IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 4, 2009 Session

GERRY G. KINSLER v. BERKLINE, LLC

Appeal by Permission from the Court of Appeals, Eastern Section

Circuit Court for Hamblen County

No. 06CV148 Thomas J. Wright, Judge

No. E2007-02602-SC-R11-CV - Filed September 20, 2010

CORNELIA A. CLARK, J., concurring in part and concurring in the judgment.

I concur in the judgment affirming the decision of the Court of Appeals because

genuine issues of material fact exist precluding summary judgment for the employer. I write

separately to reiterate my belief, set forth in my partial concurrence and dissent in Gossett

v. Tractor SupplyCo., Inc., No. M2007-02530-SC-R11-CV, — S.W.3d — (Tenn. 2010), that

the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), need not be

abrogated because it is compatible with the summary judgment procedures as set forth in the

Tennessee Rules of Civil Procedure and Hannan v. Alltel Publishing Co., 270 S.W.3d 1

(Tenn. 2008). As the facts of this case illustrate, the McDonnell Douglas framework applied

along with Hannan at the summary judgment phase enables an orderly evaluation of the

evidence.

Pursuant to Tennessee Rule of Civil Procedure 56.04, a moving party obtains

summary judgment by “show[ing] 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.” As interpreted in Hannan,

a party moving for summary judgment and “seek[ing] to shift the burden of production to the

nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate

an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party

cannot prove an essential element of the claim at trial.” 270 S.W.3d at 8-9. A moving party

cannot merely “challenge the nonmoving party to ‘put up or shut up’ or . . . cast doubt on a

party’s ability to prove an element at trial.” Id. at 8.

Less than three years ago, we explained how the McDonnell Douglas framework

operates at the summary judgment stage in an opinion involving a retaliation case brought

pursuant to the Tennessee Human Rights Act (“THRA”):
After an employee establishes a prima facie case of retaliation [including

causation], the burden of production shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the materially adverse action. If the

defendant articulates such a reason, the employee, who bears the burden of

persuasion throughout the process, must present evidence demonstrating that

the articulated reason is pretextual and that the defendant’s action was actually

motivated by a desire to retaliate against the employee.

Allen v. McPhee, 240 S.W.3d 803, 820-21 (Tenn. 2007) (internal citations omitted). Where

the employer has proffered a legitimate reason for the discharge, the employee can show

pretext through evidence that (1) the employer’s reason lacks a basis in fact, (2) the

employer’s reason was not the actual motivation for the discharge, or (3) the employer’s

reason is not sufficient to warrant a discharge. Id. at 823 (citing Carter v. Univ. of Toledo,

349 F.3d 269, 274 (6th Cir. 2003)). When the employee produces evidence raising a genuine

dispute as to whether the employer’s stated reason is pretextual, summary judgment is

inappropriate. See id.

Here, the employer, Berkline LLC (“Berkline”), challenges the ability of the

employee, Gerry G. Kinsler (“Kinsler”), to establish the causation element of his claim.

Specifically Berkline argues that Kinsler cannot show that his rejection of Berkline’s offer

to settle his workers’ compensation claim was a substantial factor in Berkline’s decision to

terminate him. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn. 2002); Chism

v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988); see Anderson v. Standard

Register Co., 857 S.W.2d 555, 558 (Tenn. 1993) (applying the elements of common-law

retaliatory discharge to a claim involving an employee allegedly terminated for filing a

workers’ compensation claim). Berkline does not merely “challenge [Kinsler] to ‘put up or

shut up,’” as Hannan expressly prohibited. See 270 S.W.3d at 8. Instead, Berkline’s motion

relies on evidence that affirmatively negates—or, stated another way, shows that Kinsler

cannot prove—the causal connection between his termination and Berkline’s rejection of the

offer to settle his workers’ compensation claim.

1

As proof of itslegitimate, non-discriminatory reason for Kinsler’s discharge, Berkline

presents evidence that Kinsler’s discharge on January 12, 2006, was based solely on the justreceived job site evaluation which showed that Kinsler could not perform the job duties of

As the opinions in Gossett acknowledge, in the context of a summary judgment motion on a

1

common-law claim for retaliatory discharge, we have never confronted the question of what the employee

must do after the employer has proffered a legitimate reason for the discharge. Nothing in our law would

preclude us, however, from importing the pretext analysis that we have developed in the THRA context,

based on corresponding federal causes of action.

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his old position and had nothing to do with the failed January 9 workers’ compensation

settlement agreement. Specifically, Berkline provided evidence that Kinsler’s original 1992

job description stated a lifting requirement of up to seventy-five (75) pounds. Berkline also

produced the results of a “functional capacity evaluation study” conducted on September 25,

2005, after which Kinsler’s treating physician imposed a permanent lifting restriction of no

more than thirty (30) pounds. Finally, Berkline introduced the job site evaluation conducted

on September 21, 2005, by Andrew Smith, a physical therapist. Smith had used information

provided by Kinsler, his supervisor, and Berkline’s workers’ compensation administrator

concerning the description of the maintenance multicraftsman position. Smith delivered his

evaluation report to Berkline on January 5, 2006. As noted by the lead opinion, this

evaluation report concluded that “Mr. Kinsler presently does not have the functional

capacities or capabilities to perform all of the essential duties or meet all of the physical

demand requirements of a Maintenance Multicraftsman.” Berkline contends that it was the

opportunity to review this report, which merely coincided in time with the failed workers’

compensation settlement proceeding, that resulted in the determination to discharge Kinsler.

