# FILED

Novemb er 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk PATRIC IA ANN WOL FE, BETTIE ) L. ROBERTS, PATRICIA PELTON, ) Franklin Chancery ODIE L. MANN, BOYD ) No. 14,240 STUBBL EFIELD, an d RICHARD G. ) RAY, ) Appeal No. ) 01-A-01-9611-CH-00514 Plaintiffs/

Appellants , ) ) VS. ) ) THE UNIVERSITY OF TENNESSEE, ) and THE UNIVER

SITY OF ) TENNESSEE SP

ACE INSTITU TE, ) ) Defendants

/Appellees. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CHANCER

Y COURT OF

FRANK LIN COUNTY AT WINCHESTE R, TENNESSEE HONORABL E WILLIA M DENDER (By Designati on) JUDGE

MARY A. PARKER STEPHEN C. C ROFFORD PARKER AND

CROFFOR

D 209 Tenth Avenue So., Suite 511 Cummins Station Nashville, TN 37203 ATTORNEYS FOR PLAI NTIFFS/APPEL

LANTS ALICE M. WOODY ALAN M. PARKER Assistant General Counsel LEWIS, KING, KRIEF, THE UNIVERSI

TY OF TENNESSEE WALDROP & CATRON 719 Andy Holt Tower One Centre Square Knoxville, TN 37908-0170 Knoxville, TN 37901 BEN P. L YNCH LYNC H, LY

NCH & L YNCH P.O. Box 310 Winchester, TN 37398 ATTORNEYS FOR DEFENDANTS/APPELL EES


### AFFIRMED A ND REMAND ED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L . LEWIS, JUDGE CONCUR IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE-2-

PATRIC IA ANN WOL FE, BETTIE ) L. ROBERTS, PATRICIA PELTON, ) Franklin Chancery ODIE L. MANN, BOYD ) No. 14,240 STUBBL EFIELD, an d RICHARD G. ) RAY, ) Appeal No. ) 01-A-01-9611-CH-00514 Plaintiffs/

Appellants , ) ) VS. ) ) THE UNIVERSITY OF TENNESSEE, ) and THE UNIVER

SITY OF ) TENNESSEE SP

ACE INSTITU TE, ) ) Defendants

/Appellees. )



### O P I N I O N

Six plaintiffs joined in this age discrimination suit under the Tennessee H

uman Rights Act, T.C.A. §§ 4-21-101 et seq.. The Trial Court rendered summary judgment dismissing the suits of all plaintiffs, who have appealed, submittinga single issue for review a nd the cor rectne ss of the sum

mary judgmen t.

THE CASE On September 26, 1994, the six captioned plaintiffs filed their joint complaint against the captioneddefendan ts, alleging that on or about Februa ry 14, 1994, plaintiffs wer e forced by defenda nts to ac cept a l ay-off or fo rced to take ea rly retir ement in vi olati on of t he age discrimination provisions of the Tennessee Human Rights Act, and in breac h of their contract of employment.

The action for breach of contra ct was dismissed by ag

reed order.

The defendants answered, deny ing that the complain

t states a claim for which relief can be granted, admitting the employ ment of plaintiffs, admitting that the S pace Institute was an integral part of the University which is an agency

of the State subject to suit under the Tennessee-3-

Human Rights Act, T.C.A. §§ 4- 21-102 et seq.. The answer admits that plaintiffs were scheduledto be laid off or

assigned a reduced work schedule, but not beca use of the ir age , admits that al l o f p la in ti ff s w er e o ve r 4 0 ye ars of age, but denies that plaintiffs, or any of them were subjectedto discrimination because of age, or that plaintiffs were replaced by other employee s of a young er age. The answer asserts that the actions complained of were made necessa ry by a reduction in the funds available for operation of the I nstitute.

An agr eed orde r struck jury demands f

rom the ple adings.

Defend ants ame

nded thei r answe r to parti cularize

various d efense s.

On Novem ber 30 , 1995 , defen dant U niver sity mov ed for s ummar y judgm en t as to all plaintiff s.

On May 6, 1996, the

University filed a Supplement to its Motion for summary judgme

nt in rega rd to Be ttie L . Roberts.

