Deborah H. Steele v. Superior Home Health Care of Chattanooga, Inc., and David Twombley - Concurring

IN THE COURT OF APPEALS

AT KNOXVILLE

DEBORAH H. STEELE, ) C/A NO. 03A01-9709-CH-00395
)
Plaintiff-Appellee, )
)

v.
)
)
FILED
) APPEAL AS OF Nov. 10, 1998
RIGHT FROM THE
) HAMILTON COUNTY CHANCERY COURT
) Cecil Crowson, Jr.
) Appellate Court Clerk
SUPERIOR HOME HEALTH CARE OF )
CHATTANOOGA, INC., and )
DAVID TWOMBLEY, individually, )
) HONORABLE R. VANN OWENS,
Defendants-Appellants. ) CHANCELLOR

For Appellant Superior Home For Appellee
Health Care of Chattanooga, Inc.
GRACE E. DANIELL
J. SCOTT McDEARMAN Starr & Daniell, P.C.
TONYA K. CAMMON Chattanooga, Tennessee
Grant, Konvalinka &
Harrison, P.C.
Chattanooga, Tennessee

For Appellant David Twombley

JOHN C. HARRISON
CYNTHIA R. FREEMON
Baker, Donelson, Bearman &
Caldwell
Chattanooga, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1
 The plaintiff, Deborah H. Steele (“Steele”), brought

this action against her former employer, Superior Home Health

Care of Chattanooga, Inc. (“Superior”), and her former

supervisor, David Twombley (“Twombley”)1, alleging that she was

the victim of, among other things, sexual harassment, outrageous

conduct, and the intentional infliction of emotional distress.

After various other claims were dismissed by the trial court2,

the case proceeded to trial before a jury on Steele’s claim of

sexual harassment against both Superior and Twombley under the

Tennessee Human Rights Act, T.C.A. § 4-21-101, et seq. (“THRA”),

and her claim of outrageous conduct and intentional infliction of

emotional distress, against Twombley alone. The jury found in

favor of Steele on all of the remaining theories of recovery and

awarded her $1.2 million in compensatory damages and $60,000 in

punitive damages. The trial court also awarded Steele attorney’s

fees and costs against both defendants. After Steele accepted a

remittitur that eliminated the punitive damages award and reduced

the compensatory damages award to $850,000, both Superior and

Twombley appealed, raising in substance the following issues for

our consideration:

1. Did the trial court err in allowing
inadmissible hearsay testimony from witnesses
who did not have first-hand knowledge of the
events in question?

1
Steele also sued Alpha Medical, Inc.; however, she subsequently took a
voluntary nonsuit as to that entity.
2
The trial court granted summary judgment in favor of Superior on
Steele’s claims of outrageous conduct, intentional infliction of emotional
distress, and negligent hiring and retention of employees. The court also
directed a verdict in favor of Superior on Steele’s retaliatory discharge
claim. The plaintiff does not raise any issues as to these actions of the
trial court.

2
 2. Did Steele’s counsel make improper and
prejudicial statements during closing
argument, thus warranting a new trial?

3. Is there material evidence in the record
to support the jury’s verdict?

4. Did the trial court err in submitting to
the jury Steele’s cause of action against
Twombley under the THRA?

5. Did the trial court err in giving the
jury an inaccurate charge, thereby
prejudicing its verdict against Twombley?

6. Did the trial court err in not suggesting
a further remittitur of the jury’s verdict?

7. Did the trial court err in awarding
attorney’s fees against Twombley under the
THRA?

I.

Steele, a psychiatric nurse, was hired by Superior in

late 1991. She was originally supervised by Linda Nation.

Shortly thereafter, she also came under the administrative

supervision of Twombley, who had been hired by Superior to

develop new programs, including the psychiatric program to which

Steele was assigned.

Steele testified that she began having problems with

Twombley shortly after coming under his supervision. She stated

that when she first saw Twombley, he told her that he knew she

had a reputation for having been involved with a male patient --

a charge that Steele denied. She also testified that, on a trip

to Athens, Tennessee, Twombley became upset with her when she

expressed concerns about the amount of time she was on call, and

told her that if she quit she would “never work anywhere else in

3
this town again.” Steele also stated that, while returning to

Chattanooga on the same trip, Twombley made an extremely

offensive remark, using vulgar terms regarding how much he liked

sex. The next day, Steele told one of her clinical supervisors,

Cindy Ewton, about Twombley’s remarks, and a meeting was

eventually arranged among Steele, her two clinical supervisors

(Ewton and Nation), and Mary Hogg, Superior’s Executive Director

of Nursing. Steele testified that she complained to Hogg about

Twombley’s behavior, but that no corrective action was taken as a

result of the meeting. Hogg testified that she met with

Twombley, who denied making any inappropriate statements, and

informed him that such behavior would not be tolerated.

