# FILED

February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MAURICE DeVORE, ) ) Plaintiff/Appell

ant, )

) Davidson Chancery VS. ) No. 93-3335-III ) DELOITTE & TOUCHE, ) Appeal No. ) 01A01-9602-CH-00073 Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For Plaintiff/Ap

pellant : For Defendant/Appellee : Susan S. Garner William S. Walt on Robert J. Turner John S. Lewis TURNER LAW OFFICES GIDEON & WISEMAN Nashville, Tennessee Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves an employment discri mination action file

d by a computer programmer

who was di s charged by a large n ational accounting f

irm because of inadequate

performance. T

he programmer fil

ed suit in the Chancer

y Court for Davidson County alleging that his former employerhad terminated him b ecause of his race and because he had filed a discr imination charge w

ith the Equal Employment Opp ortunity Commission. The tr ial court granted the

employer’s motion f

or summary judgment, and the programmer appealed to

this court. We have determined that the programmer ha s failed to demon strate t hat he will be able to produce competent, admissible evidence concerning essential elements of h i s claims and, therefore, aff

irm the summary judgm

ent.

I.

Maurice DeVore joined the New York office of Touche Ross &

Company as

a co mputer programmer in June 1989. Before the end of the year, Touche R oss & Company merged with Deloitte Ha skins & Sells to form

the new accounting

firm of Deloitte & Touche. As a r

esult of th e merger, t he data processing of fices of the combined firms were conso lidated into a facil

i ty in Hermitage whe

re Deloitte Haskins & Sells already had an of fice. Mr. De

Vore was offer

ed an opportunity to remain with Del oitte & Touche by moving to Nashville, and in June 1990 Mr. DeVore and approximately thirty-six other programmers moved to Tennessee.

Mr. DeVore had programmed in COBOL on an IBM computer while w

orking in New York. Since the Hermitage faci lity did not use IBM computers, Mr. DeVore
was assig ned to program in COBOL on a Honeywell-Bull DPS-6 minicomputer when he began working at the Hermitage facility. He was the only transferred programmer assigned to work on

a DPS-6 minicomp

uter; the remainder for the programmers were assigned to work on a larger Honeywell-Bull DPS-90 mainframe computer.

Deloitte & Touche offered training classes on the DPS-9 0 mai nframe to the programmers who were moving to Tennessee but did not offer for mal training on the DPS-6 minicomputer. When Mr. DeVor e began working on the DPS-6 at the-3-

Hermitage

facility, he wa

s unfamiliar with i

ts j o b control language, execution language, commands, and editors. Mr.DeVore request ed formal classro

omtraining

on the DPS-6 but was

informed that Del

oitte & Touche wa

s not of fering training classes to any of its employees on the DPS-6 at that time. As a result, Mr. DeVore’s initial t raining on the DPS- 6 came from read ing manuals, worki

ng on th e minicomputeritself, and a sking questions of other programmers with more experience on the DPS-6. D eloitte & Touche e

ventually offered t

raining classes on the DPS-6, and Mr. DeVore attend ed these classes.

As time passed, Mr.DeVore’s super visors became incr

easingl y dissatisfied withhis job performance. They believed that he required too much supe rvision and t hathe showed insuffici ent initiative and inte

rest in working on the DPS- 6 minicomputer. They were also concerned that he sometimes failed to complete work assignments within the time frames agre ed upon in advance wit h his supervisors. Like every other programmer at the Hermitage facility, Mr. DeVore was supervised by a programmer an

alyst who performed for

mal, written evaluations of his work at six-month

intervals. Mr. DeVore’s performance was judged to be only “mar ginal” during th e t hree six-month evaluation periods between June 1990 and December 1991. His performance between January a

nd June 19 92 “met expectations ;” howev er, his supervisor deter mined that he was “

not meeting expectat

ions” for the period from June thr

ough December 1992.

On February 17, 1993, Deloitte & Touche’s human resources manager met withMr. DeVore to discuss his poor job performance. He informed Mr. DeVore that Deloitte & Touche was conc

erned about (1) the q

uality of his work, (2) his failure to complete assignments on time,

(3) the amount of his work, (4) his fai lure to use good judgment, and (5) the unusual am ount of supervision he req uired. Immediately after the meeting, Mr. DeVore filed a discrimination

charge with the E

qual Employment Opportunity

Commission stating tha t Del oitte & Touche wa s subjecting him to disparate treatment b ecause of his race.

Deloitte & Touche discharge

d Mr. DeVore on

April 23, 1993 for i

nadequate job performance. Mr. DeVore filed a second charge with the E EOC asse

rting that Deloitte & Touche had discha

rged him in r

etaliation for the filing of his original discrimination

cha rge. R ather than waiting for the EEOC to complete its1 See 29 C.F.R. § 1601.28 (West 1997).

2 Deloitte & Touc he supported its summary judgment motion with (1) the deposition and affidavit of Bruce Webb, the Director of Human Resources and Administration, (2) Mr. DeVore’s interrogatory re sponses and deposition, and (3) the deposition of Iain Robertson who was Mr. DeVore’s super

visor at the Hermi

tage facility for

approximately two

years.

