FILED

February 20, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MAURICE DeVORE, )

)

Plaintiff/Appellant, )

) 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/Appellant: For Defendant/Appellee:

Susan S. Garner William S. Walton

Robert J. Turner John S. Lewis

TURNER LAW OFFICES GIDEON & WISEMAN

Nashville, Tennessee Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves an employment discrimination action filed by a computer

programmer who was discharged by a large national accounting firm because of

inadequate performance. The programmer filed suit in the Chancery Court for

Davidson County alleging that his former employer had terminated him because of

his race and because he had filed a discrimination charge with the Equal Employment

Opportunity Commission. The trial court granted the employer’s motion for

summary judgment, and the programmer appealed to this court. We have determined

that the programmer has failed to demonstrate that he will be able to produce

competent, admissible evidence concerning essential elements of his claims and,

therefore, affirm the summary judgment.

I.

Maurice DeVore joined the New York office of Touche Ross & Company as

a computer programmer in June 1989. Before the end of the year, Touche Ross &

Company merged with Deloitte Haskins & Sells to form the new accounting firm of

Deloitte & Touche. As a result of the merger, the data processing offices of the

combined firms were consolidated into a facility in Hermitage where Deloitte

Haskins & Sells already had an office. Mr. DeVore was offered an opportunity to

remain with Deloitte & 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 working

in New York. Since the Hermitage facility did not use IBM computers, Mr. DeVore

was assigned 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 minicomputer; 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-90 mainframe to the

programmers who were moving to Tennessee but did not offer formal training on the

DPS-6 minicomputer. When Mr. DeVore began working on the DPS-6 at the
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Hermitage facility, he was unfamiliar with its job control language, execution

language, commands, and editors. Mr. DeVore requested formal classroom training

on the DPS-6 but was informed that Deloitte & Touche was not offering training

classes to any of its employees on the DPS-6 at that time. As a result, Mr. DeVore’s

initial training on the DPS-6 came from reading manuals, working on the

minicomputer itself, and asking questions of other programmers with more

experience on the DPS-6. Deloitte & Touche eventually offered training classes on

the DPS-6, and Mr. DeVore attended these classes. 

As time passed, Mr. DeVore’s supervisors became increasingly dissatisfied

with his job performance. They believed that he required too much supervision and

that he showed insufficient initiative and interest in working on the DPS-6

minicomputer. They were also concerned that he sometimes failed to complete work

assignments within the time frames agreed upon in advance with his supervisors.

Like every other programmer at the Hermitage facility, Mr. DeVore was supervised

by a programmer analyst who performed formal, written evaluations of his work at

six-month intervals. Mr. DeVore’s performance was judged to be only “marginal”

during the three six-month evaluation periods between June 1990 and December

1991. His performance between January and June 1992 “met expectations;”

however, his supervisor determined that he was “not meeting expectations” for the

period from June through December 1992.

On February 17, 1993, Deloitte & Touche’s human resources manager met

with Mr. DeVore to discuss his poor job performance. He informed Mr. DeVore that

Deloitte & Touche was concerned about (1) the quality of his work, (2) his failure to

complete assignments on time, (3) the amount of his work, (4) his failure to use good

judgment, and (5) the unusual amount of supervision he required. Immediately after

the meeting, Mr. DeVore filed a discrimination charge with the Equal Employment

Opportunity Commission stating that Deloitte & Touche was subjecting him to

disparate treatment because of his race. 

Deloitte & Touche discharged Mr. DeVore on April 23, 1993 for inadequate

job performance. Mr. DeVore filed a second charge with the EEOC asserting that

Deloitte & Touche had discharged him in retaliation for the filing of his original

discrimination charge. Rather than waiting for the EEOC to complete its
1

See 29 C.F.R. § 1601.28 (West 1997).

2Deloitte & Touche 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 responses and deposition, and (3) the deposition of Iain Robertson who was Mr.

DeVore’s supervisor at the Hermitage facility for approximately two years.

3

In addition to the affidavit of Gary G. Kaufman, the industrial 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.

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investigation 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

Court for Davidson County alleging violations of Title VII of the Civil Rights Act of

1964, the Tennessee Human Rights Act, breach of contract, retaliatory discharge,

malicious harassment, and intentional or negligent infliction of emotional distress and

seeking actual and punitive damages. 

