OPINION
delivered the opinion of the court,
Ninety-two plaintiffs filed a claim against Domino’s Pizza alleging violations of Tenn.Code Ann. § 4-21-101, et seq. (The Tennessee Human Rights Act), 42 U.S.C.2000a (Title II), 42 U.S.C. § 1981, and intentional infliction of emotional distress. Domino’s Pizza removed the cause to Federal District Court, which retained the 42 U.S.C. § 1981 claim and remanded the remaining claims to the circuit court. *531 The trial court awarded summary judgment to Domino’s Pizza and dismissed the action. We affirm in part, reverse in part, and remand for further proceedings.
Two plaintiffs in the present action, Keisha Chism (Ms. Chism) and Kenneth Moore (Mr. Moore), filed a previous suit against Domino’s Pizza (“Domino’s”) in the United States District Cоurt for the Western District of Tennessee, alleging discriminatory practices by Domino’s in violation of 42 USC § 2000a (“Title II”), 42 USC § 1981, and the Tennessee Human Rights Act as codified at Tenn.Code Ann. § 4-21-101, et seq. (“THRA”). Their action also included a claim for intentional infliction of emotional distress. The district court denied Plaintiffs’ motion for class certification and dismissed with prejudice the claim for intentional infliction of emotional distress. The court dismissed without prejudice the Title II and THRA claims, ruling that these claims more properly were brought in state court. The district court further ruled that Plaintiffs had established a prima facie case under § 1981. Ms. Chism and Mr. Mоore non-suited their action in the district court.
In February 2001, ninety-two plaintiffs, including Ms. Chism and Mr. Moore, filed a complaint against Domino’s in the Circuit Court for Shelby County. Plaintiffs are African-Americans who reside on or adjacent to Lundee Street in Memphis. Plaintiffs allege Domino’s discriminates against them in violation of 42 U.S.C. § 2000a (Title II), 42 U.S.C. § 1981, and Tenn.Code Ann. § 4-21-101, et seq. by refusing to deliver pizza to African-Americans residing in this area. Their complaint also includes a claim for intentional infliction of emotional distress. Plaintiffs additionally contend that Domino’s assertion that it refuses to deliver to Lundee Street because of security concerns is mеrely a pretext for discriminatory behavior, since Domino’s has delivered to the homes of a “female Caucasian” and “one or two other residents” of Lundee Street. 1 Plaintiffs seek injunctive relief enjoining Domino’s from refusing to deliver to locations encompassing Southern Avenue and Lundee Street; $1 million each in compensatory damages; $50 million in punitive damages; pre-judgment and post-judgment interest; costs and attorney’s fees.
Domino’s removed the action to the United States District Court for the Western District of Tennessee on February 27, 2001. The district court granted Plaintiffs’ motion to remand all but thе 42 U.S.C. § 1981 action to circuit court. 2 Upon remand, in October 2001, the trial court awarded summary judgment to Domino’s. 3 On November 28, 2001, a notice of appeal from the judgment of the trial court was filed in this Court, naming “Cedric Arnett, et al” as appellants. (TR vol 4 at 539)
Issues Presented
The following issues, as we restate them, are presented for review by this Court:
(1) Whether the trial court’s award of summary judgment was premature;
(2) Whether the trial court erred in determining Defendant is not a place of *532 public accommodation under 42 USC 2000a, et seq.;
(3) Whether the trial court erred in determining Defendant is not a place of public accommodation under the Tennessee Human Rights Act;
(4) Whether thе trial court erred in dismissing Plaintiffs’ claim for intentional infliction of emotional distress;
(5) Whether the doctrine of collateral estoppel bars Plaintiffs’ claims for intentional infliction of emotional distress, where the claim was dismissed with prejudice by the district court in the previous action.
Standard of Review
Summary judgment should be awarded when the moving party can demonstrate that there are no genuine issues regarding material facts and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04;
Byrd v. Hall,
When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts or that the moving party is not entitled to summary judgment as a matter of law.
Id.; Staples v. CBL & Assocs., 15
S.W.3d 83, 89 (Tenn.2000). The nonmov-ing party cannot merely rely on thе pleadings, but must demonstrate that essential elements of a claim exist by: 1) pointing to evidence that creates a factual dispute; 2) re-enforcing evidence challenged by the moving party; 3) offering additional evidence which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the need for additional time for discovery.
McCarley,
This Court reviews an award of summary judgment
de novo,
with no presumption of correctness afforded to the trial court.
Guy v. Mut. of Omaha Ins. Co.,
The Court’s primary objective when construing a statute is to effectuate the purpose of the legislature.
