cindy Terry.
Dale Thomas, Geoffrey A. Lindley, and Jennifer Vallor Ivy,
Jackson, Tennessee, for the appellee, Jackson-Madison County
General Hospital District.
B. Goldin, J., delivered the opinion of the Court, in which
Brandon O. Gibson and Kenny Armstrong, JJ., joined.
B. GOLDIN, JUDGE
and Procedural History
13, 2012, Cindy Terry ("Appellant") filed suit in
circuit court against her former employer, Jackson-Madison
County General Hospital District (the "Hospital"),
alleging retaliation in violation of the Tennessee Human
Rights Act ("THRA"). Appellant averred that her
supervisor, Ranee Terry ("R.T."),  retaliated
against her when she learned that Appellant had participated
in a human resources ("H.R.") investigation of
R.T., in which it was alleged that R.T. used racial slurs
when referring to African-Americans. According to Appellant,
her participation in the H.R. investigation directly led to
her termination and other acts of retaliation. As discussed in
detail below, the Hospital maintains that Appellant was
terminated because of poor job performance.
completion of discovery, a jury trial was scheduled to take
place in November 2016. However, on October 26, 2016, the
Hospital filed a "Motion for Non-Jury Trial." The
Hospital averred that the Tennessee Supreme Court had
recently determined that a litigant bringing a THRA claim in
circuit court did not have a right to a jury trial. See
Young v. City of LaFollette, 479 S.W.3d 785 (Tenn.
2015). Appellant responded opposing the motion and seeking an
award of attorney's fees for the cost of responding to
the motion, which Appellant averred was made in violation of
the scheduling order. A hearing on the motion was held on
November 10, 2016, and the trial court indicated that he
intended to grant the Hospital's motion for a non-jury
trial. Also at the hearing, the trial court verbally
indicated that he intended to grant Appellant's request
for an award of attorney's fees for the costs of
responding to the motion, and entered an order following the
trial awarding Appellant attorney's fees. At
Appellant's request, the trial was continued. On February
17, 2017, the trial court entered an order granting the
Hospital's motion for a non-jury trial pursuant to the
Tennessee Supreme Court's decision in Young v. City
of LaFollette. Id.
case was tried over the course of five days in February 2017,
and the court heard testimony from fourteen witnesses. A
summary of the proof adduced at trial follows.
2007, Appellant was hired to work as a medical product sales
representative for an affiliate of the Hospital, Medical
Center Medical Products ("MCMP"). During all times
relevant to this appeal, MCMP employed one other sales
representative, Paige Higgins. R.T. was the director of MCMP
and supervised Ms. Higgins and Appellant. R.T. testified that
Appellant and Ms. Higgins had the same job responsibilities
which included securing referrals by contacting physicians,
conducting educational in-service sessions,  attending and
promoting MCMP's products and services at health fairs,
driving the company vehicles, "calling on"
physicians by visiting their offices to market MCMP's
products and services, and communicating regularly with
co-workers and supervisors.
the 2010-2011 fiscal year, Appellant worked "as a
team" with Ms. Higgins. Appellant and Ms. Higgins were
paid a base salary plus commission if "the team"
met the sales quotas for certain products and services each
month (the "team incentive plan"). Ms. Higgins
testified that under the team incentive plan, it did not
matter who was responsible for the referrals; as long as the
quotas were met, each sales representative received a set
portion of the bonus commission for the month. R.T. testified
that MCMP sustained approximately a one million dollar loss
during the 2010-2011 fiscal year when Ms. Higgins and
Appellant worked "as a team."
April 5, 2011, R.T. testified that she met with Ms. Higgins
and Appellant to discuss changes that would be taking place
in anticipation of the 2011-2012 fiscal year, which would
begin on July 1, 2011. Because MCMP had sustained a loss
during the 2010-2011 fiscal year, R.T. testified that she
informed Ms. Higgins and Appellant that she was "looking
at going back to the old way of doing things, " whereby
each sales representative would have their own territory and
be individually accountable for their job responsibilities,
including servicing the accounts in their individual
territories. R.T. testified that she also instructed Ms.