On February 14, 1995, after both parties had taken thorough discovery,

Deloitte & Touche filed a properly supported motion for summary judgment.2 Mr.

DeVore responded with an affidavit prepared by an industrial psychologist

interpreting census data and other statistical data excerpted from Deloitte & Touche’s

affirmative action plans, copies of discrimination charges filed by other Deloitte &

Touche employees, and the depositions of other present or former Deloitte & Touche

employees.3 During a hearing in March 1995, Mr. DeVore conceded that Deloitte &

Touche was entitled to a summary judgment on his claims of breach of contract,

intentional or negligent infliction of emotional distress, and malicious harassment.

The trial court filed a memorandum opinion in October 1995 granting Deloitte

& Touche’s summary judgment motion. After concluding that Mr. DeVore’s

complaint stated a claim for discrimination, the trial court determined that it was

incumbent on Mr. DeVore to point to evidence in the record creating a genuine issue

of fact that Deloitte & Touche treated him differently than other programmers

because of his race. The trial court concluded that Mr. DeVore had not presented any

direct evidence 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 victims of discrimination because
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it did not comply with 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 effective vehicle

for resolving cases that can be decided on legal issues alone. 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 trial when there is a need to resolve disputed factual issues or to

choose among various inferences that could permissibly be drawn 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 judgment

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. 1995). 

Summary judgments do not arrive in the appellate courts clothed with the

presumption that they are correct. See City of Tullahoma v. Bedford County, 938

S.W.2d 408, 412 (Tenn. 1997); McClung v. Delta Square Ltd. Partnership, 937

S.W.2d 891, 894 (Tenn. 1996). Appellate courts must make a fresh determination

concerning whether the requirements 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 summary judgment in the light most favorable to the

nonmoving party and to draw all reasonable inferences from 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). Appellate courts should

affirm a summary judgment only when they find that the only conclusion supported

by the undisputed facts is 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 judgment go to the merits of the challenged claim or

defense and, therefore, should not be taken lightly. See Byrd v. Hall, 847 S.W.2d at
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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 entitled to a judgment as a matter of law, the burden

shifts to the nonmoving party to demonstrate either that material factual disputes exist

or that the moving party is not entitled to a judgment as a matter of law. See Tenn.

R. Civ. P. 56.06; Bain v. Wells, 936 S.W.2d at 622.

It is now beyond reasonable debate that parties may seek a summary judgment

on the ground that the nonmoving party will be unable to present sufficient

admissible evidence at trial to withstand a motion for directed 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 Marina, 839 S.W.2d 760,

763 (Tenn. Ct. App. 1992); Goodman v. Phythyon, 803 S.W.2d 697, 703 (Tenn. Ct.

App. 1990). Non-moving parties may stave off such motions by (1) pointing to

evidence overlooked or ignored by the moving party that creates a material factual

dispute, (2) rehabilitating evidence challenged by the moving party, (3) producing

additional evidence that creates a genuine material factual dispute, or (4) submitting

an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting 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 215 n.6. Nonmoving parties who do not carry this

burden face summary dismissal of the challenged claim because, as the Tennessee

Supreme Court has observed, the “failure of proof concerning an essential element

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.

MR. DEVORE’S DISCRIMINATION CLAIMS

We turn first to Mr. DeVore’s discrimination claims which will be considered

together because their elements and the parties’ burdens of proof and of going
4

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).

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forward with the evidence are essentially the same.4

 While the facts are essentially

undisputed, Mr. DeVore asserts that the inferences and conclusions that could be

drawn from the facts require denial of Deloitte & Touche’s summary judgment

motion. If Mr. DeVore is to succeed with these claims, he must be able to prove that

Deloitte & Touche’s proffered reason for his discharge was pretextual. We agree

with the trial court’s conclusion that Mr. DeVore has 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 of Community Affairs v. Burdine,

450 U.S. 248, 253, 101 S. Ct. 1089, 1093-94 (1981); Brenner v. Textron

Aerostructures, 874 S.W.2d 579, 583 (Tenn. Ct. App. 1993). The employee may

establish a prima facie case of discrimination either by using the traditional criteria

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817,

1824 (1973), or by producing direct, circumstantial, or statistical evidence of

discrimination. See Loeffler v. Kjellgren, 884 S.W.2d 463, 469 (Tenn. Ct. App.

