FILED

November 14, 1997

Cecil W. Crowson

Appellate Court Clerk

PATRICIA ANN WOLFE, BETTIE )

L. ROBERTS, PATRICIA PELTON, ) Franklin Chancery

ODIE L. MANN, BOYD ) No. 14,240

STUBBLEFIELD, and RICHARD G. )

RAY, ) Appeal No.

) 01-A-01-9611-CH-00514

Plaintiffs/Appellants, )

)

VS. )

)

THE UNIVERSITY OF TENNESSEE, )

and THE UNIVERSITY OF ) 

TENNESSEE SPACE INSTITUTE, )

)

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF FRANKLIN COUNTY

AT WINCHESTER, TENNESSEE

HONORABLE WILLIAM DENDER (By Designation) JUDGE

MARY A. PARKER

STEPHEN C. CROFFORD

PARKER AND CROFFORD

209 Tenth Avenue So., Suite 511

Cummins Station

Nashville, TN 37203

ATTORNEYS FOR PLAINTIFFS/APPELLANTS

ALICE M. WOODY ALAN M. PARKER

Assistant General Counsel LEWIS, KING, KRIEF,

THE UNIVERSITY OF TENNESSEE WALDROP & CATRON

719 Andy Holt Tower One Centre Square

Knoxville, TN 37908-0170 Knoxville, TN 37901

BEN P. LYNCH

LYNCH, LYNCH & LYNCH

P.O. Box 310

Winchester, TN 37398

ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

CONCUR IN SEPARATE OPINION

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

PATRICIA ANN WOLFE, BETTIE )

L. ROBERTS, PATRICIA PELTON, ) Franklin Chancery

ODIE L. MANN, BOYD ) No. 14,240

STUBBLEFIELD, and RICHARD G. )

RAY, ) Appeal No.

) 01-A-01-9611-CH-00514

Plaintiffs/Appellants, )

)

VS. )

)

THE UNIVERSITY OF TENNESSEE, )

and THE UNIVERSITY OF ) 

TENNESSEE SPACE INSTITUTE, )

)

Defendants/Appellees. )

O P I N I O N

Six plaintiffs joined in this age discrimination suit under the Tennessee Human 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, submitting a single issue for review and the correctness

of the summary judgment.

THE CASE

On September 26, 1994, the six captioned plaintiffs filed their joint complaint against the

captioned defendants, alleging that on or about February 14, 1994, plaintiffs were forced by

defendants to accept a lay-off or forced to take early retirement in violation of the age

discrimination provisions of the Tennessee Human Rights Act, and in breach of their contract

of employment. 

The action for breach of contract was dismissed by agreed order. 

The defendants answered, denying that the complaint states a claim for which relief can

be granted, admitting the employment of plaintiffs, admitting that the Space Institute was an

integral part of the University which is an agency of the State subject to suit under the Tennessee
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Human Rights Act, T.C.A. §§ 4-21-102 et seq.. The answer admits that plaintiffs were

scheduled to be laid off or assigned a reduced work schedule, but not because of their age, admits

that all of plaintiffs were over 40 years of age, but denies that plaintiffs, or any of them were

subjected to discrimination because of age, or that plaintiffs were replaced by other employees

of a younger age. The answer asserts that the actions complained of were made necessary by a

reduction in the funds available for operation of the Institute.

An agreed order struck jury demands from the pleadings.

Defendants amended their answer to particularize various defenses.

On November 30, 1995, defendant University moved for summary judgment as to all

plaintiffs.

On May 6, 1996, the University filed a Supplement to its Motion for summary judgment

in regard to Bettie L. Roberts.

On June 18, 1996, plaintiffs were permitted to amend their complaint in regard to Odie

Mann. 

On July 1, 1996, the Trial Judge filed separate memorandum as to the suits of five of the

plaintiffs.

On July 12, 1996, the Trial Court entered separate orders dismissing the suits of each of

the plaintiffs by summary judgment.

On July 27, 1996, the Trial Judge filed a separate memorandum as to the suit of Patricia

Ann Wolfe. 
-4-

The memorandum of the Trial Judge discusses separately the facts relating to each

plaintiff. This Court will therefore review the findings separately.

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

Patricia Ann Wolfe was the only employee in the job

classification of Senior Administrative Assistant at UTSI.

She was not terminated in the March 1994 RIF, but she was

advised that UTSI intended to reduce her employment to 50%

time. She declined to accept reduced employment and elected

instead to retire, and she receives retirement pay from the

Tennessee Consolidated Retirement System. She also

received unemployment benefits. She claims she was

constructively discharged.