On June 18, 199 6, plaintif fs were permitte d to amend their complaint in regard to Odie Mann.

On July 1, 1996, the Trial Judge filed separa te memorandum as to the suits of five of the plaintiff s.

On July 12, 1996, the Trial Court entered separate order s dismissing the suits of each of the plain tiffs by summary judgmen t.

On July 27, 1996, the Trial Judge filed a separ ate memorandum

as to the s uit

of Patric ia Ann Wolfe.-4- The memorandum of the Trial Jud ge di scusses separately the facts relating to each pl ai nt if f. Th is Co ur t w il l t he re fo re re vi ew th e f in di ng s s ep ar at el y.

1. The findings of the Trial Court as to Patricia Ann Wolfe are:

Patricia Ann Wolfe was the only employ ee in the job classification of Senio r Ad mi ni st rat iv e As si st ant at U TS I. She was not terminated in the March 1994 RIF , but she was advisedthat UTSI intended to reduce he r employment to 50% time. She declined to accept reduced employ ment and elected instead to retir

e , and she receives retirement pay from the TennesseeConso l idated Re tirement Syst em. She al so received unemploy

ment bene

fits. She claims she was constructively dischar

ged. She would ha ve been returned to 100% employ ment andbenefits by July

1, 1994, if

she had accepted the reduced hours of employment decision conc erning the Marc h 1 994 RIF. All remaining employees who accepted the reduced employment

in th e March 1994 RIF w ere returned to 100% employment as of July

1, 1994. Ms. Wolfe claims Ms. Linda Crosslin sho uld have been included

in the RIF instead of her, because Ms. Crosslin is younge r and had been

trained by M s. Wolfe. M s. Crosslin was Executive

Assistant

to the Vice President, a job classification a dmi ttedly different to Ms. Wolfe’ s classification. [Wolfe deposition, p. 151] The job classificat i on of Senior Administrative Assi stant was not filled. The evidence before the Court indicated the j ob functions and duties which she performed were spread among existing employees, includi ng the assignment

of her duties to the existing Executive Assistant , Ms. Linda

Crossl in. However, there are details conc erning the distribution of thos e duties which the Court has been unable to locate , and the C ourt fee ls it is ne cessar

y to supplement

the r eco rd as spe cifically s et forth l ater in th is memoran dum. Ms. Wolf e said s he retired in order to be eligible for health insurance as a retired state employ ee. She filed a claim with the Soci al Secur ity Ad ministration for disability benefits claiming that she was “unable to work because of

allergies a

nd a sthma.” [Wolfe deposition 2-29-96, p.7 and Ex. 1] She s upporte d her cla im withstatements from her doctor. [Wolfe, p . 164-1 66]. The Social Security Administration denied her claim on 8-22-94, and she filed a request for reconsider ation. [Wolfe, p.7] Ms. Wolfe cla

ims she wa s repla

ce d b y Mary He

len Britton, and that there was a promotional an nouncem ent dated-5- March25, 1994, advertising for the position formerly held by Ms. Wolfe; and a mem orandum, dated 4/28/94, announced that Ms. Mary

Helen B ritta

in was selected as McCay ’s Executive Assistant. Excerpts from that memorandum

state: “T his wa s a new position created to support the vice president’s office” and “The new position was necessary due to the ret irem ent of the administr

ative as sistant and in addition, the Execut ive Assistant to the Vic e Preside

nt, Ms. Linda Crosslin, taking the position of Special Even ts Coordinator.” Defend ants claim Ms. Wo lfe doesnot show a prima facie case because (1) she was not terminated, and (2) she was notreplaced by

a young er

worker . Defendants als o claim she is barred by j udicial e stoppel, because of her allegations in her cl ai m f or so ci al se cu ri ty d is ab il it y. Ms. Wo lfe asksfor rein statemen t, and she supports this requ est with a

statemen t from Dr . Stephen

Hunter B ills. At the pr es ent time, the Court reserves judgment on the Motion for Summary Judg ment or Partial Summary Judgmentconcer

