                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 19, 2016 Session


                      DONALD YOUNT v. FEDEX EXPRESS

                  Appeal from the Chancery Court for Shelby County
                     No. CH1021951 Walter L. Evans, Judge

                          ________________________________

                No. W2015-00389-COA-R3-CV – Filed March 17, 2016
                       _________________________________

This is an age discrimination case. The 50-year-old plaintiff worked for the defendant
company as a manager. In 2007, an internal investigation revealed that the plaintiff had
violated two of the company’s policies. The plaintiff was ultimately terminated for violating
the policies. The plaintiff filed this lawsuit alleging age discrimination. The company filed a
motion for summary judgment arguing that the plaintiff could not establish a prima facie
claim for discrimination or that the company’s explanation for terminating him was a pretext
for discrimination. The trial court granted summary judgment in favor of the company. The
plaintiff now appeals. We affirm.

Tenn. R. App. P. 3 Appeal of Right; Judgment of the Chancery Court Affirmed and
                                    Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O. GIBSON,
and KENNY ARMSTRONG, JJ., joined.

Edgar Davison, Memphis, Tennessee, for the appellant, Donald Yount.

Terrence O. Reed, Memphis, Tennessee, for the appellee, Federal Express Corporation.

                                         OPINION

                      I. BACKGROUND AND PROCEDURAL HISTORY

      This appeal arises from the November 2007 termination of Plaintiff/Appellant Donald
Yount (“Yount”) from his employment with Defendant/Appellee Federal Express
Corporation d/b/a FedEx Express (“FedEx”). Yount began working for FedEx in July 1975.
At the time of his termination, Yount was employed as a manager in FedEx’s Aircraft
Maintenance Technical Training (“MTT”) department.

        During the course of Yount’s employment, FedEx issued him a laptop computer for
business and limited personal use. Yount’s use of the laptop computer was governed by
FedEx’s Computer Resources and Acceptable Conduct Policies. In part, the Computer
Resources Policy prohibited employees from using a FedEx computer to access inappropriate
or sexually-oriented material. The Acceptable Conduct Policy prohibited unauthorized use of
a FedEx computer. Yount was aware of both policies and understood that a violation of
either could lead to his immediate termination, even after a first offense.

       In January 2007, Yount reported to a FedEx Technical Consultant that he could not
stop pornographic pop-ups from appearing on his FedEx computer. After examining the
computer, the consultant determined that it had been infected by a virus from a pornographic
website. The consultant ran antivirus software on the computer to delete the virus and the
pornographic images. He was able to restore the computer to its default settings and returned
it to Yount.

       In mid-2007, a complaint filed with the U.S. Equal Employment Opportunity
Commission sparked an internal FedEx investigation into the alleged unauthorized use of
FedEx computers by MTT employees. FedEx began to examine Yount’s use of his FedEx
computer after he was implicated in the course of the investigation. On October 10, 2007,
Yount was interviewed by his managing director and a human resources representative
regarding allegations that he viewed and showed other FedEx employees inappropriate
materials on his FedEx computer. Yount denied that the computer contained any
inappropriate material and denied having shown or forwarded inappropriate material to
coworkers. FedEx confiscated Yount’s computer, along with computers that had been issued
to three other MTT employees, and turned them over to its Security Assessment and
Forensics team for a review of their contents.

       The Security Assessment and Forensics team issued the initial findings and
conclusions of its investigation in an incident report dated October 22, 2007. The report
indicated that each of the four computers investigated contained some non-pornographic,
inappropriate material; however, only two of the computers–the computer issued to Yount
and the computer issued to another MTT manager–also contained pornographic material.
The report stated that Yount’s computer was used to access the pornographic material on
January 7 and 8, 2007.

      On October 29, 2007, Yount’s senior manager, Joaquin Villarreal (“Villarreal”), met
with Yount to discuss the incident report. During the meeting, Yount told Villarreal for the
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first time about the January 2007 virus that caused pornographic pop-ups to appear on the
computer. Yount maintained that the virus was the result of his computer being hacked.
Following the meeting, Villarreal placed Yount on investigative suspension, and FedEx
requested that the Security Assessment and Forensics team investigate Yount’s computer
further to determine whether pop-ups could have been the source of the pornographic content
on Yount’s computer.

