Linda Diane Cobb v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 13, 2016 Session

LINDA DIANE COBB v. STATE OF TENNESSEE, ET AL.

Appeal from the Circuit Court for Maury County
No. 13757 Robert Lee Holloway, Jr., Judge
___________________________________

No. M2014-01755-COA-R3-CV – Filed April 17, 2017
___________________________________

The plaintiff filed suit alleging discriminatory and harassing practices violative of the
Tennessee Human Rights Act. The defendants moved for summary judgment, and the
trial court dismissed the plaintiff‟s claims, holding that the defendants had negated
essential elements of the plaintiff‟s claims. On appeal, the plaintiff argues that the trial
court erred in failing to allow for additional discovery before ruling on the request for
summary judgment. The plaintiff also argues that the trial court failed to address all her
claims and that genuine issues of material fact precluded summary judgment. We
conclude that the trial court properly granted summary judgment. Therefore, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and ARNOLD B. GOLDIN, J., joined.

Heather Moore Collins and Anne Hunter Williams, Brentwood, Tennessee, for the
appellant, Linda Diane Cobb.

Jeffrey M. Beemer and Joseph K. McKinney, Nashville, Tennessee, for the appellees,
Maury County, Tennessee, and Maury County Health Department.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Rachel A. Newton, Assistant Attorney General, for the appellees, State of
Tennessee, Elizabeth Cook, and Constance Baker.
 OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Linda Diane Cobb started work as a Public Health Office Assistant (“PHOA”)1 for
the Maury County Health Department in January 2009. Her direct supervisor was
Constance Baker. Ms. Baker, in turn, was supervised by Elizabeth Cook, the health
department director.2

Ms. Baker, who is African-American, supervised a total of seven PHOAs at the
Health Department. Ms. Cobb and Ms. Cook are both Caucasian.

On March 22, 2011, Ms. Cobb filed suit in the Circuit Court for Maury County,
Tennessee, against the State of Tennessee, Maury County, the Maury County Health
Department, Ms. Cook, and Ms. Baker. Ms. Cobb alleged that she had been
discriminated against because of her race and forced to work in a hostile work
environment. Specifically, she asserted that two of her co-workers, Keybra Martin, an
African-American, and Edna Hernandez, a Latina, received preferential treatment in that
they were not required to follow the same workplace rules as the remaining PHOAs. Her
complaint alleged that the defendants‟ conduct violated the Tennessee Human Rights
Act. See Tenn. Code Ann. §§ 4-21-101 to -1004 (2015 & Supp. 2016).

A. MS. COBB‟S DEPOSITION

During her deposition, Ms. Cobb elaborated on her discrimination and harassment
claims. She maintained that all PHOAs should be treated the same but that Ms. Baker
gave two of her co-workers, Ms. Martin and Ms. Hernandez, preferential treatment. As
Ms. Cobb defined it, discrimination was “[a]llowing another employee to do something
they want to do just because you‟re friends and black.” She claimed Ms. Baker favored
Ms. Martin and Ms. Hernandez because of their race or ethnicity even though she
conceded that another African-American PHOA did not receive any special treatment.

Ms. Cobb complained that Ms. Martin and Ms. Hernandez were consistently
treated better than the other PHOAs. For example, Ms. Martin was allowed to move to a
different desk whenever she wished, but Ms. Cobb was twice denied permission to move.
Ms. Baker yelled across the room at Ms. Cobb but never yelled at Ms. Martin or

1
According to deposition testimony, a PHOA provides clerical assistance to individuals seeking
medical services from the county health department.
2
The Maury County Health Department is operated by the State of Tennessee in cooperation with
Maury County. Although she was employed by Maury County, State employees hired, supervised, and
ultimately fired Ms. Cobb.

2
Ms. Hernandez. Ms. Martin received holiday pay for Martin Luther King Day when
Ms. Cobb did not.3

According to Ms. Cobb, Ms. Baker corrected her when she made a mistake or
violated a workplace policy. By contrast, Ms. Martin and Ms. Hernandez consistently
broke the rules, such as returning late from lunch, registering patients in the wrong order,
and using their cell phones at work, with no apparent consequences. Ms. Cobb claimed
that, even though she reported her co-workers‟ infractions to her supervisors, as far as she
was aware, they were never disciplined. Ms. Cobb explained that, because Ms. Martin
and Ms. Hernandez did not perform their jobs properly, it created more work for the
remaining employees, which she viewed as harassment.