She would have been returned to 100% employment

and benefits by July 1, 1994, if she had accepted the reduced

hours of employment decision concerning the March 1994

RIF. All remaining employees who accepted the reduced

employment in the March 1994 RIF were returned to 100%

employment as of July 1, 1994.

Ms. Wolfe claims Ms. Linda Crosslin should have

been included in the RIF instead of her, because Ms. Crosslin

is younger and had been trained by Ms. Wolfe. Ms. Crosslin

was Executive Assistant to the Vice President, a job

classification admittedly different to Ms. Wolfe’s

classification. [Wolfe deposition, p. 151]

The job classification of Senior Administrative

Assistant was not filled. The evidence before the Court

indicated the job functions and duties which she performed

were spread among existing employees, including the

assignment of her duties to the existing Executive Assistant,

Ms. Linda Crosslin. However, there are details concerning

the distribution of those duties which the Court has been

unable to locate, and the Court feels it is necessary to

supplement the record as specifically set forth later in this

memorandum.

Ms. Wolfe said she retired in order to be eligible for

health insurance as a retired state employee. 

She filed a claim with the Social Security

Administration for disability benefits claiming that she was

“unable to work because of allergies and asthma.” [Wolfe

deposition 2-29-96, p.7 and Ex. 1] She supported her claim

with statements from her doctor. [Wolfe, p. 164-166]. The

Social Security Administration denied her claim on 8-22-94,

and she filed a request for reconsideration. [Wolfe, p.7]

Ms. Wolfe claims she was replaced by Mary Helen

Britton, and that there was a promotional announcement dated
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March 25, 1994, advertising for the position formerly held by

Ms. Wolfe; and a memorandum, dated 4/28/94, announced

that Ms. Mary Helen Brittain was selected as McCay’s

Executive Assistant. Excerpts from that memorandum state:

“This was a new position created to support the vice

president’s office” and “The new position was necessary due

to the retirement of the administrative assistant and in

addition, the Executive Assistant to the Vice President, Ms.

Linda Crosslin, taking the position of Special Events

Coordinator.”

Defendants claim Ms. Wolfe does not show a prima

facie case because (1) she was not terminated, and (2) she was

not replaced by a younger worker. Defendants also claim she

is barred by judicial estoppel, because of her allegations in her

claim for social security disability.

Ms. Wolfe asks for reinstatement, and she supports

this request with a statement from Dr. Stephen Hunter Bills.

At the present time, the Court reserves judgment on

the Motion for Summary Judgment or Partial Summary

Judgment concerning Ms. Wolfe, including the question of

judicial estoppel.

As soon as possible, and at least within 15 days from

the date this memorandum is received, counsel for the

defendants will please supplement the record, or point

specifically to the evidence, in order that the Court can

determine (1) the date Ms. Wolfe retired, (2) the specific

duties of Ms. Wolfe that were distributed to existing

employees and the names and job titles of those employees,

(3) whether these employees had other duties they performed

in addition to the duties of Ms. Wolfe which were distributed

to them, (4) the date Ms. Linda Crosslin accepted the job of

Special Events Coordinator, and (5) the specific duties

assigned to Ms. Mary Helen Britton and how those duties

were different from the duties of Ms. Wolfe, if there were any

differences.

Counsel for Ms. Wolfe may supplement the record, if

they choose, within 10 days from the date they receive the

supplement to the record filed by defense counsel.

Memorandum Concerning Patricia Ann Wolfe

This is a continued consideration of the Motion for

Summary Judgment or Partial Summary Judgment filed

against Patricia Ann Wolfe. The defendants seek summary

judgment on the ground that Ms. Wolfe has not established a

prima facie case of age discrimination.

In order to be successful in this case, it is basic that the

plaintiff must get over the hurdle of constructive discharge,
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otherwise there has been no discharge of the employee. This

is considered to be a factual issue which would have to be

determined by the trier of fact; however, it is not necessary

that this issue be reached at this time.

The details of Ms. Wolfe’s situation were set forth in

the Court’s Memorandum entered on July 1, 1996, and all

portions of that memorandum pertaining to Ms. Wolfe are

incorporated herein by reference.

This Court notes that several times, orally and in

writing, it has been stated that Dr. McCay said to Bettie

Roberts that he was going to get rid of Ms. Wolfe and Linda

Crosslin and replace them with younger girls with happy

smiling faces. Plaintiff’s brief even states, “Dr. McCay

indicated that he wanted to move Ann Wolfe from her

position, and the testimony, under oath, by Bettie Roberts was

that he was going to replace her with a younger happy,

smiling face.”