       The Security Assessment and Forensics team issued a second incident report on
October 31, 2007. The report concluded that the pornographic material on Yount’s computer
was the result of web browsing and not automatic pop-ups. It further indicated that Yount’s
computer was used to access 6 pornographic websites over the course of 30 minutes on
January 7, 2007, and 23 pornographic websites over the course of 44 minutes on January 8,
2007.

        In November 2007, FedEx terminated Yount and the other MTT manager whose
computer had been found to contain pornographic material. A letter informing Yount of his
termination noted the discovery of pornographic and inappropriate material on his company-
issued computer and indicated that Yount was not truthful about the contents of the computer
prior to the Security Assessment and Forensics team’s investigation. The letter stated that
Yount’s actions constituted violations of FedEx’s Computer Resources and Acceptable
Conduct Policies and, based on those violations, his employment with the company was
terminated. Yount was 50 years old at the time of his termination. The other MTT manager
who was terminated was also in his 50s.1 Yount and the other terminated MTT manager
were replaced by two individuals who were 44 and 45 years old at the time.

        On November 7, 2008, Yount filed a complaint in the Shelby County Chancery Court
asserting claims against FedEx pursuant to state and federal law. The matter was later
removed to the United States District Court for the Western District of Tennessee, which
dismissed Yount’s claims under federal law and declined to exercise supplemental
jurisdiction over his state law claims. On December 6, 2010, Yount filed a second complaint
in the Shelby County Chancery Court reasserting the remaining state law claims.
Specifically, Yount asserted claims against FedEx for age discrimination and retaliatory
discharge in violation of the Tennessee Human Rights Act and for breach of contract. On
February 15, 2011, the chancery court entered an order reflecting the parties’ agreement that
Yount’s retaliatory discharge and breach of contract claims be dismissed with prejudice. As
such, only Yount’s age discrimination claim remained pending before the chancery court.



1
    The other MTT manager’s exact age is not clear from the record.
                                                     -3-
       On September 5, 2014, following a period of discovery, FedEx filed a motion for
summary judgment and supporting memorandum of law. FedEx argued that it was entitled to
summary judgment because Yount could not establish the required elements of a prima facie
claim for age discrimination. Specifically, FedEx asserted that Yount could not show that he
was replaced by an employee who was substantially younger or that he was treated
differently than other similarly situated employees. Additionally, FedEx argued that it had a
non-discriminatory explanation for terminating Yount’s employment, namely, his violation of
the company’s Computer Resources and Acceptable Conduct Policies. As evidence of the
legitimacy of its explanation, FedEx submitted the two incident reports its Security
Assessment and Forensics team completed prior to Yount’s termination and a third incident
report dated August 29, 2008. The third incident report contained detailed information to
indicate that the pornographic content on Yount’s computer was the result of intentional web
browsing and Internet searches calculated to produce pornographic results. FedEx asserted
that Yount had no evidence that this reason was a pretext for discrimination.

       In response, Yount argued that summary judgment was not appropriate because there
was a disputed question of fact as to whether the age disparity between Yount and the
employees that replaced him was “substantial.” Alternatively, Yount argued that similarly
situated employees were treated more favorably than he was. In support of his assertion,
Yount submitted an affidavit in which he identified two employees who he maintained were
only suspended despite committing offenses similar to the ones for which he was terminated.
 Finally, Yount argued that a reasonable fact finder could conclude that FedEx’s explanation
for his termination was a pretext for discrimination. Specifically, Yount maintained that
Villarreal had become hostile towards him in a recent meeting and, on several occasions, had
asked when he was going to retire. Additionally, Yount asserted that his managing director
commented that the department needed younger employees during a meeting in 2007.

        On January 20, 2015, the chancery court entered an order holding that FedEx was
entitled to summary judgment. In its order, the chancery court noted that of the individuals
that replaced Yount and the other terminated MTT manager, one was only five years younger
than Yount, and the other was only six years younger than Yount. The chancery court also
noted that FedEx terminated every MTT manager whose computer was found to contain
pornography. The chancery court therefore determined that Yount was unable to establish a
prima facie claim for age discrimination because he was not replaced by an employee who
was substantially younger or treated differently than other similarly situated employees.
Alternatively, the chancery court noted that Yount undisputedly violated FedEx’s Computer
Resources and Acceptable Conduct Policies and that violation of those policies was grounds
for termination. Finally, the chancery court held that even if a prima facie claim could be
established, Yount did not present any evidence that FedEx’s stated reason for his

                                            -4-
termination was a pretext for discrimination. The chancery court therefore granted summary
judgment in favor of FedEx. Yount appeals from the chancery court’s order.

