### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 16, 1999 Session DAN B. WILSON, JR. v. LAWRENCE H. RUBIN, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 96-3715-I Irvin H. Kilcrease, Jr., Chancellor

No. M1998-00959-COA-R3-CV - Filed Nove mber 6, 2002

This appeal involves the termination of an employ ee by a music pu

blishing company after o ne of its songwriters complained that the employ ee had st alked and harass ed her. T he employ

ee filed suit in the Chancery

Courtfor Davidson County alleg ing gender and ag e discrimination in violation of the Tennessee Human Rights Act. The publishing company moved for a summary

judgment asserting that it had a v alid non-discriminatory g round for terminating the employ ee. The employ ee responded that the proffered

non-discriminatory g

round was pretextual. The trial court granted the summary judgment and dismissed the employee’ s complaint. On this appeal, th e e mp lo ye e asserts that genuinematerial factualdis putes regarding the publishing c ompany’s non-discriminatory reasons for terminating him should have prevented the trial court from granting the summary judg ment. We agree and, ther efore, vacate

the orde r dismissin g the em

ploy ee’s co mplaint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
W IL LI AM C. K OCH , J R ., J., delive red the o pinion of t

he court , in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined. W. Gary Bla

ckburn, Nashville, Tennessee, for the appellant, Da n B. Wilson, Jr.
GailVaughn Ashworth, Nashville , Tennes see, for the appe llees, L awrenc e H. Rubin

and Sony/ATV Music Publi shing Com

pany , LL C.
OPINION

I.
Dan B. Wilson, Jr . has wor ked as a “ song plu gger

” inNashville ever since 1972. He joined Sony/ATV

M usic P ublishing Company, L LC’s (“Sony

/ATV”) legendary

predecessor, Tree Publ ishi ng, in 1976. His dutiesincluded working withnew song writersand arti sts to deve lop their materia l, helpin g them record demo tapes and pre pare publicity portfolios, and pitching their mater ia l to other artists and r eco rd producers. By all accounts, Mr. Wilson was a very successful and effectivesong plugger. He was re putedly one of the hig

hest paid song pluggers in Nashville, earning $106,000 per yea

r in salary a

nd bonuses.1 Alan Jack son, Chasin’ That Neon Rainbow , in Here i n the Real World (Ari sta

Records 1989) (CD R ecording).
2 Bec ause this is an ap pea l from a summ ary jud gme nt, we are rel ying on the pre sentl y undis puted fa cts of fered by M r. W ilson reg ardin g his relatio nship w ith M s. Ga bell.
-2- Mr. Wilson was one of five song pluggers wor king in Nashville for Sony/AT V in 1995. Even though he wa s one of two persons in Sony/ATV’s Nashville off ice with the title “Vice President for Creative Services,” his duties remained essentially the same as they

had alway s been. All five of Sony/ATV’s song pluggers were male because Sony /ATV’s only fema

le song plugger had recently ta

ken a job with a record label and h ad be en re pl ac ed by a ma le . D on na Hi ll ey, Sony/ATV’s president and chief executive officer, made clear her de sire to employ another female song plugg er but ha

d not made

clear w hether s he intend

ed to cre atea new pos ition or to wait until one of the existing song plugger positions beca me vacant.
I n Apri l 1995, Chrissy Gabell, a strikingly beautiful 25-ye ar-old woman from Arizona, arrived in Nashville to “ch asethat neon rainbow.” 1 Her father had arrang ed an introduction for her withthe late David Skepner, the president of a prominent enterta inmentmanagement company and adjunct professor in the music business program at Belmont University

. Mr. Skepner, acting as Ms. Gabell’s “guidance counselor,” referred her to Ms. Hilley , and Ms. Hilley, in turn, asked Mr. Wilson to evalua te Ms. Gab ell’s pote

ntial as a songwr iter or pe rforming artist.
After listening to Ms. Gab ell’s mat

erial, Mr . Wilso n though t h e “heard a sparkle of somet hing” and decided that “[t]here was some talent there.” 2 Mr. Wilson told Ms. Gabell that he would begin looking for suitable material for he r and that he would a ssist her in record ing a de mo tape. Later in the y

ear, Ms. Hilley inquire d into Ms. Gabell’s progress after rec eiving another teleph one call from Mr. Skepner. In la te summer 1995, Mr. Wilson helped Ms. Gabell record a demo tape using pre-recorded mus ic tracks and t old her that he would begin working on a live recording session for her.
When Mr. Wilson first met Ms. Gabell, he was a middle-aged father of two adult children who had beendivorce d for twe lve years. B y N ovember

1995, he c ameto believ e that Ms. Gabell
was phy sically

attract ed to him “for some reason.” During lunch on Nove mber 14, 1995, Mr. Wilson and Ms. Gabell decided

to move be

yond their pr

ofession al relat

ionship to a much more intimate one. They began d ating, and their relationship was not only common knowledg e at Sony/ATV but was al so th e s ub

je ct of di sc us si on am on g o th er So ny/ AT V e mp lo yee s, in cl ud in g M s. Hi ll ey.
Mr. Wilson traveled to Arizona during the holiday s to visit Ms. Gabell and her family. On their flight back to Nashville, Ms. Gabell revealed that she w as sharing her apartment with Mark Tims. Up to this point, she had led Mr. Wilson to believe that her roommate

was fema le. Upon t heir return from Arizona, Ms. Gabell moved into the apartment Mr. Wilson shared with one of his adult daught ers. In early

1996, Ms. Gabell accompanied Mr. Wilson on a trip to Europe for a country music convention and shared a hotel room with him. Following the trip, Ms. Gabell told Mr. Wilson that she had decided to move back into her apartment. When Mr. Wilson asked her to move back in with him, Ms. Gabell responded that “she didn’t feel like she wanted to do that right at that point.” Mr. Wilson, trying to be a “ma n of the nineties,” did not press the issue.3 Th e auto mob ile M s. Ga bell ha d pu rchas ed us ing M r. W ilson’s $ 3,00 0 as he r do wn pa ymen t. -3- Alth ough Mr. Wilson and Ms. Gabell were beginning to experience some ups and downs, they continue d their

intimate relationship into the spring. Mr. Wilson he lped Ms. G abell co mplete another demo tape in February

