# FILED

Novemb er 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk SUSAN FERRELL, ) ) APPEAL NO. Plaintiff /Appella nt, ) 01A01-9707- CH-00339

) v. ) ) Rutherford Chancery BLUE BIRD O F TENNESS EE, 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 , Tenne ssee 37388 ATTORNEY FOR THE PLAINTIFF/APPELLANT
DAVID W. KIOUS 1535 West Northfield Boulevard 8 Lincoln Square Murfree sboro, T ennessee 37129 ATTORNEY FOR THE DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WALTER W. BUSSART, JUDGE 

## O PINI ON1 T ENN
. C ODE A NN . § 4-21-101 to -1004 (1991 & Supp. 1997). 2 This is an appea

l by plaint

iff/appel lant, Sus an Ferr

ell, fr om the orde

r of the Rutherford County Chan cery Court dismissing her employment disc riminatio n action against defendant/appellee, Blue Bird of Tennessee, Inc. (“Blue Bird”), on summary judgment. The per

tinent fac ts are as follows.

Blue B ird is a corporation whic h sells and s ervices b uses. T he president of Blue Bird is G eorge La

w. Blu e Bird employed M s. Ferr ell for a pproximate ly five years before he

r termina tion on Augu st 17, 199 5. Blue B ird origina lly hired M s. Ferrel l to pick, r

eceive, and pack pa

rts. As her

employment continued, she began to take on additional responsibil ities. At the time of her termination, Ms. Ferrell w orked with part s, servic e, war

ranty, c ommunicat

ion, invent

ory, and s pecial pr

ojects.

Ms. Ferrel l and two ot

her fema le employe es return ed from lu nch late on August 17, 1995. Mr. Law asked and/or told the women to come int

o his office

upon their return. He admonished all three fo r their tardiness. The conversation between Ms. Ferrel l andMr. La

w continue d and esca

lated. Mr. Law

testifie d in his deposition thatMs. Ferrell became defe nsi ve, irritated, and irrational and began to cry hysterica lly. Therea

fter, Mr. Law

terminat ed Ms. Ferr ell’s employment. Mr. Law testified that Ms. Ferrell h ad been a g ood employee , but she w as temperamental.

Ms. Ferrell appl ied for une mploymen t compens ation. At the re quest of the Departm ent of Employme nt Securit y, M r. Law informed the department he had ter m inated Ms. Fer

rell due toher unsati sfactory communica

tion skills w ith coworkers , management, and others. Blue Bird hired John Mitchell i n Septembe r of 1995. Mr. Mi tc hell worked under James Bowers, Ms. Ferre ll’s former supervisor, and handled

parts, i nventory an d special p rojects.

Ms. Ferrel l filed her

complaint against Blue Bird on 1 6 Januar y 1996. She alleged Blue Bir

d violated t

he Tenne ssee Hum an Rights Act 1 by terminat ing her and replacin g her with a man at a higher sa

lary. B lue Bird file d an answe r followe d by

amotion for summary judgment. In support of the motion, Blue Bird fi le d the2 Although neither the affidavit nor Ms. Ferrell’s dep ositi on appear in the record as filed,

Blue Bird filed a motion to supplement the record. The motion is hereby granted. 3 affidavi tof E. R ay Earne st and the depositions o f the par

ties. 2 Ms. Ferrell responded to the motion a

nd attache d George

Law’s deposi tio n; a letter from a Blue Bird customer; an affidavit from a B lue Bird empl oyee, Ros anne Riddle ; and the separati on notice f

rom the St ate. T

he trial c ourt found a s follows: 1. Plaintiff

has asserted certain controverted facts in her burden to es tablish a pr

ima faci e case

pursuant to McDonnel l Douglas Corporati on v. Greentest that would make such determin ation ther eof better le ft as an is sue for the jury. 2. Defenda

nthas stated

a legitima

te nond iscrimina

ti ng reason for firing the Plaintif f. The refore, the burden shif

ts back to the Plaintiff to show that t

he legitim ate rea son for firi ng was not t he true r easonbut merely a pretext f or discrim

ination. 3. Plaintiff

fails to of fer anymateria

l facts torebut the

finding thatthe firin g was legit

imate, a nd theref ore Def endant’s M otion should be grante d. Thereafter, Ms. Ferrell filed a timely notice of appeal . She co ntends the c hancellor erred in granting Bl

ue Bird’s motion for

summary j udgment.