3 In addition to the aff

idavit of Gary G. K

aufman, the indust

ri al psychologist, Mr. DeVore submitted ( 1) discrimination charges filed by two other Deloitte & Touche employees, (2) the deposition of Steve Mazzarda, a former Deloitte & Touche programmer analyst, (3)the deposition of Erik Bunes, an applications manager with Deloitte & Touche, and (4) Deloitte & Touche’s interrogatory responses. Later, Mr. DeVore filed the depositions of (1) Gary G. Kaufman, (2) Robert A. Margo, an economics professor, (3) Fionnuala Sinclair, a former Deloitte & Touche project leader, and (3) Christopher Williams, Jr., a former Deloitte & Touche supervisor. -4- investig ation of these charges, Mr . DeVore requested and received a right-to-sue letter. 1 On November

15, 1993, Mr. DeVore sued Deloitte & Touche in the Chancery Courtfor Davidson County alleging violations of Title VII of the Civil Rights A ct of 1964, the Tennessee Hum an Rights Act, bre

ach of contract, r etaliatory discharge, mali cious harassment, and in tentional or negligent

infliction o f emotional distress an d seeking actual and punitive damages.

On Fe brua ry 14, 1995, after both parties had take

n thorough discovery, Deloitte & Touche filed a properly supported motion for summary judgment. 2 Mr. DeVore responded with an af fidavit prepared by

an industria

l psy chologist interpreting

census data and

other statistical data excerpted from Deloitte & Touche’s affirmative act

ion plans, copies of discrimina tion charges filed by

other Deloitte

& Touche employees, and the

depositions of other pr

esent or former Deloit

te & Touche employees. 3 During a hearing in March 1995, Mr. DeVore conceded that Deloitte & Touche was entitled to a sum

mary judgment on his cl aim s of breach of contract, int entional or negligent inflict ion of emotional distr

ess, and malicious h

arassment.

The trial courtfiled a memorandum opinion in October 1995

granting Deloitte & Touche’s summary judgment motion. After co ncluding that Mr. DeVore’s complaint

stated a claim for

dis criminat ion, the trial court determined that it was incumbent

on Mr. DeVore t

o point to evidence in th

e record creatin

g a genuine issue of fact that Deloitt

e & Touche treate

d him differently

than other programmers because of his race. The trialcourt concluded that Mr. DeVore ha

d not presented any directevidence of discrimination. Turning to Mr. DeVore’s circumstantial evidence, the trial court refused to consider the evidence concerning the beliefs of two former Deloitte & Touche employees that they had been vic tims of discriminati

on because-5-

itdid not comply wit h Tenn. R. Civ. P. 56.05. The trial court also concluded that Mr. DeVore’s statistical proof had no probative value.

II.

A summary judgment proceeding provides an efficient and eff ec tive vehicle for resolving c ase s that can be decided on legal issues alo ne. See Alexander v. Memphis Individual Practice Ass’n , 870 S.W.2d 278, 280 (Tenn. 1993); Bellamy v. Federal Express Corp. , 749 S.W.2d 31, 33 (Tenn. 1988). It should not, however, be used to replace a t rial when there is a need to resolve dis

puted factual issues

or to choose among various infer ences that could

permissibly be draw

n from undisputed facts. See Byrd v. Hall , 847 S.W.2d 208, 216 (Tenn. 1993). Thus, summary judgments are warranted only when the moving party has demonstrated that there are

no genuine disputes regarding the relevant facts and that it is entitled to a judgme

nt as a matter of law. See Tenn. R. Civ. P. 56.03; Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 19 95).
Summary judgments do not arrive in the appellate courts cl othed with the presumption

that they are c orrect. Se e City of Tullahoma v . Bedford County , 938 S.W.2d 408, 412 (Tenn. 1997 ) ; McClun g v. Delta Square Lt d. Partnership , 937 S.W.2d 891, 894 (Tenn. 1996

). Appellate cou

rts must make a fresh determination concerning

whether the requi

rements of Tenn.R. Civ. P. 56 have been met. See Hunter v. Brown , 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). This process requires appellate courts to review the evidence supporting and opposing the summar y judgme nt in the light most favo rable to the nonmoving party and to draw all re asonabl e inferences fro m the facts in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 792 (Tenn. 1996). A

ppellate courts should affirm asummary judgment only when they find that the only conclusion supported by the undisputed facts i s that the moving party is entitled to a judgment as a matter of law. See McCall

v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms , 900 S.W.2d at 26.

Motions for summary judgmen t go to the meri ts of the challenged c laim or defense and, therefore,

should not be taken lightl y. See Byrd v. Hall

, 847 S.W.2d at-6-

210; Fowler v. Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn. 1978). Once the moving party

carries its initial burden of demonstrating that there are no material factual disputes and that it is e ntitled to a judgment as a matter o f law, the burden shifts to t he nonmoving party to demonstrate either that material factua

l disputes exist

or that the moving party i s not entitled to a ju dgment as a matter of law. See Tenn. R. Civ. P. 56.06; Bain v. Wells , 936 S.W.2d at 62 2.