                                            II. ISSUE

       Yount raises the following issue on appeal, restated from his appellate brief:

       1.      Whether the chancery court erred in granting summary judgment in
               favor of FedEx?

                                 III. STANDARD OF REVIEW

        We review a lower court’s ruling on a motion for summary judgment de novo with no
presumption of correctness. Estate of Brown, S.W.3d 193, 198 (Tenn. 2013). In doing so,
we must make a fresh determination that the requirements of Rule 56 of the Tennessee Rules
of Civil Procedure (“Tennessee Rule 56”) have been satisfied. Id. Summary judgment is
appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.
56.04. The party moving for summary judgment has the ultimate burden of persuading the
court that there are no genuine issues of material fact and that it is entitled to judgment as a
matter of law. Town of Crossville Hous. Auth. v. Murphy, 465 S.W.3d 574, 578 (Tenn. Ct.
App. 2014) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). If the moving party
makes a properly supported motion for summary judgment, the burden of production shifts to
the nonmoving party to demonstrate the existence of a genuine issue of material fact
requiring trial. Id. (citing Byrd, 847 S.W.2d at 215).

        When the party moving for summary judgment does not bear the burden of proof at
trial, the moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 264 (Tenn. 2015). If the moving party satisfies its initial burden of production,
“the nonmoving party may not rest upon the mere allegations or denials of its pleading, but
must respond, and by affidavits or one of the other means provided in Tennessee Rule 56, set
forth specific facts at the summary judgment stage showing that there is a genuine issue for
trial.” Id. at 265 (quoting Tenn. R. Civ. P. 56.03) (internal quotation marks omitted). The
nonmoving party must demonstrate the existence of specific facts in the record that could
lead a rational trier of fact to find in favor of the nonmoving party. Id. If adequate time for
discovery has been provided, and the nonmoving party’s evidence at the summary judgment
                                               -5-
stage is insufficient to establish the existence of a genuine issue of material fact for trial, the
motion for summary judgment should be granted. Id. Thus, even when the determinative
issue is ordinarily a question of fact for the jury, summary judgment is appropriate if the
uncontroverted facts and inferences to be drawn from the facts make it so clear that a
reasonable person can reach only one conclusion. White v. Lawrence, 975 S.W.2d 525, 529-
30 (Tenn. 1998).

                                        IV. DISCUSSION

       On appeal, Yount contends that the chancery court erred in granting summary
judgment in favor of FedEx on his claim of age discrimination because he presented evidence
from which a rational fact finder could conclude that he established a prima facie case of age
discrimination. For its part, FedEx argues that summary judgment was appropriate because
Yount failed to establish a prima facie claim of age discrimination. Alternatively, FedEx
argues that if Yount did establish a prima facie claim, summary judgment was still
appropriate because it articulated a legitimate, non-discriminatory reason for Yount’s
termination, and Yount did not present evidence to indicate that its reason was a pretext for
discrimination. To resolve the parties’ dispute, we must consider how the manner in which
Tennessee courts approach discrimination claims at the summary judgment stage has
developed over time.

          Discrimination Claims at the Summary Judgment Stage in Tennessee

        Historically, Tennessee courts have consulted the decisions of their federal
counterparts in the construction and application of Tennessee’s anti-discrimination statutes.
The Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 (2015), et seq., is
Tennessee’s comprehensive anti-discrimination statute. Phillips v. Interstate Hotels Corp.
No. L07, 974 S.W.2d 680, 683 (Tenn. 1998). It was enacted to further in Tennessee the
policies embodied in similar federal statutes against employment discrimination. Tenn. Code
Ann. § 4-21-101(a)(1); Wilson v. Rubin, 104 S.W.3d 39, 48 (Tenn. Ct. App. 2002). The
THRA was enacted to prohibit discriminatory employment practices with respect to the
compensation, terms, conditions, or privileges of employment based on considerations of
race, creed, color, religion, sex, age, or national origin. Tenn. Code Ann. § 4-21-101(a)(3).
In light of the intended overlap in purpose between the THRA and federal anti-discrimination
laws, Tennessee’s courts consulted the decisions of their federal counterparts for guidance in
interpreting the THRA for many years. Wilson, 104 S.W.3d at 48 (citing Weber v. Moses,
938 S.W.2d 387, 390 (Tenn. 1996); Frazier v. Heritage Fed. Bank for Sav., 955 S.W.2d 633,
636 n.1 (Tenn. Ct. App. 1997)).


