# FILED

Novemb er 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

ELLA FRANCES PRUETT, ) ) Plaintiff /Appella nt, ) Madison Chancery No. 50067 ) vs. ) ) WAL-MART STORES, INC., ) Appeal No. 02A01-9610-CH-00266 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF MADISON COUNTY

AT JACKSON, TENNESSEE

THE HONO RABL

E JOE C. MORRIS, CHANCEL LOR For the Plaintiff/Appellant : For the Defendant/Appellee : Hite McLean, Jr. Ch arl es H . Ba rne tt , III Memphis, Tennessee Justin S. Gilbe rt Jackson, Tennessee

AFFI RMED IN PART , REVERSED IN PART, AND REMA NDED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

DAV ID R. F ARM ER, J.1 OPINION

This is an emplo yment disc riminatio n case. T

he plaint iff, an e mployee o f a depa

rtment st or e, developed

problems with her f

eet and w as unable

to stand or walk for long periods. She contends that the defe ndant stor

e refus ed to assi gn her to a position a

nswerin g the t elephone, alleging discrimination on the basis of age and disability, as well as an in tent to take away her medical insurance benefits. The trial court granted summary judgment to the employer. We aff irm in par t, reverse in part, and remand. Plaintiff/Appellant Ella Franc es Pruett (“Pruett”) was hired by Defenda nt /Appellee Wal-Mar

t Stores, Inc. (“Wal-Mart”) in 1985, at the age of 52. She was hired to w ork as a cashier. For several years she worked as either a ca shier or a sale s clerk. During so me of this t ime period, she worked in the domes tics depa

rtment. In 1988, Pr

uett injur ed her f oot. For several weeks she was assigned the job of answering the telephones. When she had r ecuper ated she returne d to her pr

evious dut

ies. After Pruett returned to he r regular duties, when Pruett worked in domestics, she worked under the supe rvision of George Hobson. Hobson felt Pruett was a very good employee . During thi s same time period, the de partmen t manage r over do mestics, Sh

irley Flak e, compla ined rep eatedly about Pruett to th

e store ma nager, J ohn Hillis. During March, 1993, Hobson was out on an extended sick leave. H

is replac ement during that time filed two written reprimands, termed “coaching records,” regarding Pruett’s negative attitude and ot her wor k problem s. In late

March, 1 993, bec ause of these problems, Pruett was transferred from domestics to the c heckout area. Meanwhile, Pruett once ag ain deve loped foot problems. Eventually, in September 1993, P ruett u nderwe nt surger y to trea t degene rative b one and jo int diseas e in her f oot. She wa s again assigned to answer the phones at the store during her recovery. After three weeks of answering the phones, Wal-Mart

reassig ned Prue

tt to her or

iginal pos ition as ca shier, wh ich requ ired her to stand for long periods. This exacerbated her foot pr oblems, and Pruett left

work for several months. In February, 1994, P ruett underwen t another foot surgery. While recupera ting from her second surgery, Pruett learned of Wal-Mart’s plans to open a ne w store in the area in August of 1994. In May 1994, while still off work recuperating, she applied for a job answe ring phones at the new stor e. Pruet t alleges that the store manager, John Hillis, promised her the job. Pruett returned t o wo rk on June 27, 1994, a

nd was as signed to a

nswer the telephones.2

Pruett’s job perf

ormance in this position is in dispute. On July 1, 1994, Hillis made the decision to transfer Pruett from the telephone position. Pruett was then assigned to a position hanging apparel in the stock room . Because of the stress to her

feet, Pr uett coul d only work in the stock roo m for fou

r hours a day. In la

te July, Pr uett obtained a doctor ’s note sp ecifyin g she cou ld only wor k while sitting, and Hillis informed her there

were no such jobs available. In August, Pruett learned that she did not receive the telephone operator position in

the new s tore. Fro m August 1, 1994, until August 28, 1995, Prue

tt did not work. She collected social securi ty disa

bility paym

ents duri ng this time . After Pr uett tend ered Wa l-Mart a letter of resignation, Wal-Mart offered Pruett a job at the new Supercenter at the cosmetics counter where she could use a stool to relieve the stress on her feet. This job did not exist a

t the old W alMart sto re. The record

indicate s that Prue

tt has sinc e continu ed her e mployment a

t Wal-Ma rt, though not in a position answering telephones. Pruett f ile d this lawsuit on January 25, 1995, alleging violations of the federal Americans withDisabilities Act (“ADA”), the federal Age Discrimination in Employment Act (“ADEA”), the federal Employ ee Retirement Income and Security A ct (“ERI SA”), an d the Ten nessee H uman Rights Act (“THRA”). Pruett alleged that Wal-Mart did not awa rd her the job answering phones in the new store because of her age and/or he r disability. Pruett cla

imed that W al-Mart

failed to accommo date her disability because it did not reas sign her t

o the tele phone pos ition, a job

that allow ed her to

sit while working. Pruett also asserted a third claim under ERISA: she maintained that Wal-Mart removedher from the job answering the phone, which she could per form eight

hours a day, and put her in a job she

could wor

k only four

hours a da

y, so that she would n o longer be eligible for coverageunder Wa

l-Mart’ s medica

l ins urance

plan. She

asserte d that Wa

l-Mart di d this to av oid paying her future medical benefits. Wal-Mart filed a motion for summary judgment, asserting that it had a legitimate, nondiscriminatory reason for not assigning Pruett to a position answering telephone s. In an affida vit submitted by Wal-Mar