Itis now beyond

reasonable debate

that parties may se

ek a summary judgmen

t
on the ground that the nonm oving party will be una ble to present s ufficien t admissible

evidence at trial to withstand a motion f or di rected verdict, see Byrd v. Hall , 847 S.W.2d

at 212, 215, or that the nonmoving party will be unable to prove an essential element of its case. See Zimmerman v . Elm Hill Mari

na , 839 S.W.2d 760, 763 (Tenn. Ct. App

. 1992); Goodman v. Phyth yon , 803 S.W.2d

697, 703 (Tenn. Ct

. App. 1990). Non-moving pa rties may stave off

such motions by ( 1) pointing to evide nce overlooked or ignored by the moving party that creates a mater

ial f actua l dispute, (2) rehabilitating evi dence ch allenged by the moving party, (3) producin g additional evidence that creates a genuine material factual dispute, or (4) submitting

an affidavit in

accordance with Tenn. R. Civ. P. 56.07 requestin g additional time for discovery. See McCarley v. West Quality Food Serv. , 948 S.W.2d 477,

479 (Tenn. 1997); Byrd v. Hall , 847 S.W.2d at 21 5 n.6. Nonmoving par ties who do not carr

y this burden face summary dism issal of the challenged claim because, as the Tennessee Supr eme Court has observed, the “failure of proof concerning an essential elem en t of the cause of action necessarily renders all other facts immaterial.” See Alexander v. Memphis Individual Practice Ass’n , 870 S.W.2d at 280.

III. M R . D E V ORE ’ S D ISCRIMINATION C LAIMS

We turn first to

Mr. DeVore’s

discrimination clai

ms which will be

considered together be cause their eleme nts and the parties’ burdens of proof and of going4 See Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e-2000e-17 (West 1994);

42 U.S.C.A. § 1981 (West 1994); Tenn. Code Ann. §§ 4-21-301, -401 (1991). -7- forward with the evidence are essentially the same. 4 Whilethe facts are essentially undisputed, Mr. DeVore asserts that the inference s and con clusions that could be drawn from the facts re

quire denial of De

loitte & Touche’s s

ummary jud gment motion. If Mr. DeVor

e is to succeed with these claims, he must be able to prove that Deloitte & T ouche ’s proffered reason for his discharge was pretextual. We agree withthe trial court’s conclusion that Mr. DeVore ha s not presented evidence

meeting the requirements of Tenn. R. Civ. P. 56.06 that demonstrates that he will be able to carry this burden at trial.

A.

The burden of proving the ultimate issue of discrimination is at all times on the employee in a discrimination case. See Texas Dep’t o f Community Affai

rs v. Burdine , 450 U.S. 248, 253, 101 S. Ct. 1089, 1093-94 (198 1); Brenner v. Text ron Aerostructures , 87 4 S.W.2d 579, 583 (Tenn. Ct. App. 1993). The employee may establish a prima f

acie case of discr

imination either by us

ing the traditional cr

iteria set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973), or by produci ng direct, circum

stanti al, or statistical evide nce of discrimination. See Loeffler v. Kjellgren , 884 S.W.2d 463, 469 (Tenn. Ct. A

pp. 1994); Brenner v. Textron Aerostructures , 874 S.W.2d at 58 3; Bruce v. Weste rn Auto Supply Co. , 669 S.W.2d 95, 97 (Tenn. Ct. App. 1984).

Once the employee makes out a prima facie

case of discrimination, the burden shifts to the employer to rebu t the presumption of di scrimination by arti culating a legitimate, non-discriminatory rea son for the employment acti on. See Loeffler v. Kjellgren , 884 S.W.2d at 470; Brenner v. Text ron Aerostructures , 874 S.W.2d at 583; Silpacharinv. Metropolitan Gov’t , 797 S.W.2d 625, 629 (Ten n. C t. App. 1990). When t he employer has presented a legitimate , non-discriminator y reason for the employment

action, the burden s

hifts back to the empl

oyee to prove that the employer’s explanation is pre textual or not worth y of belief. See Texa s Dep’t of Community

Affair s v. Burdine , 450 U.S. at 253, 101 S. Ct. at 1093; Brenner v. Textron Aerostructures , 874 S.W.2d at 583, 587; Silpacharin v. Metropolitan Gov’t , 797 S.W.2d at 629.-8- The initial burden of establishing a prima facie case of unla wful employment discrimination

is not onerous. See Texas Dep’t o f Community Affai

rs v. Burdine , 450 U.S. at 253, 101 S. Ct. at 1094; Cronin v. Aetna Li fe Ins. Co. , 46 F.3d 196, 203-04 (2d Cir. 1995). Employees opting for the McDonnell Douglas Corp. v. Green approach need only prove (1 ) that they are members of a protected class, (2) that their work performance satisfied their em ployer’s reasonable

expectations, (3)

tha t they were discharged, and (4) that their e mployer replaced them with someone who is n ot a member of a p rot ected class. See McDonnell Douglas Corp. v. Green , 411 U.S. at 802, 93 S. Ct. at 1824; Baron v. W.W. Grainger, Inc. , 944 F. Supp. 689, 693 (N.D. Ill. 1996); Brenner v. Textron Aerostructures , 874 S.W.2d at 584. P resenting proof est ablishing each of these elem ents creates a re

buttable presumption t

hat th e
em ployer discriminated unl awfully. See Texas Dep’t o f Community Affa irs v

. Burdine , 450 U.S. at 254 , 101 S. Ct. at 109 4.

