Opinion
C.A. No. 01A01-9602-CH-00089.
September 13, 1996.
From the Wilson County Chancery Court, the Honorable C. K. Smith, Chancellor, Wilson Chancery No. 9325.
W. Gary Blackburn, Blackburn, Slobey, Freeman Happell of Nashville, For Appellants.
Margaret L. Behm, Anne C. Martin, Dodson Parker Behm of Nashville, For Appellee.
VACATED IN PART, AFFIRMED IN PART AND REMANDED
Opinion filed:
This case involves the Tennessee open meetings law and the Tennessee handicap discrimination law. Plaintiff, Edna Forbes, alleges that defendants, Wilson County Emergency Communication District 911 Board and W.J. McCluskey, Chairman, violated the Tennessee Handicap Discrimination Act and the Tennessee open meetings act. After a jury trial with the use of special interrogatories, the court entered an order on the jury verdicts which found violations of both acts and awarded plaintiff $65,975.00 in back pay, $38,675.00 in front pay, $250,000.00 in damages for humiliation and embarrassment, and $50,000.00 for punitive damages. The court also awarded plaintiff's attorney $50,000.00 in fees and $6,455.00 in expenses. Defendants thereafter perfected the present appeal.
The jury awarded plaintiff back pay of $65,975 for both the Open Meetings Act violation and the violation of the Tennessee Human Rights Act.
Awards of attorney fees are provided for in the Tennessee Human Rights Act, T.C.A. § 4-21-306(a)(7) (1995).
Edna Forbes was hired by the Wilson County Emergency Communication District 911 Board (911 Board or Board) on May 8, 1991 as the first Public Safety Answering Point Supervisor for the newly created Board. Prior to accepting a position as supervisor, Ms. Forbes served on the Board itself, helping to establish the new 911 District.
On March 22, 1993, after several months of discomfort, Ms. Forbes met with her physician, who confirmed that she had colon cancer and scheduled her to enter the hospital on March 24, 1993. Ms. Forbes spent the next two days preparing her office for what she anticipated would be a six to eight week absence. Among other things, Ms. Forbes asked her son-in-law, John Lauderman, to come in to assist her with imputing computer information. Ms. Forbes also asked Mr. Lauderman to assist in the office until the relief supervisor, Dot Reynolds, could be available for work.
On March 23, 1993, Ms. Forbes called W.J. McCluskey, chairman of the 911 Board, to inform him that she had been scheduled for emergency surgery, and that she would be out for six to eight weeks. According to Ms. Forbes, Mr. McCluskey yelled at her when she said she would be out of the office, and told her she would be getting herself into trouble. Ms. Forbes wrote the other 911 Board members to inform them of her absence.
Ms. Forbes recovered from her surgery and was told by her doctors that she could return to work on May 11, 1993. A few days prior to that date, Ms. Forbes informed the county attorney, Michael Jennings, that she would be returning to work. Ms. Forbes testified that, during her entire absence, no one from the 911 Board called her regarding her job duties.
Ms. Forbes alleged, and the jury found, that the 911 Board made its decision to demote Ms. Forbes not at its regularly scheduled open meeting on May 10, 1993, but at a meeting of the Personnel Policy Committee several days earlier which was closed to the public. At the closed meeting, Mr. McCluskey presented a list of his concerns regarding Ms. Forbes' job performance. Ms. Forbes testified that, prior to her demotion, Mr. McCluskey had only discussed one of the fifteen items, a travel voucher, with her. Furthermore, the members of the Personnel Policy Committee testified at trial that they had no independent knowledge of Ms. Forbes's job performance prior to the private meeting. Ms. Forbes was not contacted regarding any of the accusations leveled by Mr. McCluskey at the Personnel Policy Committee meeting. At the next regularly scheduled meeting of the Board, May 10, 1993, the Board voted, without discussion, to demote Ms. Forbes from the position of full-time supervisor to that of part-time operator. Ms. Forbes learned of the Board's decision by way of certified letter.
The jury found that as a result of her demotion, Ms. Forbes suffered a physical relapse, embarrassment, stress, and lack of sleep. Ms. Forbes testified that, following her demotion, she was never contacted by the 911 Board to work in any capacity, including that of a part-time operator.
Appellants present eight issues for review; however, we perceive the dispositive issue to be whether the defendant-appellant violated the open meetings law.
The legislature has declared that it is the policy of this state that "the formation of public policy and decisions is public business and shall not be conducted in secret." T.C.A. § 8-44-101 (a) (1993).