Higgins and Appellant to begin preparing weekly sales
activity reports that documented their sales activities from
the week before (the "sales activity report(s)"),
and she told them to send the weekly reports to her before
the following Monday at 8:00 A.M. According to R.T., she also
asked Appellant and Ms. Higgins to prepare monthly
prospective marketing reports to show the in-service
educational sessions that each sales representative had
tentatively scheduled for the following month (the
"marketing report"). The monthly marketing report
was due before the first day of the upcoming month. Appellant
acknowledged that she was told in the April 5, 2011 meeting
that she would need to begin preparing weekly sales activity
reports and sending them to R.T. by 8:00 A.M. the following
Monday, but Appellant testified that she was not told to
prepare a monthly marketing report.
April 5, 2011, Sheila Noles, a co-worker of Appellant, filed
a complaint with the human resources department of the
Hospital ("H.R.") against R.T. Ms. Noles testified
that she reported to Yvette Forrest, an H.R. employee, that
R.T. had yelled at employees, made derogatory remarks to
employees, and used racial slurs when referring to
African-Americans. As a result of Ms. Noles' complaint,
Ms. Forrest testified that she conducted a preliminary
investigation and met with seven other employees of MCMP,
including Appellant and Ms. Higgins, concerning R.T.'s
conduct. According to Ms. Forrest's testimony, when the
other employees echoed some of Ms. Noles' complaints, she
alerted Karen Utley, a vice-president of the Hospital and
R.T.'s direct supervisor. Ms. Utley testified that she
asked Ms. Forrest to conduct a full investigation into
R.T.'s conduct, and Ms. Forrest met with a total of
sixteen employees of MCMP. Ms. Forrest summarized the findings of
her investigation and gave the written report to Ms. Utley.
However, Ms. Forrest testified that the report did not
include the names of the parties who participated in the
investigation, and she did not tell Ms. Utley or anyone else
"in the chain of command" the identities of the
employees. After Ms. Forrest's investigation was
complete, Ms. Utley testified that she met with R.T.
concerning the investigation to "counsel" her about
the allegations and ways to improve her job performance.
However, no additional adverse action was taken against R.T.
testified that on May 18, 2011, she met with Ms. Higgins and
Appellant to discuss their goals for the upcoming 2011-2012
fiscal year. R.T. testified that she went over their job
responsibilities, which included completing weekly sales
activity reports, completing monthly marketing reports,
conducting two in-service educational events per month to
educate physicians, contacting physicians, creating
advertising and promotional materials, driving the company
vehicles, and making a monthly visit to each West Tennessee
Healthcare entity in their territory. Appellant admitted that
R.T. told her at the May 18, 2011 meeting that she was
required to conduct two in-service events per month, complete
weekly sales activity reports, attend meetings with staff,
and create advertising materials. After the meeting, R.T.
sent Appellant and Ms. Higgins an e-mail with a template for
the sales activity report, and she reiterated that the report
was due the Monday of the following week by 8:00 A.M.
early June 2011, Ms. Higgins testified that she decided to
approach R.T. to ask that she be assigned her own territory
so that she and Appellant would be individually accountable
for their job responsibilities during the 2011-2012 fiscal
year. Ms. Higgins testified that she was "fed up"
with sharing job responsibilities under the team incentive
plan because Appellant "was not working."
Specifically, Ms. Higgins testified that Appellant's
attendance to her job had become "spotty, " and she
felt that the "sales efforts of MCMP were totally . . .
on [her] shoulders." According to Ms. Higgins,
Appellant would not respond to voicemail or e-mail promptly,
and she had been completing the weekly sales reports on her
own every week because Appellant "was not interested in
doing it." Furthermore, Ms. Higgins testified that
Appellant had failed to show up the day before a recent
medical conference to help set up MCMP's booth or on the
day of the conference to promote MCMP's products and
services. Ms. Higgins testified that Appellant did not notify
her that she would be absent from the conference until after
she was supposed to arrive on the day of the conference.
Furthermore, Ms. Higgins testified that she had received an
e-mail from Appellant on May 8, 2011, in which Appellant was
critical of the Hospital. Ms. Higgins testified that,
"when [she] received [the] e-mail, [she] realized that
[she] needed to find a way to be able to perform [her] job
and not be associated so much with this, because this was not
how [she] felt."
morning of June 9, 2011, Ms. Higgins sent Appellant an e-mail
before a regularly scheduled meeting with R.T. to inform her
that she planned on bringing up the subject of dividing the
territory at the meeting. In the e-mail, Ms. Higgins told
Appellant that she felt that dividing the territory would
provide them each with "more focused
responsibility." At the meeting, Appellant and Ms.