ning Ms. Wo lfe, inc luding th e quest ion of judicial e stoppel. As soon as possible, and at le as t w it hi n 1 5 d ays from the date this memorandum is received, counsel for the defenda nts will please supplement the record, or point specific ally

to the evi dence, in order th at the Court can d etermine (1) the d ate Ms. Wolf e retired, (2) the

specific duties of Ms. Wolfe that were distributed to exist ing empl oy ees and the na

mes and jo

b titles of those emp loy ees, (3) whether these employees had other duties they perf

ormed in addition to the duties of Ms. Wolfe which were distributed to them, (4) the date Ms. Linda Cr osslin accepted the job of Special Events Coordinat or, and (5) the specific duties assigned to Ms. Mar

y H elen Br

itt on and how those duties were different

from the duties of Ms. Wolfe, if there were any differe nces. Counsel for Ms. Wolfe may supplement the record , if they choose, within 10 d ays from the date they receive the suppleme nt to the re

cord filed by

defense counsel.

Memorandum Concer

ning P atri cia A nn Wolf

e This i s a continued consideration of the Motion f o r Summary Judgment o

r Partia l Sum mary Judgment filed agains tPatricia Ann Wolfe. The defendants seek s u mmary judgment on the ground

that Ms. Wolfe has not established a prima facie case of ag e discrimination. In order to

be succe ssful in thi s case, it is basicthat the plaintiff must ge t over the hurdle of constructive discharge,-6- otherwis e there has been no discharge of the emplo ye e. This is conside red to be a factual issue which would have to be determinedby t

he trier of fact ; howeve

r, it i s n ot necessary that this issue be reached at this time. The details of Ms. Wolfe’s situation were set forth in the Court’s Memo randum e ntered o n July

1, 1996, a

nd all portions of that mem orandu m pertaining to Ms. Wolfe are incorporated herein by

reference. This Court note s that se veral times, ora lly a nd in writi ng, it has bee

n stated th at Dr. Mc Cay said to Be

ttie Roberts that he wa s going to get rid of Ms. Wolfe and Linda Crosslin and re place them with young er girls with happy smiling faces. Plaintiff ’s brief even sta tes, “D r. McCay indicatedthat he wanted to move Ann Wolfe from her position, and the testimony, under oa th, by Bettie Roberts wa s that he was go ing to re pl ac e h er wi th a yo un ge r h ap py, smiling face.” In fact, B ettie Robe rts’ de position of 9/13/95 sta

tes: He a ske d me while we were in the meeting wh at I t hought of Ann Wolfe and Linda Crosslin. And I

said, “Well you know, what do you m ean?” And h e said, “ Well, what do you think about

them?” I sai d, “Well, I know Ann real well. We’ve worked together for ye ars. I don’t know L

inda that well.” I said, “I know Ann

is very ca pable. She’s had, you know, many

years e xperience.” And he t old me tha

t sometime s those two gi rls, they had ups and downs. The y were n ’t always happy

and he wanted -- he said, “What I would like

to have is two young girls in there with happy, smiley faces so that when any one came

in, no matte

r who, the y would be greeted the

same and they would be

-- see these happy , smiley face s.” Tha t was just an of f-side c omment. At the r eq uest of the Court, all parties have supple mented the r ecord through supplemental affidavits, and the Co urt will summarize important portions of such evidence below. SUPPLE MENTA L AFFIDA VIT O F

T. DWAYNE McCAY, Ph. D. Ms. Wolfe notified Dr. McCay, by Memorand u m datedFebruary

21, 1994, that she would be retiring from the UT Space Institute on March 2, 1994.-7- Dr. M cCay expected Ms. Wolfe to continue wor k a t 50%, and it was hi s hope that all employees a ccepting reduced hours would be returned to full employment by July 1, 1994. If Ms. Wolfe had acce pted employment at 50%, she would h ave been returned to 100% status on July 1, 199 4