                                               -6-
       Likewise, for many years, the courts of this State interpreted Tennessee Rule 56
governing summary judgment as consistent with its federal counterpart. Byrd, 847 S.W.2d at
210 (“Comparison of the state and federal caselaw construing Rule 56 to date reveals no
striking differences.”); see also Rye, 477 S.W.3d at 273 (Bivins, J., concurring) (“Prior to
[Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008)], the great majority of trial
court judges interpreted Byrd to be consistent with the federal standard.”). Prior to 2008, in
both Tennessee courts and in federal courts, a party moving for summary judgment would
prevail if it could affirmatively negate an essential element of the nonmoving party’s claim or
demonstrate that the nonmoving party’s evidence was insufficient to establish an essential
element of the claim. See Byrd, 847 S.W.2d at 215 n.5. This approach to summary judgment
burden-shifting was referred to as the “put up or shut up” standard for its expectation that a
nonmoving party must “put up” some evidence showing that a material fact is in dispute in
order to avoid having its claim dismissed at the summary judgment stage. See id. at 213-14.

        Given that the Tennessee courts regularly considered federal courts’ opinions in
resolving discrimination and summary judgment issues, it was hardly a surprise that they
began to regularly employ the analytical framework developed by the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to analyze
employment discrimination and retaliation claims in the absence of direct evidence of
discrimination. See, e.g., Bruce v. W. Auto Supply Co., 669 S.W.2d 95, 97-98 (Tenn. Ct.
App. 1984) (applying the McDonnell Douglas framework for the first time in Tennessee); see
also Brenner v. Textron Aerostructures, 874 S.W.2d 579, 582-85 (Tenn. Ct. App. 1993)
(applying the McDonnell Douglas framework at the summary judgment stage for the first
time in a published Tennessee case). The McDonnell Douglas framework is “an allocation
of the burden of production and an order for the presentation of proof.” Williams v. City of
Burns, 465 S.W.3d 96, 112 (Tenn. 2015) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993)). “The goal of this approach is to progressively sharpen the inquiry into the
elusive factual question of intentional discrimination.” Wilson, 104 S.W.3d at 50 (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981)). It can be briefly
summarized as follows:

       First, the plaintiff has the burden of proving by the preponderance of the
       evidence a prima facie case of discrimination. Second, if the plaintiff succeeds
       in proving the prima facie case, the burden shifts to the defendant “to articulate
       some legitimate, non-discriminatory reason for [its actions.]” [McDonnell
       Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d
       668 (1973).] Third, should the defendant carry this burden, the plaintiff must
       then have an opportunity to prove by a preponderance of the evidence that the
       legitimate reasons offered by the defendant were not its true reasons, but were
       a pretext for discrimination. Id., at 804, 93 S.Ct. at 1825.
                                              -7-
Versa v. Policy Studies, Inc., 45 S.W.3d 575, 580 (Tenn. Ct. App. 2000) (footnote omitted)
(quoting Burdine, 450 U.S. at 252-53). The framework is explained in greater detail below.

       The plaintiff may satisfy its initial burden of establishing a prima facie claim of age
discrimination by demonstrating (1) that he or she is a member of the protected class, i.e.,
forty years of age or older, (2) that his or her work performance satisfied the employer’s
reasonable expectations, (3) that he or she was actually or constructively terminated, and (4)
that the termination occurred under circumstances giving rise to an inference of
discrimination based on age. Wilson, 104 S.W.3d at 52. The fourth element of a prima facie
age discrimination claim can be established by producing evidence that the plaintiff was
replaced by a substantially younger employee or treated less favorably than a similarly
situated, younger employee was treated. Bundy v. First Tenn. Bank Nat. Ass’n, 266 S.W.3d
410, 417 (Tenn. Ct. App. 2007). The “similarly situated younger employee” may be within
the protected class, i.e., at least forty years old, as long as the compared employee is
substantially younger than the plaintiff. Id. at 417 n.5 (citing Frame v. Davidson Transit
Org., 266 S.W.3d 429, 439 (Tenn. Ct. App. 2005)).

