FILED

November 25, 1997

Cecil W. Crowson

Appellate Court Clerk

SUSAN FERRELL, )

) APPEAL NO.

Plaintiff/Appellant, ) 01A01-9707-CH-00339

)

v. )

) Rutherford Chancery

BLUE BIRD OF TENNESSEE, INC. ) No. 96MI-41

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE RUTHERFORD COUNTY CHANCERY COURT 

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR

ROBERT T. CARTER, ESQ.

Henry, McCord, Bean & Miller, P.L.L.C.

300 North Hackson Street

P.O. Box 538

Tullahoma, Tennessee 37388

ATTORNEY FOR THE PLAINTIFF/APPELLANT

DAVID W. KIOUS

1535 West Northfield Boulevard

8 Lincoln Square

Murfreesboro, Tennessee 37129

ATTORNEY FOR THE DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WALTER W. BUSSART, JUDGE

OPINION
1

 TENN. CODE ANN. § 4-21-101 to -1004 (1991 & Supp. 1997).

2

This is an appeal by plaintiff/appellant, Susan Ferrell, from the order of the

Rutherford County Chancery Court dismissingher employmentdiscrimination action

against defendant/appellee, Blue Bird of Tennessee, Inc. (“Blue Bird”), on summary

judgment. The pertinent facts are as follows.

Blue Bird is a corporation which sells and services buses. The president of

Blue Bird is George Law. Blue Bird employed Ms. Ferrell for approximately five

years before her termination on August 17, 1995. Blue Bird originally hired Ms.

Ferrell to pick, receive, and pack parts. As her employment continued, she began to

take on additional responsibilities. At the time of her termination, Ms. Ferrell worked

with parts, service, warranty, communication, inventory, and special projects.

Ms. Ferrell and two other female employees returned from lunch late on

August 17, 1995. Mr. Law asked and/or told the women to come into his office upon

their return. He admonished all three for their tardiness. The conversation between

Ms. Ferrell and Mr. Law continued and escalated. Mr. Law testified in his deposition

that Ms. Ferrell became defensive, irritated, and irrational and began to cry

hysterically. Thereafter, Mr. Law terminated Ms. Ferrell’s employment. Mr. Law

testified that Ms. Ferrell had been a good employee, but she was temperamental.

Ms. Ferrell applied for unemployment compensation. At the request of the

Department of Employment Security, Mr. Law informed the department he had

terminated Ms. Ferrell due to her unsatisfactory communication skills with coworkers, management, and others. Blue Bird hired John Mitchell in September of

1995. Mr. Mitchell worked under James Bowers, Ms. Ferrell’s former supervisor,

and handled parts, inventory and special projects.

Ms. Ferrell filed her complaint against Blue Bird on 16 January 1996. She

alleged Blue Bird violated the Tennessee Human Rights Act1

 by terminating her and

replacing her with a man at a higher salary. Blue Bird filed an answer followed by

a motion for summary judgment. In support of the motion, Blue Bird filed the
2

 Although neither the affidavit nor Ms. Ferrell’s deposition appear in the record as filed,

Blue Bird filed a motion to supplement the record. The motion is hereby granted.

3

affidavit of E. Ray Earnest and the depositions of the parties.2

 Ms. Ferrell responded

to the motion and attached George Law’s deposition; a letter from a Blue Bird

customer; an affidavit from a Blue Bird employee, Rosanne Riddle; and the

separation notice from the State. The trial court found as follows:

1. Plaintiff has asserted certain controverted facts in her

burden to establish a prima facie case pursuant to McDonnell Douglas

Corporation v. Green test that would make such determination thereof

better left as an issue for the jury.

2. Defendant has stated a legitimate nondiscriminating reason

for firing the Plaintiff. Therefore, the burden shifts back to the Plaintiff

to show that the legitimate reason for firing was not the true reason but

merely a pretext for discrimination.

3. Plaintiff fails to offer any material facts to rebut the finding

that the firing was legitimate, and therefore Defendant’s Motion should

be granted.

Thereafter, Ms. Ferrell filed a timely notice of appeal. She contends the chancellor

erred in granting Blue Bird’s motion for summary judgment.

I. Standard of Review

This court reviews a trial court’s order granting a motion for summary

judgment as if we were making the initial ruling. See Gonzales v. Alman Constr.

Co., 857 S.W.2d 42, 44-45 (Tenn. App. 1993). Before a party can prevail on a

motion for summary judgment, they must demonstrate there are no genuine issues as

to any material fact and the law entitles the party to a favorable judgment. See Byrd

v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The court must resolve three questions

when determining whether there are no genuine issues as to any material fact. These

are: “(1) whether a factual dispute exists; (2) whether the disputed fact is material to

the outcome of the case; and (3) whether the disputed fact creates a genuine issue for

trial.” Id.

Initially, the movant has the burden of demonstrating the requirements of

summary judgment. See id. at 215. “A conclusory assertion that the nonmoving

party has no evidence is clearly insufficient.” Id. Once the movant makes a properly

supported motion, the burden shifts to the nonmovant to provide contradictory

evidence using affidavits or any of the other discovery materials listed in Rule 56.03.
3

 A sex discrimination plaintiff must demonstrate the following: 1) he is a member of a

protected class; 2) he was subjected to adverse employment action; 3) he was qualified for the

position; and 4) he was replaced by a person of the opposite sex. See McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973) (setting forth the

factors in racial discrimination cases); Brenner, 874 S.W.2d at 584 (applying the McDonnell factors

in a case alleging a violation of the Tennessee Human Rights Act).