t in support of its motion, store manager Hillis asserted that, in Pruett’s employment

history since 1985, some employees had difficulty getting along with her. Regarding Pruett’s job perf

ormance answer ing telephones, Hi llis stated tha t he had r eceive d complai nts from others about Pruett “cutting them off.” Hillis also stated that he had heard Pruett relay messages on the store ’s public

address(PA) syste

m, and ass erted th at:1 Pruett also submitted the affidavit of Patricia Dotson, who stated that her physician

recommended that she not work in a job that required a lot of standing. On June 17, 1994, Dotson sa id that she

asked Ho llis about a

job she co

uld do while

sitting. She

said that H

illis told her that the only such job was the telephone position, and that he already had Prue tt, Mary Morphis and Peggy West scheduled for it. 3 . . . she wa s not ta ctful , she was impatient, and she was callous. For example, if a Wal-Mart associate did not answer her first call, Pruett would call again with a piercing tone that

I beli eve did

not project favorably on Wal-Mart’s public image. I personally counseled Pruett several times about her tone and he r brashness. Hillis also indicated that Pruett’s duties on t he telephone incl

uded ref erence checks, and that Pr

uett askedinappropriate questions. Hillis noted that the telephone system at the new Supercenter wa s much more complex than that at the old store. He stated that, considering Pruett’s problems on the smaller telephone s ystem and

his “per ception o f her ina

bility to ma

intain an appropr iate public demeanor,” he did not

assign Pruett to a telephone position at the new Supercenter. Hillis denied any discrimination. In response

to Wal-Ma

rt’s motio n, Pruett f

iled seve ral aff idavits. Pruett filed the affidavit of Kar en Cro ok, who sta

ted that sh

e had wor ked for a pproxima tely thre e yearsin the late 1980's in domestics as the department mana ger, a nd that Pruett had worked under her supervision. Crook stated that Pruett “was a good worker and had a good attitude. . . .” In addition, Pruett filed an affida vit from Sarah Scott, a Wal-M art manager from approximately 1986-1988. She stated that Pruett always tried “to do her best,” and was “nice and helpful a

nd frien dly” to cu stomers. P ruett also filed an

affida vit from George Hobson, assistant manager of the store until June 1993. Hobson stated that Prue

tt “was a very good employee.” He acknowledged tha t the department manager over domestics, Shirley Flake, had complained to Hillis repeatedly about Pruett. Hobson noted that he didnot agree with Flake’s complaints. Hobson disputed Hillis’ assertions in Hillis’ deposition that Hobson had complained about Pruett. Hobson noted the “coaching recor ds” issued to Pruett about her negative attitude and

job performance by Hobson’s replaceme ntduring an extended sick leave in March , 1993. Ho

bson indic ated he d

id not agr ee with th e coach ing reco rds. Finally, Pruett submitted her own affidavit. In it, Pruett s tated tha t, in May 19 94, Hillis to ld her that she would be assigned a telephon e position, 1 first at the old store and then at the new Supercenter

when it opened. She recounted returning to work on June 27, 1994, and be ing assigned to answer the telephones. A few days later , on July 1, 1994, Hillis transferred Pruett away from the telephone position. Pruett stated that Hillis did not tell her at that time that her perfo rmance h ad4

been unsatisfactory. In August, when she was told she would not be assigned a telephone position at the new Su

percen ter, Prue tt stated t hat H illi s told her for the first time that he had “received complain ts” about her performance in the telephone position at the old store. She denied receiving any counseling or

warnings about her performance prior to then. She stated that other employees also had prob lems cutting pe ople off on the telephone, and that any problems with that were not her fault. She stated that, only once several years earlier , she was counseled that her voice was too loud

on the PA system. Pruett denied being rude or abrupt with anyone on the telephone, and asserted that she had never been told that her questions on refer ence checks were inappropr iate. After reviewing Wal-Mart’s motion and Pruett’s response, the trial cour tgrantedsummary judgment in favor of Wal-Mart. It explained its reasoning:

The Plaintiff, Ella Frances Pruett, has filed this lawsuit claiming discrimination and damages because she was not placed in a

job at the new Wal-Mart Super Center in Jackson, Tennessee, answering the telephone . In order to prevail in this litigation, the Plaintiff must prove that she was not given the job that she desired because of her age, whi ch is over

fifty (50), her medical expenses associated with her feet, wh ich is ove r $9,000, or beca

use of the problem w ith her feet. The Plaintiff was not fired fr om her job, but is, in fact, still working at the Wal-Mart Super Cen

ter in a job other than answering the telephone. Her insurance benefits have not been terminated and are also in full effect. The reason given by Wal-Mart offices in their affidavits is that the decision to not place the plaintiff

in the telephone answering position was a business one, and had nothing to do with age, disability, or medical bills. In her op posing af fidavits, various employees have sworn that Ms. Pruett

was a goo d employe e, etc. M s. Pruett, in her affidavit and deposition, theorizes that she though

t it was be cause

of age and her feet, but she had no proof that would corrobora te her theory. The Court is of the opinion that there ar e no issues of material fact. The reason that she was not placed on the job was a business decision made by Wal-Mart that she was n ot the righ

t person f or that p articular job, and not because she was prejudic ed or disc

riminate d against

because of age or feet. From this decision, Pruett now appeals. On appea l, Pruett argues that summary judgment was improper in this case because she produced sufficient eviden ce to r ebut the D efenda nt’s alle ged nondi scrimina tory rea son for its decision not to assign her to the telephone position.5