Over the course of the next year, according to Steele,

Twombley continued to behave inappropriately toward her in the

workplace. Specifically, she testified that he would, among

other things, stand too close to her; kneel at her desk and touch

her knee to “steady himself”; attempt to engage her in sexual

conversations; ask if she had tried various sexual acts; make

comments such as, “I bet your boyfriend has a lot of fun in bed

with you”; talk about sexual incidents involving his former

patients; and make various demeaning comments to her, such as

calling her “stupid” or “dumb.” Steele also testified that on

one occasion, Twombley showed her a performance evaluation in his

office, turned off the overhead light, and gave her a rose. She

stated that he would frequently ask her to go hiking, or to go

out for coffee or dinner, and that he would get angry when she

declined his invitations. Steele testified that on one occasion

after she had told Twombley that the only relationship she wanted

4
with him was a professional one, he said, “no, I want a

commitment from you.”

Steele testified that she continued to complain about

Twombley’s actions to her immediate clinical supervisors, Ewton

and Nation. She testified that despite her complaints, nothing

was done to stop Twombley’s behavior, which became progressively

more offensive. According to Steele, Twombley continued to make

statements such as, “I’ll show you what a real man is all about,”

as well as more offensive comments to the effect that they would

not have any problems between them if she would give in to his

advances. Steele further testified that on more than one

occasion, he made references to his desire to engage in oral sex

with her. Steele also described an incident in which Twombley

told her he had written a letter requesting a raise for her and

then said, “[y]ou could be a lot of fun to work with. I’m a lot

of fun to work with... a woman like [you] would like a little

gentle pain.”

Steele maintained that, on more than one occasion, she

investigated the possibility of transferring to other positions.

She stated that she was twice told that she was too valuable to

the psychiatric program, and that on another occasion, she was

simply told that she could not have an available supervisory

position.

Steele also testified that Twombley continued to behave

inappropriately on work-related trips. She stated that on one

such occasion, Twombley indicated that he was aroused and

5
attempted to place her hand on him. According to Steele,

Twombley’s harassment on these trips culminated in an April,

1993, trip back from the Dayton, Tennessee office, when Twombley

drove to an isolated area in a park, forcibly pulled Steele out

of the car, and violently raped her. Steele testified that

following the rape she did not see a doctor or go to the police;

in fact, she explained that she essentially “blocked out” the

incident and did not come to terms with what had happened until

approximately three years later, after she had undergone

extensive therapy. This testimony was substantiated by Dr. David

Solovey, Steele’s psychologist, who testified that her memory of

the rape had been suppressed until it was brought to the surface

in the course of her therapy.

Subsequent to the events of April, 1993, Steele

continued to work under Twombley’s supervision. She testified

that the harassment continued, and that she ultimately arranged

another meeting with Mary Hogg in August, 1993. At that time,

Hogg met with Steele and several other nurses to discuss

Twombley’s behavior. Twombley resigned on August 16, 1993. He

originally gave two weeks’ notice. After meeting with Steele and

the other nurses, however, Hogg suggested that Twombley leave

immediately, and he complied.

Steele continued working at Superior until December,

1993, at which time the psychiatric program was terminated.

In support of her claims, Steele introduced the

testimony of various supervisory and nursing personnel who had

6
worked for Superior. Among other things, these witnesses related

their observations regarding Twombley’s behavior toward Steele,

as well as Steele’s complaints regarding that behavior. For

example, Janet Weise, who also worked as a nurse in the

psychiatric program, testified that Twombley had made sexual

comments and innuendos regarding Steele to her. She also stated

that, around the time of Twombley’s resignation, she had met with

Hogg and reported some of Twombley’s comments because she was

concerned about the stress he was placing on Steele. Linda

Nation, one of Steele’s clinical supervisors, testified that

Twombley had made derogatory remarks to her about Steele’s

reputation. She also testified that Steele had continually

complained about Twombley’s behavior. Wanda Martin, a physical

therapy assistant, testified that she had observed Twombley

hovering over Steele and kneeling at her desk, and that she had

noticed that this made Steele uncomfortable. Virginia Mastin,

another nurse in the psychiatric program, described similar

incidents, and also recalled Twombley asking what size underwear

Steele wore. She testified that she also met with Hogg to

express her concern over Twombley’s behavior toward Steele.

Martin further testified that although James Callaway, Superior’s

Executive Director and Hogg’s immediate supervisor, had been made

aware of Steele’s complaints, he did nothing in response.