4

See id.

II. Analysis

Application of these principles to the present case creates an interesting

situation. To explain, the parties in a case alleging discriminatory discharge will

seldom agree on one fact, that is, the reason for the termination. This will generally

be a disputed fact. Thus, this court’s decisions on whether the disputed fact is

“material” and whether there is “a genuine issue” are critical. The Tennessee

Supreme Court defined a material fact as follows:

A disputed fact is material if it must be decided in order to resolve the

substantive claim or defense at which the motion is directed. Therefore

when confronted with a disputed fact, the court must examine the

elements of the claim or defense at issue in the motion to determine

whether the resolution of that fact will effect the disposition of any of

those claims or defenses.

Id. “[T]he test for a ‘genuine issue’ is whether a reasonable jury could legitimately

resolve that fact in favor of one side or the other. . . . In making this determination,

the court is to view the evidence in a light favorable to the nonmoving party and

allow all reasonable inferences in his favor.” Id. An understanding of the legal

standards involved in discrimination suits is necessary before determining whether

the factual dispute is material or creates a genuine issue.

This court has set forth the duties of each party in a discriminatory discharge

case as follows:

An age discrimination plaintiff has the burden of establishing a

prima facie case by using the traditional criteria set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973)3 or through direct, circumstantial, or statistical evidence. See

Bruce, 669 S.W.2d at 97; see also Simpson v. Midland-Ross Corp., 823

F.2d 937, 940 (6th Cir. 1987). Once the plaintiff has established a

prima facie case through either of these methods, the burden of proof

shifts to the employer to rebut the presumption of discrimination by

articulating a legitimate nondiscriminatory reason for the employment

decision. Silpacharin v. Metropolitan Gov't, 797 S.W.2d 625, 629
5

(Tenn. App. 1990); Bruce, 669 S.W.2d at 97. Once the employer has

satisfied the burden of articulating a legitimatenondiscriminatory reason

for its employment decision, the burden of proof again shifts to the

plaintiff to prove that the employer's reason is a mere pretext or that the

employer's proffered explanation is not worthy of belief. Id.

Brenner v. Textron Aerostructures, a Div. of Textron, Inc., 874 S.W.2d 579, 583

(Tenn. App. 1993). “It is important to note, however, that although the McDonnell

Douglas presumption shifts the burden of production to the defendant, ‘[t]he ultimate

burden of persuading the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff.’” St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407, 416 (1993)

(quoting Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct.

1089, 1093, 67 L. Ed. 2d 207, 215 (1981)).

Application of the law to the facts reveals that while the factual dispute is

material, there is no genuine issue for the fact finder. The determination of why Blue

Bird terminated Ms. Ferrell is certain to affect the disposition of the claim, thus,

making the factual dispute material. However, it is the opinion of this court that there

is no genuine issue. Our decision is based on the legal standards heretofore explained

and the evidence presented by both the parties. Under the law, the fact finder must

determine whether the plaintiff has produced sufficient evidence that the legitimate,

nondiscriminatory reason asserted by the defendant was pretextual. It is Blue Bird’s

contention that it terminated Ms. Ferrell because of her poor communications skills.

The deposition of George Law and the separation notice of the Tennessee Department

of Employment Security support this explanation. Ms. Ferrell claims Blue Bird

terminated her because she was female and relies on the affidavit of Roseanne Riddle,

her sister and former co-worker, to support her claim. Ms. Riddle states the following

in the affidavit:

5. Without question,Susan Ferrellwasterminated because she

was female. . . . I asked George Law what he meant by this statement

and he said “Well, when you have a child, you’re not going to work.”

6. George Law further told me on many occasionsthat women

need to stay at home with their children and that is what is wrong with

the world today, is that too many do not.

7. . . . I was required to pay for my husband’s air fare. The

company (Blue Bird of Tennessee) paid the air fares for the wives of the

male employees.

8. . . . After Susan Ferrell had a baby, George Law said, on

several occasions: “Somebody needs to go, but Susan cannot go--she

has a family now.”
6

9. Without question, Susan Ferrell’s firing in August of 1995

was pretextual.

As a matter of law, the plaintiff must ultimately produce some evidence that the

termination was due to discrimination. There is no such showing here, that is, a

reasonable jury could not legitimately resolve the fact in favor of Ms. Ferrell. The

only evidence is that Mr. Law made general statements about having children and

work and the role of women in child care. While these are certainly questionable

opinions; they are just that. It is too much of a stretch to attach these statements to

Ms. Ferrell’s termination.

Ms. Ferrell has simply failed to produce evidence of discrimination under the

Tennessee Human Rights Act. The trial court correctly granted summary judgment

in favor of Blue Bird as there was no genuine issue as to a material fact.

Therefore, it follows that the decision of the chancery court is affirmed and

remanded for any further necessary proceedings. Costs of this appeal are taxed

against plaintiff/appellant, Susan Ferrell.

______________________________

WALTER W. BUSSART, JUDGE

CONCUR:

_____________________________

BEN H. CANTRELL, JUDGE

_____________________________

WILLIAM C. KOCH, JR. JUDGE