1994); Brenner v. Textron Aerostructures, 874 S.W.2d at 583; Bruce v. Western 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 rebut the presumption of discrimination by articulating a

legitimate, non-discriminatory reason for the employment action. See Loeffler v.

Kjellgren, 884 S.W.2d at 470; Brenner v. Textron Aerostructures, 874 S.W.2d at 583;

Silpacharin v. Metropolitan Gov’t, 797 S.W.2d 625, 629 (Tenn. Ct. App. 1990).

When the employer has presented a legitimate, non-discriminatory reason for the

employment action, the burden shifts back to the employee to prove that the

employer’s explanation is pretextual or not worthy of belief. See Texas Dep’t of

Community Affairs 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.
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The initial burden of establishing a prima facie case of unlawful employment

discrimination is not onerous. See Texas Dep’t of Community Affairs v. Burdine, 450

U.S. at 253, 101 S. Ct. at 1094; Cronin v. Aetna Life 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 employer’s reasonable expectations, (3) that they were

discharged, and (4) that their employer replaced them with someone who is not a

member of a protected 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. Presenting proof

establishing each of these elements creates a rebuttable presumption that the

employer discriminated unlawfully. See Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. at 254, 101 S. Ct. at 1094.

B.

MR. DEVORE’S PRIMA FACIE CASE

We consider first whether Mr. DeVore has made out a prima facie case of

racial discrimination. Since he lacked direct proof that Deloitte & Touche had

discriminated against him because of his race, Mr. DeVore elected to follow the

McDonnell Douglas Corp. v. Green approach. The record contains undisputed

evidence that Mr. DeVore is a member of a protected class and that he was

discharged from his job. The evidence is much less clear concerning whether Mr.

DeVore’s job performance met Deloitte & Touche’s reasonable expectations and

whether Deloitte & Touche replaced Mr. DeVore with someone who was not a

member of the protected class.

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

during his deposition but conceded that Deloitte & Touche hired programmer trainees

after discharging Mr. DeVore and that all these trainees were white. Mr. DeVore also

insisted that his job performance was acceptable and that Deloitte & Touche’s

expectations were unreasonable. Even though Deloitte & Touche took strong issue

with Mr. DeVore’s appraisal of his own performance, we must view the evidence in

the light most favorable to Mr. DeVore. Accordingly, we find that Mr. DeVore
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carried his initial burden of making out a prima facie case of discrimination based on

race.

C.

DELOITTE & TOUCHE’S PROFFERED EXPLANATION

Once Mr. DeVore made out his prima facie case, the burden shifted to Deloitte

& Touche to rebut the presumption of unlawful discrimination by articulating a

legitimate nondiscriminatory reason for Mr. DeVore’s discharge. See Randall v.

Howard Univ., 941 F. Supp. 206, 211 (D.D.C. 1996); 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 detailed the history of

his unsatisfactory performance. These depositions were buttressed by the records of

the company’s formal evaluations of Mr. DeVore’s performance from June 1990 to

December 1992. This evidence established that Deloitte & Touche discharged Mr.

DeVore not because of his race but because of his inadequate job performance.

Deloitte & Touche’s articulation of a legitimate, nondiscriminatory reason for

discharging Mr. DeVore dispelled any inference raised by Mr. DeVore’s prima facie

showing of discrimination, see Gagné v. Northwestern Nat’l Ins. Co., 881 F.2d 309,

314 (6th Cir. 1989), and so the presumption of discrimination dropped out of the case

at that point. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. at 255 n.10,

101 S. Ct. at 1095 n.10. The burden of going forward also shifted back to Mr.

DeVore to demonstrate that Deloitte & Touche’s proffered reason for discharging

him was not the true reason behind his firing and that the true reason 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 Community Affairs v. Burdine, 450 U.S. at

256, 101 S. Ct. at 1095. With the burden of persuasion squarely on his shoulders, Mr.

DeVore was faced with the summary dismissal of his discrimination claims if he was

unable to demonstrate that he could prove that Deloitte & Touche’s proffered reason

for his discharge was pretextual. See Nevins v. Blockbuster Entertainment Group,

950 F. Supp. 60, 66 (E.D.N.Y. 1996); Randall v. Howard Univ., 941 F. Supp. at 215;

Plair v. E.J. Branch & Sons, Inc., 931 F. Supp. at 567. 