When asked whether the harassment she experienced was based on race, at one
point, Ms. Cobb said it was not. She admitted that, to her knowledge, no one at work
ever said anything racist to her or about her. In fact, she never heard any workplace
comments about white people. She agreed that Ms. Martin had never said anything
threatening, racial, or derogatory to her.

In March 2010, Ms. Cobb filed a formal written complaint with the State. In her
complaint, Ms. Cobb described the myriad ways in which her two co-workers were
favored. She also claimed that she had observed Ms. Baker, Ms. Martin, and
Ms. Hernandez comparing the skin color on their arms, which she perceived to be “a
racial statement.”

Ms. Cobb claimed that, after she filed her complaint, Ms. Baker harassed her with
emails. Whenever she reported Ms. Martin‟s or Ms. Hernandez‟s mistakes to Ms. Baker,
she would receive an email about her own mistakes. She stated that she felt harassed by
the sheer volume of emails she received from Ms. Baker even though she admitted that
many of the emails were legitimate.

Although Ms. Cobb never filed a formal complaint with Maury County, in March
2011, she did verbally complain to Dana Gibson in the Maury County Human Resources
Department about an email from Ms. Baker. Ms. Gibson investigated but found
Ms. Cobb‟s complaint to be without merit.

Ms. Cobb related a specific incident in April 2010 that she found discriminatory.
According to Ms. Cobb, Ms. Baker spoke to her after a patient complained that a “white
girl with long dark hair” had been rude. Ms. Cobb felt that Ms. Baker‟s use of the
patient‟s description was a discriminatory racial stereotype. Because another PHOA also
fit the patient‟s description, Ms. Cobb believed that Ms. Baker‟s assumption that she was
the PHOA in question was in retaliation for filing her complaint.

3
She acknowledged that another Caucasian PHOA was also paid for the holiday.
3
 Then, in early November 2010, another incident occurred that Ms. Cobb felt was
overtly racial. Ms. Cook had a meeting in her office with Ms. Cobb and two other
Caucasian PHOAs. According to Ms. Cobb, Ms. Cook explained that a report had been
filed indicating that all of them, including Ms. Cook, had been disrespectful of
Ms. Baker, Ms. Hernandez, and Ms. Martin. Ms. Cook stated that they should always be
polite and respectful. When questioned by the PHOAs present, Ms. Cook responded that
the civil rights laws were enacted to protect minorities and indicated that white
employees had no rights.

Ms. Cobb maintained that she was a good employee and always performed her job
to the best of her ability. Her pay rate never decreased, and she was never demoted. She
conceded that there were no negative changes to her job position or duties because of
retaliation, harassment or racial discrimination. She claimed, however, that she was
forced to take two months of unpaid leave because her work environment adversely
affected her health. Although Ms. Baker was replaced as the PHOA supervisor
approximately six weeks before the deposition, Ms. Cobb stated it was too soon to know
whether the workplace environment had improved.

B. MS. COBB‟S TERMINATION

In December 2011, a few months prior to her deposition, Ms. Cobb received a
written warning for violating the Health Department‟s Health Insurance Portability and
Accountability Act (“HIPAA”) policy.4 According to Ms. Cobb, she viewed a patient
record in an attempt to verify whether Ms. Martin and Ms. Hernandez had violated
HIPAA, and she was reprimanded for her unauthorized access.

During discovery, Ms. Cobb produced a large volume of documents that she
claimed supported her discrimination claim. Ms. Cobb explained that, when she filed her
formal complaint, she was told she needed documentation. Thus, she began printing
certain screens from her work computer that she believed demonstrated the poor work
performance and the ongoing policy violations by Ms. Martin and Ms. Hernandez. The
patient registration screens and other portions of patient files that she printed contained
patient-identifying information, such as names, birth dates, and social security numbers.
She kept the documents in a locker within the Health Department, although at some point
she took the documents home. She testified that she showed the documents to Pam
Busby in the State Human Resources Department. She also gave the documents to her
attorney, who produced them in discovery.

