APPELLATE COURT OPINIONS

The defendant, James David Creasy, was convicted of possession with intent to manufacture, deliver, or sell a schedule II drug (methamphetamine) and possession of drug paraphernalia. The trial court imposed an eight-year sentence for the possession of methamphetamine conviction and an eleven-month and twenty-nine day sentence for the possession of drug paraphernalia conviction. The Range II sentences were ordered to be served concurrently. In this appeal, the defendant asserts (1) that the evidence was insufficient to support the conviction for possession with intent to manufacture, deliver, or sell methamphetamine and (2) that the sentence is excessive. The judgments of the trial court are affirmed.

The petitioner, Brian Michael Newman, appeals the dismissal of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. A review of the record supports the findings of the post-conviction court. We affirm the denial of the petition.

This is an action for damages for alleged legal malpractice in the handling of a lawsuit in a federal district court. This case was dismissed on motion for summary judgment because the cause of action accrued more than one year before suit was filed. We affirm.

The Chief Deputy Sheriff was dismissed by the Sheriff of Hardin County. As Chief Deputy he was not a member of the classified service and served at the pleasure of the Sheriff. The judgment finding otherwise is reversed.

Plaintiff brought an action in the Chancery Court to pierce the corporate veil to reach assets of a member to satisfy a judgment against the corporation. The Chancellor refused the request and dismissed the action. On appeal, we affirm.

This case arises from the decision of the Shelby County Civil Service Merit Board to terminate the employment of Gail Pegues, a Shelby County Buyer-Program Specialist. The Shelby County Chancery Court upheld the decision of the Civil Service Merit Board to terminate Ms. Pegues employment. She appeals. We affirm.

I concur with Judge Cain’s decision to affirm the jury verdict in this case. Cases like this are fact-intensive, and thus care must be taken to avoid applying our decisions to dissimilar circumstances. I have prepared this separate opinion to emphasize the evidence upon which the jury’s verdict in this case is based. 

I.

Antoinette Regnier joined the Metropolitan Police Department in 1993. Five years later, in July 1998, she was promoted to sergeant and was selected for a prestigious assignment as an instructor at the Police Training Academy. Three months later, a female intern complained to Sergeant Regnier that Lieutenant Anthony Carter, Sergeant Regnier’s immediate superior, had sexually harassed her.¹ Sergeant Regnier herself had been the target of sexually suggestive remarks by Lieutenant Carter,² and she had also overheard Lieutenant Carter make similar inappropriate comments to other females at the Academy. 

Following Department policy, Sergeant Regnier reported Lieutenant Carter’s conduct to the Director of the Academy. The Director decided to handle the matter informally by calling a meeting of the entire staff to discuss sexual harassment issues and appropriate conduct on the job. Lieutenant Carter later apologized privately to Sergeant Regnier and publically apologized for his conduct at a staff meeting held several weeks later. 

Despite his outward contrition, Lieutenant Carter was extremely upset with Sergeant Regnier.  He berated her during a staff meeting in March 1999 and characterized her earlier sexual harassment Both Lieutenant Carter and Deputy Chief Faulkner were 1974 graduates from the Academy. They were close friends. In an October 1998 email, Lieutenant Carter told Deputy Chief Faulkner “Trust is earned, and I’ll never betray you. CLASS OF “74” A Friend to the end!!!!!!!!!!!!!!!!!!!!”  complaint as “bulls**t.”   Lieutenant Carter also decided to exploit his personal friendship with Deputy Chief of Police Deborah Faulkner3 to cause both Sergeant Regnier and the Academy’s Director to be transferred. His efforts bore fruit. Both the Director’s and Sergeant Regnier’s names were on the very next transfer list. 

Both the Director and Sergeant Regnier attempted to discuss their transfers with the Chief of Police, but he referred them to Deputy Chief Faulkner. Sergeant Regnier had received good performance ratings at the Academy. Deputy Chief Faulkner did not express concerns about Sergeant Regnier’s performance during their meeting, and she did not respond directly to Sergeant Regnier’s concern that her transfer stemmed from the sexual harassment complaint against Lieutenant Carter. Deputy Chief Faulkner told Sergeant Regnier that she was “very bright [and] highly educated” and that she would benefit from additional “street experience.” 