. Ms. Wolfe’s duties were limited to answering the phone and assisting in the preparation of correspondenc e. When M s. Wolfe retired, her duties were spontane ously

absorbe d by

the Execut

ive Assist

a nt, Ms. Linda Crosslin, who continued to perform her prima ry duties. No other arrangements had bee n made becaus e it wa s expectedthat Ms. Wolfe would work 50% time. When Ms. Wolfe refused

to prov ide 50% support to the office, Dr. McCay gave additionalthought

to the staf

fing requireme

nts. On March 24 , 1994, UT SI is s ued a promotional announcement

to re c ruit a new Executive Assistant from existing U

TSI e mployees. On April 4, 1994, Ms. Crosslin’ s title waschang ed to Special Events Coordinator; and a s such she had full responsibility for

planning and cond

ucting a ll specia l events conducted

by U TSI, inclu di ng professional, social, and service events. Sh

e was als o assigned responsibility f or management

of the UTSI I

ndustry-Student Center, which contains the caf

eteria a nd dormit

o ry. Ms. Wolfe was not assigned any of these duties while Dr. McCay ha s been Vice Presiden t. Ms. Crosslin’s duties required her own secretarial supp ort, a nd she was moved to a larger offic e, leaving the Vice Pre sident’s o ffice with no direct suppor t. Ms. Mary He

len Brittain was selected as the new Executive As sistant , effective April 24, 1996. Her duties included, in add it ion to maintaining Dr. McCay ’s calendar andpreparing co rre spondenc e, the au thoring of some of

his correspondence, representing hi m in some me etings, reorganizing and upgrading the computer a nd of f ice electronics, i n cluding software, supervision of six research group secret arie s (forme d later) , and cha iring the Cafete

ria Committee. None of t

hese othe r duties h ad been

assigned to either Ms. Crosslin or Ms. Wolfe. Af ter Ms. Brittain was selected to serve in the expanded role of Executive Assistant, U TSI’ s long-t ime Public Affairs Coordinator retired, and that p osition wa s split into two positions, one full-time and one par t-time. An internal search was made for a replacement, and

Ms. Britt ain appliedfor the f

ull-time p osition. Ho wever, Ms. Brit ta in’s position was included in a further RIF in Octobe

r 1995, as a result of the continuing mone y crisis, and Ms. Brittain is no lo nge r at UTS I.-8- Ms. Brittain

was rep laced by

a non-exe

mpt hourly paid secret ary , Ms. Dee

Robinett e. Her job title was a

nd is Administrative Service s Ass i stant, and she is not a replacement

for either the Senior Administrative Assistant or Executive Assistant position. Some of the previous E xecutive Assistant ’ s duties have been redistributed and some are no longer perfor med at all

. As far a s Dr . McCay is conce rned, the position of Senior Administrative Assistant has been deleted. Non e of the above evidence stated in Dr. McCay ’s supplemental affidavit is contradicted by Ms. Wolfe’s suppleme ntal aff idavit. SUPPLE MENTA L AFFIDA VIT O F PATRIC IA ANN WOLFE Ms. Wolfe stat

es in her suppleme ntal aff idavit, “ All o f the duties listed in the promotional announcement are duties that I wa s v er y capabl e of performing and duties that I had performed

for the individuals that were the Deans prior to Dr. Dwayne McCay taking

his position.” Ms. Wolfe also

includesin her aff

ifavit (sic) a copy

of Exhibit 2 to Ms. Wolfe’s deposition of 9/12/95 and Ex hibit “CC” to Plaintif

f’s Summa

ry J udgment Response. A comparison of these

do cuments s hows many compara ble items; however , the comp arison a lso shows there are numerous additional duties listed on Exhibit “CC” which are not listed on Exhibit 2. The Court now turns to conside rat ion of judicial estoppel

. In order to maintain an age discrimination case, the plaintiff must be ready, a

ble, and qualified

to perform the job plaintiff claims was lost as a result of age discrimination.