A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party requesting summary ju dgme nt bears the burden of demonstrating that no g en uine issue of material fact exists. Byrd v. Ha ll , 847 S.W.2d 208, 211 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evide nce in fa vor of the nonmovin g pa rty, allow all reasonable inferences in fa vor of that party, and discard all countervailing evidence. Id. at 210-11. Summary judgment is only appropr

iate when the fac ts and the

legal co nclusions drawn from the facts reasonably permit only one conclusion. Carvell v

. Bottoms , 900 S.W.2d 23, 26. (Tenn. 1995). Since only questions of law are involved, on appeal there is no presumption of correctness regarding a trial court’s grant of summary judgment. Id. The core allegation

for Prue tt’s discr imination c laims is that

Wal-Ma rt discri minated a

gainst her by refus ing to assign her to the telephone position. Pruett does not allege that she was fired; indeed, the rec ord indic ates tha t she cont inues to wo

rk for W al-Mart

. Therefore , her overall job performance

in other positions, while relevant background, is not the core factua l issue in this case. Rather, her qualifications for, and performa nce in, the telephone position must be the focus of the factua l analysis

. In Hillis ’ affida

vit insupport of Wal-Mart’s motion for summary judgment, Hillis asserts that Pruett’s manner on the telephone was “not tactful, . . . impatient, and . . . callous.” He criticized her “tone and . . . brashness” on the PA system, and stated that he had coun seled he r “seve ral times ” about these concerns. He

also referred to inappropriate questions on ref erencechecks a

nd proble ms with cutting callers off. To rebut, Pruett submitted the affidavits of Karen Crook and Sarah Scott, who testified that Pruett had been a good

employee

in domestic s in the lat

e 1980's. This may be relevant background, because Hillis indicates in his affidavit and his depositions thatPruett’s problems on the telephones

were consistent with complaints he’d received about her when she wor ked in ot her de partmen

ts. However, Crook’s a

nd Scott’s affida

vits do not a

ddress W al-Mart ’ s core assertion, that is, that Pruett’s performance in the telephone position was unacc eptable.6

Pruett also submitted the affidavit of George Hobson, wholikewise asserts that Pruett was

a good emplo yee in the

domesticsdepartm

ent. Like Crook’s a

nd Scott’s affida

vits, this is relevant background

but d oes not ad

dress Pru ett’s per

formanc e in the te

lephone p osition. Ho

bson also disputes Hillis’ sta

tements th at Hill i s had rec eived co mplaints a bout Pruet

t from Hob son. This is relevant regarding Hillis’ overall credibility, but again does not ref ute Wal-Mart’s primary reason for its action, that Pruett’s performance in the telephone position was not acc eptable. In her own a

ffidavit , Pruett do es not dispute probl ems “cut ting off”callers , but asserts that unnamed others ha

d similar p

roblems a nd that the

telephone system w as the re ason. She admits being told in yea

rs prior t hat her voic e on th e PA system was “too loud.” She states that she was

never counseled or warned regarding other problems, and that she was never told that her questions

on reference checks w ere inappropriate. Final l y, Pruett states that, “to her knowledge,” she was never rude or abrupt with anyone on the telephone

. Theref ore, at t he focusof the issu es in this case is Hillis’ s ubjectiv e assess ment that Pr uett

was “n ot tactful, . . . impatient, and . . . callous,” had a “piercing tone” on the PA system, had a n

unacce ptable “tone and . . . brashness,” and that he had counsele d her about these concerns several times

. Juxtaposed against this assessment is Pruett’s assertion that she was never told of such problems and that, to h er knowl edge, she was never “rude”or “abrupt” with anyone on the telephone. FEDERAL AGE DISCRIMI NATION Pruett claims tha

t she pre sented sufficien

t evidenc e to rebut

Wal-Mart’s claim that her poor performance

while worki ng the tel ephones justified managem

ent’s de cision to a ssign the jo b to

someone else. The only relevant evidence that Pruett sub mits to directly refute Wal-Mart’s assertion that she was not qualified for the telephone position is her own affidavit, in which she asserts that she was neve

r rude or abrupt a nd states that she w as ne ver criticized for her perfor mance on the phones and on the public address system until she was denied the permanent position. In an employment discrimination action, the plaintiff must first p

resent e vidence to establi sh

a prima fac ie case

of discrimination. Once the plaintiff establishes a prima fac ie case, the burden of proof shifts to the defendant to rebut the presumption of discrimination by a rticulat in g a legitimate, non-discriminatory reason for the adverse employment decision. If the defendant meets the burden of production, the burden of proof shifts again to the plaintiff, who must present evidence7

that the defendan t employer’s reason is pretextual or that the reason given f or the decision is not believa ble or not the real reason for the decision. Te xas Department of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207 (1981). At this point, “the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer’s explanation.” Manzer v. Diamond Shamrock Chemicals Co. , 29 F.3d 1078, 1083 (6th Cir. 1994) (citing Gaworski v. ITT Commercial Finance Corp. , 17 F.3d 1104, 1109 (8th Cir. 1994)). The plaintiff may discredit the employer’s explanation byshowing that: (1) the proffered reasons had no basis in fact; (2) the proffered reasons did not actually motivate the employment decision; or (3) the proffered reasons were insufficient to motivate the employment decision. Manzer , 29 F.3d at 1084 (6th Cir. 1994) (quoting McNabola v. Chicago Transit Author ity , 10 F.3d 501, 513 (7th Cir. 1993)). Pr ior to 1993, some courts held that a plaintiff “must do more than simply refute or cas t doubt on the com

pany’s r ationale for the a

dverse a ction. The

plaintiff must also sho w a discriminatory animus based on age.” Manzer , 29 F.2d at 1082 (qu oting Medina-Munoy v. R.J Reynolds Tobacco Co. , 896 F.2d 5, 9 (1st Cir. 1990)). See, e.g ., Woods v