T.C.A. § 8-44-102 provides, as pertinent to the issues before us:
8-44-102. Open meetings — "Governing body" defined — "Meeting" defined. — (a) All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee.
(b)(1) "Governing body" means: (A) The members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration . . . .
* * *
(C)(b)(2) "Meeting" means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.
(c) Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting. No such chance meetings, information assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part.
Public notice must be given of all regular or special meetings of a governmental body. T.C.A. § 8-44-103. Secret votes are prohibited, and minutes of the meeting are required. T.C.A. § 8-44-104.
T.C.A. § 8-44-105 provides in pertinent part:
8-44-105. Action nullified — Exception. — Any action taken at a meeting in violation of this part shall be void and of no effect . . . .
At the close of proof, the trial court submitted a special interrogatory form to the jury. In response to the question "Do you find that the 911 board made a decision or deliberated toward a decision without notice to the public," the jury answered "yes." The scope of our review of findings of fact by the jury is whether there is any material evidence to support the verdict. T.R.A.P. 13 (d).
The trial court also, in compliance with T.C.A. § 8-44-106 (b), made the following findings of fact and conclusions of law:
1. The parties have stipulated that no notice was given to the public of the Personnel Policy Committee meeting which occurred a few days before the May 10, 1993 911 Board meeting.
2. Five (5) members of the 911 Board attended the Personnel Policy Committee meeting, and five (5) members constitute a quorum for the 911 Board. T.C.A. § 7-76-105(f). Those members were Mr. McCluskey, Mr. Purnell, Mr. Davis, Mr. Carpenter, and Mr. Wharton.
3. Mr. McCluskey, Chair of the 911 Board, asked the committee chair to call the meeting; therefore, this was not a chance meeting or informal assemblage.
4. Mr. Davis arranged for the committee to meet at the First United Methodist Church in Wilson County. All prior committee meetings had been held at the 911 office on East Main Street in Lebanon.
5. At the outset of the meeting, the committee chair stated that no business was to be conducted at the meeting. However, that does not mean that no business was conducted, for that was the whole purpose of the meeting.
6. Mr. McCluskey had prepared a list of grievances of problems he had with Ms. Forbes. He had requested that the meeting be called for the purpose of discussing what to do with Ms. Forbes. At the meeting, the five (5) 911 Board members discussed that list, deliberating toward a decision to demote her.
7. Although the 911 Board members claim that there was no vote taken at the Personnel Policy Committee meeting, there was deliberation towards a decision based upon Mr. Wharton's testimony and the actions of the 911 Board at its subsequent meeting. At the subsequent 911 Board meeting on May 10, 1993, the 911 Board members decided, without any prior deliberation or any discussion with Ms. Forbes, to demote Ms. Forbes. This May 10, 1993 demotion of Ms. Forbes was an announcement of a decision made at the Personnel Policy Committee meeting a few nights before May 10, 1993.
8. The Personnel Policy Committee did not make a report to the full 911 Board at the May 10, 1993 scheduled meeting regarding its recent meeting.
9. At the May 10, 1993, 911 Board meeting, Mr. Carpenter, a member of the Personnel Policy Committee, made the motion to demote Ms. Forbes, and Mr. Davis seconded it.
10. The 911 Board's decision to demote Ms. Forbes, without discussion, at the May 10, 1993 911 Board meeting violated the Open Meetings Act because the Board deliberated towards that decision at a previous meeting not open to the public. T.C.A. § 8-44-101 et seq.; State of Tennessee v. Town of Kingston Springs, 19 Tam 40-15 (Tenn.App. 1993).
11. The May 10, 1993 decision to demote Ms. Forbes is void and of no effect. Tennessee Open Meetings Act, T.C.A. § 8-44-105.
Our review of findings of fact by the trial court in civil actions is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).
Appellants assert that the open meetings act is not applicable in the instant case because the Personnel Policy Committee is not a governing body, the committee did not have any authority to make any decision about plaintiff's job, and, regardless, no deliberations occurred at the Personnel Policy Committee meeting.
In Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976), our Supreme Court, commenting on what constitutes a governing body under T.C.A. § 8-44-102 (b)(1), said:
It is clear that for the purpose of this Act, the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector.