- - - - In the opinion of the Court, Ms. Wolfe has not establisheda prima

facie c aseof age

discrimin ation; be cause the evidence, viewed

in favor of Ms. Wolfe and

allowing all reasona ble infer ences in her favor, does not establish either (1) she was ready , able, and qualified to perform the job she claims w as lo st as a result of age discrimination, or (2) she was replaced by

another employee, or that younge r employees in the same position were treated more favorably . Her duties were assumed by

other existing employ

ees, and her position has essentially been

eliminated. There is no evidence that age was a facto

r in the e

mploy ment dec ision conc erning Ms. Wolfe andthat “but for” this factor the action would not have been taken. Th e Motion for

Summary

Judgment c oncerning Ms. Wolfe is sustained. The findings of the Trial Court as to Bettie L . Roberts are:-9- Bettie L. Roberts wa s the Registrar at the UTSI , and was the only

employ ee in tha t department with that job cla ssification. She was not terminated in the March 19 9 4 RIF, but she was notified that UTSI intended to reduc e her employment

to 75% time. She continued to work at the 75% level for a period of one mont h, bu t at that time decided not to continue employment at the 75% le vel. Th er e is a controve rsy over h e r being able to continue to be insured at 75% ti me . S he cl ai ms Mr . B ea rd sl ey, an employee and agent of UT at the UT Retirement Office told her she should retire in order to

keep insurance; but in her deposition she admitted she could con

tin ue insurance. It seems ther e is a question whether she could dra

w her be nefits, in cluding insuranc e, if she were laid off at 75%. The position o f Registrar was not filled. Her supervisor, Dr. Edwa

rd Gleason, assumed the professional duties of Regi stra r, and Mary Frances Ferber, the

Recorder, conti nued p erforming the clerical duties. Some functions previous ly

perfor med by Ms. Roberts are not

performed in the Graduate office of UTK. Ms. Ferb erwas hired and trained by Ms. Roberts as the new rec order, t

he positio n held

by Ms. Roberts before she was appointe d Re gistrar i n 1983. Ms. Ferber was a clerica l emplo yee before Ms. Roberts retired, and she perfor med duties for Ms. Roberts. The Recorder was responsible for the data base, and her skills and duti es w ere differe nt from Ms. Roberts. Ms. Roberts would have been returned to 100% employment

by July 1, 1994, as were all others who accepted reduce d hours. On June 11, 199 4, she fil ed a Disa bility Report in order to claim S ocial S ecurity B enefits. On June 27, 1994, she executed an Application for Disability B enefits, where she claimed she was unable to work on

April 1, 19 94, beca

use of her “dis ablin g con dition.” Her claim for Socia l Security Disability Benef its was denied, and she filed a request for reconsideration of her claim on September 13, 1994. Plaintiff claims: (1) constructive discharge and ( 2) she could have performe d the duties of the employee s to whom her duties were assigned. Defend ants claims she

fails to state

a prima f acie ca se because (1) she was not terminated, (2) she was not replaced by a young er employee , and (3) her duties were re assigned to existing employees or they are no longer

being performed at UTS I. Defendant s also c laim she is barred by judical (sic) estoppel , because

of her a llegat ions in her

claim forsocial se cu ri ty d is ab il it y.-10- She also claims in her affidavit that she is able t o resume her duties as Regi strar, a

nd she asks for re

instateme nt. In the opinion o f t he Court, Ms. Roberts has not establisheda prim a facie case of age discrimin ation; be cause the evidence, viewed in favor of Ms. Robe

rts and a llowing a ll reasona ble inferences in her favor, does not establish that she was replaced by

another employee, or that younge r employees in the same position were treated more favora bly. Her position ha s been abolished, and her duties have been distributed to other

existing employees. The

re is no evidence that age was a factor in the e

mployment decision

andthat “but for” this factor the action would not have been take n. The Mo tion of Summar

y Judg ment conc erning

Ms. Roberts is sustained. The findings of the Trial Court as to Patricia A. Pelton are:

Patric i a A. Pelton was employed as a switchboard operator and then became classified as the telephone operator supervisor. Her duties were to answer the phone, and she acted as the receptionist for the I nstitute. When UTSI decided to acq uir e an automated telephone sy stem, Ms. Pelton was as signed to begin perfor ming some

clerica l work for

th e Directo r of Dev elopment

. Ms. Pelton claims she was working for Campaign 94 when she was terminat

ed, and s he claimsshe was replaced by Betty Wilkerson in Campaign 94. She claims, a

fte r her initia

l termina tion, fav oritism was shown a young er employee , Dee Dee Jones, by hiring her at $6.50 per hour. UTSI had only offered Ms. Pelton $5.00 per ho ur (a lo ng wi th 2 o th er em pl oye es) t o tempora rily answer the phone. After Dee Dee Jones left, Ms. Pelton was offered $6.50 per hour to answer the phone temporarily for