D.
5The EEOC later determined that “[t]here is insufficient evidence to support the Charging

Party’s allegations based on race and age.” Notwithstanding the EEOC’s findings, Mr. Williams

filed a discrimination action against Deloitte & Touche in United States District Court. This suit was

dismissed in September 1994 for lack of prosecution.

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MR. DEVORE’S PROOF OF PRETEXT

Mr. DeVore offered three responses to Deloitte & Touche’s assertion that it

discharged Mr. DeVore because 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 Deloitte

& Touche intentionally caused his poor job performance by not training him

adequately on the DPS-6 and by assigning him to a program project that was destined

to fail. Third, he presented statistics purporting to show that Deloitte & Touche

employed too few African-American programmers at its Hermitage facility. The trial

judge determined that these responses, singly and together, were insufficient to create

a material factual dispute with regard to Deloitte & Touche’s proffered reasons for

discharging Mr. DeVore.

THE LIGGIN AND WILLIAMS DISCRIMINATION CLAIMS

Mr. DeVore sought to rebut Deloitte & Touche’s explanation for his discharge

by submitting evidence concerning discrimination charges filed by two otherDeloitte

& Touche employees. The trial court declined to consider these employees’

conclusory statements and beliefs because they were inadmissible under Tenn. R.

Civ. P. 56.05. The trial court also determined that one of the employee’s account of

a single isolated pejorative racial comment by a Deloitte & Touche manager was de

minimis.

Christopher Williams, Jr. worked for Deloitte & Touche from June 1973 to

August 1992 when his position as supervisor of computer operations was eliminated.

Mr. Williams was one of the twelve African-American employees who were

transferred from New York to the Hermitage facility with Mr. DeVore. In August

1992 he filed a charge against Deloitte & Touche stating that he “believed” that

Deloitte & Touche had discriminated 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
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of the reasons why he didn’t like black people . . . [was because] . . . they’re the

majority of the ones that are committing most of the crimes.” 

Mr. DeVore also introduced the discrimination charge filed by Frederick J. C.

Liggin, a programmer analyst who had worked for Deloitte & Touche since June

1989. Mr. Liggin asserted that he had been subjected to a continuing pattern of

discrimination with regard to hiring, training, promotions, and increases in

compensation and other benefits. After he resisted Deloitte & Touche’s efforts to

depose him, the trial court entered an order on March 8, 1995, stating, in part, “that

if . . . Frederick Liggin, is unwilling to make himself available for a discovery

deposition . . . prior to the trial of this cause, upon proper motion from the Defendant,

the Plaintiff may be prevented by the Court from calling Mr. Liggin as a witness and

his testimony could be excluded.” Mr. Liggin filed his own discrimination lawsuit

against Deloitte & Touche in May 1995, and by the time of the hearing on the

summary judgment in this case, Deloitte & Touche had still been unable to take Mr.

Liggin’s discovery deposition.

The trial court would have been justified to ignore the documentary proof

regarding Mr. Liggin’s claim because of his evasion of Deloitte & Touche’s efforts

to depose him. Despite this infirmity, the proof of Mr. Liggin’s claims and Mr.

Williams’s claims is not sufficient to create a material factual dispute regarding

Deloitte & Touche’s reason for discharging 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. Co., 851 F.2d 152, 156 (6th Cir. 1988).

Second, conclusory allegations and statements 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

Goodman Family, 575 S.W.2d at 498 Yater v. Wachovia Bank, 861 S.W.2d 369, 373

(Tenn. Ct. App. 1993). Thus, an employee’s uncorroborated, subjective perception

that he or she suffered discrimination is not probative evidence and cannot create a

genuine issue of fact. See Davis v. Monsanto Chemical Co., 858 F.2d 345, 347 (6th

Cir. 1988); Murray v. Sears, Roebuck & Co., 722 F. Supp. 1500, 1504 (N.D. Ohio

1989).

The trial court was also justified in concluding that the racially derogatory

statements attributed to Mr. Bunes by Mr. Williams were insufficient to create a
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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. Shoney’s, Inc., 850 S.W.2d 458, 460 (Tenn.