Based on Dorrier, we find that the Personnel Policy Committee was a "governing body" as contemplated by T.C.A. § 8-44-102(b)(1). Moreover, there is material evidence in the record to support the verdict of the jury that the 911 board, through the Personnel Policy Committee, not only had the authority to make a decision about plaintiff's job, but did, in fact, make a decision or deliberate toward a decision regarding plaintiff's employment at a scheduled, private meeting, held without notice to the public. The evidence does not preponderate against the trial court's findings that the discussions which were held at that meeting culminated in a motion at the subsequent 911 Board meeting to demote Mrs. Forbes. Finally, the personnel policy committee maintained no minutes of its meeting, as required by T.C.A. § 8-44-103. Accordingly, the record supports a finding that the open meetings act was violated and thus, that the action of the 911 Board is "void and of no effect." T.C.A. § 8-44-105. Since the board's action is void, plaintiff has not been demoted and is reinstated to her position as supervisor. Because there was no demotion, plaintiff has not been discriminated against "in the hiring, firing and other terms and conditions of employment," T.C.A. § 8-50-103(a), and thus has no cause of action under the handicap discrimination laws.
For the reasons stated herein, the judgment of the trial court holding defendants liable for violation of the handicap discrimination statute is vacated. The judgment of the trial court holding that defendants violated the open meetings act is affirmed, and plaintiff's purported demotion is void and of no effect. The case is remanded to the trial court for such further proceedings as may be necessary to determine proper compensation due plaintiff from May 10, 1993. The trial court should also take such additional steps as are necessary to comply with the provisions of T.C.A. § 8-44-106. Costs of the appeal are assessed against the appellants.
I write separately to concur in part with the majority's Opinion, and to dissent in part.
I concur with the majority's holding that the record supports a finding that the Open Meetings Act was violated and that the remedy under Tenn. Code Ann. § 8-44-105 is to declare the demotion of the plaintiff "void and of no effect." However, I dissent from the majority's holding that this precludes the plaintiff from recovering damages under Tennessee's handicap discrimination statute, Tenn. Code Ann. § 8-50-103. Consequently, I would address issues raised by appellant under the discrimination statutes, including whether the facts are sufficient to support a finding that the plaintiff was "handicapped" and whether punitive damages are recoverable under the applicable Tennessee statutes.
Because the demotion of the plaintiff is declared "void and of no effect" under the Open Meeting Act, the majority concludes that there was no demotion and therefore no act occurred upon which a claim of discrimination could be predicated. This case presents a unique situation, and the case law is sparse on whether an employment claim may be based on an act that is later declared void under another statute. There is no Tennessee case law on point, and little case law elsewhere. In Miller v. United States, 717 F.2d 109 (3d Cir. 1983), a civilian Army employee was appointed to a position, and it was later determined that he was overqualified for the position. Id. at 110-11. His appointment was declared void ab initio, and his employment was terminated. Id. at 111. He sought to appeal the discharge to the Merit Systems Protection Board. Id. The Board ruled that, because the plaintiff's employment had been ruled void, he could not appeal the termination. Id. On appeal to the Third Circuit Court of Appeals, the Army argued that because the plaintiff's appointment was never valid, the termination of his employment did not constitute an "adverse action." Id. at 112. The Court rejected this argument, noting that the plaintiff had been working in the position for two years when the Army told him he no longer had a job. Id. The Court stated: "It is hard for us to imagine action against an individual that could be more `adverse.'" Id. at 113.
Tennessee law is unclear on whether a void act may be the predicate for a claim. In Adams v. Tennessee Farmers Mutual Insurance Co., 898 S.W.2d 216 (Tenn.App. 1994), even though an insurance policy was void ab initio, the insurer could nevertheless sue the insured for a bad faith claim. But see, e.g. Coulter v. Hendricks, 918 S.W.2d 424 (Tenn.App. 1995) (the effect of a void marriage).
In this case, the issue is whether the demotion later declared void is nevertheless an adverse employment action under Tennessee's handicap discrimination statute. In Howze v. Virginia Polytechnic, 901 F. Supp. 1091 (W.D.Va. 1995), the district court held that when a university final review panel reversed a prior termination decision of a lower review panel, there was no adverse employment action on which plaintiff could base a retaliatory discrimination claim under Title VII. Id. at 1096-97. The court reasoned that "[o]nly the final decision is the ultimate act," finding that no legal effect resulted from the initial actions. Id at 1097; see Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (holding that "there are many interlocutory or mediate decisions having no immediate effect upon employment conditions" under Title VII), cert. denied, 454 U.S. 892 (1981).