Another witness, Cindy Ewton -- one of Steele’s clinical

supervisors -- testified that Steele complained repeatedly about

Twombley, and that she had reported all of Steele’s complaints in

her chain of command to her own supervisor, Darlene Bellows.

7
 In defense of Steele’s claims, Superior offered the

testimony of Darlene Bellows and Kathleen Grimes, each of whom

had supervised Steele for a short time. Both Bellows and Grimes

testified that they had never witnessed Twombley behave

inappropriately. Mary Hogg testified to the same effect. Hogg

also stated that, following her initial meeting with Steele, the

latter did not complain to her again until August of 1993.

Finally, James Callaway testified that no one, including Steele,

had ever complained to him regarding Twombley. Twombley, for his

part, denied Steele’s allegations.

The jury determined that the defendants were liable to

Steele on the theories of hostile environment and quid pro quo

sexual harassment. It additionally found that Twombley was

liable to Steele for his outrageous conduct and intentional

infliction of emotional distress.3 The jury thus awarded Steele

$1.2 million in compensatory damages, and $60,000 in punitive

damages. The trial court suggested a remittitur of the full

amount of punitive damages and $350,000 of the compensatory

damages, thereby reducing the verdict to $850,000 -- the amount

sued for in the complaint. It then denied the defendants’

motions for a new trial, contingent upon Steele’s acceptance of

the remittitur. Steele accepted the remittitur without protest.

Both defendants appealed.

II.

3
The jury responded to specific interrogatories.

8
 Steele’s sexual harassment claims were brought pursuant

to the provisions of the THRA, T.C.A. § 4-21-101, et seq. The

THRA provides, in pertinent part, as follows:

§ 4-21-401(a)

It is a discriminatory practice for an
employer to:

(1) Fail or refuse to hire or discharge any
person or otherwise to discriminate against
an individual with respect to compensation,
terms, conditions or privileges of employment
because of such individual’s race, creed,
color, religion, sex, age or national
origin;...

§ 4-21-301

It is a discriminatory practice for a person
or for two (2) or more persons to:

* * *

(2) Aid, abet, incite, compel or command a
person to engage in any of the acts or
practices declared discriminatory by this
chapter;...

A “person” is defined by the THRA to include a corporation. See

T.C.A. § 4-21-102(14).

III.

We turn first to the admission-of-evidence issue raised

by Superior. It contends that the trial court erred in allowing

a number of witnesses to testify regarding Twombley’s alleged

harassment when they did not have firsthand knowledge of his

conduct. Specifically, Superior insists that the testimony of

four witnesses -- Linda Nation, Wanda Martin, Willadean Carrol,

9
and Virginia Mastin -- was based only on what those witnesses had

been told by Steele, and was, therefore, improperly admitted.

With regard to Nation’s testimony, we note that she was

one of Steele’s clinical supervisors. Thus, Steele’s comments to

her regarding Twombley’s behavior were admissible to prove that

Superior had notice of the alleged harassment, rather than for

the purpose of proving the truth of her assertions. These

complaints had “legal significance and effectuate[d] legal

consequences, in and of themselves, irrespective or their truth

or falsity,” and, as such, were not hearsay. See Brown v. Daly,

968 S.W.2d 814, 818 (Tenn.App. 1997).

The other witnesses whose testimony Superior challenges

were not supervisory personnel. However, Martin and Mastin both

testified that they had observed Twombley standing close to

Steele, kneeling at her desk, and obviously making her

uncomfortable. Martin testified that she had on one occasion

called Steele and asked if she needed to get away from Twombley,

who was then at Steele’s desk; Steele responded affirmatively and

pretended that she was speaking to a patient so that Twombley

would leave her alone. Virginia Mastin testified that she had

heard Twombley make several inappropriate comments of a sexual

nature regarding Steele and others. Mastin stated that she

became concerned for Steele’s safety and arranged a meeting with

Hogg. Given the nature of this testimony, these witnesses did

not lack firsthand knowledge of Twombley’s behavior. We

acknowledge that the testimony of the fourth witness, Carrol, a

co-worker, was essentially based on statements made to her by

10
Steele. However, Carrol testified very briefly on this subject

and added little, if anything, to the record as a whole. We do

not find, considering the entire record, that the admission of

Carrol’s testimony “more probably than not affected the

judgment.” Rule 36(b), T.R.A.P. Accordingly, any error in

admitting Carrol’s testimony, or any similar testimony by co-

workers Martin and Mastin regarding Steele’s complaints to them,

was harmless. Id. We find Superior’s first issue to be without

merit.

IV.

Superior and Twombley both argue that Steele’s attorney

made prejudicial statements during closing argument, thereby

warranting a new trial. Specifically, they contend that Steele’s

attorney made an improper “Golden Rule” argument4 by making the

following statement to the jury:

Ask yourself, if this had happened to your
close friend, if this had happened to your
sister, your daughter, how would you value
it?