Lipscomb v. Doe,
Jurisdiction of this Court
As an initial matter, we note that the notice of appeal filed in this Court named as appellants “Cedric Arnett, et al.” This Court previously has opined that the listing of one or more named parties followed by the phrase “et al” on the notice of appeal is insufficient to satisfy the Tennessee Rules of Appellate Procedure.
See Mairose v. Federal Excess Corp.,
(Tenn.Ct.App.2002)(perm.app.denied).
Tenn. R.App. P. 3(f) provides:
The notice of appeal shall specify the party or parties taking the appeal, shall designate the judgment from which relief is sought, and shall nаme the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of the notice of appeal.
In
Mairose,
we noted that in 1993, the United States Congress amended Rule 3(c) of the Federal Rules of Appellate Procedure following the United States Supreme Court’s ruling in
Torres v. Oakland Scavenger Co.,
Although Congress amended the federal rules, effectively overruling the holding of the Supreme Court in
Torres,
Tenn. R.App. P. 3(f) has not been amended similarly.
Mairose,
Whether the Award of Summary Judgment was Pre-mature
Mr. Arnett cites
Craven v. Lawson,
Additionally, we find Mr. Arnett’s reliance on Craven to be misplaced. In Craven, the court noted that if the party opposing the motion for summary judgment had been denied the opportunity to file affidavits or take depositions without a thirty-day interval after the motion was filed, the cause should be remanded to cure such error. Domino’s motion for summary judgment was filed in July 2001. Mr. Arnett had ample opportunity to file affidavits establishing the need for additional time for discovery before the trial court issued its order in October 2001. Further, as the trial court based its determinations on issues of law, and in light of our analysis of these issues, we do not believe additional time for discovery would have served any useful purpose. We accordingly disagree with Mr. Arnett’s assertion that the order of the trial court was pre-mature in this case.
Whether Domino’s is a Place of “Public Accommodation” Under 42 U.S.C. § 2000a
42 U.S.C. § 2000a provides, in pertinent part:
(a) Equal access
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
(b) Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of еxhibition or entertainment; other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter [42 U.S.C.S. §§ 2000a-2000a-6] if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
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(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station[.]
The question of whether a facility is a “place of public accommodation” within the meaning of § 2000a is a question of law.
See United States v. Richberg,
Domino’s indisputably is principally engaged in selling food which is ready for consumption and which is available for take-out or delivery. Domino’s asserts that it is not a place of public accommodation within the meaning of § 2000a, howevеr, because it does not sell food which is consumed
on the premises.
Domino’s cites the following cases, none of which is binding upon this Court, in support of this proposition:
Marks v. City of Warren,
While the
Marks
court observation brought to our attention by Domino’s that “it was not the intent of Congress to make every public place an establishment or place of public accommodation” is not at dispute here, it is not particularly helpful to the determination of whether Domino’s should be so considered. The question in
Marks
was whether a police station was a place of public accommodation under § 2000a. The
Marks
court determined it was not.
Marks,
In an unreported memorandum opinion, the court in Boykin opined Domino’s was-not a place of public accommodation under § 2000a, but was “more analogous to a convenience store[.]” However, the issue in Boykin, was not Domino’s refusal to serve or deliver to some customers, but a policy of a particular store not to accept any take-out orders over the telephone. The Domino’s store in Boykin did not refuse to deliver to the plaintiff, nor did it refuse to fill plaintiffs take-out order if placed in person. The issue in the case before us is not whether Domino’s may refuse to deliver at all. The issue here is whether Domino’s may refuse to deliver to some customers.
In Carrington v. Lawson’s Milk Co., the court determined that the defendant convenience store was not a place of public accommodation within the meaning of § 2000a. The Lawson court opined:
For a facility such as Lawson’s to come under the prohibitions of Title II, it must be “principally engaged in selling food for consumption on the premises.” 42 U.S.C. § 2000a(b)(2). In Newman v. Piggie Park Enter.,377 F.2d 433 (4th Cir.1967) (en banc), modified on other grounds,390 U.S. 400 ,88 S.Ct. 964 ,19 L.Ed.2d 1263 (1968) the Fourth Circuit considered the meaning of the word “public accomodation” [sic] in terms of food service establishments:
The sense of this plan of coverage is apparent. Retail stores, food markets, and the like were excluded from the Act for the policy reason that there was little, if any, discrimination in the operation of them. Negroes have long been welcomed as customers in such stores. See 110 Cong. Rec. 6533 (1954) (remarks of Senator Humphrey).