. Friction Ma

terials, Inc. , 30 F.3d 255 , 260 (1st Cir. 1 994) (“t he plaint iff can not aver t summary j udgment if

the rec ord is devoi d of adequate direct or circumstantial evidence of discriminatory animus on the part of the employer”); Manzer v. Diamond Shamrock , 29 F.3d 1078 (6 th Cir. 1994); Kralman v. Il linois Depar tment of Veterans’ Affair

s , 23 F.3d 150

(7th Cir. 1 994); Anderson v. Baxter Hea lt hcar e Corp. , 13 F.3d 1120, 1125 (7th Cir. 1994) (“The mere submission of materials from a co-worker or supervisor

indicating that an employee’s performance is satisfactory . . . does not create a material issue of fact .”); LeBl

anc v. Grea t American Insurance Co. , 6 F.3d 836 ( 1st Cir. 199 3); Irvin v. Airco Carbide , 837 F.2d 724 (6th Cir. 1 987). Thi s has bee n termed the “pre text plus”standar

d: in order to survive summary judgment, the employment discrimination plaintiff must show evidence of pretext , plus direct, indirect, or circumstantial evidence of discr iminatory animus on the part of the employer. See Manze r v. Diamon d Shamrock Ch emicals Co. , 29 F.3d 1078, 1082 (6th Cir. 1994) (citing Medina-Muno z, 896 at 9 and Anderson , 13 F.3d at 1123-2 4; LeBlanc , 6 F.3d at 842- 43.8

The appropriate standard was clarified by the U nited States Sup reme Court in St. Mary’s Honor Center v. Hicks , 509 U.S.502, 113 S. Ct. 2742, 2748-49, 125 L. Ed. 2d 407 (1993): “Even though . . . rejection of the defendant’s proffe red reasons is enough at law to sustaina finding of discrimination, there must be a findi ng of d iscrimination .” Id. at 2749 n.4. Once the defendant articulates a legitima

te, non-d iscrimina tory rea son for itsdecision , the ultima te burden then shifts back to the plaintiff. In order to defeat a motion for summary judgment, the plaintiff must produce evidence from which a jury could reason ably infer that the employer’s actions were base d on her protected characteristi c, “or that defendants’ proffere d legitimate, nondiscriminatory reason for adverse employmen t action i s a pretext for unlawful discrimination.” Douglas v. PHH Fleet America Corp. , 832 F. Supp. 1002, 1009 (D. Md. 1993) (citing St. Mary’s Honor Center ). “Direct

or indirect evidence of discriminatory motive may do, but ‘the evidence as a whole

. . . must be sufficient for a re asonable

factfinder to inf

er that th e employe

r’s dec ision was m

otiv ate d by age animus.’” Woods v. Friction Materials, Inc. , 30 F.3d 255, 260 (1st Cir. 1994) (quoting Goldman

v. First Nat’l

Ba nk of Boston , 985 F.2d 1113, 1117 (1st Cir. 1993)). Without adequate direct or circumstantial ev idence of the employer’s discriminatory animu s, the plaintiff cannot avoid summary judgment. Woods , 30 F.2d at 260. We must first determine whether Pruett has adequately rebutted W al-Mart’s articulation of

a legitimate, non-discriminatory reason for its action. As noted above, th e focus m ust be on whether Pruett was “qualified” for the telephone position, that is, whether her performance in that position from June 27 to J

uly 1, 1994

was inad equate. Hills testi fi ed regarding his subjective impressions that Pruett’s “tone” and “brashness” on the PA system were unacceptable, that she was “ not tactful,” “impatie nt” and “callou s” on the t elephone . He also

noted tha t others c omplaine d to him of Pr uett cutting them off. Wal-Mart did not present evidenc e of spec ific inci dents; Hil lis recou nted prima

rily his subjective assessment of her performance. The affidavits by others, such as George Hobson, do notrebut Hillis’ asse

rtions. Th e only evidence rebutting

Hillis’ te stimony is P

ruet t’s affidavit, asserting that she was not “rude” or “abrupt ” to callers, that

she was never counseled about problems with her perf ormance. She did not dispute problems cutting off callers, but asserted that it was not her fault.9

In employme

nt discrim

ination a ctions, the plaintif

f must come forward with material evidence that at the time she was removed from the position in question, she was performing the job in a manner

which met

the emplo yer’s le gitimate expectations and that she was replaced by someone of comparable qualifications outside the pro tected g roup. Douglas v. PHH FleetAmerica Corp. , 832 F. Supp. 1002, 1009 (D. M d. 1993). The cour t will not re

view the e

mployer’ s business judgmentas to employees’ relative qualific ations. Wileman v. Frank , 979 F.2d 30, 37-38 (4th Cir. 1992). See also Kralman v. Il linois Dept