In its charge to the jury, the trial court issued the following

curative instruction:

...it would be improper for you to award --
what you would take as damages for the wrongs
allegedly suffered by the plaintiff here are
really perhaps -- in argument, someone may
have talked about if it had been your mother
or someone in your family what would be the

4
See Perkins v. Sadler, 826 S.W.2d 439, 442-43 (Tenn.App. 1991).

11
 reasonable compensation. That’s not the law.
You need to apply the law and do your job as
jurors to give your best assessment and not
substitute yourself or any one person in the
place of the plaintiff, but use your best
judgment and then establish an amount of
damages that’s fair and reasonable in light
of the evidence before you.

It is well-established that the trial court is vested

with sound discretion in exercising control over what will or

will not be permitted in argument. See, e.g., Perkins v. Sadler,

826 S.W.2d 439, 442 (Tenn.App. 1991). It has also been stated

that

[g]enerally the appellate courts will not
interfere with the discretionary action of
the trial court in refusing a mistrial or a
new trial for misconduct of counsel in
argument unless the argument is clearly
unwarranted and made purely for the purpose
of appealing to passion, prejudice and
sentiment which has not or cannot be removed
by sustaining objection of opposing counsel,
or unless the appellate court finds
affirmatively that it affected the result of
the trial. [Citations omitted.]

Id. (quoting J. Avery Bryan, Inc. v. Hubbard, 225 S.W.2d 282, 287

(Tenn.App. 1949)).

We agree with the defendants that counsel’s statement

was improper. However, we believe that the trial court’s

curative instruction was sufficient to blunt the risk of any

prejudicial effect upon the jury’s verdict. We certainly cannot

say that counsel’s improper argument affected the jury’s verdict

in this case. Perkins, 826 S.W.2d at 442.

12
 V.

We next turn to the defendants’ contentions that the

jury’s verdict was contrary to the evidence and resulted from

passion, prejudice or caprice. In this connection, Superior

argues that Steele failed to establish certain elements of her

hostile environment and quid pro quo sexual harassment claims

under the THRA. Twombley, meanwhile, insists that he cannot be

held individually liable under the THRA. Both challenge the

amount of damages.

A.

In reviewing a jury’s verdict, we must decide if the

record contains “material evidence to support the verdict.” Rule

13(d), T.R.A.P.; Coffey v. Fayette Tubular Products, 929 S.W.2d

326, 331 n.2 (Tenn. 1996); Pettus v. Hurst, 882 S.W.2d 783, 788

(Tenn.App. 1993); Benson v. Tennessee Valley Elec. Coop., 868

S.W.2d 630, 640 (Tenn.App. 1993). In this case, the trial judge

approved the jury’s verdict, as remitted. Thus, it is clear that

...the trial judge’s approval of the amount
of the jury’s verdict invokes the material
evidence rule, just as it does with respect
to all other factual issues upon which
appellate review is sought, and that “[a]ll
of the evidence in the record that tends to
support the amount of the verdict should be
given full faith and credit upon appellate
review.”

13
Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980)(citing Ellis

v. White Freightliner Corp., 603 S.W.2d 125 (Tenn. 1980)). We

are required to take the strongest legitimate view of all the

evidence, including all reasonable inferences therefrom, to

sustain the verdict; to assume the truth of all the evidence that

supports it; and to discard all evidence to the contrary. Poole,

604 S.W.2d at 54. In this analysis, we do not weigh the

evidence, nor do we determine the credibility of the witnesses.

Id.; Grissom v. Metropolitan Gov’t of Nashville, 817 S.W.2d 679,

684 (Tenn.App. 1991). On the contrary, “[r]econciling apparently

conflicting testimony and evaluating the witnesses’ credibility

are, in the first instance, the jury’s responsibilities.” Id. at

683. Furthermore, as noted in Grissom,

[s]exual harassment cases, by their very
nature, require the finders of fact to
reconcile conflicting testimony by evaluating
the witnesses’ credibility.

Id. at 684.

B.

We turn now to the question of whether the evidence

satisfied each element of Steele’s hostile environment harassment

claim. Generally speaking, a hostile work environment is created

“where conduct has the purpose or effect of unreasonably

interfering with an individual’s work performance or creating an

intimidating, hostile, or offensive working environment.”

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31 (Tenn.

14
1996)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106

S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The basic elements of a

supervisor-created, hostile work environment sexual harassment

claim under the THRA are:

(1) the employee was a member of a protected
class;

(2) the employee was subjected to unwelcomed
sexual harassment;

(3) the harassment occurred because of the
employee’s gender; [and]

(4) the harassment affected a “term,
condition or privilege” of employment....