In fact, Bettie Roberts’ deposition of

9/13/95 states:

He asked me while we were in the

meeting what I thought of Ann Wolfe and

Linda Crosslin. And I said, “Well you know,

what do you mean?” And he said, “Well,

what do you think about them?” I said, “Well,

I know Ann real well. We’ve worked together

for years. I don’t know Linda that well.” I

said, “I know Ann is very capable. She’s had,

you know, many years experience.”

And he told me that sometimes those

two girls, they had ups and downs. They

weren’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 anyone came in, no matter who, they

would be greeted the same and they would be

-- see these happy, smiley faces.” That was

just an off-side comment.

At the request of the Court, all parties have

supplemented the record through supplemental affidavits, and

theCourt will summarize important portions of such evidence

below.

SUPPLEMENTAL AFFIDAVIT OF 

T. DWAYNE McCAY, Ph. D.

Ms. Wolfe notified Dr. McCay, by Memorandum

dated February 21, 1994, that she would be retiring from the

UT Space Institute on March 2, 1994.
-7-

Dr. McCay expected Ms. Wolfe to continue work at

50%, and it was his hope that all employees accepting

reduced hours would be returned to full employment by July

1, 1994. If Ms. Wolfe had accepted employment at 50%, she

would have been returned to 100% status on July 1, 1994.

Ms. Wolfe’s duties were limited to answering the phone and

assisting in the preparation of correspondence.

When Ms. Wolfe retired, her duties were

spontaneously absorbed by the Executive Assistant, Ms.

Linda Crosslin, who continued to perform her primary duties.

No other arrangements had been made because it was

expected that Ms. Wolfe would work 50% time. When Ms.

Wolfe refused to provide 50% support to the office, Dr.

McCay gave additional thought to the staffing requirements.

On March 24, 1994, UTSI issued a promotional

announcement to recruit a new Executive Assistant from

existing UTSI employees.

On April 4, 1994, Ms. Crosslin’s title was changed to

Special Events Coordinator; and as such she had full

responsibility for planning and conducting all special events

conducted by UTSI, including professional, social, and

service events. She was also assigned responsibility for

management of the UTSI Industry-Student Center, which

contains the cafeteria and dormitory. Ms. Wolfe was not

assigned any of these duties while Dr. McCay has been Vice

President.

Ms. Crosslin’s duties required her own secretarial

support, and she was moved to a larger office, leaving the

Vice President’s office with no direct support.

Ms. Mary Helen Brittain was selected as the new

Executive Assistant, effective April 24, 1996. Her duties

included, in addition to maintaining Dr. McCay’s calendar

and preparing correspondence, the authoring of some of his

correspondence, representing him in some meetings,

reorganizing and upgrading the computer and office

electronics, including software, supervision of six research

group secretaries (formed later), and chairing the Cafeteria

Committee. None of these other duties had been assigned to

either Ms. Crosslin or Ms. Wolfe.

After Ms. Brittain was selected to serve in the

expanded role of Executive Assistant, UTSI’s long-time

Public Affairs Coordinator retired, and that position was split

into two positions, one full-time and one part-time. An

internal search was made for a replacement, and Ms. Brittain

applied for the full-time position. However, Ms. Brittain’s

position was included in a further RIF in October 1995, as a

result of the continuing money crisis, and Ms. Brittain is no

longer at UTSI.
-8-

Ms. Brittain was replaced by a non-exempt hourly

paid secretary, Ms. Dee Robinette. Her job title was and is

Administrative Services Assistant, and she is not a

replacement for either the Senior Administrative Assistant or

Executive Assistant position. Some of the previousExecutive

Assistant’s duties have been redistributed and some are no

longer performed at all.

As far as Dr. McCay is concerned, the position of

Senior Administrative Assistant has been deleted.

None of the above evidence stated in Dr. McCay’s

supplemental affidavit is contradicted by Ms. Wolfe’s

supplemental affidavit.

SUPPLEMENTAL AFFIDAVIT OF 

PATRICIA ANN WOLFE

Ms. Wolfe states in her supplemental affidavit, “All of

the duties listed in the promotional announcement are duties

that I was very capable 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 includes in her affifavit (sic) a copy of

Exhibit 2 to Ms. Wolfe’s deposition of 9/12/95 and Exhibit

“CC” to Plaintiff’s Summary Judgment Response. A

comparison of these documents shows many comparable

items; however, the comparison also shows there are

numerous additional duties listed on Exhibit “CC” which are

not listed on Exhibit 2.