Higgins were each assigned roughly half the counties in the
territory. R.T. testified that she gave Ms. Higgins
and Appellant a spreadsheet of physicians and asked each of
them to complete the spreadsheet by indicating which sales
representative would be responsible for contacting each
physician going forward. R.T. testified that Ms. Higgins
returned the spreadsheet, but Appellant never did. Appellant
testified that she felt R.T. divided the territory in
retaliation against her for participating in the H.R.
investigation. On June 30, 2011, Appellant testified that she
met with R.T. because she felt that the territory had been
unfairly divided and the decision to split the territories
did not "make sense financially." Appellant
testified that she understood that R.T. had the authority to
split the territory, but she wanted to have some additional
input. R.T. testified that she asked Appellant to put her
concerns in writing, which Appellant did in a letter dated
July 5, 2011. In the letter, Appellant told R.T. that she
felt that leaving the territories as they were was the
"more logical business decision, " but she would
respect the choice to split the territory if R.T. was set in
her decision. Also at the June 30, 2011 meeting, according to
R.T., she asked Appellant about the status of a map, which
she had asked Appellant to create in January 2011 to give
clients directions between the two MCMP sales offices.
Appellant had not completed the map.
2011, Gary Abbott, the "pharmacy manager" for MCMP,
testified that he approached R.T. because he was concerned
that Appellant was not marketing a drug for pre-mature
infants called Synagis, which was a high-revenue product for
MCMP. Ms. Higgins testified that Appellant
told her she did not want to "grow the [Synagis]
business quickly" because Appellant felt that if they
grew "it quickly then the quota [would] go up and more
[would] be expected of [them]." Based on Mr.
Abbott's concerns, R.T. testified that she began to
suspect that Appellant was reporting visits with physicians
that she was not actually making. R.T. testified that she
called ten of the physicians which Appellant claimed to have
met with the previous month, and four of the physicians
indicated that Appellant had not actually been there. R.T.
testified that she had a GPS device placed on Appellant's
company vehicle, and the GPS indicated that Appellant's
company vehicle was not moved for the following two weeks.
R.T. testified that she was having several other issues with
Appellant's job performance in July 2011. Specifically,
R.T. testified that Appellant was not turning in her weekly
sales reports, was failing to timely respond to e-mails and
phone calls, and was failing to set up in-service educational
August 4, 2011, Appellant had a regularly scheduled meeting
with R.T. and Ms. Higgins. R.T. testified that she inquired
into the status of the map she asked Appellant to create in
January 2011, and Appellant still had not completed it or her
sales activity reports from the month before. After the
meeting on August 4, 2011, R.T. testified that she decided to
set up a meeting with Debbie Harris, a director of H.R., to
discuss her concerns over Appellant's work performance.
On August 5, 2011, R.T., Appellant, and Ms. Harris met. Ms.
Harris testified that the purpose of the meeting was for R.T.
to clearly delineate Appellant's job responsibilities and
her expectations to Appellant in the presence of a neutral
third party,  and Ms. Harris testified that R.T.
clearly articulated both. R.T. testified that she told
Appellant to turn in her weekly sales activity report by 8:00
A.M. the following Monday, communicate regularly, report to
the office at 8:00 A.M. daily, and drive the company vehicle.
to Appellant, R.T. accused her of falsifying her weekly sales
activity reports and informed Appellant that she needed to
improve her communication with R.T. and her other co-workers
by responding daily to voicemail and e-mails. Appellant
conceded that R.T. also inquired about Appellant's
progress on the map assignment once again and told her again
that she needed to drive the company vehicle at all
times.Appellant also testified that R.T. told
her to report to the office by 8:00 A.M. According to Ms.
Harris, Appellant indicated during the meeting that she did
not agree with R.T.'s decision to divide the territory,
and "she didn't agree that she needed to do what
[R.T.] was asking her to do."