1996. He had already

used his own money to pay for Ms. Gabell’s breast a ugmenta tion surg ery

prior to th

eir trip to Europe, and his generosity toward her

continued. He paid for a number

of her recording sessions and for he r publicity portfolio. He also b ought Ms. Gabell clothes and gave her $3,000 for a down payment on a c ar. Finally, in April 1996, Mr. Wilson obtained M s. Hilley ’s a greem ent to sign Ms. Gabe

ll to a one -y ear con

tract with Sony

/ATV as a songwriter. As he said

later, “ [t]his woman c ould have had any

thing she wanted

from me if she had just played fair a

nd honest.” Mr. Wilson’s “big blowup” with Ms. Gabell occurred during the summer of 1996 whenhe discovered

that she had made over $5,000 in purchases on two of his personal credit car ds without telling him. He left a message on her answe ring machine

to the ef fect tha t “[i]f y ou don’t g et these credit cards stra ightened out, y ou are going to have to fig ure out some other way

to get around because I’m coming to g et my car, 3 a nd I’ ll get t hem strai ghtene d out.” Ms. Gabell pr omised to return the cre dit card s in two day s. When she did not, Mr. Wilson decided to stop by her apartment
on the way

to work to r

etrie ve them and left a message on her answe ring machine that he was coming to pick up the cards. Mr. Wilson was able to enter Ms. Gabell’s gated apartment c omplex by following another car through the gate. He left a short time later afte r he discovered that Ms

. Gabell was not home. Approximat

ely two weeks later, on August 13, 1996, Ms. Hilley calledMr. Wilson into her office. There, in the presence of Don Cook, a Sony /ATV senior vice president, and Chris Waters Dunn, a Sony

ATV/vice

preside nt, Ms. Hilley informed Mr. Wilson that Ms. Gabell had complained that he had threatened to kill her and that h

e had bro ken into he

r apart ment comp lex. Ms. Hille

y a lso recounted that Ms. Gabell haddenied having consensual sexual relations with Mr. Wilsonand had claimedthat Mr. Wil son was st alking her, making unwanted sexual advances toward her , and threate ning to r uin her c areer

if she did not agr ee to con tinue dat ing him.

Mr. Wilson was surprised by Ms. Gabell’s allegations and denied th at his conduct with M s. Gabell had beeninappropriate or unwelco med. He r

ecounte d the deta

ils of his r elationsh ip with Ms. Gabell for Ms. Hilley a

nd Messrs. Cook and Dunn and was surprised to discover that they did not appear to believ e him. Fin ally , to concl ude the meeting, M s. Hilley told Mr. Wilson that h

e would be allowed to resign with a severance package from Sony

/ATV but that

he would be f

ired if he declined the offer.
Over the c ours e of t

he ne xtseveral day s, Mr. Wilson provided Ms. Hilley with corroboration of his v ersion of

his relat ionship wit

h Ms. Gabe

ll, including her

love note s and entr

ies o n he r personal calendar where she had dra wn hearts on the day s commemorating the monthly a nniversary of their fir st romanti c encounter in No vember 1 995. None of this information seemed t o sway Ms. Hi ll ey, and Mr. Wilson eventually declined to ac cept the severance packa ge by telling Sony/ATV4 As it turne d out, Ms. McKeehan’s tenure at Sony/ ATV was short -li ved. In May 1998, M s. McKeehan fi led
a com plaint w ith the E EO C alle g ing a host il e work envi ronment

at Son y/ ATV due to sex ual haras sment by f ell ow emp loyees and su perio rs. Son y/AT V fired M s. M cK eeha n app roxim ately two week s after she filed the c omp laint.

5 Lacy J . Dalto n, 16th Avenue , in 16th Avenue (Columbia Reco rds 1982) (33 rpm LP reco rding).
-4- that they could “take

their money and . . . give it to the poor boys’ home.” Shortly

thereafter, Mr. Cook ordered Mr. Wilson to pa ck up hi s p er so na l b el on gi ng s a nd to le av e t he pr em is es pe rm an en tl y.
After Mr. Wilson’s departure, Sony/ATV promoted Am y McKeeh an, the 31 -y ear-ol d administrative assistant to the song pluggers, to take his place

. 4 Sony /ATV dec lined to re

new Ms. Gabell’s contract when

it expired, and she returned to Arizona without making any f

urther noise on Sixteenth Avenue. 5

In November 1996, Mr. Wilson filed suit in the Cha nc er y Co ur t f or Da vi ds on Co un ty, alleging that Sony/ATV had eng aged in age and gender discrimination in violation of the Tennessee Human Rights Act by

firing him and re

placing him with a young er employee . Sony/ATV denied the allegationand, following discovery by both sides, moved for a summary judgment on the ground that it had a legitimate, non-discriminatory reason for firingMr. Wilson. Mr. Wilson responded to the motion by asserting

that Sony/ATV’s proffe

red reasons for firing him were pretextual. He supported his response with the detailed affidavit of Ms. McKeehan who by this time had

also been fired by Sony/ATV. The trial court granted Sony/ATV’s motion for

summary judgme

nt, and Mr. Wilson has appealed to this court.
II. T HE S TAND ARD O F R EVIEW Granting a summary

judgment is warranted in virtually any civil case

where the moving

party de monstrates that n o genui ne iss ues of mater ial fa ct ex ist an d that it is entit led to a judgm ent as a matter of law. Doe v. H

CA Health Servs. of Tenn., Inc. , 46 S.W.3d 191, 1 96 (Tenn . 2001); Armoneit
v. Elliott Crane Serv. , 65 S.W.3d 623, 627 (Tenn. Ct. App. 2001). Be cause a summary judgment involves an issue of law rather than an issue of fact, Planters G in Co. v. Federal Comp ress & Ware house Co. , 78 S.W.3d 885, 889 (Tenn . 2002), an order granting a summary judgme

nt is not entitled to a presumption of correctness on appeal

. Guy v. Mutual of Omaha Ins. Co. , 79 S.W.3d 528, 534 (Tenn. 2002). Appellat e courts do not employ the standar d of review in Tenn. R. App. P. 13(d) when reviewing an order g

ranting a summary

judgment. Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997); Estate of Kirk v. Lo we , 70 S.W.3d 77, 79-80 (Tenn. Ct. App. 2001). Rather, we determine for ourselves whether the moving party has satisfied the requirements of Tenn. R. Civ. P. 56. Hunter
v. Brown , 955 S.W.2d 49, 5 0- 51 (Tenn . 1997); Cantrell v . DeKalb Co unty , 78 S.W.3d 902, 905 (Tenn. Ct . App. 200 1). I

n this proc ess, we mu st

consider the evide nce in the light most

favora ble to the n onmoving party a nd resolve all inferences in the nonmoving party 's favor. Johns on v
. LeBonheur