Carr v. United Parcel Service, 955 S.W.2d 832, 836 (Tenn. 1997).

In addition, the Supreme Court held in Carr that employer

liability also depends on: “(1) whether the supervisor’s

harassing actions were foreseeable or fell within the scope of

employment; and (2) even if they were, whether the employer

responded adequately and effectively to negate liability.”5 Id.

at 838; Sanders v. Lanier, 968 S.W.2d 787, 789 n.4 (Tenn. 1998).

Thus, the Court held, “the employer’s liability is predicated on

its reaction to the discriminatory conduct.” Carr, 955 S.W.2d at

838.6

5
In so holding, the Court in effect drew a distinction between hostile
environment claims based upon supervisor harassment, and those arising from
co-worker harassment. In enumerating the elements of the latter type of
claim, the Court noted that, in addition to the four elements listed above,
the plaintiff must prove that “the employer knew or should have known of the
harassment and failed to respond with prompt and appropriate corrective
action.” Carr, 955 S.W.2d at 836 (emphasis added)(citing Spicer v. Bearman
Bottling Co., 937 S.W.2d 884, 888 (Tenn. 1996)).
6
We are aware of the United States Supreme Court’s recent decisions in
Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257, 141
L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998). In those cases, the Supreme Court held that

15
 Neither defendant argues that there is no material

evidence to establish the first four elements of a hostile

environment harassment claim. Even if they had, our review of

the record, and particularly the testimony of Steele and the

witnesses called to testify on her behalf, persuades us that

there is material evidence that Twombley sexually harassed

Steele. Superior does contend, however, that Steele failed to

establish the basis for employer liability in that she failed to

prove the last two elements stated in Carr. Specifically,

Superior argues that Twombley’s actions were not foreseeable, and

that it responded adequately and effectively so as to negate

liability. However, Superior acknowledges -- and we agree --

that Twombley’s actions “allegedly occurred during work hours and

in a work setting,” i.e., within the scope of employment. We

[a]n employer is subject to vicarious liability to a
victimized employee for an actionable hostile
environment created by a supervisor with immediate (or
successively higher) authority over the employee.
When no tangible employment action is taken, a
defending employer may raise an affirmative defense to
liability or damages, subject to proof by a
preponderance of the evidence, see Fed. Rule Civ.
Proc. 8(c). The defense comprises two necessary
elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.

Burlington Industries, 118 S.Ct at 2270; Faragher, 118 S.Ct. at 2292-93. In
these decisions, the Supreme Court proceeded through a detailed analysis of
the circumstances under which an employer’s conduct may lead to liability in
hostile environment cases. It is true that Burlington and Faragher set forth
the two above-quoted elements as an affirmative defense that may be
established by the employer; Carr, on the other hand, focuses on whether the
supervisor’s actions were foreseeable or fell within the scope of employment,
as well as on the sufficiency of the employer’s response. Carr, 955 S.W.2d at
838. However, we do not believe that the expanded analysis of Burlington and
Faragher impacts our review of the instant case under the Carr decision. Our
Supreme Court has yet to address the impact of Burlington and Faragher; we
therefore proceed under the framework set forth in Carr.

16
find and hold that there is material evidence that Twombley’s

“harassing actions were foreseeable or fell within the scope of

employment.” Carr, 955 S.W.2d at 838. Accordingly, there is

material evidence establishing the first prong of Carr’s test of

employer liability for hostile work environment harassment. Id.

As to the final criterion for imposing liability upon

an employer, Superior points to the following facts as evidence

that it responded “adequately and effectively” to the alleged

harassment: Hogg’s investigation and verbal warning to Twombley

following her initial meeting with Steele; Steele’s failure to

complain again to Hogg until approximately 18 months later; and

Superior’s request, following Steele’s “second complaint of

sexual harassment,” that Twombley leave his job immediately.

Our Supreme Court has stated that determinations

regarding the appropriateness of an employer’s response depend

upon the circumstances of each case. Campbell, 919 S.W.2d at 33.

In this instance, the record contains material evidence that

Superior failed to respond “adequately and effectively” to

Steele’s complaints. Taking the strongest legitimate view of all

the evidence to sustain the verdict, Poole, 604 S.W.2d at 54, it

is clear that Steele complained to Hogg following her trip to

Athens; that despite Hogg’s “warning” to Twombley, his harassment

of Steele continued; that Steele’s supervisors, Nation and Ewton,

had knowledge of the harassment; and that not enough was done to

curb Twombley’s behavior during his employment at Superior.

There is material evidence in the record to indicate that, by the

time Hogg told Twombley to leave Superior immediately, he had

17
harassed Steele for approximately a year and a half and had raped

her in April, 1993.