Id. at 435-36,88 S.Ct. 964 . The Lawson’s “convenienсe store” was not a “facility principally engaged in selling food for consumption on the premises,” but rather, a place where food products were sold principally for off-premises consumption. Lawson’s was a place “where food service was incidental to some other business.... ” Newman,377 F.2d at 436 (emphasis added).
Carrington v. Lawson’s Milk Co.,
Unlike Lawson’s Milk Company, Domino’s is not a convenience store to which food service is incidental to some other business. Food service is Domino’s only business. Thus we do not find the
Car-rington
case to be particularly helpful to our determination here. Likewise, the Court’s determination in
Halton v. Great Clips, Inc.,
The United States Supreme Court observed in
Daniel v. Paul
that the primary purpose of Title II is “to move the daily affront and humiliation involved in discriminatory denials of access to facilities osten
*536
sibly open to the general public.”
Daniel v. Paul,
In
Newman v. Piggie Park,
the Fourth Circuit determined that drive-in establishments selling food ready for consumption are places of public accommodation covered by Title II.
Newman v. Piggie Park Enter., Inc.
The Congress clearly meant to extend its power beyond the ordinary sit-down restaurant and just as clearly did not undertake to legislate with respect to grocery type food stores which would have been covered but for the modifying phrase ‘for consumption on the premises. Thus, food stores are not covered, but stores (or facilities) that sell food of a particular type, i.e., ready for consumption on the premises, are covered. What the customers actually do with the ready-to-eat food was not the concern of the Congress — whether they eat it then and there or subsequently or elsewhere.
Id. at 436.
According to the Fourth Circuit in
Pig-gie Park,
the test for determining whether an establishment is a place of public accommodation under § 2000a is whether the food it serves is
fit
for consumption while it is on the premises.
See
The United States Supreme Court granted certiorari in
Piggie Park
to determine the counsel fee provisions of Title II.
Newman v. Piggie Park Enterprises, Inc.,
*537 We agree with the Fourth Circuit that in drafting § 2000a Congress could have utilized the phrase “actually consumed on the premises.” We observe, however, that Congress just as readily could have utilized the phrase “food fit for consumption on the premises.” Congress could have worded the section in any number of ways. In enumerating the kinds of establishments to be included in § 2000a, however, Congress chose the phrase: “facilities principally engaged in selling food for consumption on the premises.” 42 U.S.C. § 2000a.
We believe that the Fourth Circuit’s construction of § 2000a stretches it beyond the natural and ordinary meaning of the words chosen by Congress. Clearly, Congress intended to eliminate racial segregation in eating places. Such places include traditionаl eat-in restaurants, drive-in facilities, snack bars, and other facilities where food is consumed. It is not within the province of this Court, however, to expand upon the intent of Congress as reflected by the words Congress chose to employ.
See Lipscomb v. Doe,
We respectfully disagree with the Fourth Circuit that Congress intended the statute to read “food fit for consumption” when Congress utilized the phrase “for consumрtion on the premises.” In the absence of an adoption of the Fourth Circuit’s reasoning by the Supreme Court, this Court is not bound by the reasoning of the Fourth Circuit where that reasoning was not essential to the court’s judgment. Domino’s is not an establishment whose principal activity is selling food for consumption on the premises. We accordingly affirm summary judgment for Domino’s on this issue of law. 4
Whether Domino’s is a place of “public accommodation” under the Tennessee Human Rights Act
The purpose of the Tennessee Human Rights Act as codified at Tenn.Code Ann. § 4-21-101, et seq., is to:
(1) Provide for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972, the Pregnancy Amendment of 1978, and the Age Discrimination in Employment Act of 1967, as amended;
(2) Assure that Tennessee has appropriate legislation prohibiting discrimination in employment, public accommodations and housing sufficient to justify the deferral of cases by the federal equal employment opportunity commission, the department of housing and urban *538 development, the secretary of labor and the department of justice under those statutes;
(3) Safeguard all individuals within the state from discrimination because of race, creed, color, religion, sex, age or national origin in connection with employment, public accommodations, and because of race, color, creed, religion, sex or national origin in connection with housing;
(4) Protect their interest in personal dignity and freedom from humiliation; ....
TenmCode Ann. § 4-21-101(1998).
In order to achieve this purpose, the THRA provides:
Except as otherwise provided in this chapter, it is a discriminatory practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of public accommodation, resort or amusemеnt, as defined in this chapter, on the grounds of race, creed, color, religion, sex, age or national origin.
Tenn.Code Ann. § 4-21-501 (1998).