Children’s Med. Ctr. , 74 S.W.3d 33 8, 342 (Te nn. 2002) ; Web ber v. Sta te Farm M ut. Auto. Ins. Co. , 49 S.W.3d 265, 269 (Tenn. 2001).-5-

Litig ants may

use a motion for summary judgment to challenge their adversarie s to put up or shutup on a critical issue in a case. Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1478 (6th Cir. 1989). A m

oving pa rty will be en

titled to a summary judgmen t if it can de monstratethat the nonmoving party will be unable to pr ove an essential element of its case on which it will bear the burden of proof at trial. Byrd v. Hall , 847 S.W.2d 2 08, 213 (Tenn. 1993 ); Solomon v. FloWarr Mgt., Inc. , 777 S.W.2d 701, 706 (Tenn. Ct. App. 19 89). Custo marily , defend ants employ this strategy either to negate an essen tial elem ent of the plaintiff’s claim or to establish an affirmative defe nse to the plaintiff’s claim. Staples v. CBL & Assocs., Inc

. , 15 S.W.3d 83 , 88 (Ten n. 2000); Pendleto n v. Mills , 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001).
Once a party see king a summary judgmen t demonstr

ates tha t its motion complies with the require ments of Tenn. R. Civ. P. 56, the burde n of going forw ard shif

ts to the no n-moving

party to demonstr ateeither th at mater

ia l factual di sputes exist or that the moving party is otherwise not entitled to ajudgmen

t as a matter of law. Nelson v. Martin , 958 S.W.2d 643, 647 (Tenn. 1997); Cantrell v. DeKalb County , 78 S.W.3d at 905. Mere concluso ry allega tions will not suffice

to crea te a material factual dispute. Psillas v. Home Depot, U.S.A., Inc. , 66 S.W.3d 860, 864 (Tenn. Ct. App. 2001). Non-moving parties may deflect a summary

judg ment motio n challe

nging their ab ility

to prove an essential element of their case by (1) pointing to evidence either overlooked or ignored by the moving pa

rty that cre ates a

factual dispute, (2) rehabilitating evidence challenged by

the moving pa rt y, (3) producing additional evidence that creates a material factual dispute, or ( 4) submitting an affida vit in accor dance w ith Tenn. R . Civ. P. 56.07 reques ti ng addi ti on al ti me fo r d is co ve ry. McCarley v. W

est Qualit y Food Serv. , 960 S.W.2d 585, 588 (Tenn. 1998); Davis v. Campbell , 48 S.W.3d 741, 747-48 (Tenn. Ct. App. 2001). A non-moving party who fails to carry

its burden faces summary dismissal of the challenged claim or defe nse beca use, as ou

r courtshave re

peatedl y observed, the failure of proof con cerning an ess ential el ement of

a case r enders a ll other f acts immateria

l. Alexander v. Memphis Individual Practice Ass’n , 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom , 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).
A summary judg men t is not appropriate when a case’s determinative f acts are in dispute. Thus, courts r

eviewing an order granting a summary

judgmen t must d et ermine whether factual disputes exist and whether these disputes are material to the claim or defen se implicated by the summary judgment motion. Byrd v. H all , 847 S.W.2d at 214; Cantrell v . DeKalb Co unty , 78 S.W.3d at 905-06. For a question of fact to exist, reasona

ble minds mu st be able

to differ over whe ther some alleged occurrence or event did or did not happen or whether a particular condition did or did not exist. Conatser v. Clarksville Coca-Cola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995); Davis
v. Campbell , 48 S.W.3d at 747

. If reasonable minds could justifiably reach diff erent conclusions basedon the evidence at hand, then a ge nuine question of

fact exists. Louis Dreyfus Corp. v. Austin C o. , 868 S.W.2d 64 9, 655 (Te nn. Ct. App . 1993). I

f, on the other hand, the evi d ence an d th e inferences to be reasona

bly drawn f rom the evidence

would per

mit a rea sonable p erson to r each on ly
one conclusion, then there are no material factual disputes and the question can be disposed o f as a matter of law. Webber v. State Farm Mu t. Auto. Ins. Co. , 49 S.W.3d a t 269; Brown v. Birman Managed Care, Inc. , 42 S.W.3d 62, 66 (Tenn. 2001); Seavers v. Metho dist Med. Ctr. , 9 S.W.3d 86, 91 (Tenn. 1999).6 The se feder al pre ced ents are , of cou rse, no t bindin g on T enne ssee co urts and d o no t limit our abilit y to give

the ful lest

possibl e eff

ect t o the Tenness ee Hum an R ights Ac t. Barnes v . Goodyear Tir e & Rubber

Co. , 48 S.W.3d 698, 705 (Te nn. 20 00) ; Parker v. Wa rren C oun ty Util. D ist. , 2 S.W .3d 1 70, 1 73 ( Te nn. 19 99) ; Spann v. Abr aham , 36 S. W.3d 452, 463 (Tenn. Ct. App. 1999 ).
-6- Not all factual disputes warrant deny ing a m otion for summary judgme nt. Many factual di sputes have no bearing to the ultimate outcome of the parties’ dispute. Thus, factual di spute s w arrant denying a motion for summary judgment only when they are material. Tenn. R. Civ. P