4
The Health Insurance Portability and Accountability Act of 1996, more commonly known as
HIPAA, was designed to ensure the confidentiality of health information. See 42 U.S.C.A. § 1320d-6
(2012) (penalizing the wrongful disclosure of individually identifiable health information).
4
 Ms. Cobb acknowledged that “in a normal situation” disseminating this patient
information “would be a HIPAA violation,” but she felt her actions were justified in order
to document her claims. Ms. Cobb acknowledged that she was prohibited from removing
patient information from the Health Department.

Just over a month after she gave her deposition, on July 13, 2012, Ms. Cobb‟s
employment was terminated for repeated HIPAA violations.

C. THE COUNTY‟S SUMMARY JUDGMENT MOTION

Maury County and the Maury County Health Department (collectively the
“County Defendants”) filed a motion for summary judgment on October 23, 2012. The
County Defendants claimed that they were entitled to summary judgment because the
plaintiff could not establish (1) that she had suffered an adverse employment action, an
essential element of her reverse racial discrimination claim, or (2) that she was subjected
to a hostile work environment actionable under the Tennessee Human Rights Act. As
required by Rule 56.03 of the Tennessee Rules of Civil Procedure, the County
Defendants filed a statement of undisputed material facts with specific citations to the
record. They also filed portions of the depositions of Ms. Cobb, Ms. Baker, and
Ms. Cook and affidavits from Dana Gibson and Ms. Cook.

One day before the hearing on the motion, Ms. Cobb filed a response and a copy
of her deposition. While Ms. Cobb responded to the County Defendants‟ statement of
undisputed material facts, she only provided citations to the record for two disputed facts.

The trial court determined that Ms. Cobb had admitted all of the facts asserted by
the County Defendants except for two. Because her response to the County Defendants‟
motion contained nine factual statements supported by citations to the record, the court
also considered whether those facts established a genuine issue that would preclude the
grant of summary judgment. After considering the evidence presented, the court granted
summary judgment to the County Defendants.

D. THE STATE‟S SUMMARY JUDGMENT MOTION

The State of Tennessee, Constance Baker, and Elizabeth Cook (collectively the
“State Defendants”) filed a motion for summary judgment on May 20, 2013. To support
their motion, the State Defendants relied upon the filings of the County Defendants,
including the County Defendants‟ statement of undisputed material facts.

For her part, Ms. Cobb adopted the materials she had previously filed in response
to the County Defendants‟ motion and filed her own affidavit as well as the affidavits of
three co-workers. Ms. Cobb also filed another response to the County Defendants‟
statement of undisputed material facts.
5
 Before the motion was argued, Ms. Cobb sent a letter to the trial court, without the
knowledge of her attorney, explaining that the State Defendants had not responded to her
discovery requests. In the letter, Ms. Cobb asked the court to deny the summary
judgment motion and compel the State Defendants to respond to discovery.

The trial court denied the State Defendants‟ motion because it was not properly
supported as required by Rule 56 of the Tennessee Rules of Civil Procedure. Thereafter,
the State Defendants filed a new, properly supported, motion for summary judgment.

Ms. Cobb responded to the State Defendants‟ second motion and to their statement
of undisputed material facts. She denied four of the facts asserted by the State
Defendants but did not support her denials with citations to the record. The court
determined that three of the facts that Ms. Cobb denied were properly supported by the
State Defendants‟ citations and were therefore undisputed.

After considering the evidence, the court granted the State Defendants‟ motion for
summary judgment on May 23, 2014. In granting both motions for summary judgment,
the court determined that the defendants had negated an essential element of Ms. Cobb‟s
claims for reverse discrimination and hostile work environment. Specifically, the court
held as follows:

The Court finds the Defendants have negated an essential element of the
Plaintiff‟s reverse discrimination claim, i.e. that there was racially
motivated conduct that constituted an unreasonably abusive or offensive
work-related environment or adversely affected the reasonable employee‟s
ability to do her job. The burden of production shifted to Plaintiff to show
that there is a disputed issue of material fact as to whether there was
conduct that was sufficiently severe or pervasive to alter the conditions of
her employment and create an abusive working environment. Plaintiff has
failed to show there are such disputed material facts. Plaintiff was never
disciplined, demoted, or transferred. Plaintiff does not know if any other
PHOAs were disciplined or docked time when they were late or whether
they were excused in advance. The question and answers on page 61 best
summarize the proof before the Court on summary judgment. When
Ms. Cobb was asked in regards to alleged policy violations by other
PHOAs: “How is that harassment or discrimination against you based on
race?” Ms. Cobb‟s answer was: “It‟s not based on race.” At most, she has
shown she did not approve of the way the Maury County Health
Department was operated.