In the final analysis, both the Sergeant Regnier and the Director were transferred away from the Academy. Sergeant Regnier was initially assigned to the B-Detail, apparently to disrupt her law school schedule. Because she desired to complete law school, Sergeant Regnier requested and received an assignment to the midnight shift with few supervisory responsibilities. Deputy Chief Faulkner appointed Lieutenant Carter acting Director of the Academy and later named him the Director. In a November 1999 email to the Deputy Chief, Lieutenant Carter observed “[m]uch better around here since the removal of the last piece of CANCER.” 

II. 

The Tennessee Human Rights Act permits an employee to recover damages from his or her employer if the employer retaliates against him or her for complaining about discriminatory conduct in the workplace. Tenn. Code Ann. § 4-21-301(1) (2005). To be compensable, the retaliation must amount to an adverse employment action. Austin v. Shelby County Gov’t, 3 S.W.3d 474, 480 (Tenn. Ct. App. 1999); Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96 (Tenn. Ct. App. 1995). The
phrase “adverse employment action” is now a term of art in cases like this. The courts have defined it to encompass actions by employers that cause “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); see also Spann v. Abraham, 36 S.W.3d 452, 468 (Tenn. Ct. App. 1999). 

Not every employment action that makes an employee unhappy rises to the level of an adverse employment action. Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972 (7th Cir. 2001); Spann v. Abraham, 36 S.W.3d at 468. An employment action must be more disruptive than a mere inconvenience or an alteration of job responsibilities to be considered as an adverse employment action. Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).

Lateral transfers that do not involve a demotion in form or substance do not amount to adverse employment actions. Keeton v. Flying J, Inc., 429 F.3d 259, 273 (6th Cir. 2005); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Nor does a pure lateral transfer become an adverse employment action simply because the affected employee subjectively prefers one position over another. McKenzie v. Milwaukee County, 381 F.3d 619, 625 (7th Cir. 2004).  However, a transfer or reassignment without a change in salary may amount to an adverse employment action if it involves (1) a less distinguished title, (2) a material loss of benefits, (3) a significant change in work hours or location, (4) significantly different responsibilities, (5) a significant reduction in the employee’s career prospects by preventing the employee from using his or her skills or experience, or (6) other factors that are uniquely relevant to the particular situation.  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 2268-69 (1998); O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996); Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d at 707. 

III.

In order to prevail in this case, Sergeant Regnier was required to prove that a reasonable person in her position would have viewed her transfer from the Academy as an adverse employment action. Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998). Based on the facts of this case, I have concluded that she succeeded. Sergeant Regnier and her witnesses established that working as an instructor at the Academy was a prestigious position compared to other positions in the Department. The job is highly sought-after, and officers competed for the assignment.  Working at the Academy required more skills than other assignments in the Department.⁴ Sergeant Regnier’s patrol assignment involved significantly different work hours and a significantly different schedule, and her position at the Academy involved significantly more and different responsibilities than her patrol assignment. 

A court should grant a Tenn. R. Civ. P. 50.02 motion in accordance with the motion for directed verdict only when it finds that reasonable minds cannot differ with regard to the conclusions to be drawn from the evidence. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). Based on my review of the record, I concur with Judge Cain’s conclusions that the trial court properly denied the Metropolitan Government’s Tenn.  R. Civ. P. 50.02 motion and that the damages awarded by the jury are not excessive and are supported by the evidence.

¹The intern reported that Lieutenant Carter had shown her a suggestive picture of himself wearing a lime green bikini and had asked her whether she would like to “try riding this wild stallion.”

²Lieutenant Carter had called Sergeant Regnier a “lean mean sex machine” and had commented to her that “[y]our husband must be real proud of the way you look under those clothes.”