August 10, 2011, Appellant testified that R.T. informed her
that Ms. Higgins would be solely responsible for marketing
Synagis going forward. R.T. testified that she decided to
assign all Synagis marketing to Ms. Higgins because Appellant
had failed to schedule any in-service educational sessions
for August and had failed to communicate with Mr. Abbott.
Appellant testified that R.T. told her to provide Ms. Higgins
with any information concerning Synagis referrals and any
Synagis events that Appellant had previously scheduled so
that Ms. Higgins could take over the Synagis marketing. Later
that day, R.T. testified that she emailed Appellant, Mr.
Abbott, and Ms. Higgins informing them all that Ms. Higgins
would be the only sales representative contact for Synagis
throughout the entire territory going forward. R.T. testified
that she instructed Appellant once again to e-mail all
incoming information concerning Synagis to R.T. and Ms.
Higgins so that Ms. Higgins could reschedule appointments and
handle referrals. R.T. testified that she e-mailed Appellant
three additional requests for the information, and Appellant
failed to provide the information.
August 18, 2011, Appellant and R.T. met again, and Appellant
signed a copy of her job description listing her job
responsibilities. The job responsibilities listed included
sending tentative monthly marketing reports before the first
of the upcoming month, conducting a minimum of two education
in-services a month, and driving the company vehicle. R.T.
also issued Appellant a written reprimand indicating,
"further instance of insubordination or poor job
performance [would] result in additional disciplinary action
up to termination." R.T. testified that she inquired
again about the status of the map assignment, but Appellant
had still not prepared the map. R.T. testified that she also
reminded Appellant that she must drive the company vehicle,
and emphasized that Appellant needed to promptly respond to
e-mails and phone calls during the work day. Appellant
testified that she needed to drive her personal vehicle due
to a medical issue, and she agreed to procure a
physician's note for R.T. Appellant testified that she
went to two physicians to procure a note, but neither
physician provided her with one.
August 26, 2011, R.T. testified that she entered
Appellant's office to discover that Appellant had cleaned
out all of her personal belongings. R.T. testified that
Appellant had also told her that she was interviewing with a
competitor. When R.T. discovered Appellant's
office had been cleared out, R.T. testified that she
contacted Ms. Harris to ask what she should do, and Ms.
Harris testified that she told R.T. to have Appellant's
network access and e-mail shut down until they could meet
August 30, 2011, Appellant e-mailed R.T. and Ms. Harris
stating that she would like to meet the following day.
Appellant testified that she called the meeting because she
believed her employment had been terminated based upon an
e-mail from IT she had received stating that her account and
intranet access had been shut down. At the August 31, 2011
meeting, Appellant testified that she told R.T. and Ms.
Harris that she felt she was being retaliated against because
she participated in the H.R. investigation of R.T. in April
2011. R.T. and Ms. Harris both testified that they were not
aware that Appellant participated in the H.R. investigation
until Appellant told them on August 31, 2011. Appellant also
admitted that she told R.T. and Ms. Harris that they
"should just fire" her. After Appellant told Ms.
Harris and R.T. that she felt she was being retaliated
against, Ms. Harris testified that she gave Appellant a
complaint form and asked her to return it with a detailed
account of the retaliation. It is undisputed that Appellant
never returned the complaint form. Ms. Harris testified that
she explained to Appellant that she had not been terminated.
Ms. Harris testified that she explained to Appellant that she
instructed R.T. to have Appellant's accounts shut down
until they determined whether or not Appellant had resigned.
At the end of the meeting, Ms. Harris asked Appellant if she
was quitting, and Appellant responded that she did not know
and she needed to confer with "someone from
September 1, 2011, Ms. Harris testified that she set up a
meeting with Appellant and R.T. to clarify to Appellant what
was expected of her. Ms. Harris testified that she called the
meeting, in part, because she did not know if Appellant was
planning on returning to work at all. R.T. testified that she
told Appellant once again that she needed to clock-in at the
office at 8:00 A.M., and she must drive the company vehicle
because she had been unable to procure a doctor's note.
R.T. also testified that she told Appellant that her work
phone needed to be on all day during the business day.