6
 II. DISCUSSION

As we perceive the issues, Ms. Cobb has three main contentions on appeal: (1) the
trial court erred in dismissing her complaint with prejudice without addressing a claim of
retaliation; (2) the trial court erred in not granting a continuance for further discovery or
denying the motions for summary judgment under Rule 56.07 of the Tennessee Rules of
Civil Procedure; and (3) the trial court erred in granting summary judgment in light of
evidence of an adverse employment action and racially motivated workplace harassment.

A. CLAIMS BEFORE THE COURT

An order that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties is not a final judgment that is appealable as of right. See Tenn.
R. App. P. 3(a). But Rule 3(a) of the Tennessee Rules of Appellate Procedure permits
parties to appeal an order that does not adjudicate all of the claims, rights, and liabilities
of all parties if the trial court certifies its judgment as final under Rule 54.02 of the
Tennessee Rules of Civil Procedure. Id.

Ms. Cobb argues that the trial court erred in dismissing her amended complaint
with prejudice because the court‟s summary judgment orders did not address claims of
retaliation. In this case, the trial court did not certify its judgment as final under Rule
54.02, so in effect, Ms. Cobb claims that the she had no right to pursue this appeal and
that we lack subject matter jurisdiction. See Bayberry Assocs. v. Jones, 783 S.W.2d 553,
559 (Tenn. 1990) (“Unless an appeal from an interlocutory order is provided by the rules
or by statute, appellate courts have jurisdiction over final judgments only.”).

After reviewing the amended complaint, we conclude that Ms. Cobb did not raise
a retaliation claim and that the court‟s judgment was final. The amended complaint did
not allege or even mention the word “retaliation,” only that Ms. Cobb was discriminated
against because of her race and subjected to a hostile work environment. The claims are
distinct with different elements. See, e.g., Frye v. St. Thomas Health Servs., 227 S.W.3d
595, 602-613 (Tenn. Ct. App. 2007) (evaluating plaintiff‟s claims for hostile work
environment, age discrimination, and retaliation under the Tennessee Human Rights Act).
The amended complaint goes on to allege that “[t]he defendants [sic] conduct violates the
Tennessee Human Rights Act 4-21-101 et seq.”

Ms. Cobb‟s general reference to the Tennessee Human Rights Act (“THRA”) is
insufficient to articulate a claim for retaliation. The THRA is a “comprehensive anti-
discrimination statute,” enacted to “[s]afeguard all individuals within the state from
discrimination because of race, creed, color, religion, sex, age or national origin in
connection with employment.” Tenn. Code Ann. § 4-21-101(a)(3) (2015). The THRA
prohibits discrimination “against an individual with respect to compensation, terms,
conditions or privileges of employment because of such individual‟s race, creed, color,
7
religion, sex, age or national origin.” Id. § 4-21-401(a)(1) (2015); Goree v. United
Parcel Serv., Inc., 490 S.W.3d 413, 426 (Tenn. Ct. App. 2015). The Act also prohibits
retaliation “against a person because such person has opposed a practice declared
discriminatory by this chapter or because such person has made a charge, filed a
complaint, testified, assisted or participated in any manner in any investigation,
proceeding or hearing under this chapter.” Tenn. Code Ann. § 4-21-301(a)(1) (2015).

Because the THRA prohibits a broad range of actions, Ms. Cobb was required
either to cite the specific statutory provision violated or allege sufficient facts to put the
defendants and the court on notice that her claims included a claim for retaliation. Tenn.
R. Civ. P. 8.05(1). Even under Tennessee‟s liberal notice pleading standard, the plaintiff
must state the “facts upon which a claim for relief is founded.” W & O Const. Co., Inc. v.
City of Smithville, 557 S.W.2d 920, 922 (Tenn. 1977); see also Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 427 (Tenn. 2011).