. 56.04 (requir

ing the m oving pa rty to demonstrate “that there is no genuine issue as to any material fact”). A factua

l dispute ismaterial for the purposesof Tenn. R. Civ. P. 56 if it must be decided in order to resolve the substance of the claim or defense be ing tested by the

summary judgme

nt motion. Luther v. Compton , 5 S.W.3d 635, 639 (Tenn. 1 999); Byrd v. H all , 847 S.W.2d at 21 5; Chambers v. City of Chattanooga , 71 S.W.3d 281, 284 (Tenn. Ct. App. 2001).
III. G ENDER AND A GE D ISCR IMINAT ION C LAIMS U NDER THE T ENNESSEE H UMAN R IGHTS A CT
The Tennessee Human Rights Act is a comprehensive a nti-discrimination law, Phi llips v. Interstat e Hotels Corp. , 974 S.W.2d 68 0, 68 3 (Tenn. 1998), intended to further the policies embodied in the similar federal laws against employ ment discrimination. Tenn. Code Ann. § 4-21- 101(a)(1) (1998); Frazier v . Heritage Fed. Bank

for Savs. , 955 S.W.2d 633, 636 n. 1 (Tenn. Ct. App. 1997). The Act proscribes discriminatory employ ment practices with respect to the compensation, terms, condition s, or priv

ilegesof employ

ment based on considerations o f race, creed, color, re ligion, sex, age, or national origin. Tenn. Code Ann. § 4-21-101(a)(3). In lig ht of the in

tended ov erlap in purpose between the Tennessee Human Rights Act an d federal anti-discrimination laws, Tennessee’s courts regula

rly consult the decisions of their federal counterparts for guidancewhen ca

lled upon t

o construe and apply the Te

nnessee Human Rights Act. Weber v. Moses , 938 S.W.2d 387, 390 (Tenn. 1996); Frazier v . Heritage Fed. Bank

for Savs. , 955 S.W.2d at 636 n.1. 6

A. Metho ds For Pr ovin g Empl oyment Discr imina tion Clai ms
The burden o f proving

the ultima

te issue o f unlawf

ul employment discrimination a lway s rests withthe employee. Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253, 101 S. Ct. 1089, 1093 (1981); Sp ann v. Abraham , 36 S.W.3d at 464. Whether the claim involves discrimination basedon gender or age , the framework for allocating the bur den of production and the order of the presentation of proof is the same. Employees pursuing an employ ment discrimination claim under the Tennessee Human

Rights Act may c arry the ir burden of proof by

employing e

ither the direct

or the indirect method of proof. Moore v. Nashville Elec. Power Bd. , 72 S.W.3d 643, 651 (Tenn. Ct. App. 2001 ); Perlberg v. Brencor Asset Mgt., Inc. , 63 S.W.3d 390, 394-95 (Tenn. Ct. App. 2001).

In the context of an employment discrimination case , the direct method of proof focuses on the motivation

of the em ploy er resp onsible

for the contested decision. Walker v. Glickman , 241 F.3d 884, 888 (7th Cir. 2001). Direct evidence of discrimination consists of evidence of an employer’ s7 Erick son v. Farmland Indus., Inc. , 271 F.3d 71 8, 724 (8th Cir. 2001) (holding that direct evidence i s eviden ce of conduct or statements by persons involved in making t he employment decision directl y manifesting a discri minatory attit ude).
8 The United States Supre me Co urt characterized its Mc Do nne ll Dou glas opini on as e stabli shi ng “a n al locat ion of the burden of producti on and an order f or the pre sentat

ion of pr oof.” St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 506 , 113 S. Ct. 2 742 , 274 6 (1 993 ).
-7- conduct or statem ents 7 which, if

believe d, requir

es a conc lusion tha

t unlawful discrimination was
a substantial motivating factor for the employ er’s actions. Clearwater v. Independent Sch. Dist. No. 166 , 231 F.3d 1 122, 1126 ( 8th Cir. 200 0); Jacklyn v. Schering-Plough Healthcare Prods. Sal e s Corp. , 176 F.3d 921, 926 (6th Cir. 1999); Brown v. East Miss. Elec. Power Ass’n , 989 F.2d 858, 861 (5th Cir. 1993). Evidence that can be interpreted as a n acknowledgment

of discriminatory

intent will suffice as direct evidenc e even if it stops short of a virtual admission of illegality. Gorence v. Eagle Food Ctrs., Inc. , 242 F.3d 7 59, 762 (7 th Cir. 2001 ); Miller v. Borden, Inc. , 168 F.3d 308, 312 (7th Cir. 1999).

Persons relying

on the direc t method of proof may use both direct and circumstantial evidence to support their claim. Goodman v. Penns ylvania Turnpike Comm’n , 293 F.3d 655, 664 (3d Cir. 2002) ; Sattar v. Motorola, Inc. , 138 F.3d 1164, 1168-69 (7th Cir. 1998); Spann v. Abraham , 36 S.W.3d at 464. The evidence must satisfy two conditions to be proba tive. First, it m

ust relat e to conduct or

s tatements by persons directly involved in the decision-making process. Kerns v. Capital Graphics, Inc. , 178 F.3d1011, 1017 (8th Cir. 1999). Statements by persons who are not part of the decision-making process will not suffice. Smith v. Leggett Wire Co. , 220 F.3d 7 52, 759 (6 th Cir. 2000). Second, the conduct or statements mus t relat e to the particular employ ment decision being challenged. Medlock v. Ortho Biotech, Inc. , 164 F.3d545, 550 ( 10th Cir. 19 99); Thomas v. National Football League Players Ass’n , 131 F.3d 198, 204 (D.C. Cir. 1997). Stray remar ks in the workplace, statements made long before the conte sted employme

nt action , and stat

ements oth

erwise unrelated to the action at issue will not suffice. Markel v. Board of R egents of Univ. o f Wis. Sys. , 276 F.3d906, 910 (7th Cir. 2002); Smith v. Leggett Wire Co. , 220 F.3d at 760; Fast v. Southern Union Co. , 149 F.3d 885, 890 (8th Cir. 1998).
Direct evidence of

intentiona

l employ ment discr

imination i s often ha

rd to come

by. Price Wate rhouse v. Hopkins , 490 U.S. 228, 271, 109 S. Ct. 1775, 1802 (1989) (O.Connor, J., concurring); Moore v. Nashville Elec. Power Bd. , 72 S.W.3d at 651. Accordingly, e mployees who cannot prove unlawful discrimination using the direct method resort to the indirect method of proof. This method
em pl oys the familiar

framework for allocating the bur den of production and the order of presentation of proof

8 set out in McDonnell Douglas Corp. v. Green , 411 U.S. 7 92, 93 S. Ct. 1817 (1973). The goal of this approach is to progressively sharpen the inquiry into the elus ive factual question of intentional discrimination. Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. at 255 n.8, 101 S. Ct. at 1094 n. 8.