Unlike an interim employment action which is later reconsidered and reversed by the employer, in this case the decision to demote the plaintiff was final from the employer's standpoint. The plaintiff was required to file a lawsuit to obtain relief. While the Open Meetings Act employs the legal fiction of later declaring the action "void" as though it never happened, to the plaintiff it actually happened, and the humiliation and embarrassment on which the jury awarded damages was certainly real. I would find that the demotion, though void under the Open Meetings Act, can nevertheless be the basis for a claim under Tennessee's handicap discrimination statute. However, the remedy of front pay would not be available since the Open Meetings Act mandates that the action in question be declared void, and the plaintiff must be returned to her original job position.
Consequently, I would reach the issues presented by the parties with respect to the Tennessee handicap discrimination statutes. First, the employer argues that the plaintiff's condition, colon cancer, is not a "handicap" within the meaning of the statute. Under the definition of "handicap" contained in Tenn. Code Ann. § 4-21-102 (9) and under the comparable federal statutes, the Rehabilitation Act of 1973, 29 U.S.C. § 701-794 (West 1988), and the Americans with Disabilities Act, 42 U.S.C. § 12101-12213 (Supp. 1996), cancer is clearly a handicap. See 28 C.F.R. § 41.31(b)(1) (1996); 28 C.F.R. § 36.104 (1996) and 49 C.F.R. § 37.3 (1996). Therefore, this argument is without merit.
The employer also asserts that the jury's award of $250,000 for humiliation and embarrassment is excessive. In this case, the jury rejected the plaintiff's contention that the demotion from a supervisory position was because of her cancer. The jury concluded that the decision to place the plaintiff in a part-time position instead of a full-time position was motivated by her cancer, and there is sufficient evidence in the record to support this finding. However, the award of $250,000 for compensatory damages for humiliation and embarrassment seems excessive, since the damages are only for the decision to place the plaintiff in a part-time, rather than full-time, position.
Finally, the employer argues that punitive damages are unavailable to the plaintiff under the applicable statutes. The plaintiff cites Hodges v. S.C. Toof Co., 833 S.W.2d 896 (Tenn. 1992) and Wood v. Emerson Electric Co., No. 01-A-01-9310-CH0067, 1994 WL 716270 (Tenn.App. Aug. 12, 1994), as establishing that punitive damages may be awarded in this case. However, Hodges is inapplicable since it holds that punitive damages are available in a retaliatory discharge action because the plaintiff may recover the damages for the common law tort as well as the statutory violation. In this case, a claim for handicap discrimination is a creature of statute only, and the damages available must be determined by reference to the applicable statutes.
Wood v. Emerson Electric Co. also does not address the issue presented in this case. In Wood, the Court affirmed the trial court's grant of the defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages, and found that the evidence did not support an award of punitive damages. The court did not address whether punitive damages were available under the statutes.
Tennessee's handicap discrimination statute, Tenn. Code Ann. § 8-50-103, expressly incorporates the rights and remedies provided in Tenn. Code Ann. §§ 4-21-302 through 311. See Tenn. Code Ann. § 8-50-103(b)(2). The pertinent statutes do not provide for punitive damages. See Tenn. Code Ann. § 4-21-306(7) and (8) and § 4-21-311. This was noted by this court in Taff v. Media General Broadcast Services, Inc., No. 32, 1986 WL 12240, 11 T.A.M. 52-1 (Tenn.App. Nov. 03, 1986) and Gifford v. Premier Manufacturing Corp., No. 18, 1989 WL 85752, 14 T.A.M. 36-2 (Tenn.App. Aug. 01, 1989). Recent changes to Tenn. Code Ann. § 4-21-311 support this conclusion. The statute now provides specifically that a plaintiff in a case involving discriminatory housing practices may recover punitive damages; however, punitive damages in other cases are still not mentioned. Tenn. Code Ann. § 4-21-311 (Supp. 1995). As stated in Taff, "if the Legislature intended to provide for some form of punishment the Act would have done so specifically." Taff, 11 T.A.M. 52-1, at p. 9. Consequently, I would reverse the award of punitive damages.
In sum, I concur with the majority's analysis of the Open Meetings Act and the conclusion that the employer's demotion of the plaintiff must be declared void under the Act. I dissent from the majority's conclusion that the employer's action, later declared void, cannot be the basis for a claim under the Tennessee handicap discrimination statutes. Consequently, I would reach the issues presented under the handicap discrimination claim, and would affirm the trial court's holding that the plaintiff's condition is a "handicap" under the statutes, would reduce the award of compensatory damages for humiliation and embarrassment, and would reverse the trial court's determination that punitive damages are available under the applicable Tennessee discrimination statutes.
_______________________________________________ HOLLY KIRBY LILLARD, J.