B. M R . D E V ORE ’ S P RIMA F ACIE C ASE

We consider first whether Mr. DeVore has made out a prima facie case of racial discrimi nation . Since he lacked direct proof that Deloitte & Touche had discriminated against him because of his race, Mr.

DeVore electe

d to follow the McDonne ll Do uglas Corp. v. Green approach. The record contains undisputed evidence that Mr. DeVor e is a member of a protected class and tha t he wa s discharged from his job. The evi dence is m uch less clear concerning whether Mr. De Vore’ s job performance m et Deloitte & Touc

he’s reasonable ex

pectations and whether Deloitte & Touche r eplace d Mr. DeVore w ith someone who was not a member of the prote

cted class.

Mr. Erik Bunes, a Deloitte & Touche applications manager, was quite guarded during his deposit

ion but c onceded that Deloitte & Touche hired programmer trainees after discharging

Mr. DeVore an

d that all these trainees we

re white. Mr. DeVore also insisted that his job perfo rmance was acceptable and that Deloitte & Touche’s expectationswere unreasonabl e. Even though

Deloitte & Touche

took strong issue withMr. DeVore’s appraisal of his ow n performance, w

e must view the evidence in the l ight mos t favorable to Mr. DeVore. Accordingly, we find that Mr. DeVore-9-

carried his initial burden of m aking out a prima fac

ie case of discrimination

based on

race.

C.

D ELOITTE & T OUCHE ’ S P ROFFERED E XPLANATION

Once Mr. DeVore ma

de out his prima fac

ie case, the

burden shifted to Deloitte & Touche to rebut the presumption of unlawful discrimi na tion by articulating a legitimate

nondiscriminatory r

eason for Mr. De

Vore’s discha

rge. S ee Randall v. Howard Univ. , 941 F. Supp. 206, 211 (D.D.C. 1 996); Plair v. E.J. Brach & Sons, Inc. , 931 F. Supp. 555, 562 (N.D. Ill. 1995). Deloitte & Touche carried this burden by submitting the depositions of Mr. DeVore’s superiors who detai led the history of his unsatisfactory performance. These depositions were but

tressed by the recor

ds of the company’s formal e

valuations of Mr. D

eVore’s perfor

mance from

June 1990 to December 1992. T

his evidence established that Deloitte & Touche discharged Mr. DeVore not because of his race but because of his inadequate job performance.

Deloitte & Touche’s artic

ulation of a legitima

te, nondiscriminat

ory reason for discharging

Mr. DeVore dis

pelled any

inference raised by Mr. DeVore’s prima facie showing of discrimination , see Gagné v. Northwes tern Nat’l Ins. Co. , 881 F.2d 309, 314 (6th Cir. 1989), and so the presumption o f discrimination dro

pped out of the case atthat point. See Texas Dep’t of Community

Affairs v. Burdine , 450 U.S. at 255 n.10, 101 S. Ct. at 1095 n.10. T h e burden of going forward also shifted back to Mr. De Vore to demonstrate that Deloitte & Touche ’s proffered rea son for disc hargin g himwas not the true re

ason behind his firing a

nd that the true rea

son was unlawful racial discrimination. See St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 507-08, 113 S. Ct. 2742, 2747 (1993); Texas Dep’t of Communi ty Affairs v. Burd

ine , 450 U.S. at 256, 101 S. Ct. at 1095. W ith the burden of pers

uasion squarely on his

shoulders, Mr. DeVore was faced with t

he summary dismissal

of his discrimination clai ms if he was unable to demonstrate that he could prove that D eloitte & Touche’s

proffered reaso

n for his discharge was pr

ete xtual

. See Nevins v. Bl ockbuster Entertainm

ent Group , 950 F. Supp. 60, 66 (E .D.N.Y. 19 96); Randall v. Howard Univ. , 941 F. Supp. at 2 15; Plair v. E.J. Branch & Sons, Inc. , 931 F. Supp. at 567.

D.5 The EEOC later determined that “[t]here is insufficien t evidenc e to support the Charging Party’s allegations based on race and age.” Notwithstanding the EEOC’s findings, Mr. Wi l liams filed a discrimination a

ction against

Deloitte & Touche in United States District Court. This suit was dismissed in September 1994 for lack of prosecution. -10- M R . D E V ORE ’ S P ROOF OF P RETEXT

Mr. DeVore offere

d three responses to D

eloitte & Touche’s

ass er tion that it discharged Mr. DeVore be cause of his job

performance, not his race. First, he relied

on the belief

of two other former employees that Deloitte & Touche discriminated against them because of their race. Second, he insisted that he believed that De

loitte & T ouche i ntentionally caused hi s poor job performan ce by not training him adequately

on the DPS-6 and by a

ssigning him to a program project that was destined to fail. Third, he

presented statistic s purporting to show th at Deloi tte & Touche employed too few African-American programmers at its Hermitage facility. The trial judge determined that the se responses, singly and together, we

re insufficient to c

reate
a material factual dispute w ith regard to Deloi

tte & Touche’s prof

fered reasons for discharging Mr. DeVore.