2 weeks. She actual ly worked in that capacity for approxima

tely 3 months until the new phone system became fully operational. The

re is no longer a

switchboard operator at UTSI , and the p osition wa s complete ly phased ou

t. After the March 1994 RIF, ther e w ere no clerical workers in the Development Off ice (s ic), but later funding became available for

c lerical assistance in that office. However, the newjob classification was a different position from the on e Ms. P elton was tr ainin g for , and the new position require d greater skills than Ms. Pelton possessed. Actual job duti es were different from the work Ms. Pelton performed

for the Director of Development. Ms. Pelton does notdispute that the subsequent job in the Development Office required more skills than she possessed. [Pelton d eposition, 104:25-105:5]-11- Defend ants claim Ms. Pelton does not state a pri ma facie case because (1) her job cla ssification as telephone switchboardoperator supervisor was no longer needed, being deletedby the

installation of

automatic equipment, and (2) her job classification was not replaced by a young er worker. In the opi nion of the Court, Ms. Pelton has not establisheda prima

facie c ase of a

ge disc riminatio n; becau se the evidence, viewed in favor of Ms. Pelton and allowing all reasona ble inferences in her favor, does not establish she was replaced by another

employ ee, or th at a

you nger e mployee in the same job was treat ed mo re favorably . Her position has been abolished because an automated telephone sys te m has been installed. The Court is not of the opinion that the mere hiring of Ms. De e Dee Jone s, on a tem porary basis, at $6.50 per hour, after Ms. Pelton had only been of fered and refused $5.00 per hour , is such f avoriti s m as wo uld t rigger an age discrimination case. This is true especially whe n Ms. Pelton accepted temporary

employment in that job at $6.50 per hour when Ms. Jones left, and Ms

. Pelton worked in that ca pacity for appr oximately 3 months. Ther e is no evidence that age was a fa ctor in th e employment

decision and that

“but for ” this factor the action would not have been taken. The Motion for Summary Judgment concer ning M s. Pelton is sustained. The findings of the Trial Court as to Odie L . Mann are:

OdieL. Mann was the only employ ee in the ca

feteria withthe job classification of Senio r Chef. The job was not filled after she retired, and U TSI reduced the over all scope andlevel of the food services offered at its cafe teria. Pr ev io us ly, several daily

hot pl ate lunches were offered, but now it is mostly a fast food ty pe serviceanda soup/salad bar. As of November 1995, the staff ing of th e cafe teria had been reduce d to only

2 part time

employ ees. Ms. Mann complains that Bea Hill transferred

into the ca fet eria, but Bea Hill replaced Valerie Watson, who wa s alre ad y in the cafeteria and later resig ned. Ms. Hill was 58 when she replaced Ms. Watson. Ms. Mann’s termination date was delay ed until May 1994, in order for her to be able to rece ive her longevity

pay andbec ome el igi ble at 62 yea rs of age to draw her Social Security Be

nefits. [Mann deposition 2/29/96, p. 31-32] On October 20, 1995, Ms. Mann was seriously injured in an auto accident. On Febr u ary 9, 1996, her

attorney filed suit on her be half in Franklin County, Tennessee, andthe suit claims that “(S) he is n ow permanently injured, has lost the capaci ty to earn, has lost the ability to enjoy life, and has-12- suf fered and continues to suf

fer gr eat pain , for all o f whic h she is entitled to recover.” [See Mann, p. 3 paragr aph 11] Defend ants claim Ms. M ann fail s to state a prima fa cie case because (1) the p osition of