I. Standard of Review

This court re views a tr

ial court’ s orde r grantin g a motion for summary j udgment as i f we were making t he initia l ruling

. See Gon zales v. A lman Cons tr. Co. , 857 S.W.2d 42, 44-45 (Tenn. App. 1993). Before a part y can pr evail on a motionfor summa

ry judgment , they mus t demonstra te there are no genuine issues as to any mater

ial fact and the law

entitles t he party to

afavorable j udgment

. See Byrd

v. Hall , 847 S.W.2 d 208, 214 (T enn. 1993) . The c ourt must r esolve thr ee question s when determining whethe r there a re no genuine issu es as to any mater ial 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 m ovan t has the bur den of demo nstrating t

he requir ements of summary judgment

. See id. at 215. “ A concluso ry assert ion that the n onmoving party has no evidence is clearly insufficient.” Id. Once the movant mak

es a prope rly supported motio n, the bu rden shifts to the nonmovant to provide contradictory evidence using affi davits or any of t he other di scovery ma

terials l isted in Rul e 56.03.3 A sex di scrimina tion 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 qu alified f

or the position; and 4) he was replaced by a person of the opposite sex. See McDonnell Douglas Corp. v. Green , 411 U.S. 7 92, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973) (setting forth the factors in racia

l discrimin ation ca ses); 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
Applicat ion of these principles to the pres ent ca se creat es an inter

esting situation. To explain, the parties in a case al leging di scrimina tory discha

rge will seldom agree on o ne fact, that is, t he reason for the termi nation. This wil l general ly be a disputed f

act. T hus, this c ourt’s dec is ions o n whether the dispute d fact is “materi al” and wheth er there is “ a genuine issue” are critical. The Tennessee Supreme Court def

ined a mat

erial fa ct as foll ows: A disputed fact is materia l if it must

be decide d in order t

o resolve the substantive

claim or defense at

which the motion is directed. Therefore when confronte d with a dis puted fac t, the cou rt must examine t

he elements of the claim

or defens e at issue in the motion to determ

ine w hetherthe resolution of that fact will effect the disposition of an y o f those clai ms or defenses. Id. “[T]he test for a ‘genuine issue’ is whether a reasonab le jury cou ld legitima tely resolve that fact in favor of

one side or

the other. . . . In making this determin ation, the court is to view the e vidence in a light fav orable to t he nonmo ving party a

nd allow all reasonable inferences in his favor.” Id. An understanding of the legal standards involved in di scrimina tion suits is necessary before determining whether the factual dispute is material or creates a genuine issue.

This court has s et forth t

he duties of

each party in a discriminatory discharge case as f ollows: An age discrimination plaintiff has the burden of es tablis hing a prima facie case byusing the traditional criteri a set for th in McDonne ll Douglas Corp. v. Green , 411 U. S. 792, 9 3 S. Ct. 1817, 36 L . Ed. 2 d 668 (1973) 3 or through direct, c ircumsta ntial, or statistica l evide nce. Se e Bruce , 669 S.W.2 d at 97; see also Sim pson v. M idland-Ros s Corp ., 823 F.2d 937, 940 (6th Cir. 1987). O nce the pla intiff has establishe d a p rima faci e case thr

ough either

of these m

ethods, the

burden of p roof shifts to the empl oyer to re but the pre sumption of d iscrimina tion by articula ting alegitimat

e nondiscri minatory r

eason for the employm

ent decision. Silpacharin v . Metrop oli tan Gov' t , 797 S.W .2d 625, 62 95

(Tenn. App. 1990) ; Bruce , 669 S.W .2d at 97. Once the employerhas satisfied the burden of articulating a l egitimate nondiscriminatory rea son for its employm

ent decisi on, the bur

den of proof

again shif

ts to the plaintiff to prove tha

t the emplo yer's re ason is a mere pr etext or that the employer's proffered ex planatio n is not wo rthy of bel ief. Id

. Br enner v. Textron Aerostructures, a Div. of T extron, Inc. , 874 S.W .2d 579, 58 3 (Tenn. App. 1993) . “It is important to note, how ever, th at although the McDonne ll Douglas presumption shifts the burden of production to the defendant, ‘[ t]he ultim ate burden of pe

rsuading the

trier of fact tha t the defe ndant

intentionally discriminated against the plaintiff remains atall times withthe plaintiff.’” St. Mary ’s Honor C tr.
v. Hicks , 509 U. S. 502, 5 07, 113 S. Ct. 2742, 2747, 125 L . Ed. 2 d 40 7, 416 (1993 ) (quoting Texas De

p’t of Comm . Affairs v. Burdine , 450 U. S. 248, 2 53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207, 215 (1981)).
Applicat ion of the law

to the fac ts reveal s that whil e the fac tual dispute is materia l, there is n o genuine iss ue for the fact finder. The determin ation of w hy Blue Bird terminat

ed Ms. Fe

rrell is c ertain to a

ffect th e dispositi on of the claim, t hus, making the fact

ual dispute materia

l. How ever, 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 evi dence pre sented by bot h the partie s. Under the

law, th e fact f

inder must determine

whether the plaintiff has produced sufficient evidence that the legitimate, nondiscriminatory reason as serted by t he defenda

nt was pretextual. It is Blue Bird’s contention

thatit termin ated Ms. Ferrel l because o f her poor communica

tions skills. The deposition of George Law and the separation notice of the Tennessee D epartme nt of Employment Securi ty supp ort 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. Riddl e states t he follow ing in the aff idavit: 5. With out question, Susan Ferrel l was terminated becau se she w as femal e. . . . I aske d George Law w hat he mea

nt by this sta

tement and he said “Well, when yo u have a chi ld, you’re n ot going to work.” 6. George

Law fu rther told me on many o ccasions that women need to stay at hom

e with the ir

children a

nd that is w hat is wr

ong with the world today, is t

hat too many

do not. 7. . . . I

was req uired to pa

y for my hu sband’ s air far e. The company (Blue Bird of Tennessee) paid the air fares for the w ives of the male emp loyees. 8. . . . After Sus an Ferr ell had a ba

by, Geor ge Law said, on several occasions: “Somebody needs to go, but Susan c annot go--s he has a family now.”6 9. Without

question, Susan Ferrel l’s firin g in August of 1995 was pret extual. As a matter

of law, the plainti ff must ult i matel y produce so me evidenc e that the terminat ion was due to d iscrimina tion. There is no such s howi ng h ere, that is, a

reaso nable jury could not le gitimatel y resolve t he fact i n favor of

Ms. Fer rell. T he only evidence is that Mr. Law ma de gene ral statements about having child

ren and work and the rol e of women

i n child car

e. While these ar e certa inly question able opinions; they are just that. It is too much of a stretch to attach the se statem ents to Ms. Fer rell’s te rmination.

Ms. Ferrell has simply failed to produce evidence of discrimination under the Tennessee Human Ri ghts Act. The trial court correctly granted summary j udgment in favor of

Blue Bir d as there was no gen

uine issue a s to a mate

rial fac t.
Therefore, it follows that the decision of the chan cery co urt is aff irmed and remanded for any further necessary proceedings. Costs of this appeal ar e taxed against pla

intiff/ap pellant, Susan Fer rell.

_________________ _____________ WALTER W. BUSSART, JUDGE

CONCUR:

_________________

____________ BEN H. CANTRELL, JUDGE

_________________

____________ WILLIAM C. KOCH, JR. JUDGE