. of Veter ans’ Affai

rs , 23 F.3d 150, 156 (7th Cir. 1994). “The self-perception of a plaintiff . . . as to . . . her other qualifications is irrelevant; what matters i s ‘the perception of the decision-maker.’ ” Douglas , 832 F. Supp. at 1010 (quoting Smith v. Flax , 618 F.2d 1062, 1067 (4th Cir. 1980)). In some situations, however, the plaintiff’s own uncorroborated testimony, standing alone, may be sufficient to create a disputed issue of material f act. Weldon v. Kraft , 896 F.2d 793, 799 (3rd Cir. 1990). In this case , Hillis ass erts in part tha t his perception of Pruett’s performance wa s based on complaints fromothers that Pruett had“cut the m off” on the telep hones. Pr uett’s af fidavit on this issue is inadequate to rebut this assertion. Pruett does not dispute t hat she “ cut off” callers but asserts in effect that it was “not her fault.” This is insufficient to create a disputed issue of fact on this point. See Anderson v. Baxter Healthcare Corp. , 13 F.3d 1120, 1125 (7th Cir. 1994). Hillis’ other as sertions, regarding Pruett’s tone, brashness, lack of tact, impatience or callous manner, are not supported by examples of such behavior; the record contains only Hillis’ subjective impressions. Pruett’s affidavit, in effect, says “no, I wasn’t.” In some instances, as where the employer cites spec ific inci dents t o support its subjective judgment, the plaintiff cannot admit the factual incidents and yet create a disputed issue of

fact by merely disagre eing with t

he subjective conc lusion dra wn from th

e incide nts. For ex ample, in Man zer , the plaintiff was fired because he wa s “obnoxious and unreliable.” Manzer , 29 F.3d at 1082. The p laintiff did not dispute the factual incidents, but instead asserted that the employer’s explanations were “phony” and th at his good performance evaluations belied the employer’ s conclusion that he was “obnoxious and unreliable.” Id. at 1084-1085. In this case, however, Hillis’ subjective assessment is not supported by sp ecific incidents , nor does he compa

re P ruett’s qualifications with those employees assigned to the telephone positions. Under these circumstances, Pruett may crea te a disputed issue of materi al fa ct by10

submitting her testimony denying such behavior. See Weldon v Kraft , 896 F.2d a t 800 ( [T] here is

no rule of law that the testimony of a discrimination plaintiff, standing alone, can never ma ke out

a case of discrimination that could withstand a summary judgment motion .”) The refore, Pruett’s affida vit is barely sufficie nt to rebut Wal-Mart’s asserted legitimate, non-discriminatory reason for its decision not to assign Pruett to the telephone position. However, once we conclude tha t the p laintiff has submitted enough evidence to rebut the employer’s articulated reason, we must examine the evidenc e “as a w hole” to deter mine if it is “sufficient

for a re asonable

fact finder to inf

er that th e emp loy er’s decision was motivated by age animus.” Woods v. Fr

iction Mate

rials , 30 F.3d at 26 0 (citing Goldman , 985 F.2d at 1117). Although, for purposes of summary judgment, Wal-Mart has conceded that Pruett has established

a prima face case of age

discrimin ation, thisdoes not r emove our

responsi bility to examine whether overall the plaintiff has presented sufficient evidence. In this case , it is undisputed that Pruett was hired by Wal-Mart

at age 51 , well

into the protected age category. Pruett has proffe red no evidence of remarks indicating ageb ias or sta tistical e vidence indicatin g a patte

rn of age -biased

actions. Pruett herself submitted proof, from her testimony and the affi davit of Patric ia Dotson, that WalMart had scheduled her to work in the telephone position in June, 1994, a t age 6 0. She was tr ansferred

only after she had performed in this position several days. Moreove r, Pruett wa s no t disc harged, but merely not assig ned to the telephone position , and the r ecord in dicates t hat sh e continues to be employedby Wal-Mart. There is no indication that Wal-Mart has sought to place Pruett in job positions in which she would not come in contact with the public, as where an employer seeks to project a “youthful” image to the public. The only evide

nce prof fered b y the plai ntiff is the age differe

nce betw een Prue

tt and the employees who were assigned to telephone positions. At the time she was transferred from the telephone position, Pruett was 60 years old. The employees in the telephone positions, Mary Morphis and Tiny Pittman, were 50 years old and 53 years old, respectively, both well into the protected age categor y. Unlike race or gender, age is not “a discreet [sic] a nd immutable characteristic of an employee which separates the members of the pro te cted group indelibly from persons outside the protected gro up. Rath er, age is a continuum along which the distinctions between employees are often . . . relative. . . .” Goldstein v. Manhattan Industries, Inc. , 758 F.2d 1435, 1442 (11th Cir.), cert. denied

474 U.S. 10 05, 106 S. Ct. 525, 88 L. E d. 2d 457 ( 1985). Th

erefor e, a plai ntiff’s i nability11

to demonstr

ate that the jo

b position w as filled

by someone

under fo rty is not “ an absolu

te bar to the establishment

of a prima facie case.” Carter v. C ity of Miam i , 870 F.2d 578, 583 (11th Cir. 1989). However, the plaintiff cannot make out a prima facie ca se by showing that the job was filled by

someone only “a

mite” younger. Bienkowski v. American Airlines, Inc. , 851 F.2d 1503, 1 506 (5th Cir. 1988). Th

e plaintif f must show

that the w orker who filled t he positio n was “su fficien tly younger in the context of his employment to permit an inference of age discrimination.” Id. This case pr