Tennessee courts regula

rly employ the McDonnell Douglas approach in discrimination c ases
. See, e.g., Barnes v. Goodyear Tire & Rubber Co. , 48 S.W.3d at 70 8; Spann v. Abraham , 36 S.W.3d at 465. Under this approach, the employ ee has the initial burden of presenting evidence e stablishing-8-

a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000); Smith v. Bridgestone/Firestone, Inc. , 2 S.W.3d 197 , 200 (Te nn. Ct. App. 1999). This is an evidentiary standard, not a pleading requirement. Swierkiewicz v. Sorema , 534 U.S. 506, 510-11, 122 S. Ct. 992, 997 (2002).

Esta b lishing a prima facie case of discrimination cre ates a rebuttable presumption that the employer unlawfully discriminated ag ainst the employee. St. Mary’ s Honor Ctr. v. Hicks , 509 U.S. at 506, 113 S. Ct. at 274 7; Gonzalez v. El Dia, Inc. , 304 F.3d 63, 68-69(1st

Cir. 2002). The effect of the presumption is to place on the employer the bur den of producing evidence that the c hallenged employment

ac ti on wa s t ak en fo r l eg it im at e, no n- di sc ri mi na to ry r eas ons. Texas Dep’t of Cmty. Affairsv. Burdine , 450 U.S. at 254, 10 1 S. Ct. at 1094; Moore v. Nashville Elec. Power Bd. , 72 S.W.3d at 65 2. This burden is one of production, not persuasion. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. at 142, 120 S. Ct. at 2106. It requi res th e empl oyer to cl early set f orth, throu gh the introduction of admissible evidence, reasons for its actions which, if believe d by

the trier of fact , would supp ort a

finding that unlawful discrimination was not the cause of the employ ment action

. Bauer v. Albemarle Corp. , 169 F.3d 962, 966 (5th Cir. 1999).
If the employer suc ceeds in carry ing its burden of production, the presumption of discrimination drops out of the picture, and the trier of fact proc eeds to decide the ultimate question of whether the employ ee has proved th at the emp loy er unlawfully discrimin ated ag ainst him or her. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. at 142, 12 0 S. Ct. at 21 06; St. Mary’s Honor Ctr. v. Hicks , 509 U. S. at 510-11, 113 S. Ct. at 2749. At this stage, the emplo ye e must hav e a full and fair opportunity to demonstrate tha t the em ploy er’s proffered reasons are pr etextual and that unlawful discrimination was the true reason for the challenged employ

ment action. Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. at 256 , 101 S. Ct. a t 1095; Versa v. Policy Studies, Inc. , 45 S.W.3d 575, 580 (Tenn. Ct. App. 2000).
An employee may

demonstrate that an employ er’s proffered, non-discriminatory re asons for
an adverse

employ ment acti on are pr

etextual by

reveal ing the “ weakne sses, impla usib ilities, inconsiste ncies, incoherencies, or contradictions” in the employ er ’s explanatio

n. Garrett v . HewlettPackard Co. , 305 F.3d 1210, 1217 (10th Cir. 2002). Three of the most commonways to undermine an employer’ s proffered reasons include: (1) establishing that the proffe red rea sons have

no basis in fact, (2) establishing that the proffered reasons did not actually motivate the adverse employ

ment action, or (3) establishing that the pro ffere d reason s were in sufficie nt to motiva

te the ad verse employment

action. Dews v. A.B. Dick Co. , 231 F.3d 1016 , 1021 (6th Cir. 2000) ; Cliff v. Board of Sch. Comm’rs , 42 F.3d 403, 412 (7th 19 94); McNabola v. Chicago Transit Auth. , 10 F.3d 501, 513 (7th Cir. 1993) ; Barnes v. Goodyear Tire & Rubber Co. , 48 S.W.3d at 708. Proof that an employer’s explanation is unwor th y o f credence is a persuasive wa y to prove unlawf

ul discrimination. As Justice O’ Connor ha s pointed out:

In appropr

iate cir cumstanc es, the tr

ie r o f fact can reasonably infer from the fa ls it y of the explanation that the employer is dissembling to co ve r u p a di sc ri mi na to ry p urpose. . . . [O]nce the employer’s justification has been

eliminate d, discriminatio n may well be the most likely alternative explanation, especially since the employer

is in the-9- best position to p

ut forth th e actua l reason for its decision . . . . Thus,
a plaintiff ’s prima f acie ca se, combined with sufficien t evidenc e to find that the employer’ s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. at 147-48, 120 S. Ct. at 2108-09.
B. Prima Facie

Discrimination Claims Under the McDonnell Douglas Framework
The precise requirements of a prima facie case o f unlawful discrimination can vary depending
on the context. They

were “never intended to be rigid, mechanized, or ritualistic.” Furnco Constr. Corp. v. W

aters , 438 U.S. 5 67, 577, 98 S. Ct. 2943, 2 949 (1978 ). Thus, th e eleme nts of a prima facie case using thedirect method of proof may differ from the elements of a prima facie case using the indirect method. Swierkiewicz v. Sorema , 534 U.S. at 511-12, 122 S . Ct. at 997 ; McDonne ll Douglas

. Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121, 105 S. Ct. 613, 621-22 (1985) (holding that the McDonne ll Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination).
Prima Faci e Age Di scrimi nati on Cl aims
The Tennessee Hu man Ri ghts Ac t prohibitsemploy ers fro m discrimin ating a gainst t heir employeeswho are

forty ye ars old or older because of their age. Te

nn. Code Ann. § 4-21-101(a)(3), (b). The Act’s goal

is to require employe

rs to eva luate the perfor mance of their older employee s on their real, demonstrable merits rather than on the stereotype s often associated with aging. West ern Air Lines, In c. v. C riswell , 472 U.S. 400, 423, 105 S. Ct. 2743, 2756 (1985). Accordingly , Tenn. Code An n. § 4 -2 1- 40 1( a) (1 ), (2 ) s pe ci fi ca ll y prohibi ts age discrimination in hiring, firing, fixing compensa tion, or de

fining t he terms a

nd conditi ons of emp loyment.
An employee see

king to recover for unlawful ag e discri minati on must prove that considerations of

ag e n ot on ly played a r ol e in but determinatively influenc ed the employer ’s decision. Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 U.S. 1701, 1706 (199 3); Loeffler v. Kjell gren , 884 S.W.2d 46 3, 469 (Te nn. Ct. App . 1994); Bruce v. Western Auto Supply Co. , 669 S.W.2d 95, 97 (Tenn. Ct . App. 198 4). To es tablish a p rima facie case of age

discrimination using the indirect method of proof, an employee who has been terminated must demonstrate (1) that he or she is a member of the protected class of persons forty y

ears of age or older, ( 2) that his or her work performanc e satisfied the employer ’s reasonable expectations, (3) that he or she was a ctually or constructively

terminat ed, and ( 4) that the terminat ion occur red unde r circumstance s giving

rise to
an inference of discrimination based on age. Collins v. New York City Transit Auth. , 305 F.3d 113, 118 (2d Cir. 2002). The fourth element of a prima facie age discr

imination claim may be satisfied by presenting proof that

the employee w as replaced by someone substantially y

ounger. O’Connor
v. Consolidated Coin Caterers Corp. , 517 U.S. 308, 311-12, 116 S. Ct. 1307, 1310 (1996) (holding that an inference of discrimination cannot be dra wn from the replacement

of one worker with another worker insignif icantly you nger) ; Dugan v. Albemarle County Sch. Bd. , 293 F.3d 716, 721 (4th Cir. 2002); Norton v. Sam’s Club , 145 F.3d 114, 118 ( 2d Cir. 199 8); see also M oore v. Nashville Elec.-10-

Power Bd. , 72 S.W.3d at 651-52 (holding that a prima facie case of a ge discrimination requires proof that an employee

was replaced by

a “young er person”).
Prima Faci e Gend er Dis crimin ation Clai ms
The Tenness ee Huma

n Rights Act also pr

ohibits emp loy ers fro m discrimin ating a gainst t heir employees bec ause of their gender. Tenn. Code A nn. § 4-21-101(a)(3); Roberson v. University of Tenn. , 829 S.W.2d 14 9, 150 (Te nn. Ct . App. 1992). Its purpose is to prohibit all gender discrimination in the workplace no matter whether the discrimination disadvantages women or men. Newport New

s Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 682, 103 S. Ct. 2622, 2630 (1983). The A ct spec ifically outlaws g ender discrimination in hiring, firing, setting wages and benefits, and other conditions of employ ment. Tenn. Code Ann. § 4-21-401(a)(1), (2).
An employ

ee seek ing torecover for unlawful ge nder discrimination must present evidence directly showi ng or rai sing a reasonable inference that his or

her empl oye

r’s acti ons were

based in
a determinative way

on considerations of the employee ’s gender. Price Waterhouse v. Hopk ins , 490 U.S. at 241-42, 109 S. Ct. at1786; Turgeon v. Premark, Int’l, Inc. , 87 F.3d 218, 221 (7th Cir. 1996). To establi sh a prima facie case of gende r discrimination using the indirect method of proof, an employee who has beenterminat

ed must pr

esent evidence ( 1) that he or she be longs to a protected class, (2) that he or

she was p erformi

ng at a l evel tha

t met the e

mployer’s re asonable

expectat ions, (3) that he or

she was a

ctuall y or constru ctively terminated, a nd (4) that the termination occurred under circumstances giving

riseto an inference of unlawful ge nder discrimination . Lim v. Trustees of Ind. Univ. , 297 F.3d 575, 580 (7th Cir. 2 002); Karpel v. Inova He alth Sys. Serv. , 134 F.3d 1222, 1228 (4th Cir. 1 998); Shumway v. United Parcel Serv. , 118 F.3d 6 0, 63 (2d Ci r. 1997); Johnson v. Baptist Me d. Ctr. , 97 F.3d 1070, 1072 (8th Cir. 1996).
IV. M R . W ILS ON ’ S P ROOF O F E MPLOYM ENT D ISCR IMINAT ION
Mr. Wilson does not insist on this appeal that he established a prima facie case of either gende r or ag e discrim

ination us ing the d

irect me thod of pr oof. Acc ordingl

y, o ur task is l

imited to determining whether he presented sufficient evidenc e to establish a prima facie case of g ender and age discrimination using the indirect method of proof and whether he pre sented evidencethat would permit the trier of fact to conclude that Sony /ATV’s reasons for terminating him wer e prete xtu al. We answer both questions in the affirmative.
A. Mr. Wilso n’s Prim

a Facie Case
The parties do not dispu

te that Mr. Wilson presented evidence that he belonged to a pr otected cla ss of employ

ees and t hat his pe

rforman ce was c onsistent with his empl oye r’s r easonabl e expectat ions. Howeve

r, Sony /ATV asse

rts that Mr . Wilson fai led to esta blish a prima facie case of either age or gender

discrimination because he failed to present proof that he had been

subjecte d to
an adverse

employment action and that he had beenreplac ed as Vic e Preside nt of Crea tive Services.9 So ny / ATV takes vigorous i ssue with Ms. McKe ehan’s credibili ty and with some cause. However, it is not our

prerogative at thi s stage of t he proceeding to determine what weight, if any, shoul d be g iven to M s. M cK eeha n’s testimo ny. At this jun cture, w e nee d on ly determine whether Ms. McK eehan’s test imony regarding the st ateme nts made to h er by Ms . Hill ey and Messrs. W ilson and Cook regarding M r. Wilson’s terminat ion are admissible. W e have determin ed that

they are. -11- After consider ing the e vidence in the light most favorable to Mr. Wilson, we have determined that he has established a prima facie case of both gender and age

discrimination. Sony/ATV’s first arg

ument that Mr. Wilson failed to demonst rate tha t he was su

bjected to an adverse employ

ment action is premisedon its insistence that Mr. Wilson resigned from his job. Notwithstanding Ms. Hilley’s belief that Mr. Wilson had r esigned during their August 13, 1996 meeti ng, Mr. Wilson has staunchly denied that he resigned during this meeting or at any other

time. In his words, Sony/ATV “turned on me like a pack of dogs.” He insists that he rejected Sony /ATV’s severance packag e and that he contin ued to com

e to work following the August 13, 1996 meeting unti l Mr. C ook fi nally ord ered hi m to cl ean ou t his desk a nd lea ve the buil ding.