³ Both Lieutenant Carter and Deputy Chief Faulkner were 1974 graduates from the Academy. They were close friends. In an October 1998 email, Lieutenant Carter told Deputy Chief Faulkner “Trust is earned, and I’ll never betray you. CLASS OF “74” A Friend to the end!!!!!!!!!!!!!!!!!!!!”

⁴The fact that a position requires more qualifications is an indication of prestige. 4 White v. Burlington N. & Santa Fe Ry., 364 F.3d 789, 803 (6th Cir. 2004), cert granted, ___ U.S. ___, 126 S. Ct. 797 (2005). 

Police officer filed a sexual harassment retaliation claim under the THRA against the Metropolitan Government of Nashville and Davidson County as a result of her transfer from an instructor at the Police Training Academy to patrol duty. A jury found that Metro had engaged in retaliation in violation of the THRA and awarded Plaintiff $150,000 in damages in addition to $110,180.70 in costs and attorney’s fees. Metro filed a motion for judgment as a matter of law, new trial, or remittitur, which was denied by the trial court. Metro appeals claiming that Plaintiff failed to prove, as a matter of law, that her transfer was an “adverse employment action” as required by the THRA or in the alternative, that the amount of the award should be reduced. The judgment of the trial court is affirmed.

The appellant, Robert Edward Joffe, was indicted for assault, resisting arrest and two counts of disorderly conduct. After a jury trial, the appellant was convicted of assault, resisting arrest and one count of disorderly conduct. The trial court sentenced the appellant to eleven months and twenty-nine days for assault, six months for resisting arrest and thirty days for disorderly conduct. The trial court ordered the sentences to run concurrently and ordered that the appellant serve ninety days of the sentence in jail with the remainder of the sentence to be served on probation. The appellant appeals, arguing that the evidence was insufficient to justify the convictions and that the trial court erred in sentencing the appellant. Because the evidence was sufficient for a rational trier of fact to determine that the appellant committed the crimes as charged and because the trial court did not err in sentencing the appellant, we affirm the judgment of the trial court.

The appellant, Frank Randall Snowden, pled guilty in the Gibson County Circuit Court to a violation of the residency restriction for convicted sex offenders, a Class A misdemeanor. He received a sentence of eleven months and twenty-nine days, suspended. As a condition of his plea, the appellant attempted to reserve a certified question of law as to “whether [Tennessee Code Annotated section] 40-39-111 is constitutional under state and/or federal law and as applied to this [appellant].”  Upon review of the record and the parties’ briefs, we conclude that the appellant did not properly reserve his certified question, and, therefore, the appellant’s appeal must be dismissed.

The defendant, Artis Whitehead, appeals his convictions and sentencing on five counts of especially aggravated kidnapping (Class A felony); two counts of aggravated assault (Class C felony); two counts of aggravated robbery (Class B felony); two counts of especially aggravated robbery (Class A felony); and one count of attempted aggravated robbery (Class C felony). The consecutive sentences imposed totaled 249 years.

After the Board of County Commissioners for Shelby County passed the county’s 2003–2004 budget, the Trustee of Shelby County filed suit against the county mayor pursuant to section 8-20-101 et seq. of the Tennessee Code seeking additional personnel and funding for his department.  After entering into a settlement agreement with the county, the trustee filed a motion seeking to recover his attorney’s fees at a rate of $250 per hour. The county asserted that such fees were capped at $100 per hour pursuant to a budget resolution passed by the Board of County Commissioners. The trial court entered an order awarding the trustee his attorney’s fees at a rate of $250 per hour pursuant to section 8-20-107 of the Tennessee Code. The county appealed arguing that the trial court did not have the discretion to award attorney’s fees in excess of the $100 per hour limit placed on such fees by the county legislative body. We affirm the decision of the trial court.

In this inverse condemnation action, the jury returned a verdict for the plaintiff which was approved by the Trial Court after a slight reduction in the amount. The State appealed and we affirm.