esents a close que stion, whe

ther the seven-y ear dif

ferenc e in age b etween

Pruett and Pittman, ta

ken alone , is suffic ient evid ence fo r a jury to reasonably infer age discrimination, given the undisputed surrounding circumstances, and assuming that the jury rejects Wa l-Mart’s asserted reason for its decision. In mos t ca ses involving a comparison between employees in the protect e d age category, where the diffe rence in age is modest, the plaintiff survives summary judgmentin part be cause th ere is oth er evide nce of a ge animus , such as biased remarks or a pattern of discriminatory behavior. See, e.g., Bienkowski , 851 F.2d at 1506-7 (five-year age differ ence plus mildly age-bia sed comme nts plus specific denial of incidents forming the basis for the employer’s decision); Carter v. C

ity of Miam i , 870 F.2d at 579-80 (fou r-year age difference plus age-biased remark); Goldstein , 758 F.2d at 1440 (s everal employee s replac ed by youn ger wor kers, with an age difference

of 5-10 ye ars, show ed a patt ern of di scrimina

tion). At l east one

court ha s found tha

t a modest age diff erence , in and of

itself, is sufficie

nt to permi

t the fact finder to infer age discrimination. See, e.g

., Sempier

v. Johnson & H

iggin s , 46 F.3d 724, 729-730 (3rd Cir. 1995) (plaintiff’s job responsibilities assumed by two employees, one four years younger and the othe r ten years younger). In another court, a ten-yea r age difference, without further e vidence, was deemed insufficient

to survive a motion for summary judgment. See O’Connor v. Conso lidated Coi n Caterers Corp. , 829 F. Supp . 155, 158- 59 (W.D. N.C. 1993) (ten-year age differe nce, alleged biased remarks had no nexus to the decision to terminate plaintiff). Viewing the evide

nce as a whole , in the light

most favo

rable to the plain tiff, we must conclude that the e vidence is not suff

icient fo r the fa ct finde r to rea sonably in

fer tha t Wal-Ma rt’s12

decision not to assign Pruett to the telephone position resulted from age animus. The decision of the trial court on Pruett’s age discrimination claim is affirmed. Manzer , supra , at 1083. FEDERAL DI SABILITY CLA IMS Pruett claims that she was discriminated against because of h er d isability when Wal-Mart refused to transfer her to the telephone operator position. This claim inv o lves two theories: (1) disability disc r imination, i.e., Pruett was not given the job because of Wal-Mart’s discriminatory animus; and (2) failure to accommodate; that Pruett was denied an accommodation, a sedentary job, which the federal disability statutes required Wal-Mar t to provide. The analysis for

Pruett’s claim under the ADA of discrimination on the basis of her disability is very similar to the analysis of her age discrimination claim. See Rizzo v. Chil dren’s Wor

ld Learning Centers, Inc. , 84 F.3d 758 , 762 (5th C ir. 1996) . Pruett mu st establish a prima f acie case by produc ing evide

nce that : 1) he is an in dividual w ith a disabili ty; 2) he is“otherw ise qualified” to perfor m the job re

quireme nts, with or

without re asonable accommodation; and 3) he [suffered adverse employment action] solely by reason of his handicap. Monette v. Electr

onic Data Sys. Corp. , 90 F.3d 1173, 1178 (6th Cir. 1996) (citing cases). Where the employer’s discriminatory intent is disputed, courts have applied “a burd en-shif

ting anal ysis roughly equivalent to that set forth by the Supreme Court in McDonnell Douglas ”for other employment discrimination claims. Monette , at 1178. Once Pru ett establish es a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Rizzo , 4 F.3d at 761. The plaintiff must then produce evidenc e from wh ich a jur y could re asonably infer that the e mplo yer’s actions were based on her disability, or that the employer ’s articulated reason is a pretext for unlawful discrimination. See id. As discussed above in the context of Pruett’s age claim, Pru ett has su bmitted ev

idence b arely suffi cient to rebut Wa

l-Mart’ s asserted legitima te non-di scrimina

tory rea son for itsactions. Consequently, as with

Pruet t’s claim of age discrimination, we must examine whether “ ‘the evidence a s a whole . . . [is] sufficient for a reasona ble factfinder to infer that the employer’s decision was motivated by . . . animus ” on the basis of her disability.’ ” Woods , 30 F.3d at 260 (quoting Goldman , 985 F.2d at 1117).2 Pruett asserts that Pittman sought an accommodation from Wal-Mart, to transfer from

the telephone position to a less sedentary position, and that Wal-Mart failed to accommodate he r. 3 “ The ter m ‘qualif ied individ

ual with a disability ’ means a

n individua

l with a dis ability who, with or without reasonable a ccommodation , can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C.A. § 12111(8) (1995). 13 In this case , the pla

intiff h as no direct evidence of discriminatory animus on the basis of Pruett’s disability . The only circumst antial ev idence a ppears t o be that t

he other emplo yees in telephone positions did not have disabilities. However, Pruett’s own proof indicates that one of the employees in a telep

hone posit

ion, Tiny Pit

t man, had a physical disability. 2 Moreove r, it is undisputed that, when Pruett previously experienced foot problems, she wastransfe rred te mporaril y to a telephone position and, on June 27, 1994, it is undisputed that Pruett was assigned t o t he telephone position because of her foot disability. Under the circumstances as a whole, the evidence is simply insufficient for a jury to reasonably co nclud e that Wal-Mart then turned around and removed Pruett from the telephone position because of her f oot disability. Therefore, the trial court did not err in granting Wal-Mart summary judgment on Pruett’s claim of discrimination on the basis of her disability under the ADA. Under Pruett’s second theory, an employer is guilty of discrimination under the Americans With Disabilities Act when it has not made “reasonable accommodations to the known physical or mental limitationsof an othe rwise qua lified ind ividual with a disab ility who is an . . . employee, unless [the employer