T HE L IGGIN AND W ILLIAMS D ISCRIMINATION C LAIMS

Mr. DeVore sought to

rebut Deloitte & T

ouche’s explanation f

or his discharge by submitting evidence c

oncerning discrimina

tion charges filed by

two ot her De loitte & Touche employees.The trial court de clined to consider t hese employees’ conclusory statements and beliefs because they were inadmi ssible un der Tenn. R. Civ. P. 56.05. The trial court also determined tha

t one of the employee’s acc

ount of

asingle isolated pejorative racia l comment by a

Deloitte & Touche

manager was de minimis.

Christopher Wi lliams, Jr. wor ked for Deloitte &

Touche from June 19

73 to August 1992 when his position as supervisor of computer operat

ions was eliminated

. Mr. Williams was one of the twelve Afr ican-Amer ican employees who were transferredfrom New York to the Hermitage f acilit y w ith Mr. DeVore . In August 1992 he filed a charge against Deloitte & Touche stating that he “believed” that Deloitte & Touche had discr iminated against him because of his race and his age. 5 In a later deposition, he also testified that Erik Bunes had once commented that “one-11-

of the reaso ns why he didn’ t like black people .. . [was becau se] . . . they’r e the majority of the ones that are committing most of the crimes.”

Mr. DeVore also intr

oduced the

discrimination charge filed by Frederick J. C. Liggin, a programmer ana lyst who had worked f

or Deloitte

& Tou che since June 1989. Mr. Liggin asserted that he had been subjectedto a conti nuing pattern of di scri mination

with regard to hiri

ng, training, prom

otions, and increases in compensation

and other bene

fits. After he resist

ed Deloitte & Touc

he’s efforts to depose him, the trial court entered an order on March 8, 1995, stating, in part, “that if . . . Freder

ic k Liggin, is unwilling to make himself available for a discovery deposition

. . . prior to the tria

l of this cause, upon p

roper motion from

the Defendant, the Plaintiff may be pr

evented by the Court f

rom calling

Mr. Liggin as a w

itness and his testimony could be exc luded.” Mr. Lig

gin filed his own discri

mination lawsuit against Deloitte & Touche in May 1995, an d by the time of the hearing on the summary judgment in this case, Deloitte & Touche had still been unable t

o take Mr. Liggin’s discovery de

position.

The trial court would ha ve been justified to i

gnore the docum

enta ry proof regardingMr. Liggin’s cla im because of

his evasion of Deloitte

& Touche’s effor

ts to depose him. Despite this infirmity, the proof of Mr. Liggin’s claims and Mr. Williams’s claims is not suffic ient to create a m

ate rial fac tual dispute regardi ng Deloitte & Touche ’s reason for discha rging Mr. DeVore for two reasons. First, the alleged unrelated experiences of other employees is not relevant to Mr. DeVore’s claim. See Schrand v. Federal Pac. Elec. C o. , 851 F.2d 152, 156 (6 th Cir. 198 8). Second, conclusory allegations and state ments of belief do not

satisfy Tenn. R.Civ. P. 56.06. See Jones v. Lewis , 874 F.2d 1125, 1128 (6th Cir. 1989); Fowler v. Happy GoodmanFamily , 575 S.W.2d at 49 8 Yater v. Wachovia Bank , 861 S.W.2d 369,

373 (Tenn. Ct. App. 1993). Thus, an employee’s uncor roborated, subjec

tive perception that he or she suffe

red discrimination i s not probative evidence and cannot create a genuineissue of fact. See Davis v. Mons anto Chemical Co. , 858 F.2d 345, 347 (6th Cir. 1988); Murray v. Sears, R oebuck & Co. , 722 F. Supp. 1500, 150 4 (N.D

. Ohio 1989).

Th e trial c ourt was also justified in concluding that the racially derogatory statements attributed to Mr. Bun es by Mr. Will iams were insufficient to create a-12-

material factual dispute about the authenticity of Deloitte & Touche’s proffered

reasons for discharging Mr. DeVore. While an employer’s statements can provide evidence of discrimination , see Flynn v. Shone y’s, Inc. , 850 S.W.2d 458, 460 (Tenn. Ct. App. 1992), the statements attribut ed to Mr. Bunes lac

k the required conne

ction to Mr. DeVore’ s discharge. This comment, if

made, was an isolated statement that

was neither directed toward Mr. DeVore nor made in a c ontext having any rela tion to Mr. DeVore’ s d ischarge. See Gagné v. North western Ins. Co. , 881 F.2d at 314; Brenner v. Textron Aerostructures , 874 S.W.2d at 585-86.

M R . D E V ORE ’ S B ELIEFS A BOUT D ELOITTE & T OUCHE ’ S M OTIVES

Mr. DeVore also asse

rts thatDeloitte & Touche purposefully caused h

is poor performance in order to h av e an acceptable reason fo r discharging him. To substantiate

this claim, Mr. DeVore points out that Deloitt e & Touche failed

to provid e him with formal classroom training on the DPS-6 minicomputer befo r e assigning him to work on the equipment and that

Deloitte & Touche

assigned him to projects that were diffic

ult to perform. W

hil e th is conduct may be indicative of management

shortcomings, it

is not proof that Deloitte & Touche treatedMr. DeVore differently because of his race.