Ms. Cobb argues that she was excused from having to allege facts sufficient to
provide notice of a retaliation claim based on the continuing violation doctrine. We
disagree. The doctrine has no application in this context. “The continuing violation
doctrine essentially allows a plaintiff to bring a claim for discriminatory conduct that
occurs outside the limitations period if the discriminatory conduct is sufficiently related
to conduct occurring within the limitations period.” Booker v. The Boeing Co., 188
S.W.3d 639, 643 (Tenn. 2006). The focus is on the relationship between prior
discriminatory acts and the acts that occurred within the limitations period, not later ones.
See Frazier v. Heritage Fed. Bank for Sav., 955 S.W.2d 633, 637-38 (Tenn. Ct. App.
1997).

B. REQUEST FOR CONTINUANCE OR DENIAL UNDER RULE 56.07

Rule 56.07 of the Tennessee Rules of Civil Procedure is intended to prevent the
“premature grant of summary judgment” before sufficient time for discovery has elapsed.
Kenyon v. Handal, 122 S.W.3d 743, 753 n.7 (Tenn. Ct. App. 2003). Under this rule, the
non-moving party may respond to a summary judgment motion by filing an affidavit
explaining why that party cannot present material facts necessary to oppose the motion.
Tenn. R. Civ. P. 56.07. The court, in its discretion, may deny the pending motion, order a
continuance to permit further discovery, or “make such other order as is just.” Id.

In her brief, Ms. Cobb argues both that the trial court should have ordered the
State Defendants to comply with discovery before granting their motion for summary
judgment or that the trial court should have denied all motions for summary judgment
under Rule 56.07. As noted above, after the State Defendants filed their first motion for
summary judgment, Ms. Cobb sent a letter to the court complaining that the State
Defendants had not responded to her discovery requests and requesting that the motion be
denied.
8
 We find her arguments to be unavailing. To the extent that Ms. Cobb‟s letter
might be considered a request for a continuance or denial of the State Defendants‟ first
motion for summary judgment under Rule 56.07,5 no such request was made in response
to the second motion for summary judgment filed by the State Defendants. And,
tellingly, trial counsel made no mention of Ms. Cobb‟s letter, outstanding discovery, or
the need for a continuance at oral argument on the State Defendants‟ motion.

Second, even if Ms. Cobb‟s letter had been filed in response to the State
Defendants‟ second motion for summary judgment, the letter failed to explain how the
discovery propounded to the State Defendants or how additional discovery would have
assisted Ms. Cobb in responding to the motion for summary judgment. Her argument on
appeal is no more enlightening on this point. Over two years had elapsed between the
filing of the Ms. Cobb‟s complaint and the State Defendants‟ first motion for summary
judgment; absent further explanation, this strikes us as a sufficient time period for
Ms. Cobb to obtain any information she required. Under these circumstances, we
conclude that the trial court acted within its discretion in ruling on the State Defendant‟s
motion for summary judgment. See Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d
382, 401 (Tenn. Ct. App. 2009) (reviewing the denial of a continuance based on whether
the requested discovery would have assisted the non-moving party in responding to the
motion for summary judgment).

C. THE GRANT OF SUMMARY JUDGMENT

Summary judgment may be granted only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary
judgment has “the burden of persuading the court that no genuine and material factual
issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v.
Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, the
burden shifts to the nonmoving party to “demonstrate . . . that there is a genuine, material
fact dispute to warrant a trial.” Id.

In this case, the parties moving for summary judgment did not bear the burden of
proof at trial. The burden-shifting analysis to be employed by courts tasked with
deciding a motion for summary judgment in such situations is the same as that employed

5
A response to a motion for summary judgment under Rule 56.07 requires the filing of an
affidavit. Tenn. R. Civ. P. 56.07. Ms. Cobb‟s letter contained neither an oath nor a declaration made
under penalty of perjury. See Kenyon, 122 S.W.3d at 752 n.6 (explaining that an affidavit is a written
statement signed under oath); Tenn. R. Civ. P. 72 (“[A]n unsworn declaration made under penalty of
perjury may be filed in lieu of an affidavit . . . .”).