Senior Chef was not filled, an d (2) she was not replaced by a young er work er . Defend ants a lso claim s he is bar red by judicial e stoppel, because of allegations in her suit conc erning the auto accide nt; but that could only affect events f ollowing the auto accide nt. In the opinion of the Court, Ms. Mann has not establisheda prim a facie case of age discrimin ation; be cause the evidence, viewed in fa v or of Ms. M ann and a

llowing a ll reasona ble inferences in her favor, doesnotestablish that she was replaced by

another employee, or that younge r employees in the same job weretr ea te d m or e f av or ab ly. Her position as Senior Chef has been abolished, the overall operation in the cafete ria has been modified, and there are only two part time employeesin the cafeteria at this time. There isno evidence that age wa s a factor in the employment decision and that “but for” this factor the action would not have been take n. The Motion f

or Summar

y Judg ment conc erning

Ms. Mann is sustained. The findings of the Trial Court as to Boy d Stubblefield are: Bo yd Stu b blefield

was employe d as a med ia production assistant, he was the only e mployee with that job classification, and he was the only full time employ ee in that departm ent. He primarily functioned as the photographer for UTS I. He was not

terminated, but in the March 1994 RIF, he was advised that UTSI intended to reduce his employment

to 50% time. He claims this was a constructive discharge

. He has not pr

esented evidenc e that he

meets the fourth criteri a of McDon

nell Douglas, or that

a y ounger

employ ee in the same job was tre ated more fa vorably . Mr. Stubbl efield claims Ms. Linda Horton was treated more favorably , butit is clear Ms. Horton was not in the same job and did not have the sa me r esponsibilities. He was not replaced by a young er employee , and h is duties were either distributed to existing employeesor left un

perfor med. Scie

ntific photo graphy

is either not being done, or is being performed by existing research workers. Public relations photography was done by an older employee

until his retiremen t, and upon that employee ’s retirem

ents, the se dutieswere sp

read am ong othe r employ ees. UTSI

no longe r develo pes film and does not

print photographs in-house. In the opinio n of the Court, M r. Stubblefield has not establisheda prima f

acie ca se of age discrimin ation; be cause the evidence, v iewe d in favor of Mr. Stubblefield and allowing all reas onable in ferenc es in his favor, does not-13- establish that he was replaced

by a nother e mployee, or th at a younge r employee in the same job was treated more fa vo ra bl y. His duties have been distribut ed to existing employ ees, l eft undone, or not done in-house. There is no ev i dence that age was a factor in the e mployment decision and that “ but for”this factor the action would not have been taken. The motion for Summary Judgment conce rning Mr. Stubblefield is sustained.

The findings of the Trial Court as to Richard G. Ray are: RichardG. Ray was e

mployed as the supervisor in the Gas Dynamics Laboratory , and he was the only employee

in that job classification within that department. He supervised only two other workers in his department. The evidence does notshow that he meets the fourth requirement of the McDonnell Douglas test. He was not replaced by

a young er employee. Hi s job wa s deleted entirely in the March 1994 RIF, and the supervisory responsibilities of several laboratories were me rge d. Another labor atory supervisor, Mr

. Goodman, was selected to be the supervisor over the laborat ories. Mr. Goodman hadmore senority than Richa rd G. Ray, and in addition, Mr. Goodman had expertise different fr om Mr . R ay. He complains that Ricky Meeker should hav e been laid off instead of him, but it is clear that Meeker was in a different job classification, that he was not a supervisor, and that he was and is a technician level individual performing maintenance. In the opinion of the Court, Mr. Ray has not establisheda prim a facie case of age discrimin ation; be cause the evidence, viewed

i n favor o f Mr. Ray

and allowing all reasona ble infe rencesin his favor, does not establish that he was rep laced by another e mployee, or that a y

ounger employee in the same job was tre ated mor e favor ably . His position has been abolished, and thesupervisor y responsibilities of several laboratories were merged. The Motion for Summary Judgment against Mr. Ray is sustained.

THE APPLICABLE LAW

The pa rt y s ee king a summary judgment has the initial burden of demonstrating by undisputed competent evi de nce that the moving

party is entitle d to summar

y ju dgment a s a-14-

matter of law. A conclusory

assertion that the non-moving party has no ev id ence is c learly insuffic ient. Competent evidence that the non-moving party has no evidence may

be suffi cient. When the initial burden of the movant has been satisfied, the burden of proce eding shifts to the opponent of the motion to present competent evidenceand/or law which negatives the g round of the motion. Byrd v. H

all , Tenn. App. 1993, 847 S.W.2d 208.