         By successfully establishing a prima facie discrimination claim, the plaintiff creates a
rebuttable presumption that the challenged employment action was motivated by
discrimination. Wilson, 104 S.W.3d at 50. The burden of production then shifts to the
defendant to set forth, through the production of admissible evidence, one or more legitimate,
non-discriminatory reasons for the challenged employment action that, if believed by the trier
of fact, would support a finding that the action was not the result of unlawful discrimination.
 Bundy, 266 S.W.3d at 417; Wilson, 104 S.W.3d at 50. If the defendant can do so, the burden
shifts once again to the plaintiff to present some evidence that the defendant’s articulated
reasons were not its true reasons but were a pretext for discrimination. Bundy, 266 S.W.3d at
417; Wilson, 104 S.W.3d at 50. The plaintiff may demonstrate pretext by revealing
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the
defendant’s explanation. Wilson, 104 S.W.3d at 50-51 (quoting Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1217 (10th Cir. 2002)). Three common methods of undermining a
defendant’s proffered explanation are (1) to establish that the proffered reasons have no basis
in fact, (2) to establish that the proffered reasons did not actually motivate the challenged
employment action, or (3) to establish that the proffered reasons were not sufficient to
motivate the challenged employment action. Id. at 51. Assuming that the plaintiff can
establish a prima facie claim of discrimination, the absence of a legitimate, non-
discriminatory explanation or evidence that the defendant’s asserted justification is false may
permit a reasonable fact finder to conclude that the defendant unlawfully discriminated. See
id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000)).

                                              -8-
       Between 1993 and 2008, the Tennessee Supreme Court and this Court applied the
McDonnell Douglas framework at the summary judgment stage in at least eighteen published
decisions. See Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 792 (Tenn. 2010)
(Clark, J., concurring in part and dissenting in part) (providing a list of citations to published
Tennessee decisions utilizing the McDonnell Douglas framework at the summary judgment
stage). In 2008, however, the Tennessee Supreme Court expressly declared Tennessee’s
departure from the federal “put up or shut up” standard for the first time in Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 8 (Tenn. 2008), and held that a party seeking summary
judgment must demonstrate at the summary judgment stage that the nonmoving party will not
be able to prove an essential element of its claim at trial. 270 S.W.3d 1, 8-9 (Tenn. 2008).
Two years later, in Gossett v. Tractor Supply Co., Inc., the Tennessee Supreme Court
examined the continued viability of the McDonnell Douglas framework in the context of
Tennessee summary judgment law as it existed after Hannan. 320 S.W.3d 777, 781-82
(Tenn. 2010). The Gossett Court determined that the framework was inconsistent with the
summary judgment standard adopted in Hannan because it would require an employee to
“put up” evidence that an employer’s legitimate reason for the challenged action was merely
a pretext for discrimination at the summary judgment stage rather than at trial. Gossett, 320
S.W.3d at 782-83. Accordingly, the Gossett Court declared, “the McDonnell Douglas
framework is inapplicable at the summary judgment stage because it is incompatible with
Tennessee summary judgment jurisprudence.” Id. at 785.

       In light of the Tennessee Supreme Court’s holding in Gossett that the McDonnell
Douglas framework was inconsistent with the summary judgment standard adopted in
Hannan, this Court rejected its application in subsequent discrimination cases.2 See, e.g.,
Stewart v. Cadna Rubber Co., No. W2013-00670-COA-R3-CV, 2014 WL 1235993, at *8
(Tenn. Ct. App. Mar. 26, 2014) (holding that the trial court erroneously applied the
McDonnell Douglas framework rejected in Gossett). Applying the Hannan standard to
discrimination cases made it nearly impossible for employers to be granted summary
judgment. For example, in a case where the plaintiff sought to satisfy the fourth element of
her prima facie discrimination claim by demonstrating that similarly situated employees
received more favorable treatment, this Court held that summary judgment should not be