The Court now turns to consideration of judicial

estoppel. In order to maintain an age discrimination case, the

plaintiff must be ready, able, 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

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Ms. Wolfe and allowing all

reasonable inferences in her favor, does not establish either

(1) she was ready, able, and qualified to perform the job she

claims was lost as a result of age discrimination, or (2) she

was replaced by another employee, or that younger employees

in the same position were treated more favorably. Her duties

were assumed by other existing employees, and her position

has essentially been eliminated. There is no evidence that age

was a factor in the employment decision concerning Ms.

Wolfe and that “but for” this factor the action would not have

been taken.

The Motion for Summary Judgment concerning Ms.

Wolfe is sustained.

The findings of the Trial Court as to Bettie L. Roberts are:
-9-

Bettie L. Roberts was the Registrar at the UTSI, and

was the only employee in that department with that job

classification. She was not terminated in the March 1994

RIF, but she was notified that UTSI intended to reduce her

employment to 75% time. She continued to work at the 75%

level for a period of one month, but at that time decided not

to continue employment at the 75% level. There is a

controversy over her being able to continue to be insured at

75% time. She claims Mr. Beardsley, 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 continue insurance. It seems there is a question

whether she could draw her benefits, including insurance, if

she were laid off at 75%.

The position of Registrar was not filled. Her

supervisor, Dr. Edward Gleason, assumed the professional

duties of Registrar, and Mary Frances Ferber, the Recorder,

continued performing the clerical duties. Some functions

previously performed by Ms. Roberts are not performed in the

Graduate office of UTK.

Ms. Ferber was hired and trained by Ms. Roberts as

the new recorder, the position held by Ms. Roberts before she

was appointed Registrar in 1983. Ms. Ferber was a clerical

employee before Ms. Roberts retired, and she performed

duties for Ms. Roberts. The Recorder was responsible for the

data base, and her skills and duties were different from Ms.

Roberts.

Ms. Roberts would have been returned to 100%

employment by July 1, 1994, as were all others who accepted

reduced hours.

On June 11, 1994, she filed a Disability Report in

order to claim Social Security Benefits. On June 27, 1994,

she executed an Application for Disability Benefits, where

she claimed she was unable to work on April 1, 1994, because

of her “disabling condition.” Her claim for Social Security

Disability Benefits 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 performed the duties of the employees to whom

her duties were assigned.

Defendants claims she fails to state a prima facie case

because (1) she was not terminated, (2) she was not replaced

by a younger employee, and (3) her duties were reassigned to

existing employees or they are no longer being performed at

UTSI. Defendants also claim she is barred by judical (sic)

estoppel, because of her allegations in her claim for social

security disability.
-10-

She also claims in her affidavit that she is able to

resume her duties as Registrar, and she asks for reinstatement.

In the opinion of the Court, Ms. Roberts has not

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Ms. Roberts and allowing all

reasonable inferences in her favor, does not establish that she

was replaced by another employee, or that younger employees

in the same position were treated more favorably. Her

position has been abolished, and her duties have been

distributed to other existing employees. There is no evidence

that age was a factor in the employment decision and that “but

for” this factor the action would not have been taken.

The Motion of Summary Judgment concerning Ms.

Roberts is sustained.

The findings of the Trial Court as to Patricia A. Pelton are:

Patricia 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 Institute. When UTSI decided

to acquire an automated telephone system, Ms. Pelton was

assigned to begin performing some clerical work for the

Director of Development.

Ms. Pelton claims she was working for Campaign 94

when she was terminated, and she claims she was replaced by

Betty Wilkerson in Campaign 94.

She claims, after her initial termination, favoritism

was shown a younger employee, Dee Dee Jones, by hiring her

at $6.50 per hour. UTSI had only offered Ms. Pelton $5.00

per hour (along with 2 other employees) to temporarily

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 actually worked in that capacity for

approximately 3 months until the new phone system became

fully operational. There is no longer a switchboard operator

at UTSI, and the position was completely phased out.

After the March 1994 RIF, there were no clerical

workers in the Development Office (sic), but later funding

became available for clerical assistance in that office.

However, the new job classification was a different position

from the one Ms. Pelton was training for, and the new

position required greater skills than Ms. Pelton possessed.