9
in the federal system. “[T]he moving party may satisfy its burden of production either (1)
by affirmatively negating an essential element of the nonmoving party‟s claim or (2) by
demonstrating that the nonmoving party‟s evidence at the summary judgment stage is
insufficient to establish the nonmoving party‟s claim or defense.” Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015), cert. denied, 136 S. Ct.
2452 (2016).6 Satisfying this burden requires more than a “conclusory assertion that
summary judgment is appropriate,” rather the movant must set forth specific material
facts as to which the movant contends there is no dispute. Id. If a motion for summary
judgment is properly supported, the nonmoving party must then come forward with
something more than the allegations or denials of her pleadings. Id. at 265.

Something more might include the nonmoving party pursuing one or more of the
following options:

(1) pointing to evidence overlooked or ignored by the moving party that
establishes a material factual dispute, (2) . . . rehabilitating the evidence
attacked in the moving party‟s papers, (3) . . . producing additional
evidence showing the existence of a genuine issue for trial, or (4)
submitting an affidavit explaining why further discovery is necessary . . . .

Byrd, 847 S.W.2d at 215 n.6 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331-34
(1986)); see also McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).
In pointing to evidence or rehabilitating the evidence or producing additional evidence,
however, the nonmoving party must include specific citations to the record. Tenn. R.
Civ. P. 56.03. The potential consequences of failing to do so are significant.

A trial court has the discretion to refuse to consider the factual contentions of a
party who fails to comply with Rule 56 even if those facts are ascertainable from the
record. Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App.
2001). Thus, the trial court may deem the facts asserted in the moving party‟s statement
of material undisputed facts admitted “in the absence of a statement controverting them
by the opposing party.” Holland v. City of Memphis, 125 S.W.3d 425, 428-29 (Tenn. Ct.
App. 2003).

6
We note, as did Ms. Cobb in her brief, that Rye did not address the continuing validity of either
Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010) or Kinsler v. Berkline, LLC, 320 S.W.3d 796
(Tenn. 2010). See Rye, 477 S.W.3d at 264 n.11. In Gossett and Kinsler, our Supreme Court “abandoned
the burden-shifting mechanics set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L.Ed.2d 668 (1973), for use at the summary judgment stage of employment discrimination and
retaliation cases . . . .” Id. at 260. As discussed more fully below, because of the concessions and
admissions made by Ms. Cobb in response to the motions for summary judgment and her failure to
comply with Rule 56, the distinction between the burden-shifting analysis for employment discrimination
and retaliation cases pre- and post-Rye does not impact our analysis. We would reach the same result
applying Gossett and Kinsler or Rye.
10
 A trial court‟s decision on a motion for summary judgment enjoys no presumption
of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary
judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at
763. Accordingly, we must review the record de novo and make a fresh determination of
whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. Eadie
v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763.

1. Reverse Racial Discrimination

With the foregoing in mind, we must determine whether Ms. Cobb could establish
a prima facie case of reverse racial discrimination. “To establish a prima facie claim of
discrimination, a plaintiff must show that (1) she is a member of a protected class; (2) she
was qualified for the job; (3) she suffered an adverse employment action; and (4) she was
treated differently than similarly situated employees outside of her protected class.”
Hawthorne v. Univ. of Tennessee Health Sci. Ctr., 203 F. Supp. 3d 886, 891 (E.D. Tenn.
2016); see also White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008).7 In
a case involving allegations of reverse racial discrimination, the first element must be met
with proof of “background circumstances” indicating that the defendant employer is the
“unusual employer who discriminates against the majority.” Murray v. Thistledown
Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (quoting Parker v. Baltimore and Ohio
R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981)).

Both sets of defendants moved for summary judgment on the ground that
Ms. Cobb had not suffered an adverse employment action. Proof of an adverse
employment action is necessary “[t]o avoid lawsuits based on „trivial workplace
dissatisfactions.‟” Regnier v. Metro. Gov’t of Nashville, No. M2004-00351-COA-R3-
CV, 2006 WL 1328937, at *8 (Tenn. Ct. App. May 11, 2006) (quoting White v.
Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 795 (6th Cir. 2004)). Our
Supreme Court has defined an adverse employment action as a “material and adverse
change in the terms and conditions of employment.” Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 707 (Tenn. 2000) abrogated on other grounds by Gossett v. Tractor
Supply Co., 320 S.W.3d 777 (Tenn. 2010); see also Frye, 227 S.W.3d at 610. Possible
adverse employment actions include “termination of employment; demotion evidenced
by a decrease in wage or salary, by a less distinguished title, or by a material loss of