2
  We note that the General Assembly subsequently enacted legislation that purported to functionally overrule
the summary judgment standard set forth in Gossett and Hannan. See 2011 Tenn. Pub. Acts 461 (amending
Tennessee Code Annotated section 4-21-311 to set forth the burden of proof in discrimination cases “at all
stages of the proceedings, including motions for summary judgment”); 2011 Tenn. Pub. Acts 498 (enacting
Tennessee Code Annotated section 20-16-101 with the stated purpose to “to overrule the summary judgment
standard for parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publishing Co., its
progeny, and the cases relied on in Hannan”). However, the new legislation only applied to cases filed on or
after June 10, 2011 and July 1, 2011, respectively. Because this case was initiated prior to those dates, the
statutes are inapplicable.
                                                     -9-
granted to the defendant employer despite acknowledging that the plaintiff had not produced
any evidence to satisfy the element at the summary judgment stage. Castro v. TX Direct,
LLC, No. W2012-01494-COA-R3-CV, 2013 WL 684785, at *6 (Tenn. Ct. App. Feb. 25,
2013). We reasoned that under the summary judgment standard adopted in Hannan, the trial
court was required to assume that the employee could still, by the time of trial, somehow
come up with evidence to support his or her claim. Id. (quoting White v. Target Corp., No.
W2010-02372-COA-R3-CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012)).
In another case, this Court held that even if the defendant’s legitimate reason for terminating
the plaintiff is taken as true and the plaintiff has not presented evidence to rebut it, summary
judgment should not be granted to the defendant because the employee could still, by the
time of trial, come up with evidence that the defendant had a discriminatory motive. Pierce
v. City of Humboldt, No. W2012-00217-COA-R3-CV, 2013 WL 1190823, at *13-14 (Tenn.
Ct. App. Mar. 25, 2013).

        The Tennessee Supreme Court granted permission to appeal in Rye v. Women’s Care
Center of Memphis, MPLLC to reconsider the summary judgment standard adopted in
Hannan. 477 S.W.3d at 238. After reexamining Hannan, the Tennessee cases that preceded
and followed it, and the federal summary judgment standard, the Rye Court concluded, “that
the standard adopted in Hannan is incompatible with the history and text of Tennessee Rule
56[.]” Id. at 261. It further acknowledged that application of the Hannan standard imposed
an almost insurmountable burden of production on parties seeking summary judgment and
frustrated the purpose for which summary judgment was intended–a rapid and inexpensive
means of resolving issues about which there is no genuine issue of material facts. Id.
Accordingly, the Rye Court overruled Hannan and returned Tennessee to a summary
judgment standard consistent with the standard employed by the federal system. Id. at 264.

       As we explained above, the Tennessee Supreme Court abandoned the McDonnell
Douglas framework in Gossett based on its conclusion that the burden-shifting method
employed by the federal courts was inconsistent with the summary judgment standard
adopted in Hannan. Thus, in light of the Tennessee Supreme Court’s decision in Rye to
overrule Hannan, we conclude that the McDonnell Douglas framework once again applies in
Tennessee to analyze discrimination claims at the summary judgment stage.3 We will
therefore proceed to determine whether FedEx was entitled to summary judgment under that
standard.


3
  Although they ultimately reach different conclusions, both parties maintain in their appellate briefs that the
Hannan standard should be applied in this case. We note, however, that appellate briefs for both parties were
submitted prior to the filing of the Tennessee Supreme Court’s opinion in Rye on October 26, 2015. Both
parties subsequently acknowledged, during oral arguments on January 19, 2016, that the summary judgment
standard set forth in Rye applies retroactively to this case.
                                                      - 10 -
                            Yount’s Age Discrimination Claim

       Yount contends that his evidence at the summary judgment stage was sufficient to
establish a prima facie claim for age discrimination. FedEx does not dispute that Yount
presented evidence to satisfy the first three elements of a prima facie age discrimination
claim, i.e., that he was over 40 years of age, his work performance satisfied FedEx’s
reasonable expectations, and he was terminated. However, FedEx asserts that Yount did not
present evidence to establish the fourth element of a prima facie claim for age discrimination
because he failed to demonstrate that he was terminated under circumstances giving rise to an
inference of discrimination based on age.

       As we explained above, an employee may satisfy the fourth element of a prima facie
age discrimination claim by presenting evidence that he or she was replaced by a
substantially younger employee or treated less favorably than a similarly situated and
substantially younger employee was treated. First, Yount argues that he satisfied this element
by presenting evidence that he was replaced by a younger employee. Yount was 50 years old
when he was terminated. The record reflects that Yount and the other terminated MTT
manager were replaced by two individuals who were 44 and 45 years old at the time. While
the courts have not articulated an age difference that is presumptively substantial, this Court
has concluded in the past that a seven-year age difference is not sufficient. See Pruett v.
Wal-Mart Stores, Inc., No. 02A01-9610-CH-00266, 1997 WL 729260, at *9-10 (Tenn. Ct.
App. Nov. 25, 1997). We likewise conclude that the age difference in this case is not
sufficient for a reasonable fact finder to infer age discrimination.