Mr. DeVore was una

bl e to present evidence demonstrating that Deloitte & Touche systematically denied African-American employees the sam e tra ining opportunities that were b eing provided to white em ployees. Mr. De

Vore himself

reco unted the classroom and on- the-job training he r

eceived while wor

kin g fo r Deloitte & Touche. While

he took issue

with Deloitte & T

ouche’s failure to

provide himwith classroom tra

ining on the DPS-6 be

fore he began work

ing with the equipment, he conceded that Del oit te & Touche did not, at that time, provi

de this training to any other employee. He also conceded that D eloitte & Touche e

ventually provided him and otheremployees with for mal training on the

DPS-6 before his final performance evaluation which co ncluded that his wo rk wa s “no t meeting expectations.”

In similar fashion, M

r. DeVore’s c

omplaints about being

assigned to the Data Download Project do not call into question Deloitte & Touche’s race -neutra l explanation

for his discharge. Both African-Ameri can and white employees had-13-

worked on this project with varying degrees of success. Even if we were to assume that the project was too

difficult for Mr.

DeVore, Delo

itte & Touche had the ri

ght to assignhim to a difficult job absent an illegal mo tive. See Palucki v. Sears Roebuck & Co. , 879 F.2d 1568, 1571 (7th Cir. 1989).
Merelytaking issue with the soundness or reasonableness of an employer’s business de cisions is not su fficient to establi sh a racial discrimin ation claim. See Wilkinsv. Eaton Corp. , 790 F.2d 515, 521 (6 th Cir. 1986). Th

ese claims focus on t

he employer’s motives and intent, not on its business judgme nt. See Wrenn v. Goul d , 808 F.2d 493, 502 (6th Cir. 1987). In the words of one court, the federal statutes prohibiting discrimination were

not intended to be [vehi

cles] for judicial second- guessing of employment decisi ons nor [were they] intended to transformthe court into personnel managers . . . regardless of whether [the employer] made the “ right ” decision (in terms of fairnessor wise business practices), this Court can not send [a dis crim ination] case to a ju ry where there is

a complete absence of evidence of d iscrimination on the basis of [race]. Murph y v. Yellow Freight Sys., Inc. , 832 F. Supp. 1543, 1549 (N.D. Ga . 1993) (quoting Bienkowski v. American Airlines , 851 F.2d 1503, 1507-08 (11th Cir. 1988)).

Mr. DeVore was ask

ed repeatedly durin

g his lengthy depos ition t o identify specific, concrete instance s showing that Deloit te & Touche

treated him diffe

rently than it treated simi larly-situated whi te employees. In virtually every response, Mr. DeVore stated that he thought he was being discri minated ag ainst because he believed that Deloitte & Touche would have acted differently had he been white. In the final analysis, Mr. DeVore equat ed his supervisors’ criti

cism of the quality

of his work with racism. Wh

ile Mr. DeVore genuinely believes that he was victimized by racism while employed at Deloitte & Touche, more than his sincerebelief is required atthe summary judgment stage. His subjective interpretation of Deloitte & Touche’s actions do es not create an iss ue of fact suffici

ent to defeat a prop

erly suppor

te d summary judgment motion

. See Chiaramonte v. Fashion Bed Group, Inc. , 129 F.3d 391, 401 (7th Cir. 1997); Mills v. First Fed. Sav. & Loan

Ass’n , 83 F.3d 833, 841-42 , 843 (7th Cir. 1996).-14- M R . D E V ORE ’ S S TATISTICAL P ROOF

Mr. DeVore also undertook to sub stantiate his dis crimination claim u sing two sets of statistics.The first set of statistics compare

d the ratio of white and AfricanAmerican employees at Deloi tte & Touche’s Herm

itage facility wit

h the comparable ratio for all workers in the greater Na shville metropolitan area. The sec ond set of statistics comp are d the number of Afr ican-American employees transfe rring to the Hermitage

facility who were no lon ger employed by De loitte & T ouche with the comparable

number of transfer

ring white employees.The trial court determined that both statistical analyses were fundamentally flawed and lacked probative value.

Consideration

of statistical evide

nce do es not differ greatly from the consideration

of other types of evidence. It is relevant only when it tends to ma

ke the existence of any ma terial fact more or less probable than

it would be without the evidence. See Tenn. R. Evid.401. Statistical eviden ce can be relevan

t in two ways. F irst, statistics, standing

alone, can lead to

a particular conc

lusion validated by h

uma n experience. Se cond, comparative statistics can point ou

t discrepancies in be

havior that call an actor’s conduct and motives into questio

n. See Simpson v. Mid

land-Ross Corp. , 823 F.2d 937, 944 (6 th Ci r. 1987); Brenner v. Textron Aerostructures , 874 S.W.2d at 587.