In respect to employees’ suits for unlawful discrimination, the motion of the employer for summary judgmen t must be sup

ported by more tha n a simple

conclusory oa

th that “I did not discriminate.” The employer must “articulate a legitimate lawful reason”for the discharge or discrimination of the employee

. Brenner v. Textro n Aerost

ructures , Tenn. App. 1993, 874 S.W.2d 579, Bruce v . We stern Auto Suppl y Co ., Tenn. App. 1984, 669 S.W.2d 95. This does not

mean that the e

mployer must initially

present competent evidence of facts supporting the r eason for the management

decision. It is sufficient to present the af fidavit of the management official that he had received reports of employ ees which he deemed sufficient to support this action.

When the employer ha s thus supported his action, the burden of proceeding shifts to the employee to prese nt compet ent evide nce that the adve rse rep ort recei ved by management was untrue, thus creating an issue of material fact which would render summary judgment improper. Silpachar in v. Metropolitan Government , Tenn. App. 1990, 797 S.W.2d 625, Bruce v . We stern Auto Suppl

y Co ., Tenn. App. 1984, 669 S.W.2d 95, and authorities cited therein.

In these suits by employ

ees for ag e discrim

ination, th

e ultimate issues ar e: (1) whether the employee wa s a member of a protected class, (2) Whe the r the emp loy ee was s ubjecte d to adverse employ

ment action, (3) Whether he or she was qualified for the position held, and (4) he or she was replaced by

a young er person. McDonne ll Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 37 L. Ed.2d 668 (1973). Such may be shown b y direct, cir cumstantial, or statistical evidence. Bruce v . We stern Auto Supply Co. , Supra

.-15- While statistical testimony has been ad mitted and

consider ed in some

cases, it is gener ally looked upon with caution or suspicion. The inquiry is how a par ticular individual has been treated, rather than

any practice in the industry

or even in the general practice or policy of the employer. Cumpiano v. Banco Santander P.R. , 1st Cir. 1990, 902 F.2d 148; Mack v. Great Atl. & Pac. Tea C

o ., 1st Cir. 1989, 871 F.2d 1 79; Walth er v. Lone Star Gas Co ., 5th Cir. 1992, 977 F.2d 1 61; Gadson v. Concord Hospital , 1st Cir. 1992, 966 F.2d 32.

In the present case, the

Trial Court held that the statistical evidence offered by plaintiffs in response to defendant’s motion was an ins uffici ent response to defendant’s articulated legitimate reason for the action taken.

Appellan ts argue that the affidavit of Dr. M cCay as to the re asons for his decisions concerning plaintiffs is not sufficient to sup p ort defendant’s motion for summary judgment because Dr. McCay ke

pt no notes of

his reasons which renders them suspect, thereby providing

a basis for cons ideratio n of the te stimony of the sta tistician . This Cour

t agre es with

the holding of the Tria l Court tha

t Dr. McCa

y’ s credib ility

was not imp eached

and that t

he statistics were in su ff ic ie nt to co nt ra di ct hi s t es ti mo ny.

Some of the plaintiff’s arguments cannot be considered because they

do notcomply

with Rule 6(b) of t

he Rules o f this Co ur t b y c iting the pages of the recor d where evidence may

be found. Alexand

er v. Tennessee F

armers Mu tual Insur

ance Co ., Tenn. App. 1995, 905 S.W.2d 177, Pearman v. Pearman , Tenn. App. 1989, 781 S.W.2d 585.

This Court concurs in all of the above findings of the Trial Court, and a lso finds that the efforts of plaintiffs to impeach the characte r of Dr. McCay

were not sufficiently

supported.-16- The judgment of the TrialCourt dismissing these suits are affirmed. Costs of this appeal

are taxed to the plaintiffs. The causes are remanded to the T rial Cou rt for further necessary procee dings.



### AFFIRMED A ND REMAND ED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

___________________________ SAMUEL L . LEWIS, JUDGE

CONCUR IN SEPARATE OPINI ON: WILL IAM C. KOCH, JUDGE