       Next, Yount contends that he satisfied the fourth element of a prima facie age
discrimination claim by presenting evidence that he was treated less favorably than a
similarly situated, substantially younger employee was treated. In furtherance of this
argument, Yount identifies two individuals whom he asserts received disciplinary letters and
two-week suspensions for conduct that was the same or similar to the conduct for which he
was terminated. The record reveals, however, that those individuals were neither similarly
situated nor substantially younger. For instance, neither of the individuals was in a
management position. See Spann v. Abraham, 36 S.W.3d 452, 468 (Tenn. Ct. App. 1999)
(“The comparable employees should have held similar positions, dealt with the same level of
supervision, and been subject to the same general employer-imposed work rules and
requirements.”). Neither of the individuals was found to have accessed pornography on
company-issued computers; Yount’s own affidavit indicates that they were disciplined after
one made a racial comment to the other. Finally, neither of the individuals is substantially
younger than Yount. The record reflects that one of the individuals is approximately three
years younger than Yount; the other is approximately ten years older than Yount. Based on
the foregoing, we are satisfied that Yount’s evidence at the summary judgment stage was
                                             - 11 -
insufficient to permit a reasonable fact finder to infer discrimination based on age. We
therefore conclude that under the summary judgment standard articulated in Rye and the
McDonnell Douglas framework, FedEx is entitled to summary judgment in this case.

        Assuming, arguendo, that Yount successfully established a prima facie age
discrimination claim, the chancery court correctly granted summary judgment in favor of
FedEx because Yount failed to present evidence sufficient to allow a reasonable fact finder to
conclude that FedEx’s explanation for his termination was a pretext for discrimination. In
support of its motion for summary judgment, FedEx presented evidence that it terminated
Yount for violating its Computer Resources and Acceptable Conduct Policies by accessing
pornographic materials on his company-issued laptop computer. Specifically, FedEx
presented three incident reports containing the findings and conclusions of its Security
Assessment and Forensics team after its review of Yount’s computer. It is undisputed that
the individuals who prepared and reviewed the information contained in the incident reports
did not know Yount or his age prior to his termination. The incident reports indicated that
Yount’s computer was used to access 29 pornographic websites over the course of two days
in January 2007. The incident reports further indicated that the pornographic content was the
result of intentional web browsing and Internet searches for terms clearly calculated to result
in pornographic content. Despite Yount’s insistence that he never intentionally accessed
pornographic material on the computer, one of the incident reports indicated that on January
7, 2007, Yount’s computer was used to conduct an Internet search for the name of a
pornographic actress. In his deposition, Yount admitted that he typed a female’s name in the
search engine of his FedEx computer on that date and that pornographic material appeared on
the screen as a result. Yount testified that he could not remember the female’s name but
acknowledged that he thought it was associated with a pornographic website.

       In an attempt to demonstrate that FedEx’s explanation was a pretext for
discrimination, Yount submitted an affidavit in response to the summary judgment motion
stating that Villarreal had become hostile towards him in a recent meeting and had asked
when Yount was going to retire on several occasions and that his managing director had
commented that the department needed younger employees during a meeting in 2007. Yount
does not allege, however, that either of Villarreal’s actions was provoked by or associated
with concerns about Yount’s age. While the managing director’s comment could be
construed as critical of Yount’s age, it falls far short of revealing weakness or inconsistency
in FedEx’s proffered reason for his termination. Even when viewed in the light most
favorable to Yount, we are satisfied that there is no meaningful evidence in the record from
which a reasonable fact finder could infer that FedEx’s reason for his termination was a
pretext for discrimination. Accordingly, even if Yount had established a prima facie age
discrimination claim, FedEx would be entitled to summary judgment in this case.

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                                    V. CONCLUSION

       The chancery court’s order granting summary judgment in favor of FedEx is affirmed.
Costs of this appeal are taxed to the Appellant, Donald Yount, and his surety, for which
execution may issue if necessary.


                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




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