7
Because the THRA was enacted to “[p]rovide for execution within Tennessee of the policies
embodied” in federal civil rights laws, Tennessee courts consider federal case law as guidance when
analyzing a THRA claim. Tenn. Code Ann. § 4-21-101(a)(1); Ferguson v. Middle Tennessee State Univ.,
451 S.W.3d 375, 380-81 (Tenn. 2014); Weber v. Moses, 938 S.W.2d 387, 390 (Tenn. 1996).

11
employment benefits; or a significant reduction of material responsibilities.” Barnes, 48
S.W.3d at 707.

Ms. Cobb admitted that her pay or benefits were never reduced, she was never
demoted, and there were no negative changes to her job position or duties because of
retaliation, harassment, or racial discrimination. On appeal, Ms. Cobb argues that the
termination of her employment after her deposition was the adverse employment action.
While it would appear obvious that termination is a “material and adverse change in the
terms and conditions of employment,” her attorney conceded in the trial court that her
termination was not a relevant adverse employment action.

Defendants asserted, and Ms. Cobb admitted, that it was undisputed that Ms. Cobb
was terminated solely because of HIPAA violations.8 If there was any confusion, Ms.
Cobb‟s attorney clarified the point during oral argument on the State Defendants‟ motion
for summary judgment. He acknowledged that he could not argue that the “firing was
part of this discrimination.”9 Instead, he argued that Ms. Cobb had met the requirement
of showing an adverse employment action through proof that Ms. Cobb “was not able to
simply do her job when she wanted to and not do her job as she observed Edna
Hernandez and Keybra Martin being allowed to do.” Such complaints amount to “trivial
workplace dissatisfactions,” not “material and adverse change[s] in the terms and
conditions of employment.” Barnes, 48 S.W.3d at 707; Regnier, 2006 WL 1328937, at
*8.

We conclude, therefore, that the trial court properly granted defendants summary
judgment on her reverse racial discrimination claim. By admitting or conceding that her
termination was not an adverse employment action, she could show nothing more than
trivial workplace dissatisfactions.

8
The County Defendants asserted that it was undisputed that “the Plaintiff was terminated for
violations of HIPAA during her employment, the most recent violation after receiving written warning
that failure to follow the applicable policy could result in dismissal. This was the sole reason for her
termination.” Plaintiff responded: “The Plaintiff would admit that the warning letter contains the
information set forth in the question.” When the State Defendants made the identical assertion in their
statement of undisputed material facts, Plaintiff admitted the statement was undisputed but claimed it was
irrelevant.
9
Ms. Cobb‟s counsel explained to the court:

The HIPAA stuff, Your Honor, has not been made part of this lawsuit with the exception
that it was Ms. Cobb‟s attempt to showing the discrimination, itself. All of the actions
that happened after that point, Your Honor, I would argue are irrelevant to the case that
we have at hand. We can‟t argue that the firing was part of this discrimination except as
it went to Ms. Cobb‟s attempts to protect her position.
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2. Hostile Work Environment

Finally, we consider whether Ms. Cobb demonstrated a genuine material factual
dispute with regard to her hostile work environment claim. To establish a prima facie
case, she was required to prove: “(1) membership in a protected class; (2) racially
motivated conduct that constituted an unreasonably abusive or offensive work-related
environment or adversely affected the reasonable employee‟s ability to do his or her job;
and (3) the employer knew or should have known of the harassment and failed to respond
with prompt and appropriate corrective action.” Campbell v. Florida Steel Corp., 919
S.W.2d 26, 31-32 (Tenn. 1996).

Our focus is on the second element. To satisfy that element, Ms. Cobb must show
racially motivated conduct that unreasonably interfered with her work performance or
created an “intimidating, hostile, or offensive working environment.” Id. at 31 (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Although the absence of
racially derogatory conduct does not bar a racial harassment claim, the plaintiff must
show discriminatory conduct based on race. Campbell, 919 S.W. 2d at 32. “The key
inquiry is whether an employee, or a group of employees, of one race has been subjected
to disadvantageous terms or conditions of employment to which members of another race
are not exposed.” Id.