Appellant testified that R.T. also inquired as to what
in-service educational sessions Appellant had scheduled for
the month of September because R.T. had not received
Appellant's monthly marketing report for August or
September 7, 2011, Appellant sent R.T., Amy Griffin, and
Barry Phillips an email describing in detail her complaints
concerning R.T. and requesting that Mr. Phillips or Ms.
Griffin be present at any meeting between Appellant and R.T.
going forward. Ms. Griffin is the compliance officer for the
Hospital, and Mr. Phillips is the head of H.R. Appellant
testified that she "felt her job responsibilities had
been changing quite a bit, were continuing to change, that
[she] was very confused, [and] that she felt like [she] was
being singled out." After receiving the e-mail, R.T.
testified that she contacted Mr. Phillips to ask if he would
sit in on a meeting later that day between R.T. and
Appellant, and Mr. Phillips agreed to do so. R.T. testified
that Appellant asked to be terminated once again, but she
told Appellant she did not want to terminate her.
September 16, 2011, Appellant and R.T. met again. R.T.
testified that Appellant had failed to send her a monthly
marketing report for September or August and had not sent in
a weekly activity report since August. On September 19, 2011,
R.T. emailed Appellant requesting again that Appellant send
her a list of the in-services and events she had conducted in
August and was planning to conduct in September. R.T.
testified that she sent an e-mail the following day asking
once again. On the morning of September 23, 2011, R.T. and
Appellant had a regularly scheduled meeting. R.T. testified
that she once again requested Appellant's monthly
marketing report for September that was due by August 31,
2011, and the information concerning the two in-service
educational sessions that Appellant was required to perform
in August 2011. R.T. testified that she asked Appellant why
she continued to have meetings with physicians in Ms.
Higgins' territory, and Appellant testified that she told
her they were personal visits with no business purpose.
the meeting, R.T. testified that she decided to contact Ms.
Utley to discuss terminating Appellant. Ms. Utley agreed with
the termination, so R.T. contacted Ms. Harris. Later that
day, Appellant was terminated in a meeting with Ms. Harris
and R.T. Appellant testified that R.T. gave her a list of
reasons why she was being terminated. Appellant testified
that she did not know that she was being terminated for poor
job performance until she was given a notice of separation,
which listed poor performance as the reason for her
testified that she filed a formal grievance to have her
termination reviewed and a letter of complaint listing the
reasons why she felt her termination was unjustified. On
October 6, 2011, Appellant, R.T, Ms. Forrest, and Mr. Jeff
Frieling, a vice-president of the Hospital who was not
previously involved in the case, met for Appellant's
grievance hearing. Mr. Frieling testified that he carefully
reviewed the information provided to him by Appellant and
H.R., and he decided to uphold the termination.
April 20, 2017, the trial court entered a final judgment
dismissing Appellant's THRA claim, having concluded that
she failed to carry her burden of proof. Also on April 20,
2017, the trial court entered an "Order Granting
Plaintiff Sanctions/Attorney Fees" in the amount of $9,
630.00 against Appellee. The trial court stated that it was
awarding attorney fees "relate[d] to the [Hospital
District's] motion to strike the jury and its resulting
has raised the following issues for our review, which we have
rephrased and re-ordered as follows:
. Whether the evidence preponderates against
the trial court's findings that Ms. Utley was the
ultimate decision-maker or that Ms. Utley was unaware that
Appellant participated in the investigation of R.T. when she
agreed to terminate Appellant.
. Whether the trial court erred in
concluding that Appellant failed to establish she was
retaliated against because of her participation in the R.T.
. Whether the trial court erred in
"failing to find that the decision by the Defendant to
terminate the Plaintiff, Cindy Terry, was a pre-textual
decision by the Defendant."
. Whether the trial court committed
reversible error by failing to allow the entirety of Ms.
Forrest's written report from the R.T. investigation into
evidence or by failing to allow testimony concerning specific
instances of conduct reported by employees during the R.T.
. Whether the trial court erred in granting
the Hospital's motion for a non-jury trial.
posture of Appellee, the Hospital raises the following issues
for our review, which we have rephrased and re-ordered as
. Whether the trial court erred in awarding
Appellant $9, 630.00 for the cost of replying to the
Hospital's motion for non-jury trial as sanctions against
. Whether the trial court committed
reversible error in failing to admit evidence proffered by