Furthermore, Kinsler concedes in his deposition that the position requires lifting beyond his

restriction, and no fact dispute exists about the timing of the receipt of the report. The

foregoing evidence is sufficient under McDonnell Douglas to shift the burden of production

to Kinsler to show that Berkline’s reason for discharging him was pretextual.

To satisfy this burden, Kinsler maintains that the lifting limits set forth in the written

job description did not reflect the actual requirements of the job. Although Kinsler

2

conceded there were certain objects he could not lift, he testified that other multicraftsmen

were also sometimes unable to lift loads within the seventy-five pound requirement. In those

cases, multicraftsmen would work together or make use of tow motors or other equipment.

3

Kinsler also points to the example of his immediate supervisor, James Gann, whom

Berkline retained even though his lifting restrictions fell below the requirements of the

written job description. In his position as a maintenance facilitator, Gann supervised all

multicraftsmen at Berkline’s facility in Morristown. Gann testified that he also performed

Indeed, Kinsler testified that, although the job description was originally prepared in 1992, he did 2

not receive a copy of that description until after he had suffered his on-the-job injury in 2005.

Issues regarding the qualifications for a particular job must be addressed with care. Defining the 3

nature of the work and the qualifications and duties of the jobs to be performed are the employer’s

prerogatives, not the employee’s. In Tennessee, employers have long had the right to make independent

assessments of the needs of their businesses and of their employees’ performance. Stein v. Davidson Hotel

Co., 945 S.W.2d 714, 717 (Tenn. 1992). In the absence of a contract, employers are likewise not obligated

to replace an injured employee’sjob with another job that the employee can perform. Leatherwood v. United

Parcel Serv., 708 S.W.2d 396, 401-02 (Tenn. Ct. App. 1985).

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the work of a multicraftsman, sometimes working alongside other multicraftsmen on a daily

basis. After a surgically repaired injury to his right shoulder in 2004, Gann was subject to

restrictions of occasional lifting of fifty pounds up to waist level and occasional lifting of

thirty-five pounds from waist level to overhead height. The written description of the

maintenance facilitator position, however, required frequent lifting of up to fifty pounds, and,

as mentioned above, multicraftsmen were required to perform occasional lifting of up to

seventy-five pounds. Kinsler points out, however, that Berkline did not terminate Gann in

2004 after these lifting restrictions had been imposed, even though he immediately became

unable to fulfill the written lifting job requirements. While Berkline contends that Gann’s

employment in a different position with different lifting requirements is not relevant to

Kinsler’s termination, it is for the trier of fact to weigh the evidence.

4

As additional support for pretext, Kinsler offers evidence that his lifting restrictions

predate this injury but were never previously made an issue before he declined to settle the

workers’ compensation case. A March 1984 inter-office memorandum prepared by Ruby

Glasscock on Berkline stationery indicates that Kinsler declined to return from a layoff to a

position as a final trim trainee because, following a motorcycle accident several years prior,

his doctor had instructed him never to lift more than forty pounds continually. Berkline

contends that no medical documentation corroborates this permanent lifting restriction.

Indeed, the medical records in Kinsler’s personnel file are silent as to any such permanent

restrictions preceding the on-the-job injury that Kinsler sustained in 2005. Again, however,

the trier of fact is responsible for deciding how much weight to assign to this evidence. The

court adjudicating a motion for summary judgment can go no farther than determining

whether such evidence of pretext actually exists, and, in this case, it does. Kinsler has met

his burden of producing evidence of pretext. Applying the McDonnell Douglas framework

and the procedures adopted in Hannan, I agree with the lead opinion that a genuine issue of

material fact remains as to whether Kinsler’s rejection of the offer to settle his workers’

compensation claim was a substantial factor in Berkline’s decision to terminate his

employment.

When an employee bases a claim of retaliation or discrimination on the argument that other 4

employees received different treatment, it is, of course, appropriate, to require that the other employees were

working at jobs that are substantially similar to the plaintiff’s position. When an employee relies upon the

employer’s treatment of other employees to counter an employer’s legitimate, non-retaliatory or nondiscriminatory reason for its employment decision, the job duties of the other employee(s) need not be

identical but should at least be similar. Cf. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir.

2009); Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006); Holifield v. Reno, 115 F.3d 1555,

1562 (11th Cir. 1997). In this case, at least for the purpose of summary judgment, it is appropriate to

consider Gann’s position of maintenance facilitator as substantially similar to the maintenance

multicraftsman position that Kinsler held. At trial, however, Berkline may introduce evidence to convince

the trier of fact that the positions are not substantially similar.

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In summary, as explained in my partial concurrence and dissent in Gossett, dispensing

with the McDonnell Douglas framework at the summary judgment phase in all employment

discrimination and retaliation cases is unnecessary. As the foregoing analysis illustrates, the

McDonnell Douglas framework enables an orderly analysis of the evidence and operates

consistently with our law on summary judgment. We should adhere to that framework.

Nonetheless, because there is adequate evidence of pretext to establish a genuine issue of

material fact, I concur in the judgment affirming the decision of the Court of the Appeals.

I am authorized to state that Justice Koch concurs in this opinion.

_________________________________

CORNELIA A. CLARK, JUSTICE

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