Itis now beyond question that statistical evidence ma y be used to prove the existence of racial discriminat ion. See Teamsters v. United States , 431 U.S. 324, 339, 97 S. Ct. 1843, 1856 ( 1977); Ardrey v. UPS , 798 F.2d 679, 684 (4 th Cir

. 1986); Alabama v. United

States , 304 F.2d 583, 586 (5 th Cir. 1962). Specifically, statistical evidence may be us ed to prove that an employer’s proffered non-discriminatory

reason for an adverse

employment action is pretextual. See Carter v. Bal l , 33 F.3d 450, 456 (4th Cir. 1994).In either instance , the statistical e videnc e must assist in developing a rea sonabl e inference of discrimi nation in order to b e admissible. See Gillming v. Simmons Indus. , 91 F.3d 1168, 1173 ( 8th Cir. 1996). It must establish a significant

racial disp arity an d must also eliminate the most common nondiscriminatory explanations for t his disparity. See Barnes v. Gencorp, Inc. , 896 F.2d 1457, 1466 (6th Cir. 1990); Brenner v. Textron Aerostructures , 874 S.W.2d at 586.-15- Statistical evidence may or may not be admissible under the Tennessee Rules of Evidence depending

on the qualification s of the person who pr esents it, see Tenn. R. Evid. 702, and on whether the basis for the evidence is of the ty pe reasonably relied upon by experts in the particular field in forming opinions or inferences upon the particul ar subject. S ee Tenn. R. Evid.703. In order to be a dmissible, the evidence must substantial ly assist the trier o f fact, see Tenn. R. Evid. 702, an d must not mislead the jury or cause unfair prejudice or confusion of the issues. See Tenn. R. Evid. 403. Exper

t testimony based on unr

eliable methodology is

not substantially helpfuland is, therefore, excludable. See DeLuca v. Merrell Dow Pharm., Inc. , 911 F.2d 941, 954 (3rd Ci

r. 1990); State v. Shuck , 953 S.W.2d 662, 668 (Tenn. 1997).

Tri al courts perform a ga tekeeping function to m ake sure that exper

t and scientific evidence has the lev

el of rele vancy and reliability required by Tenn. R. Evid. 401, 702, and 703. See Daubert v. Merrell Do w Pharm., Inc. , 509 U.S. 579, 597, 113 S. Ct. 2786, 279 8 (1993); McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 263 (Tenn. 1997). Their decisions on t hese matters are

discretionary and w

ill not be overturned on appeal unl ess th ey have exercised their discretion in an arbitrary

manner. See State v. Balla rd , 855 S.W.2d 557, 562 (Tenn. 1993); Otis v. Cambridge Mut. Fire In s. Co. , 850 S.W.2d 439, 442 (Tenn. 1992). Q uestions concerning th

e admissibility of expert or scient ific testimony or the

qualifications of e

xpert witness e s
are not questions of fact. Accordingly, even at the summary judgment stage, a trial court’s decisions r

egar ding the competency of experts or the admi ssibility of their testimony are reviewed using the a buse-of-discretio n standard. See General Elec

. Co

. v. Joiner , ___ U.S. ___, ___, 118 S. Ct . 512, 517 (1997).

We turn first to

the statistical compar

ison between the min

ority representati

on atDeloitte & Touche’s Hermi tage facility and

the minority population in the greater Nashville metropolitan area . The trial cour t found that these stat

is tic s were “not at all helpful because the

y are not compared t

o the relevant labor

market, but

instead to the total Nashville Metropolitan area.” The trial court’ s decision was correct because untargeted percentage comparisons to a general population have little pro bativ e value withregard to employme

nt discrimination cla

ims i nvolving employment that requi res special skill qualificati ons. See Hazelwood Sch. Dist. v. United States , 433 U.S. 299, 308 n.13, 97 S. Ct. 2

736, 2742 n.13 (1977).In order to be admissible, these sorts of statistical comparisons must be m ade between populat

ions of persons having th e-16-

same qualifications. See EEOC v. Chicago Miniature Lamp Works , 947 F.2d 29 2, 302 (7th Cir. 1991)

.

Mr. DeVore’s expert, Dr. Kaufman, c once ded that he made no ef fort to correlate the raw censusinformation with the job classifications actually being used in Deloitte

& Touche’s Hermitage facility. He admitted that he was unaware o

f the job classifications being used at the Herm it age facility and that he never attempted to determine

h ow many, if any, of the African-Americans living in the greater Nashville metropolitan area

were either qual

ified for or

intere sted in the work available at the Hermitage

facility. Acco

rdingly, the

trial court correctly concluded that this evidence had no probative value and did not meet Tenn. R. Civ. P. 56.06's requirements.

Mr. DeVore also pre se nte d statistics through D r. Kaufman comparing the numberof white transferees still employed at the Hermitage fa

cility with the number of remaining Afr

ican-American transferees. D r. Kaufman admi

tted that he had not attempted to discover the reasons why either the white or the Afri can-Americ an employees had left their jobs and conceded that any number of the African-American employees could have left De loitte & Touche

for reasonsentirely unrelated to alleged disparate treatm

ent based on race.He also conceded t hat Deloitte & Tou

che might have validly discharg ed one or more of these employees for performance-related

reasons. In light of Dr. K aufman’s concessio

ns, his statistical evidence suffers from the same defects as the sta tistical evidence w e excluded in Brenner v. Text ron Aerost ruct ures , 874 S.W.2d at 587, because it failed to distinguish between employees who were termin ated and those who resigned voluntarily, tr ansferred, retired, or wer

e promoted to other pos

itions.