Accordingly, we hold that the record contains material

evidence to support the jury’s finding that Superior is liable

for the hostile environment created by Twombley’s harassment of

Steele.7 See Rule 13(d), T.R.A.P.

We next address the question of whether Twombley may be

individually liable under the THRA on a theory of hostile work

environment sexual harassment. As noted earlier, the THRA

prohibits an employer from engaging in discriminatory practices

against a person based on sex. T.C.A. § 4-21-401. The THRA’s

definition of “employer” includes “any person acting as an agent

of an employer, directly or indirectly.” T.C.A. § 4-21-102(4).

However, the Supreme Court expressly held in Carr that “the

THRA’s ‘agent of an employer’ language does not impose individual

liability.” Carr, 955 S.W.2d at 835. The Court did opine that

an individual, under the proper circumstances, could be liable

under the THRA’s prohibition against aiding or abetting others

who engage in discriminatory acts. Id. at 836; see T.C.A. § 4-

21-301(2).

Twombley asserts that the record does not support a

finding that he violated the “aiding and abetting” provision of

T.C.A. § 4-21-301(2). The Carr decision, however, states that

“[a] supervisor ... may be individually liable for encouraging or

7
In view of our resolution of this issue in Steele’s favor, we do not
find it necessary to reach her separate issue that Superior failed to preserve
the question of the adequacy of the proof in its motion for a new trial.

18
preventing the employer from taking corrective action.” Id. at

838. It further provides that “for purposes of deciding

accomplice liability, a claim of supervisor created hostile work

environment should be subject to the same analysis as a claim of

co-worker harassment.” Id. Thus, a supervisor is individually

liable under a hostile work environment theory where the

following is established:

(1) that a hostile work environment existed;

(2) that the [supervisor] acted affirmatively
to aid, abet, incite, compel or command an
employer not to take remedial action to the
hostile work environment; and

(3) that the employer engaged in employment-
related discrimination by failing to take
adequate remedial action.

Id. at 837.

In the instant case, it is clear that a hostile

environment existed; furthermore, we have previously found that

the evidence supports the conclusion that Superior failed to take

adequate remedial action. Thus, the first and third elements

listed above are satisfied. Id. As to the second element, we

find that Twombley acted affirmatively in discouraging Superior

from taking corrective action by telling his own supervisor, Mary

Hogg, that he did not make the sexually explicit remark

originally complained of by Steele. Twombley’s denial that the

conduct occurred was obviously designed to cover up his conduct

and thus discourage Hogg and Superior from taking any action to

remedy the hostile environment. Id. While this, by itself, does

19
not excuse Superior’s lack of action, Twombley’s denial is

significant in the aiding and abetting analysis. Generally

speaking, a denial of involvement in the offensive conduct tends

to encourage an employer not “to take remedial action.” Id. We

do not see how it can be argued otherwise.

Having escaped discipline, Twombley proceeded to harass

Steele with increasing frequency and severity, until he

ultimately resigned. We therefore find that, under the facts of

this case, Twombley can be held individually liable for hostile

environment sexual harassment as an aider and abetter. See Carr,

955 S.W.2d at 835-38. Accordingly, we hold that the jury’s

verdict finding him liable on that theory is sustained by the

evidence.

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 C.

We now turn to the second theory upon which the jury

found the defendants liable - quid pro quo sexual harassment.

Generally speaking, “[q]uid pro quo harassment occurs when a

supervisor conditions employment benefits on ‘sexual favors.’”

Id. at 837; Sanders, 968 S.W.2d at 789. To prevail on a claim

against an employer based on this theory, a plaintiff must show:

(1) that the employee was a member of a
protected class;

(2) that the employee was subjected to
unwelcome sexual harassment in the form of
sexual advances or requests for sexual
favors;

(3) that the harassment complained of was
based on sex;

(4) that the employee’s submission to the
unwelcome advances was an express or implied
condition for receiving job benefits or that
the employee’s refusal to submit to the
supervisor’s demands resulted in a tangible
job detriment; and

(5) the existence of respondeat superior
liability.

Carr, 955 S.W.2d at 837; Sanders, 968 S.W.2d at 789. As to the

fifth element, the Supreme Court expressly stated in Carr that

[t]he employer is strictly liable for a
supervisor’s quid pro quo harassment under
the doctrine of respondeat superior.... Under
[an] alter ego theory of liability, the
supervisor’s acts within the scope of
employment are imputed to the employer.

Carr, 955 S.W.2d at 837; see also Sanders, 968 S.W.2d at 789-90.