After delinquent property taxes accumulated on certain real property, the city and county pursued a tax sale of the subject property. The defendant purchased the property at the tax sale and received a deed from the clerk of the chancery court. After the one-year redemption period expired, the plaintiffs filed suit against various individuals and entities, including the present owner of the property and the county, seeking to rescind the sale. Specifically, the plaintiffs alleged that they were not provided with notice of the sale. The county subsequently conceded that it did not provide notice of the sale to the plaintiffs. The plaintiffs filed a motion for summary judgment. The present owner did not file an answer to the complaint and did not respond to the motion for summary judgment.  After the trial court granted summary judgment to the plaintiffs, the present owner of the property filed a motion pursuant to Tennessee Rule of Civil Procedure 59.04 asking the trial court to set aside the order granting summary judgment. In her motion, the present owner sought to introduce evidence related to her claim that she was entitled to reimbursement for the approximately $68,000 spent improving the property. The trial court denied the motion, and the present owner appealed to this Court. We affirm the decisions of the chancery court in all respects. Moreover, we find this appeal to be so devoid of merit as to warrant the imposition of damages for the filing of a frivolous
appeal.

The Petitioner, George H. Ross, III, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

This is the second appeal of this probate case in which this Court is asked to determine whether the Appellant’s claim against the decedent’s estate should be treated as a verified claim under the Claims Act, T.C.A. §30-2-306 et seq., as the trial court found, and controlled by the authorities therein, and then to determine the priority of Appellant’s claim as against the Internal Revenue Service/Appellee’s claim against the estate for decedent’s unpaid taxes. We find that Appellant’s claim is a verified claim against the estate and, as such, is subject to the Claims Act.  Pursuant to both the Claims Act, T.C.A. §30-2-317, and the Federal Insolvency Act 31 U.S.C. §3713, the IRS’s claim is prime. Affirmed.

Pursuant to an open plea agreement, as provided by Tenn. R. Crim. P. 11(e)(1)(B), the Appellant, Crystal Antonette Delaney, aka Crystal Ward, pled guilty to identity theft, a Class D felony, and theft of property, a Class C felony. Following the guilty plea hearing, the Fayette County Circuit Court sentenced Delaney, as a Range III persistent offender, to ten years for the identify theft and twelve years for the theft of property. The court further ordered that the two sentences were to be served concurrently to each other but consecutively to an effective twelve-year sentence imposed in a separate Lauderdale County case. On appeal, Delaney contends that the trial court failed to properly consider and follow the sentencing guidelines and raises the following issues for our review: (1) whether the sentences imposed are excessive; and (2) whether the court erred in ordering that the sentences be served consecutively to her Lauderdale County sentence. Because the trial court failed to conduct a sentencing hearing as  contemplated by our sentencing statutes, the record contains no findings of fact with regard to sentencing enhancement factors or the trial court’s reasons for imposing consecutive sentences. As such, we are unable to conduct a de novo review of the sentences imposed and, accordingly, remand the case to the Fayette County Circuit Court for a sentencing hearing and for written findings of fact and imposition of sentences in accordance with statutory law.

The Appellant, Spencer Peterson, appeals the sentencing decision of the Shelby County Criminal Court. After a jury trial, Peterson was convicted of three counts of second degree murder, two counts of attempted second degree murder, eight counts of aggravated robbery, one count of aggravated burglary, three counts of attempted especially aggravated robbery, and two counts of attempted aggravated robbery. The trial court merged the three second degree murder convictions and the separate convictions of aggravated robbery involving the same victim and sentenced Peterson as a Range I offender to consecutive terms of twenty years for the second degree murder conviction and eight years for each of the four aggravated robbery convictions. The trial court ordered concurrent sentences for the remaining convictions, resulting in an effective sentence of fifty-two years in the Department of Correction. Peterson appealed the imposition of consecutive sentences, and this court remanded the case to the trial court for purposes of setting forth its reasons for consecutive sentencing, as required by Tenn. R. Crim. P. 32(c)(1). On appeal, Peterson again argues that the trial court erred in imposing consecutive sentences. After review of the record, we affirm the trial court’s sentencing decision.