] can de monstrate that the a ccommoda

tion would

impose an undue hardship on the business of such [employer].” 42 U.S.C.A. §12112 (b)(5)(A) (1995). Pruett is classified as an “individual with a disability” 3 because her physi c al inability to stand for long periods of time has substantia lly limited he

r ability t

o perfor m her job a

t her pre vio us pos ition of sales clerk. “Reason able

accommodation” m ay incl ude reassigning the handicapped employee to a vac ant position. 4 2 U.S.C.A. § 12111(9 )(B) (19 95). How ever, th e ADA doe s not requ

ire an e mployer to search for another job the employee can perfor m. Miller v. Department

of Corrections , 916 F. Supp. 863 , 870 (C.D. Ill. 1996). In these cases, the employee bears the burden of “producing evidence sufficient to establish that accommodation by reassignment was possible.” Id. In July 1994, Pruett’s physician informed Wal-Mart that she needed to be re assigned to a position that allowed her to sit while working. Wal-Mart was required to make a good faith effort to accommo date Prue

tt’s disab ility unless it could show that such accommodation would create an4 “[U]ndue hardship,’ means an action requiring significant difficulty or expense . . . .” 42

U.S.C.A. § 12111(10) (1995). 14 undue hardship. 42 U.S.C.A. §12112 (b)(5 )(A) (1995). 4 It was not required to transfer Pruett to a sedentary position if there were no vacanc ies or if Pr

uett was not qualified for a particular sedentar y position. After being informed of Pruett’s disability, Hillis offered her a position ha

nging app arel in the stockroom with the accommodation of a stool. This position required standing, however, and Pruett could not p erform t

he job. She

th e n requested the telephone position. Pruett testified, that after Hillis info

rmed her that she w ould not receive th e job answ ering pho nes, she told him that she would appreciate his informing her if any other sitting position be came av ailable. In his af fidavit, Hillis states that “[a]lthoughPruett was not offered the telephone position, she was offer ed several alternative jobs and a part time work schedule that would not affect her foo t problems . Pr uett refused these jobs and work schedul es because she claimed she could make more money by receiving short term disability.” Hillis did n ot i dentify any other job, aside from the stockroom position, that he of

fered Pr uett. Prue

tt alleges that after she was refused the telephone position, she

was notoffered another sitting position until one year later, and, that she would have accepted any sedentary position had one been offered. From Augus t 1, 1994, u ntil August 28, 1995, Prue tt did not work for Wal-Mart. During this time she received Social Sec urity disability benefits. On August 1 2, 1995, Pr

uett submit

ted a lett er of re signation

stating, in

pertine nt part: I am not aware of a

ny positio ns at Wal-Mart that I am presently capable of performing, with the exception of the job of answering the telephone. . . . [B]e cause I am in fina

ncial str aits at this time . . ., I am compelled to re sign my emp loyment in order to receive what is due me under W al-Mart’s profit sharing plan. After receiving this letter, Wal-Mart offered Prue tt a sitting position as cashier in the cosmetics departm ent, a position which allowed her to work while sitti ng. Pruett ’s evide nce indic ated tha

t this position had not ex

isted at th

e old Wal -Mart sto

re. The cosme

tics positi on reaso nably

accom modated Pruett’s disability. She accepted the position and returned to work on August 28, 1995. Thus, the rec ord esta blishes tha

t disputed issues of materia l fact re main as to P

ruett’s c laim that Wal-Ma rt faile d to acco mmodate her disab ility. The se issues include Pruett’s qualifications for the telephone position (i.e., whether she performed adequately in the position form June 27, 19945 Pruett testified in her deposition that she is only disabled “to stand or walk.” She

asserte d that she

could per

form a se dentary

job, and th at she inf

ormed the Social Sec

urity Administration of this. Under these circumstances, her prior statement would not contra dict her assertions here.

6 Tenn. Cod

e Ann. § 8- 50-103(a

) provide s in pertinent part : 15 to July 1, 1994), whether Wal-Mart had vac ant positio ns for wh ich Pruet t was qua lified tha t would have accommodated her, whether these positions were offered to Pruett, whether Pruett refused them and, if so, whether Pruett was justified in refusing them. Regardle ss of the se fact

ual issues, Wal-Mart argues that the doctrine of judicial estoppel should bar Prue tt from claiming that she was “otherwise qualified” for a position under the ADA. Wal-Mart bases thi s claim on P

ruett ’s sworn sta

tement sub mitted to r

eceive Social Sec

urity disability benefits. It argues that Pruett cannot claim on one hand to be totally disabled5 in order to receive disability benefits, and on the other hand assert that Wal-Mart failed to a ssign her to a sedentary job that she could pe rform. However, Wal-Mart points to no place in the rec ord in which it raised this issue before the trial court. Consequ ently, it w ill not be c onsidere d on appe al. Indemnity I

ns. Co. v. Blackwell , 653 S.W.2d 262 (Tenn. App. 1983). Therefore, Wal-Ma

rt is not en

titled to su

mmary judg ment on Pru ett’s cla im of fail ure to

accommo date

her disability. As to this clai m, the decision of the trial court must be reversed and the case remande d for tria