The conduct at issue must be both subjectively and objectively hostile or abusive.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); see also Campbell, 919 S.W.2d at
31. The “objective severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff‟s position, considering „all the circumstances.‟” Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at
23)). “While no single factor is required or conclusive, considerations relevant to the
determination include, but are not limited to, the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; whether it unreasonably interferes with an employee‟s work performance; and
the employee‟s psychological well-being.” Campbell, 919 S.W.2d at 32. Thus, courts
must use “common sense, and an appropriate sensitivity to social context,” to ascertain
whether a reasonable person in the plaintiff‟s position would find the workplace
environment abusive. Oncale, 523 U.S. at 82.

Ms. Cobb contends that the trial court erred in finding that she could not establish
that the conduct at issue was based on race or that the alleged harassment was sufficiently
severe or pervasive to create an abusive environment.10 Ms. Cobb, however, conceded in

10
Because Ms. Cobb conceded that the alleged workplace harassment was not based on race, we
need not consider the severity of her work environment. Even if we were to consider her argument, we
note that, once again, she failed to bring the evidence upon which she relies on appeal to the attention of
the trial court.
13
the trial court that her harassment was not based on race. See Frye, 227 S.W.3d at 603
(“If there is harassment in the work place, the burden is on the plaintiff to establish that
such harassment is based upon one‟s age, race, sex or other protected class characteristic
that is prohibited by the civil rights statutes.”).

In support of their motion for summary judgment, the State Defendants asserted
that it was undisputed that the alleged hostile work environment was not racially
motivated, citing Ms. Cobb‟s admission in her deposition.11 In response, Ms. Cobb
simply denied the assertion with no citation to the record. Based on her response, the
trial court deemed the asserted fact undisputed.

Ms. Cobb now claims that her testimony was taken out of context and other
portions of her deposition support her claim that the harassment was based on race. But
Ms. Cobb neglected to bring this deposition testimony to the attention of the trial court in
response to the motions for summary judgment.12 Belatedly, when the State‟s motion
was argued, Ms. Cobb‟s attorney asked the court to consider her deposition testimony but
failed to direct the court to any specific testimony which he contended created a material
factual dispute.

The trial court did not abuse its discretion in refusing to consider unspecified
testimony in Ms. Cobb‟s deposition offered on the day the motion was argued. See
Owens, 77 S.W.3d at 774. And, under these circumstances, the trial court did not err in
deeming the facts asserted in the defendants‟ statements of material undisputed facts
admitted. When faced with properly supported motions for summary judgment,
Ms. Cobb simply failed to demonstrate a material factual dispute “by specific citation to
the record.” Tenn. R. Civ. P. 56.03. The only proof before the court was Ms. Cobb‟s
admission that the hostile work environment was not based on race.

We conclude that the trial court properly granted the defendants summary
judgment on her hostile work environment claim. Ms. Cobb could not establish an
essential element of her claim. See Freeman v. Lewisburg Hous. Auth., No. M2006-

11
The State Defendants relied on this testimony from Ms. Cobb:

Q. How is that harassment or discrimination against you based on race?

A. It‟s not based on race.
12
In support of their motion for summary judgment, the County Defendants argued that the
alleged harassment was not based on race by relying on Ms. Cobb‟s admission that she had never heard
any derogatory racial comments in the workplace. In response, Ms. Cobb argued that the harassment was
based on race but also cited to the pages in her deposition in which she conceded that the harassment was
not based on race.
14
01898-COA-R3-CV, 2008 WL 360607, at *6 (Tenn. Ct. App. Feb. 8, 2008) (affirming
the grant of summary judgment to the defendant because the plaintiff failed to show that
the hostile work environment was based on race); see also Cartwright v. Jackson Capital,
No. W2011-00570-COA-R3-CV, 2012 WL 1997803, at *11 n.9 (Tenn. Ct. App. June 5,
2012) (affirming grant of summary judgment when material facts cited on appeal were
not brought to the attention of the trial court).

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court granting
summary judgment to both sets of defendants and dismissing the plaintiff‟s amended
complaint with prejudice.

_________________________________
W. NEAL MCBRAYER, JUDGE

15