21
 Superior insists that Steele failed to prove the fourth

element of her quid pro quo claim. We agree. We acknowledge

that there is some evidence that Twombley may have impliedly

offered Steele job benefits in exchange for sexual favors;

however, there is absolutely no evidence that Steele voluntarily

submitted to his advances. Thus, Steele was required to prove

that her refusal to give in to Twombley resulted in some

“tangible job detriment” to her. Carr, 955 S.W.2d at 837;

Sanders, 968 S.W.2d at 789. As stated in Burlington Industries,

Inc. v. Ellerth,

[w]hen a plaintiff proves that a tangible
employment action resulted from a refusal to
submit to a supervisor’s sexual demands, he
or she establishes that the employment
decision itself constitutes a change in the
terms and conditions of employment....

Id., 118 S.Ct. at 2265; see also, Reinhold v. Commonwealth of

Virginia, 151 F.3d 172, 174-75 (4th Cir. 1998). The United

States Supreme Court defined a “tangible employment action” as “a

significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.” Burlington Industries, 118 S.Ct. at 2268.

The record in the instant case indicates that Steele

received positive job evaluations from Twombley. She was not

demoted or reassigned, nor did she receive any reduction in

salary or benefits. Her termination did not occur until

approximately four months after Twombley’s resignation, and,

22
following the dismissal of her retaliatory discharge claim, it

does not appear that Steele has argued that her termination was

related to the harassment. Thus, the record is devoid of any

material evidence that an adverse “tangible employment action”

resulted from Steele’s refusal to submit to Twombley’s advances.

Burlington Industries, 118 S.Ct. at 2265; Reinhold, 151 F.3d at

175.8 Accordingly, we find that the record does not contain

material evidence to support the jury’s finding that Superior is

liable to Steele on the theory of quid pro sexual harassment.

Rule 13(d), T.R.A.P.; Carr, 955 S.W.2d at 837.

Twombley, meanwhile, contends that he cannot be held

individually liable for quid pro quo harassment under the THRA.

He insists that the trial court should have granted his motion

for directed verdict as to that claim. The Supreme Court in Carr

specifically declined to address the question of individual

supervisor liability for quid pro quo discrimination.9 Id. at

837-38. Since we have already determined that this case does not

present a viable claim of quid pro quo sexual harassment, we do

not need to resolve this issue left open in Carr.

8
In Reinhold, the plaintiff was allegedly subjected to various forms of
harassment, including threats of suspension and the assignment of extra work
when she refused her supervisor’s advances; however, the Court noted that the
plaintiff did not allege, nor did the evidence show, that she had suffered “a
‘tangible employment action’ sufficient to give rise to the automatic
imputation of liability against [the defendants] for [the supervisor’s]
actions.” Reinhold, 151 F.3d at 175.
9
The Court did acknowledge that several state anti-discrimination
statutes have been construed to provide for individual liability. Carr, 955
S.W.2d at 837-38 (citing St. Peter v. Ampak-Division of Gatewood Products,
Inc., 199 W.Va. 365, 484 S.E.2d 481 (1997); Schram v. Albertson’s, Inc. 146
Or.App. 45, 934 P.2d 483 (1997); Tyson v. CIGNA Corp., 918 F.Supp. 836 (D.N.J.
1996); Conway v. City of Hartford, 9 N.D.L.R. P 167, 1997 WL 78585
(Conn.Super.Ct. 1997); Johnson v. Canadian Pacific Ltd., 522 N.W.2d 386
(Minn.Ct.App. 1994), rev’d on other grounds, 536 N.W.2d 319 (Minn. 1995); and
DuPuis v.Con-Test, Inc., 4 Mass. L. Rptr. 163, 1995 WL 809975 (Mass.Super.Ct.
1995)).

23
 In summary, we hold that the record contains material

evidence to support the jury’s finding that Superior is liable

under the THRA for hostile environment sexual harassment. The

jury’s verdict finding Superior liable on the theory of quid pro

quo harassment, however, is not supported by the evidence. With

regard to Twombley, we hold that the evidence supports a finding

of liability as an aider and abetter on the theory of hostile

environment harassment.

D.

As indicated earlier, the jury also found Twombley

liable for “outrageous conduct and/or intentional infliction of

emotional distress.” We now examine the record to determine if

there is material evidence to support the jury’s finding as to

that claim.

“Intentional infliction of emotional distress and

outrageous conduct are not two separate torts, but are simply

different names for the same cause of action.” Bain v. Wells,

936 S.W.2d 618, 622 n.3 (Tenn. 1997). There are three elements

to the claim:

(1) the conduct complained of must be
intentional or reckless;

(2) the conduct must be so outrageous that it
is not tolerated by civilized society; and

(3) the conduct complained of must result in
serious mental injury.

Id.