Deficiencies in plausible statistical evidence may em erge from the facts of

the particular case i

n which they are pr

esented. See Watson v. Ft. W orth Bank & Trust Co. , 487 U.S. 977, 997,

108 S. Ct. 2777,

2790 (1988). In this case, the statistical data and methodology relied on b y Dr. Kaufman a

re so deficient tha

t they rend er hi s statistic a l conclusions not only untru stworthy but also of no assistance in deter

mining whether Deloitte & Touche’s proffered reason for discharging Mr. DeVore was pretextua l. Accor dingly, the trial cou rt had adequate lega

l grounds to exclude this evidence from its consideration of De loitte& Touche’s summar y judgment motion.5 Rather than requiring the employee to prove that he or she opposed the employer’s unlawful employment

practice, the state claim required the employee to prove that he or she engage d in protected act ivity and that the employer was aware of this activity. See Newsome v. Textron Aerostructures , 924 S.W.2d at 96. -17- After Deloitte & Touche presente

d competent evidence

that it discharged Mr. DeVore for valid reasons not related to his race, the burden s hifted back to Mr. DeVore to demonstrate that he would be able to pr esent compe

t ent evidence that Deloitte & Touche’s reas ons w ere pretextual. The trial court de termined that the evidence presented by Mr. DeVoredid not meet the requi rements of Tenn.R. Civ. P. 56.06 and accordingly determined that Deloitte & Touche was entitled to a summary judgment because Mr. De

Vore had been unable

to demonstrate that he would be able to prov e an essential elem ent of his case at tr

ial. We agree w

ith the tria

l court’ s decision.

IV.

M R . D E V ORE ’ S R ETALIATORY D ISCHARGE C LAIM

In addition to suing Deloitte & Touche for racial discrimination, Mr. DeVore also cla imed that his former employer discharge

d him in retaliation f

or filing hi s discrimination

charge with the E

EOC. This c onduct , if proven, violat es both 42 U.S.C.A. § 2000e-3(a) (Wes t 1994) and Tenn. Code

Ann. § 4-21-301(1) (1991). This cl aim founders on essent ially the same shoal s that undermined M r. DeVo re’ s discrimination clai

ms.

The elements for both a f ederal retaliato

ry discharge claim

and a state retaliatory discharge clai m are essentially the same. In order to make out a prima facie case, an employee

must prove (1) that he or she opposed the employer’s unl awfulemployment practice, (2) that the employer subsequently subject ed th e employee to an adverse employment action, and (3) that a causal link exists between the em ployee’ s action and the emplo yer’s subsequent adve

rse employment act

ion. See Yates v. Avco C

orp. , 819 F.2d 630, 638 (6 th Cir . 19 87); Newsome v. Tex tron Aerostru cture s , 924 S.W.2d 87, 96 (Tenn. Ct. App. 1995). 5 An employee may establish the needed ca usal con nection simply by proving that his or her protected activitywas a substantial f actor leading to

the discharge. See Sumner v. United States Postal Serv. , 899 F.2d 203, 209 (2d Cir. 1990); Polk v. Yellow Freight Sys., Inc. , 876 F.2d 527, 531 (6th Cir. 1989).-18- Deloitte & Touche presen ted c ompetent evidence that Mr. DeVore was discharged, not in retaliation fo r his discrimination c

harge, but because

of his inadequate

job performance. In order to avoid summary dismiss al of his retaliati on claim, Mr. DeVore was required to come f orward with

some competent evidence that Deloitte & Touche’s explanation was merely pretextual. They only evidence that Mr. DeVore offered was the fact that Deloitte & Touche discharged him two months after he filed his discrimina

tion charge with the

EEOC. This bare sequential evidence does not suffice to make out

either a federal or state retalia tion claim. See Booker v. Brown & Williamson Tobacc o Co. , 879 F.2d 1304, 1314 (6th Cir. 1989); Thomason

v. Better-Bilt Aluminum Prods., Inc. , 831 S.W.2d 291, 293 (T enn. Ct. App. 1992). Having found no competent evi dence in the

record that Mr. DeVore was discharged in retaliation for f

iling h is disc rimination charge or that Deloitte & Touche’s explanation of the re

asons for discharging Mr. DeVore are not worthy of belief, we
concur with the trial court’s decision to summarily dismiss Mr. DeVore’s state and federal retalia

tion claims.

V.
Although the procedural re

quirements and standardsfor summary judgmen ts
are strict, see Bain v. Wells , 936 S.W.2d at 622, we have concluded that the trial court properlyapplied them in this case. Accordingly, we affirm the summa

ry judgments dismissing Mr. DeVore’s discrimination and retaliatory discharg e cla ims against Deloitte & Touche and rem and t he case to the trial court for whatever further proceedings may be required. We also tax the costs of this appeal to Maurice DeVore and his surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ SAMUEL L. LEWIS, JUDGE-19-

__________________________________ BEN H. CANTRELL, JUDGE