Ct. App. 1992), the statements attributed to Mr. Bunes lack the required connection

to Mr. DeVore’s discharge. This comment, if made, was an isolated statement that

was neither directed toward Mr. DeVore nor made in a context having any relation

to Mr. DeVore’s discharge. See Gagné v. Northwestern Ins. Co., 881 F.2d at 314;

Brenner v. Textron Aerostructures, 874 S.W.2d at 585-86. 

MR. DEVORE’S BELIEFS ABOUT DELOITTE & TOUCHE’S MOTIVES

Mr. DeVore also asserts that Deloitte & Touche purposefully caused his poor

performance in order to have an acceptable reason for discharging him. To

substantiate this claim, Mr. DeVore points out that Deloitte & Touche failed to

provide him with formal classroom training on the DPS-6 minicomputer before

assigning him to work on the equipment and that Deloitte & Touche assigned him to

projects that were difficult to perform. While this conduct may be indicative of

management shortcomings, it is not proof that Deloitte & Touche treated Mr. DeVore

differently because of his race.

Mr. DeVore was unable to present evidence demonstrating that Deloitte &

Touche systematically denied African-American employees the same training

opportunities that were being provided to white employees. Mr. DeVore himself

recounted the classroom and on-the-job training he received while working for

Deloitte & Touche. While he took issue with Deloitte & Touche’s failure to provide

him with classroom training on the DPS-6 before he began working with the

equipment, he conceded that Deloitte & Touche did not, at that time, provide this

training to any other employee. He also conceded that Deloitte & Touche eventually

provided him and other employees with formal training on the DPS-6 before his final

performance evaluation which concluded that his work was “not meeting

expectations.” 

In similar fashion, Mr. DeVore’s complaints about being assigned to the Data

Download Project do not call into question Deloitte & Touche’s race-neutral

explanation for his discharge. Both African-American and white employees had
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worked on this project with varying degrees of success. Even if we were to assume

that the project was too difficult for Mr. DeVore, Deloitte & Touche had the right to

assign him to a difficult job absent an illegal motive. See Palucki v. Sears Roebuck

& Co., 879 F.2d 1568, 1571 (7th Cir. 1989).

Merely taking issue with the soundness or reasonableness of an employer’s

business decisions is not sufficient to establish a racial discrimination claim. See

Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir. 1986). These claims focus on the

employer’s motives and intent, not on its business judgment. See Wrenn v. Gould,

808 F.2d 493, 502 (6th Cir. 1987). In the words of one court, the federal statutes

prohibiting discrimination were

not intended to be [vehicles] for judicial second-guessing

of employment decisions nor [were they] intended to

transform the court into personnel managers . . . regardless

of whether [the employer] made the “right” decision (in

terms of fairness or wise business practices), this Court can

not send [a discrimination] case to a jury where there is a

complete absence of evidence of discrimination on the

basis of [race].

Murphy v. Yellow Freight Sys., Inc., 832 F. Supp. 1543, 1549 (N.D. Ga. 1993)

(quotingBienkowski v. American Airlines, 851 F.2d 1503, 1507-08 (11th Cir. 1988)).

Mr. DeVore was asked repeatedly during his lengthy deposition to identify

specific, concrete instances showing that Deloitte & Touche treated him differently

than it treated similarly-situated white employees. In virtually every response, Mr.

DeVore stated that he thought he was being discriminated against because he

believed that Deloitte & Touche would have acted differently had he been white. In

the final analysis, Mr. DeVore equated his supervisors’ criticism of the quality of his

work with racism. While Mr. DeVore genuinely believes that he was victimized by

racism while employed at Deloitte & Touche, more than his sincere belief is required

at the summary judgment stage. His subjective interpretation of Deloitte & Touche’s

actions does not create an issue of fact sufficient to defeat a properly supported

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).
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MR. DEVORE’S STATISTICAL PROOF

Mr. DeVore also undertook to substantiate his discrimination claim using two

sets of statistics. The first set of statistics compared the ratio of white and AfricanAmerican employees at Deloitte & Touche’s Hermitage facility with the comparable

ratio for all workers in the greater Nashville metropolitan area. The second set of

statistics compared the number of African-American employees transferring to the

Hermitage facility who were no longer employed by Deloitte & Touche with the

comparable number of transferring white employees. The trial court determined that

both statistical analyses were fundamentally flawed and lacked probative value.