l. THRA CLAIMS The Tenness ee Huma

n Rights Ac t (THRA) p

rohibits a ge and h andicap

discrimin ation in employme

nt. See Tenn. C ode A nn. §§ 8-50-103(a) (1993) and 4-21-401(a) (1991). Tennessee utilizes federal decisions construing parallel employment law to determine the standard b y whi ch Tennessee courts will weigh the evidence in these types of c ases. Bruce v. W estern Auto S upply Co. , 669 S.W.2d 95 (Tenn. App. 1984). In age disc riminatio n actions , THRA sections and t heir federal counterparts are

similarly interpreted. Accordingly, the standards mentioned above apply, and we find that Pruett’s claim for age discrimination under state law wa s properly disposed of by the trial court. Unlike its feder

al counte rpart, th e portion of the TH

RA that proh

ibits discrimination on the basis of disability does not require employers to provide disabled work ers wi th reaso nable

accommo dations. 6 See Tuck v. HCA Health Services of Tennessee, Inc. , 7 F.3d 465, 474 (6th Cir.There shall be no discrimination in the hiring, firing and other terms and conditions of employment of the state o f Tenne ss ee or any department, agency, institution or political subdivision of

th e state, or of any private employer, against any a pplicant for employme

nt based s olely upon

any physic al, menta

l o r visual handicap of the a pp licant, unless such handicap to some degree prevents the applica nt from performing the duties required by the employment sought or impairs the per form ance of the work involved.

16 1993); Turner v. Eagle Distributing Co. , No. 03A01-9209-CH-0338, 1993 WL 88365, at *2 (Tenn. App. March 29, 1993) (holding that Tennessee law does not require an employer to accom modate

a handica pped empl oyee by r

eassignm ent); Abraham v. Cumberland- S wan, Inc. , No. 01A01- 9201CH00032, 1992 WL 207775 (Tenn. App. Aug. 28, 1992); Tenn. Atty. Gen. Op. No. 94-028. Therefore, Pruett has no claim for failure to accommodate her disability under Te nnessee law. The trial court’s decision as to Pruett’s THRA claims is therefore aff irmed. ERISA CLAIM Pruett claims that Wal-Mart violated § 510 of ERISA when it denied her a job which she could per form full -time. The relev ant ERISA s ection pr ovides in p ertinen

t part: It shall be unlawful for any person to discharg e, f ire, suspend, expel, discipline, or discrimin ate against a participant or benef ic iary . . . for the purpose of interfering withthe attainment of any right to which such participant may become entitled under the plan. . . .

29 U.S.C.A. §1140 (1997 ). A sectio n 510 violation involves three elements: (1) plaintiff participated in a protected plan; (2) the defendant engage d in prohibited action (3) “for the purpose of interfering withthe plaintiff’s receipt of benefits under the plan. . . .” See Watkins v. Shared Hospital Services Corp. , 852 F. Supp. 640, 643 (M.D. Tenn. 1994). As a result of Wal-Mart’s actions, Pruett lost her medical benefits for approximately one year. Pruett asserts t hat Wal- Mart inte

ntionally reassigned her from

the job answering telephones to a position thatrequired her to stand constantly, therefore limiting the

amount of

hours she

could work each day. Because Wal-Mar t’s medical insurance plan covered only those empl oyees who worked twenty-eight (28) hours or more per wee k, Pruett’ s transfe

r resulte d in her lo ss of benef its under the plan. To state a c laim unde

r ERISA, th

e plaintif f must show specific intent to violate the statute. See Watkins , 852 F. Supp . at 643; Folz v. M arriott Corp. , 594 F. Supp. 1007, 1014 (W.D. Mo.17

1984). Pruett can point to no discriminatory re marks or patte rn of behavior by Wal-Mart or other evidence indicating such intent. Accordingl y, we fin d that the trial court was correct in granting summary ju dgment fo

r Wal-Ma rt on this c laim. CONCLUSION In sum, Pruet

t has pre sented evidence barely s ufficie

nt to r ebut Wal-Mart’s articulated legitimate nondiscr iminatory reason f or refu sing to ass ign her to the telephone position. However, the evidence as a whole on Pruett’s age discrimination claim is insufficient for a jury to r

easonab ly infe r tha t Wal-Mart’s actions were the result of age bias. Therefore, the trial court’s dismissal of Pruett’s age discrimination claim, under the federal and state stat utes, is affirmed. Likewise, the evidence as a whole on Pruett’s claim of di sability di scrimina tion is insuf

ficient f or a jury to

reasona bly infer that Wal-Mart’s decision resul ted fr om bias against her because of her foot disability. Consequently, the trial court’s dismissal of Pruett’s disability discriminat ion cl aim, under bothfederal and state statutes, is affirmed. Howeve r, on Pruett’s claim that Wal-Mart failed to make a good fa ith effort to accommodate her disability, under the ADA, disputed issues of material fact remain. The trial cour t’s dismissal of Pruett’s failure-to-accommodate claim is reversed a nd the

cause remande d for tria

l on this cla

im. On Prue

tt’s clai m under ER

ISA that W al-Mart

refuse d to assign her to the

telephone position

in order to avoid paying her medical benefits, the evidence as

a whole is insufficient for a jury to reasonably find that Wal-Mart

had the r equisite s pecific

intent. Therefore, the trial court’s dismissal of Pruett’s ERISA claim is affirmed. The decis ion of the trial court is affirmed in part, reversed in par t, and remanded fo r proceedings consistent with this Opinion. Costs are taxed equall y to Appellant and Appellee, for which execution may issue if necessary. HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S. DAVID R. FARMER, J.