Actual job duties were different from the work Ms. Pelton

performed for the Director of Development. Ms. Pelton does

not dispute that the subsequent job in the Development Office

required more skills than she possessed. [Pelton deposition,

104:25-105:5]
-11-

Defendants claim Ms. Pelton does not state a prima

facie case because (1) her job classification as telephone

switchboard operator supervisor was no longer needed, being

deleted by the installation of automatic equipment, and (2) her

job classification was not replaced by a younger worker.

In the opinion of the Court, Ms. Pelton has not

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Ms. Pelton and allowing all

reasonable inferences in her favor, does not establish she was

replaced by another employee, or that a younger employee in

the same job was treated more favorably. Her position has

been abolished because an automated telephone system has

been installed. The Court is not of the opinion that the mere

hiring of Ms. Dee Dee Jones, on a temporary basis, at $6.50

per hour, after Ms. Pelton had only been offered and refused

$5.00 per hour, is such favoritism as would trigger an age

discrimination case. This is true especially when Ms. Pelton

accepted temporary employment in that job at $6.50 per hour

when Ms. Jones left, and Ms. Pelton worked in that capacity

for approximately 3 months.

There is no evidence that age was a factor in the

employment decision and that “but for” this factor the action

would not have been taken.

The Motion for Summary Judgment concerning Ms.

Pelton is sustained.

The findings of the Trial Court as to Odie L. Mann are:

Odie L. Mann was the only employee in the cafeteria

with the job classification of Senior Chef. The job was not

filled after she retired, and UTSI reduced the overall scope

and level of the food services offered at its cafeteria.

Previously, several daily hot plate lunches were offered, but

now it is mostly a fast food type service and a soup/salad bar.

As of November 1995, the staffing of the cafeteria had been

reduced to only 2 part time employees.

Ms. Mann complains that Bea Hill transferred into the

cafeteria, but Bea Hill replaced Valerie Watson, who was

already in the cafeteria and later resigned. Ms. Hill was 58

when she replaced Ms. Watson.

Ms. Mann’s termination date was delayed until May

1994, in order for her to be able to receive her longevity pay

and become eligible at 62 years of age to draw her Social

Security Benefits. [Mann deposition 2/29/96, p. 31-32]

On October 20, 1995, Ms. Mann was seriously injured

in an auto accident. On February 9, 1996, her attorney filed

suit on her behalf in Franklin County, Tennessee, and the suit

claims that “(S)he is now permanently injured, has lost the

capacity to earn, has lost the ability to enjoy life, and has
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suffered and continues to suffer great pain, for all of which

she is entitled to recover.” [See Mann, p. 3 paragraph 11]

Defendants claim Ms. Mann fails to state a prima facie

case because (1) the position of Senior Chef was not filled,

and (2) she was not replaced by a younger worker.

Defendants also claim she is barred by judicial estoppel,

because of allegations in her suit concerning the auto

accident; but that could only affect events following the auto

accident.

In the opinion of the Court, Ms. Mann has not

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Ms. Mann and allowing all

reasonable inferences in her favor, does not establish that she

was replaced by another employee, or that younger employees

in the same job were treated more favorably. Her position as

Senior Chef has been abolished, the overall operation in the

cafeteria has been modified, and there are only two part time

employees in the cafeteria at this time. There is no evidence

that age was a factor in the employment decision and that “but

for” this factor the action would not have been taken.

The Motion for Summary Judgment concerning Ms.

Mann is sustained.

The findings of the Trial Court as to Boyd Stubblefield are:

Boyd Stubblefield was employed as a media

production assistant, he was the only employee with that job

classification, and he was the only full time employee in that

department. He primarily functioned as the photographer for

UTSI. 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 presented evidence that he meets the fourth

criteria of McDonnell Douglas, or that a younger employee in

the same job was treated more favorably. Mr. Stubblefield

claims Ms. Linda Horton was treated more favorably, but it is

clear Ms. Horton was not in the same job and did not have the

same responsibilities. He was not replaced by a younger

employee, and his duties were either distributed to existing

employees or left unperformed. Scientific photography is

either not being done, or is being performed by existing

research workers. Public relations photography was done by

an older employee until his retirement, and upon that

employee’s retirements, these duties were spread among other

employees. UTSI no longer developes film and does not print

photographs in-house.

In the opinion of the Court, Mr. Stubblefield has not

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Mr. Stubblefield and

allowing all reasonable inferences in his favor, does not
-13-

establish that he was replaced by another employee, or that a

younger employee in the same job was treated more

favorably. His duties have been distributed to existing

employees, left undone, or not done in-house. There is no

evidence that age was a factor in the employment decision

and that “but for” this factor the action would not have been

taken.