The Defendant, Darrell E. Pointer, pled guilty to two counts of aggravated robbery, and the trial court sentenced him, as a Range III offender, to twenty years in prison for each count to be served consecutively. On appeal, the Defendant contends that the trial court erred when it imposed consecutive sentences. Finding that there exists no reversible error, we affirm the judgments of the trial court.

The defendant, Marty Mitchell Clark, was convicted by a Madison County jury of aggravated burglary, a Class C felony, attempted aggravated burglary, a Class D felony, theft of property under $500, and vandalism under $500, both Class A misdemeanors. He was sentenced as a Range II, multiple offender to ten and eight years, respectively, for the felony counts and eleven months and twenty-nine days for each misdemeanor, with all sentences to be served concurrently for a total effective sentence of ten years in the Department of Correction. On appeal, he argues the evidence was insufficient to support his convictions. Finding no error, we affirm the judgments of the trial court.

The defendant, Jerry Phillip Haley, was convicted of aggravated burglary, theft over $1000, and assault. The trial court imposed Range II sentences of six years for the aggravated burglary, four years for the theft, and eleven months and twenty-nine days for the assault. The sentences were ordered to be served concurrently, for an effective sentence of six years. In this appeal, the defendant asserts (1) that the trial court erred by denying his motion for judgment of acquittal based on the insufficiency of the evidence and (2) that the trial court erred by failing to provide a jury instruction on facilitation of a felony. The judgments of the trial court are affirmed.

We granted these appeals to determine whether a post-conviction trial court has the authority to consider petitions that are filed by the Post-Conviction Defender but are not verified under oath or signed by the petitioners. In Holton v. State, the post-conviction trial court entered an order staying Holton’s execution, appointing counsel, and requiring Holton to meet with counsel and a court appointed mental health expert. In Reid v. State, the post-conviction trial court entered an order staying Reid’s execution, appointing counsel, and staying the post-conviction proceedings. In both cases, the Court of Criminal Appeals denied the State’s application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After reviewing the records and applicable authority, however, we conclude that the post-conviction trial courts did not have the authority to consider the petitions because they had not been signed or verified under oath and because the Post-Conviction Defender did not establish a proper basis to initiate the proceedings as “next friend.” Accordingly, the post-conviction trial courts’ orders are vacated, and the petitions are dismissed.

This appeal involves a challenge to the validity of an antenuptial agreement. Executors under the decedent’s Will filed a petition in the General Sessions Court of Madison County, Probate Division, to have Will admitted to probate. Decedent’s wife then filed a notice and petition for elective share, for specific property, year’s support, homestead, and expedited hearing. The Executors, also beneficiaries under decedent’s Will, opposed the petition based on an antenuptial agreement the wife had entered into with the decedent prior to their marriage, and the wife challenged the enforceability of the antenuptial agreement. Following a hearing, the court upheld the validity of the antenuptial agreement, finding that the wife entered into the agreement knowledgeably and that the doctrine of equitable estoppel prohibited the wife from contesting the antenuptial agreement. Wife appeals. The dispositive question before this Court is whether the evidence preponderates against the trial court’s finding that the antenuptial agreement was valid and enforceable. We conclude that the record and applicable law do not support the trial court’s decision to enforce the antenuptial agreement. We reverse and remand this case to the probate court for further proceedings consistent with this Opinion.

The petitioner, James Westbrook, appeals the dismissal of his petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence and for failing to call his codefendant as a witness at trial. Following our review, we conclude that the petitioner has failed to meet his burden of demonstrating either a deficiency in counsel’s performance or resulting prejudice to his case. Accordingly, we affirm the post-conviction court’s dismissal of the petition.

The defendant, Marcus D. Hayes, was indicted for premeditated first degree murder. He was convicted by a jury of the lesser-included offense of second degree murder. He was sentenced to twenty-three years in confinement. On appeal, the defendant challenges the admissibility of his statements to police and the sufficiency of the convicting evidence. After review of the record and the parties’ briefs, we affirm the judgment of the trial court.