Consideration of statistical evidence does not differ greatly from the

consideration of other types of evidence. It is relevant only when it tends to make the

existence of any material fact more or less probable than it would be without the

evidence. See Tenn. R. Evid. 401. Statistical evidence can be relevant in two ways.

First, statistics, standing alone, can lead to a particular conclusion validated by human

experience. Second, comparative statistics can point out discrepancies in behavior

that call an actor’s conduct and motives into question. See Simpson v. Midland-Ross

Corp., 823 F.2d 937, 944 (6th Cir. 1987); Brenner v. Textron Aerostructures, 874

S.W.2d at 587. 

It is now beyond question that statistical evidence may be used to prove the

existence of racial discrimination. See Teamsters v. United States, 431 U.S. 324, 339,

97 S. Ct. 1843, 1856 (1977); Ardrey v. UPS, 798 F.2d 679, 684 (4th Cir. 1986);

Alabama v. United States, 304 F.2d 583, 586 (5th Cir. 1962). Specifically, statistical

evidence may be used to prove that an employer’s proffered non-discriminatory

reason for an adverse employment action is pretextual. See Carter v. Ball, 33 F.3d

450, 456 (4th Cir. 1994). In either instance, the statistical evidence must assist in

developing a reasonable inference of discrimination in order to be admissible. See

Gillming v. Simmons Indus., 91 F.3d 1168, 1173 (8th Cir. 1996). It must establish a

significant racial disparity and must also eliminate the most common

nondiscriminatory explanations for this disparity. See Barnes v. Gencorp, Inc., 896

F.2d 1457, 1466 (6th Cir. 1990); Brenner v. Textron Aerostructures, 874 S.W.2d at

586.
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Statistical evidence may or may not be admissible under the Tennessee Rules

of Evidence depending on the qualifications of the person who presents it, see Tenn.

R. Evid. 702, and on whether the basis for the evidence is of the type reasonably

relied upon by experts in the particular field in forming opinions or inferences upon

the particular subject. See Tenn. R. Evid. 703. In order to be admissible, the

evidence must substantially assist the trier of fact, see Tenn. R. Evid. 702, and must

not mislead the jury or cause unfair prejudice or confusion of the issues. See Tenn.

R. Evid. 403. Expert testimony based on unreliable methodology is not substantially

helpful and is, therefore, excludable. See DeLuca v. Merrell Dow Pharm., Inc., 911

F.2d 941, 954 (3rd Cir. 1990); State v. Shuck, 953 S.W.2d 662, 668 (Tenn. 1997).

Trial courts perform a gatekeeping function to make sure that expert and

scientific evidence has the level of relevancy and reliability required by Tenn. R.

Evid. 401, 702, and 703. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

597, 113 S. Ct. 2786, 2798 (1993); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257,

263 (Tenn. 1997). Their decisions on these matters are discretionary and will not be

overturned on appeal unless they have exercised their discretion in an arbitrary

manner. See State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); Otis v. Cambridge

Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). Questions concerning the

admissibility of expert or scientific testimony or the qualifications of expert witnesses

are not questions of fact. Accordingly, even at the summary judgment stage, a trial

court’s decisions regarding the competency of experts or the admissibility of their

testimonyare reviewed using the abuse-of-discretion standard. See General Elec.Co.

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

We turn first to the statistical comparison between the minority representation

at Deloitte & Touche’s Hermitage facility and the minority population in the greater

Nashville metropolitan area. The trial court found that these statistics were “not at

all helpful because they are not compared to 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 probative value

with regard to employment discrimination claims involving employmentthatrequires

special skill qualifications. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299,

308 n.13, 97 S. Ct. 2736, 2742 n.13 (1977). In order to be admissible, these sorts of

statistical comparisons must be made between populations of persons having the
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same qualifications. See EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292,

302 (7th Cir. 1991). 