The motion for Summary Judgment concerning Mr. Stubblefield is sustained.

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

Richard G. Ray was employed 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

not show that he meets the fourth requirement of the

McDonnell Douglas test. He was not replaced by a younger

employee. His job was deleted entirely in the March 1994

RIF, and the supervisory responsibilities of several

laboratories were merged. Anotherlaboratory supervisor, Mr.

Goodman, was selected to be the supervisor over the

laboratories. Mr. Goodman had more senority than Richard

G. Ray, and in addition, Mr. Goodman had expertise different

from Mr. Ray.

He complains that Ricky Meeker should have 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

established a prima facie case of age discrimination; because

the evidence, viewed in favor of Mr. Ray and allowing all

reasonable inferences in his favor, does not establish that he

was replaced by another employee, or that a younger

employee in the same job was treated more favorably. His

position has been abolished, and the supervisory

responsibilities of several laboratories were merged.

The Motion for Summary Judgment against Mr. Ray

is sustained.

THE APPLICABLE LAW

The party seeking a summary judgment has the initial burden of demonstrating by

undisputed competent evidence that the moving party is entitled to summary judgment as a
-14-

matter of law. A conclusory assertion that the non-moving party has no evidence is clearly

insufficient. Competent evidence that the non-moving party has no evidence may be sufficient.

When the initial burden of the movant has been satisfied, the burden of proceeding shifts to the

opponent of the motion to present competent evidence and/or law which negatives the ground

of the motion. Byrd v. Hall, Tenn. App. 1993, 847 S.W.2d 208.

In respect to employees’ suits for unlawful discrimination, the motion of the employer

for summary judgment must be supported by more than a simple conclusory oath that “I did not

discriminate.” The employer must “articulate a legitimate lawful reason” for the discharge or

discrimination of the employee. Brenner v. Textron Aerostructures, Tenn. App. 1993, 874

S.W.2d 579, Bruce v. Western Auto Supply Co., Tenn. App. 1984, 669 S.W.2d 95. This does not

mean that the employer must initially present competent evidence of facts supporting the reason

for the management decision. It is sufficient to present the affidavit of the management official

that he had received reports of employees which he deemed sufficient to support this action.

When the employer has thus supported his action, the burden of proceeding shifts to the

employee to present competent evidence that the adverse report received by management was

untrue, thus creating an issue of material fact which would render summary judgment improper.

Silpacharin v. Metropolitan Government, Tenn. App. 1990, 797 S.W.2d 625, Bruce v. Western

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

In these suits by employees for age discrimination, the ultimate issues are: (1) whether

the employee was a member of a protected class, (2) Whether the employee was subjected to

adverse employment action, (3) Whether he or she was qualified for the position held, and (4)

he or she was replaced by a younger person. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 37 L. Ed.2d 668 (1973). Such may be shown by direct, circumstantial, or

statistical evidence. Bruce v. Western Auto Supply Co., Supra.
-15-

While statistical testimony has been admitted and considered in some cases, it is

generally looked upon with caution or suspicion. The inquiry is how a particular 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 Co., 1st Cir. 1989, 871 F.2d 179; Walther v. Lone Star Gas Co., 5th Cir. 1992,

977 F.2d 161; 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 insufficient response to defendant’s articulated

legitimate reason for the action taken.

Appellants argue that the affidavit of Dr. McCay as to the reasons for his decisions

concerning plaintiffs is not sufficient to support defendant’s motion for summary judgment

because Dr. McCay kept no notes of his reasons which renders them suspect, thereby providing

a basis for consideration of the testimony of the statistician. This Court agrees with the holding

of the Trial Court that Dr. McCay’s credibility was not impeached and that the statistics were

insufficient to contradict his testimony.

Some of the plaintiff’s arguments cannot be considered because they do not comply with

Rule 6(b) of the Rules of this Court by citing the pages of the record where evidence may be

found. Alexander v. Tennessee Farmers Mutual Insurance 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 also finds that the

efforts of plaintiffs to impeach the character of Dr. McCay were not sufficiently supported.
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The judgment of the Trial Court dismissing these suits are affirmed. Costs of this appeal

are taxed to the plaintiffs. The causes are remanded to the Trial Court for further necessary

proceedings.

AFFIRMED AND REMANDED

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

___________________________

SAMUEL L. LEWIS, JUDGE

CONCUR IN SEPARATE OPINION:

WILLIAM C. KOCH, JUDGE