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 For reasons not entirely clear, Twombley does not

specifically argue on appeal that the evidence is contrary to the

jury’s finding that he is liable for outrageous conduct. In any

event -- taking the strongest legitimate view of all the

evidence, Poole, 604 S.W.2d at 54 -- we find that the proof of

Twombley’s harassment and rape of Steele, and the emotional

effects that his actions had upon her, clearly satisfies the

elements of the cause of action. Accordingly, we hold that the

record does contain material evidence to support the jury’s

verdict against Twombley on the theory of outrageous

conduct/intentional infliction of emotional distress. Rule

13(d), T.R.A.P.

E.

The defendants further argue that the verdict must be

set aside, insisting that the jury’s award was “outside the

bounds of reasonableness” and the product of passion, prejudice

or caprice. The defendants also contend that the trial court

erred in failing to further remit the award.

As we have previously stated, we must affirm the jury’s

verdict if the record contains material evidence to support it.

Rule 13(d), T.R.A.P.; Coffey v. Fayette Tubular Products, 929

S.W.2d 326, 331 n.2 (Tenn. 1996). In our review, we are guided

by a well-established principle:

The amount of the verdict is primarily for
the jury to determine, and next to the jury
the most competent person to pass upon the

25
 matter is the judge who presided at the trial
and heard the evidence.

Smith v. Shelton, 569 S.W.2d 421, 427 (Tenn. 1978) (citing Reeves

v. Catignani, 7 S.W.2d 38, 39 (Tenn. 1928)).

We have heretofore determined that the record does

contain material evidence to support the jury’s findings that

Superior and Twombley violated the THRA and that Twombley is

liable to Steele for his outrageous conduct/intentional

infliction of emotional distress upon the plaintiff. By the same

token, our review of the record persuades us that there is

material evidence to support the amount of compensatory damages

awarded by the jury, as remitted by the trial court. The jury

obviously accredited Steele’s testimony to the effect that she

had been harassed for an extended period and raped by Twombley.

Although the award was high in relation to Steele’s actual and

anticipated medical expenses -- approximately $18,500 -- we

cannot say that the pain, suffering and other damages caused by

Twombley’s actions did not justify an award of $850,000. Steele

testified that, as a result of the harassment and rape, she has

lost weight and suffers from headaches and flashbacks. She

testified that she has not been able to focus well at work, and

that she has also been affected spiritually. She stated that it

is difficult for her to get up in front of a crowd of people,

because she feels that everybody knows what happened to her. The

record indicates that she has changed jobs several times since

being terminated by Superior. Steele testified that, on one

occasion, she passed up a good job opportunity because it

potentially would have required her to work at times with a

26
company where Twombley was then employed. Steele began seeing a

psychiatrist, Dr. Catherine Gyurik, in January, 1994. She was

also treated by a therapist, Kathleen Reilly. In 1996, she began

seeing Dr. Solovey, who observed that she was, among other

things, frightened, anxious, tearful and distraught. At the

time, Steele was also suffering from panic attacks. Dr. Solovey

treated Steele for approximately nine months, but testified that,

in his opinion, she needed an additional two years of treatment.

Accordingly, the defendants’ argument that the amount

of damages warranted a new trial or further remittitur is found

to be without merit.

VI.

Twombley next argues that the trial court erred in

giving the jury an inaccurate charge. In its instructions to the

jury, the trial court stated that, “[a]s a supervisor with a

right to control, in this case, Mr. Twombley, for the purposes of

this charge, is to be considered as an employer as well.”

We acknowledge that the Supreme Court in Carr held that

the THRA’s inclusion of “any person acting as an agent of an

employer” in its definition of “employer” does not impose

individual liability. Carr, 955 S.W.2d at 835. However, we have

already held that the record supports a finding that Twombley is

liable for hostile environment sexual harassment as an aider and

abetter and for intentional infliction of emotional distress.

While the quoted charge was erroneous, we do not find that it

27
more probably than not affected the jury’s verdict; therefore,

any error in the trial court’s charge that Twombley was an

“employer” was harmless. Rule 36(b), T.R.A.P.

VII.

Finally, Twombley contends that, because the THRA “does

not apply to [him] as an individual supervisory employee,” the

trial court erred in awarding attorney’s fees against him. As we

have previously explained, there is material evidence to support

a finding that Twombley violated the THRA. Accordingly, we find

this issue to be without merit.

VIII.

It results that the judgment of the trial court is

affirmed. Costs on appeal are assessed to the appellants. This

case is remanded to the trial court for enforcement of the trial

court’s judgment and for collection of costs assessed below, all

pursuant to applicable law.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

_________________________
Herschel P. Franks, J.

_________________________
William H. Inman, Sr.J.

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