As defined by Tenn.Code Ann. § 4-21-102(15) (1998),
“[pjlaces of public accommodation, resort or amusement” includes any place, store or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public, or which is supported directly or indirectly by government funds, except that:
(A) A bona fide private club is not a place of public accommodation, resоrt or amusement if its policies are determined solely by its members; and
(B) Its facilities or services are available only to its members and their bona fide guests[.]
Domino’s asserts that since the Tennessee Act embodies the policies of the federal Civil Rights Acts of 1964 and 1968, including Title II, and since it is not a “place of public accommodation” under Title II of the federal Acts, it accordingly is not a place of public accommodation under the THRA. We disagree.
We note as an initial matter that the language of the THRA, like many state acts prohibiting discriminatory practices, is broader than the federal acts.
See generally, Welsh v. Boy Scouts of America,
The Phillips court further added, “[w]e, therefore, may look to federal interpreta *539 tion of Title VII [of the federal Civil Rights Act] for guidance in enforcing our own anti-discrimination statute. We, however, are neither bound by nor limited by federal law when interpreting the THRA” Id. (emphasis added).
Domino’s reliance on one sentence drawn from Phillips must fail for two reasons. First, although the policies of the federal Acts and the THRA are coextensive, i.e., to prohibit discrimination in, inter alia, places of public accommodation, the reach of the THRA is in no way limited by the constraints found in the federal Acts. 5 Second, the courts оf this State are not bound by the federal courts, nor is our interpretation of this State’s statutes limited by federal interpretation of federal statutes. Id.
Domino’s indisputably is an establishment which supplies goods and services to the general public. Further, it both solicits and accepts the patronage of the general public. The intent of the General Assembly to prohibit discrimination, as clearly articulated in the THRA, combined with the plain and unambiguous definition of “places of public accommodation” found in TenmCode Ann. § 4-21-102(15), can result in only one conclusion. Domino’s is a place of public accommodation under the THRA. We accordingly reverse the order of the trial court on this issue.
The Claim for Intentional Inñiction of Emotional Distress
In Tennessee, there are three essential elements to a claim for intentional infliction of emotional distress: the defendant’s conduct must be intentional or reckless; the conduct must be so outrageous as not to be tolerable by civilized society; the conduct must result in serious mental injury.
Bain v. Wells,
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’
Id.
at 623 (quoting
Medlin,
We agree with the trial court that the conduct alleged in this case does not rise to being reasonably regarded as so extreme and outrageous as to permit recovery for intentional infliction of emotional distress. Certainly, discrimination based on race is insulting and humiliating. The discouragement of such discriminatоry behavior is at the very core of the federal Civil Rights Acts and the Tennessee Human Rights Act. However, discriminatory conduct does not automatically give rise to the imposition of liability for intentional infliction of emotional distress. If it did, virtually every action brought under these statutes would include an intentional infliction of emotional distress claim.
Equally determinative, this record is devoid of any evidence of the severe mental injury which must be caused by the defendant’s outrageous conduct for recovery for intentional infliction of emotional distress. As the Tennessee Supreme Court has observed, “somе degree of transient and trivial emotional distress is a part of the price of living among people.”
Miller,
Conclusion
We affirm summary judgment for Domi-nos’s with respect to the claim for intentional infliction of emotional distress. We hold that Domino’s is not a placе of public accommodation under 42 U.S.C. § 2000a and affirm summary judgment for Domino’s on this issue. We hold that Domino’s is a place of public accommodation under the Tennessee Human Rights Act as codified at Tenn.Code Ann. § 4-21-101, et seq. We reverse the trial court’s grant of summary judgment on this issue.
This case is remanded for further proceedings in accordance with the burden shifting analysis adopted by the Tennessee Supreme Court in
Phillips v. Interstate Hotels Corp.,
Notes
. The complaint does not indicate the race of the "one or two other residents.”
. The district court stayed the federal § 1981 claims pending conclusion of the state court proceedings.
. We observe that although the trial court’s order was characterized as one awarding "partial” summary judgment, the court dismissed the entire action and appears to have disposed of the entire matter. We therefore consider the court’s judgment a final order adjudicating all claims. This Court accordingly has jurisdiction pursuant to Tenn. R.App. P. 3(a).
. We note that in
Robinson v. Power Pizza, Inc.,
plaintiffs commenced an action under Title II alleging discriminatory practices by Power Pizza, which operated a Domino’s Pizza franchise.
Robinson v. Power Pizza, Inc. d/b/a Domino's Pizza,
. The most obvious example being that the application of the federal Act is limited, as a Constitutional necessity, to places of public accommodation having an affect on interstate commerce.
. In order to maintain a cause of action for discrimination by a place of public accommodation, the plaintiff bears the burden of establishing a prima facie case.
Phillips,