Mr. Wilson’s ve

rsion of th e eventssurround

ing the A ugust 13, 1996 meeting is corroborated by Ms. McKeehan’s testimony regar ding the parties’ contempo

raneousstatemen

ts. 9 In her Aug

ust 3, 1998 aff

idavit, Ms. McKeehan states that, as he left Mr. Cook’s office , Mr. Wilson told her that “I just got fired. I can’t

believe it, after twenty ye ars.” She

also rec ounted tha

t Mr. Cook la

ter told her “Dan ha s been le

t go” and that Ms. H

illey likewise told her that Mr. Wilson “has gotten fired.” For summary judgme

ntpurposes, Mr. Wilson’s actions immediately following the A ugust 13, 1996 meeting and the parties’ characterizations of what had occurred at the meeting provide an adequa

te basis for concluding that Sony /ATV terminated Mr. Wilson and, the ref ore, that he had been subjected to an adverse employ ment action. Sony/ATV’s second a

rgument is that Mr. Wilson has failed to establi sh a prima facie c ase of gender or age

discrimination because

he has failed to demonstrate that he was terminated under circumstances that give rise to an inference of unla wful gender or

ag e d is cr im in at io n. Sp ec if ic al ly, Sony/ATV

asserts that Mr. Wil son’s prima facie case fails because he did not produce e vidence that it h ired another Vice President for Creative Service s to replace him. We attach far less lega l significance to Mr. Wilson’s official title than does Sony /ATV. Mr. Wilson’s testimony regar ding his duties and his job title is essentially undisputed. He
s t atedthat he had alway s been a song plugge r and that the title of Vice President for Creative Services was simply an honorific be stowed on him beca use of hislong tenure with Sony/AT V. He also stated that the title carried no additional compensation and did not cha

nge his duties as a song plugger. It is likewise undispu ted that Sony/ATV hired a f emale song plugger

twenty y ears Mr. Wilson’s junior imme diately after Mr . Wilson’s de

parture . In li ght of th

ese cir cums tances, it is immaterial that Sony

/ATV did not bestow the title of Vice President for Creative Services on Mr. Wilson’s replacement. A songplugger by any other na

me remains a song plugge r. Accordingly , we find that Mr. Wil son prese nted evid ence tha t Sony /ATV had

replac ed him with

a substan

tially younge r woman and that this circumstance was sufficient to establish a prima facie case of gender and age discrimination.-12- B. Mr. Wilson’s Proof That Sony/ATV’s Reasons for Terminating Him Were Pre textual
Under the McDone ll Douglas fra me work, Mr. Wilson’s prima facie case gave rise to a rebutta ble pr es um pt io n t ha t S on y/A TV te rm in at ed hi m b ec au se of hi s g en de r a nd ag e. Ac co rd in gl y, the burden shiftedto Sony /ATV to pr

oduce evidence

that its decision to terminate Mr. Wilson was made for legitimate, non-discriminatory reasons. Sony/ATV succ essfully car ried this burden by presenting evidence that

it terminated Mr. Wilson because its Nashville executives believed that he had sexually h arasse d Ms. Gabe ll. Sony/ATV’s evidence regarding its innoce nt, nondiscriminatory rea sons for terminating Mr. Wilson assumed pivotal importance at this stage of the proceeding. Not only did it dispel the presumption that Sony

/ATV had

engag ed in unla

wful ge nder and age dis crimin ation , but it also shifted the burden of production back to Mr. Wilson to demonstrate that Sony /ATV’s proffered
reasons for terminating him were pretextual and that unlawful discrimination was the true reason for terminating him. At th is st age of the proceeding, had Mr. Wilson been unable to produce or point to some evidence that Sony/ATV’s proffered reasons were pretextual, Sony/ATV would have bee n entitled to a summar

y ju dgment d

ismissi ng Mr. Wilson’s di scrimination claims because the evidence regarding its legit imate, no n-dis cri minatory rea sons for terminating Mr. Wilson would have been
un disputed. St. Mary’s Honor Ctr. v. Hicks , 509 U.S. a t 507-08, 1 13 S. Ct. at 2 747; Foster v
. Alliedsignal, Inc. , 293 F.3d 1187, 1196 (1 0th Cir . 2002); Moore v. Nashville Elec. Power Bd. , 72 S.W.3d at 652.

We have concluded that

the evidence in the current recor d, viewed in

the ligh t most favo

rable to Mr. Wilson, c ould provi de the tr ier of fa ct with a f

actual b asi s f

or concluding that the innocent
r eas ons articulated by Sony /ATV for terminating Mr. Wilson were pretextual. The evidence supporting this conclusion falls into three categories – the comments of Ms. Hi lley and Mr. Cook regarding Mr. Wilson shortly before he was terminated, Sony

/ATV’s investigation of Ms. Gabell’s harassment

allega tions, and Sony

/ATV’s a pparent laxity in enforcing its sexual harassment policies with reg ard to other emplo ye es.
We turn first to the comments of Ms. Hilley and Mr. Cook in June and July 1996 before Mr. Wilson’s termination. Mr. Wilson testified that Ms. Hilley made no secret of her desire to employ
a female s ong plug ger. According to Ms. McKeehan, both Ms. Hilley and Mr. Cook told her that Sony/ATV

needed “new blood” and

“you nge r pe opl e on th e jo b.” In addition, Ms. McKeehan stated that Ms. Hilley told her that

she would have anopportunity to take Mr. Wilson’s song plugger’s job if he left and that Ms. Hilley made repeated derog atory

comments regarding a man of Mr . Wilson’s age da ting a y oung wo man like Ms . Gabell. The comments attributed to Ms. Hilley and Mr. Cook would not suffic e as direct evidence of discriminatory

intentusing the direct method of proof because the y do not relate directly to Mr. Wilson’s termination. Expressions of a desire to employ a female song plugg er or to have “younger people on the job”

do not nec essarily

reflect a settle d intent to t erminate an older male empl oyee to make room for

a y ounger

female employee. Even the

refer ence to needing

“new blo od” is10 De spite Judge Posn er’s predicti on, the expression “new blood” has apparently not di sappeared from the

emp loyer’s lexi con despit e the i ncreasi ng prev ale nce o f age d iscrimina tion litigation

. Karle n v. Ci ty Col leges of Chicago , 837 F.2d 314 , 316 (7th C ir. 198 8).