Mr. DeVore’s expert, Dr. Kaufman, conceded that he made no effort to

correlate the raw census information with the job classifications actually being used

in Deloitte & Touche’s Hermitage facility. He admitted that he was unaware of the

job classifications being used at the Hermitage facility and that he never attempted

to determine how many, if any, of the African-Americans living in the greater

Nashville metropolitan area were either qualified for or interested in the work

available at the Hermitage facility. Accordingly, 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 presented statistics through Dr. Kaufman comparing the

number of white transferees still employed at the Hermitage facility with the number

of remaining African-American transferees. Dr. Kaufman admitted that he had not

attempted to discover the reasons why either the white or the African-American

employees had left their jobs and conceded that any number of the African-American

employees could have left Deloitte & Touche for reasons entirely unrelated to alleged

disparate treatment based on race. He also conceded that Deloitte & Touche might

have validly discharged one or more of these employees for performance-related

reasons. In light of Dr. Kaufman’s concessions, his statistical evidence suffers from

the same defects as the statistical evidence we excluded in Brenner v. Textron

Aerostructures, 874 S.W.2d at 587, because it failed to distinguish between

employees who were terminated and those who resigned voluntarily, transferred,

retired, or were promoted to other positions.

Deficiencies in plausible statistical evidence may emerge from the facts of the

particular case in which they are presented. See Watson v. Ft. Worth Bank & Trust

Co., 487 U.S. 977, 997, 108 S. Ct. 2777, 2790 (1988). In this case, the statistical data

and methodology relied on by Dr. Kaufman are so deficient that they render his

statistical conclusions not only untrustworthy but also of no assistance in determining

whether Deloitte & Touche’s proffered reason for discharging Mr. DeVore was

pretextual. Accordingly, the trial court had adequate legal grounds to exclude this

evidence from its consideration of Deloitte & Touche’s summary judgment motion.
5Rather 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 engaged in

protected activity and that the employer was aware of this activity. See Newsome v. Textron

Aerostructures, 924 S.W.2d at 96. 

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After Deloitte & Touche presented competent evidence that it discharged Mr.

DeVore for valid reasons not related to his race, the burden shifted back to Mr.

DeVore to demonstrate that he would be able to present competent evidence that

Deloitte & Touche’s reasons were pretextual. The trial court determined that the

evidence presented by Mr. DeVore did not meet the requirements of Tenn. R. Civ. P.

56.06 and accordingly determined that Deloitte & Touche was entitled to a summary

judgment because Mr. DeVore had been unable to demonstrate that he would be able

to prove an essential element of his case at trial. We agree with the trial court’s

decision.

IV.

MR. DEVORE’S RETALIATORY DISCHARGE CLAIM

In addition to suing Deloitte & Touche for racial discrimination, Mr. DeVore

also claimed that his former employer discharged him in retaliation for filing his

discrimination charge with the EEOC. This conduct, if proven, violates both 42

U.S.C.A. § 2000e-3(a) (West 1994) and Tenn. Code Ann. § 4-21-301(1) (1991). This

claim founders on essentially the same shoals that undermined Mr. DeVore’s

discrimination claims.

The elements for both a federal retaliatory discharge claim and a state

retaliatory discharge claim 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

unlawful employment practice, (2) that the employer subsequently subjected the

employee to an adverse employment action, and (3) that a causal link exists between

the employee’s action and the employer’s subsequent adverse employment action.

See Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987); Newsome v. Textron

Aerostructures, 924 S.W.2d 87, 96 (Tenn. Ct. App. 1995).5 An employee may

establish the needed causal connection simply by proving that his or her protected

activity was a substantial factor 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).
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Deloitte & Touche presented competent evidence that Mr. DeVore was

discharged, not in retaliation for his discrimination charge, but because of his

inadequate job performance. In order to avoid summary dismissal of his retaliation

claim, Mr. DeVore was required to come forward 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 discrimination charge with the EEOC. This bare sequential evidence does

not suffice to make out either a federal or state retaliation claim. See Booker v.

Brown & Williamson Tobacco Co., 879 F.2d 1304, 1314 (6th Cir. 1989); Thomason

v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn. Ct. App. 1992).

Having found no competent evidence in the record that Mr. DeVore was discharged

in retaliation for filing his discrimination charge or that Deloitte & Touche’s

explanation of the reasons 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 retaliation claims.

V.

Although the procedural requirements and standards for summary judgments

are strict, see Bain v. Wells, 936 S.W.2d at 622, we have concluded that the trial court

properly applied them in this case. Accordingly, we affirm the summary judgments

dismissing Mr. DeVore’s discrimination and retaliatory discharge claims against

Deloitte & Touche and remand the 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 
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__________________________________

BEN H. CANTRELL, JUDGE