11 W hen asked about the importance of determining who was tel ling t he truth, Mr. Coo k blithel y respond e d “Well, y ou know, t

hat was n’t

my call .” -13- ambiguo us. 10 While the term frequently connotes the replacement of older worker s with younger ones, it also connotes replacing existing employ ees with new ones. Fortier v . Amerite ch Mobile Communic

ations, Inc. ,161 F.3d

1106, 1113 (7th Cir. 1 998). Thu s, while a reference to needing

“new blood” standing alone does not raise an inference of age discrimination, Beatty v. Wood , 204 F.3d 713, 716 -17 (7th Cir. 2000), it can, when viewed in the context of other statements, suppor t a n inferenceof discriminatory intent. Buckley v. Hospital Corp. of Am., Inc. , 758 F.2d 1525, 1530

(11th Cir. 1985).
Th eseco mm en ts , h ow ev er , p ro vi de a f ra me wo rk fo r c on si de ri ng Ms . H il le y’ s and Mr

. Cook’s actions a

fter re ceiving

Ms. Gabell’s compl aint abou t Mr. Wilson. To the exte nt that the y reflect a settled intent to replace Mr. Wilson with a younger wo man, the comments p rovide so me insight into why Ms. Hilley

and Mr. Cook might have decided agains t thoroug

hly investigating the truth of Ms. Gabell’s complaint. As long as Ms. Gabell’s allegations of sexual harassment remained unrebutted, they pr

ovided Sony/ATV with a facially appropriate reason to terminate Mr. Wilson.

Mr. Wilson also argues that Sony/ATV’ s failure to investigate the truth of Ms. Gabell’s sexual harassm

ent alle gations provides additional su pport for concluding that the company ’s reliance
on Ms. Gabell’s claims wa s pretextua l. While Ms. Hilley and Mr. Cook insist that they conducted
an appropr

iateinquiry into Ms. Gabell’s alleg ations, a reasonable trier of fact could c onclude to the
co nt ra ry. While it is un disputed t hat Sony /ATV off icials he ard both M s. Gabell’s and Mr. Wilson’s
accou nts of

their relationship, there is little indication that they we re concerned about who was telling the truth. 11 After Mr . Wilson pro duced Ms. Gabell’ s love note s, calendar mar ked with hearts, and the c ancelled checks to corroborate his ver sion of his relationship with Ms. Gabell, no Sony/AT V official required Ms. Gabell to respond or to corrobor ate her allegations aga

inst Mr. Wilson. Sony/ATV’s sexual harassment policy require d the comp any

to “thoroughly

and promptly investig ateall claims of harassment.” After reviewing the evide nce regarding Sony /ATV’s investigation of Ms. Ga

bell’s allega tions in the light most favorable to Mr. Wilson, we have concluded

that a tri er of fa

ct could conclude that

Sony/ATV did not conduct a thoroug h investigation into the truth o f Ms. Gabell’ s alleg ations be cause it was not interested in determining whether Mr. Wilson had actually ha

rassed Ms. Gabell. A trier of fact could conc lude that Sony /ATV view ed Ms. Gabell’s complaint as a convenient pretext for terminating him in orde r to hir e a sign

ificantl y younge r woman.
Fi na ll y, Mr. Wilson argues that he presented evidence de monstrating that Sony/ATV’s professed concern about sexual harassment in its workplace was not g enuine and that he was terminatedfor conduct far less serious than other employees’ c onduct that

was apparently

condoned-14-

by Sony/ATV. This evide

nce is found in Ms. Mc Keehon’ s August 3, 1998 af

fidavit which sets out
a veritable parade of sexual harassment horribles occ urring at Sony/ATV both before

and after Mr. Wilson’s termination. The affidavit also alludes to a sy stematic cover-up orchestrated by Sony/ATV’s manag ement during the discovery phase of this case.

Not surprisingly, Sony

/ATV has launched

a furious attack on Ms. McKeehon’s aff id avi t. It asserts that Ms. McKeehon did not have personal knowledge of many of the facts recounted

in her affidavit, that many of

the events Ms. McKeehon describes in her aff idavit are not relevant to Mr. Wilson’s discrimination claims, and that Ms. McKeehon’s testimony should be d

isrega rded bec ause she conceded that she did not respond truthfully to all the questions posed to her in an earlie r deposition. We find these arguments unpersuasive at the summary judgmen t stage . There

is little question that Ms. Mc Keehon h as perso nal kno wledge of most of the conduct described in her affida vit because she witne ssed it. He

r affida vit is releva nt becau se it provides corroboration for Mr. Wilson’s claim

that Sony

/ATV’s c oncern a

bout sexual

harassm ent was p retextual . Finally , Ms. McKeehan’s credibility

goes to the weight, not the admissibility , of her testimony.
After reviewing the

record in the light most favorable to Mr. Wilson, we have conclude d that he has created a triable issue on the question of pretext. Sony/ATV asserts that he f orfeited his job because he violated its policy ag ainst sexual harassment. Mr. Wilson’s evidence tends toshow that So ny/ ATV was not genuinely concerned about sexual harassment of female e mployees and that Sony/ATV

did not ser

iously investi gate Ms . Gabell’s harassment claim. On this evidence a
reasona ble trier of fact could disbelieve the company ’s proffered reason for terminating Mr. Wils on’s employment

and could believe that he was pushed out specifically to make his position available for
a younge r female. Accordingly , the trial court erred by granting Sony

/ATV’s motion for summary judgmen t.
V. We vacate the order granting the summary judgment and remandthe case to the trial court for furt her p roceedin gs c onsis tent with th is opi nion. We tax the costs of this appeal to Sony/ATV Music Publishing, LLC for which execution, if necessary , may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE