                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    August 7, 2001 Session

          F. RAY WHITE v. REGIONS FINANCIAL CORPORATION

                      Appeal from the Circuit Court for Davidson County
                          No. 99C-263 Barbara N. Haynes, Judge



                  No. M2000-02957-COA-R3-CV - Filed November 15, 2001


In this appeal from the Circuit Court for Davidson County, the Plaintiff/Appellant, F. Ray White,
contends that the Trial Court erred in granting the Defendant/Appellee, Regions Financial
Corporation, a summary judgment against him with regard to his cause of action for age
discrimination under the Tennessee Human Rights Act. We affirm the judgment of the Trial Court
and we adjudge costs of appeal against Mr. White and his surety.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                                     Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , and
D. MICHAEL SWINEY, JJ., joined.

Stanley A. Kweller, Nashville, Tennessee, for the Appellant, F. Ray White.

Barbara J. Moss, Nashville, Tennessee, for the Appellee, Regions Financial Corporation.


                                             OPINION

         This case arises out of an age discrimination action filed by the Plaintiff/Appellant, F. Ray
White, against his employer, the Defendant/Appellant, Regions Financial Corporation (hereinafter
'Regions'), in the Circuit Court for Davidson County. Mr. White contends that the Trial Court erred
in granting Regions's motion for summary judgment. Because we find no evidence in the record that
raises a genuine issue of material fact with respect to whether Regions engaged in acts of age
discrimination against Mr. White we affirm the ruling of the Trial Court.

        In April of 1994 Mr. White, then fifty six years of age, was hired by First Security Bank as
a vice president in its department of sales and finance with regard to automobile loans. Mr. White
was assigned an area of responsibility consisting of Nashville and that portion of Middle Tennessee
within a one hundred mile radius of Nashville.
         In April of 1997 Regions Financial Corporation took control of First Security Bank at which
time First Security changed its name to Regions Financial Corporation. In the early part of 1997 Mr.
White was advised that Regions would be consolidating its Nashville office with its other business
offices and centralizing its automobile finance department in Birmingham, Alabama. As a
consequence of this consolidation and centralization the automobile finance office in Nashville was
to be eliminated. Accordingly, Regions offered Mr. White an alternative position in Nashville as
a business development officer in automobile credit services. Mr. White accepted Regions's offer
in March of 1997 and on June 26, 1997, he met with Charles Hall and Ronald Luth, two senior vice
presidents for Regions to discuss the transition to his new position. In the course of this meeting Mr.
White was advised that in his new job he would be responsible for developing business in the region
of Nashville and Middle Tennessee expanding in the future to Chattanooga and Knoxville. Mr.
White was also advised of the planned procedure for changing his compensation from salary to
salary with commission. Finally, Mr. White was assigned sales goals of $3,000,000.00 per month
for the first six months, increasing to $5,000,000.00 per month for the next six months, and then to
$7,000,000.00 per month thereafter. Mr. White testified that, at the time of the meeting, he thought
these sales goals were reasonable and reachable.

       Mr. White concedes that over the next twelve months - July, 1997 to July, 1998 - he was not
successful in any month in reaching the sales goals accepted by him at the meeting of June 26, 1997.
During this period various discussions took place between Mr. White and Mr. Hall regarding the fact
that Regions's sales expectations were not being met. Furthermore, while an annual review of Mr.
White's performance prepared by Mr. Hall in November of 1997 showed that Mr. White's job
performance was acceptable, it also noted the necessity of meeting the $3,000,000.00 per month
sales volume level. Another review of Mr. White's performance was prepared by Mr. Hall in
February of 1998 and in that review, although Mr. White was rated as exceeding requirements in
most areas of performance, he was rated as needing improvement in the area of sales. The February
review further noted that Mr. White had never met the minimum sales volume base of $3,000,000.00
per month.

       On July 9,1998, Mr. Hall and Mr. Luth met with Mr. White and presented him with a
performance memorandum setting forth his monthly sales volume for the months of August, 1997
through June, 1998. The performance memorandum showed that, with respect to the eleven months
covered, Mr. White did not reach sales of $2,000,000.00 in any single month and that, for five of
the months shown, his sales were below $1,000,000.00 per month. Mr. Hall advised Mr. White at
this meeting that if his sales volume did not increase to the previously assigned rate of $5,000,000.00
per month by September of that year, his employment with Regions would be terminated.

        As of October 1,1998, Mr. White's monthly sales volume had not increased to the level
demanded by Regions and on October 2, 1998, Regions terminated his employment. Mr. White was
sixty years of age at the time.

       After Mr. White's termination the area of Tennessee which had been his responsibility was
reassigned to Terrence Brown, another of Regions's business development officers, who was under


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forty years of age at the time. As a result of this reassignment, Mr. Brown was now responsible for
the Tennessee territory formerly covered by Mr. White as well as the area of Northern Alabama for
which Mr. Brown had previously been responsible. Mr. Brown's sales goal for Northern Alabama
was set at $7,000,000.00 at the time and was not increased by Regions when he was assigned the
additional territory in Tennessee.

        On January 29,1999, Mr. White filed a complaint in the Circuit Court for Davidson County
asserting that Regions had violated the Tennessee Human Rights Act by terminating him because
of his age. Thereafter, on August 30, 2000, Regions filed a motion for summary judgment which
was heard by the Trial Court on October 13, 2000. The Trial Court entered its order granting
Regions a summary judgment on November 1, 2000, and on November 21, 2000, Mr. White filed
his notice of appeal.

      The Tennessee Supreme Court restated the standard of review with respect to summary
judgments as follows in Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000):

         The standards governing the assessment of evidence in the summary judgment
         context are also well established. Courts must review the evidence in the light
         most favorable to the nonmoving party and must also draw all reasonable
         inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d
         [423]at 426; Byrd v. Hall, 847 S.W.2d [208] at 210-211. Courts should grant a
         summary judgment only when both the facts and the inferences to be drawn from
         the facts permit a reasonable person to reach only one conclusion. See McCall v.
         Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23,26
         Tenn.1995). [Case names not italicized in original].

         A Trial Court's decision to grant a motion for summary judgment is solely a matter of law
and is, therefore, not entitled to a presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d
23 (Tenn.1995). In determining whether such a decision is appropriate we must review the record
to determine if the requirements of Rule 56(b) of the Tennessee Rules of Civil Procedure have been
satisfied in that "there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law."

       Mr. White's claim of age discrimination in this case is asserted under the Tennessee Human
Rights Act which is codified at T.C.A. 4-21-101 et seq. At T.C.A. 4-21-401 the Act specifically
provides that it is a discriminatory practice to discharge any person because of their age.
Recognizing that the stated purpose of the Act, as expressed at T.C.A. 42-21-101(a)(1), is to provide
for execution in Tennessee of the policies embodied in the federal civil rights laws, the Supreme
Court of our state has determined that case law under Title VII of the Civil Rights Act of 1964
applies in analyzing claims brought under the Tennessee Human Rights Act. See Campbell v.
Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).




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        In McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S. Ct.1817 (1973), a case involving
asserted violations of the Civil Rights Act of 1964, the United States Supreme Court presented the
analytical framework to be applied in cases such as the one now before us, where allegations of
discrimination are not based on direct evidence. Under the burden shifting analysis set forth in
McDonnell, as applied to a cause of action for age discrimination, the plaintiff must establish a prima
facie case by proving the following: (1) that he was at least forty years of age at the time of the
alleged discrimination (2) that he was subject to adverse employment action (3) that he was qualified
for the position and (4) that he was replaced by a younger person. See Cooley v. Carmike Cinemas,
Inc., 25 F.3d 1325 (6th Cir. 1994).

         If the plaintiff is able to prove a prima facie case the burden then shifts to the defendant who
is required to submit some legitimate, nondiscriminatory reason for its action. Once the defendant
meets this burden the plaintiff is required to prove by a preponderance of the evidence that the reason
proffered by the defendant for its action was not the actual reason, but was merely a pretext for
illegitimate discrimination. The plaintiff is required to show pretext by establishing by a
preponderance of evidence "either (1) that the proffered reasons had no basis in fact (2) that the
proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to
motivate discharge." See Manzer v. Diamond Shamrock Chemicals Company, 29 F3d 1078 (6th Cir.
1994), quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993), emphasis
in Manzer.

        Under the facts presented in this appeal, Regions maintains that Mr. White's employment was
terminated, not because of his age, but because he did not meet previously agreed upon sales volume
goals. In order to establish that Regions's explanation was pretext under the first of the three
alternatives set forth above - 'the proffered reasons had no basis in fact' - Mr. White would be
required to produce evidence that the proffered basis for his discharge did not occur. See Manzer,
ibid. However, Mr. White concedes that his sales volume never met the goals which he and Regions
agreed to. Accordingly, Mr. White does not establish pretext under the first alternative.

        Under the second alternative for showing pretext - 'the proffered reason did not actually
motivate the employee's discharge - Mr. White would be required to produce circumstantial
evidence of age discrimination in addition to that necessary to produce a prima facie case. Under
this alternative Mr. White must submit circumstantial evidence of age discrimination, the sheer
weight of which would make it more likely than not that Regions's ostensible reason for terminating
his employment was a cover up. See Manzer, ibid. From our review of the record we do not find that
Mr. White has presented any circumstantial evidence of age discrimination that would show pretext
under this second alternative.

        It appears to us that Mr. White has chosen the third alternative for establishing pretext. This
means of proving pretext - showing that the reason proffered was insufficient to motivate discharge -
requires production of "evidence that other employees, particularly employees not in the protected
class, were not fired even though they engaged in substantially identical conduct to that which the



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employer contends motivated its discharge of the plaintiff." See Manzer, ibid. In the case of
Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th cir.1992) the Court noted as follows:

Thus, to be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare
his/her treatment must have dealt with the same supervisor, have been subject to the same standards
and have engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer's treatment of them for it.

       See also, Versa v. Policy Studies, Inc. , 45 S.W.3d 575 (Tenn. Ct. App. 2000).

        As stated, upon terminating Mr. White's employment, Regions re-assigned his geographical
area of responsibility, which was located in Tennessee, to Terrence Brown, another business
development officer employed by Regions who was under forty years of age at the time. Mr. White
asserts, and the record confirms, that, although Mr. Brown also failed to meet the sales goals set for
the same area of Tennessee, Mr. Brown was not discharged. Mr. White further attests that he was
not aware of any business development officer either at Regions or at any other bank where he had
worked in the past, who had been terminated for failing to meet sales performance goals. Mr. White
argues that this evidence, coupled with the fact that he was the oldest and highest paid business
development officer at Regions at the time, is sufficient for a jury to infer that he was terminated
because of his age and that the reason for his discharge presented by Regions was pretextual. We
are compelled to disagree.

        A comparison of Region's treatment of Mr. White with its treatment of Mr. Brown will not
suffice to create a genuine issue with respect to whether Regions's proffered reason for discharging
Mr. White was a pretext because these two employees were not similarly situated.

        To begin with, the territory assigned to Mr. White with respect to which he failed to meet his
sales goals consisted solely of Middle and Eastern Tennessee. When Mr. Brown failed to meet the
same sales goal for that region of Tennessee he was additionally responsible for his original sales
territory in Northern Alabama. Therefore, while Mr. White was in a position to devote all of his time
to the Tennessee region assigned to him, Mr. Brown was necessarily allocating his time between
Tennessee and Northern Alabama. Mr. Brown's unrefuted testimony is that only thirty five to forty
per cent of his time was apportioned to Tennessee and the remainder of his time was devoted to
Northern Alabama.

        In addition, Mr. White never met the assigned sales goal for his territory for any month
during the fifteen months of his employment as a business development officer. In contrast, although
Mr. Brown did not meet his sales goals for the first six months of 2000, he testified without
contradiction that he did meet his sales goals for seven to eight months of 1999. We recognize that
Mr. Brown's monthly sales goal of $7,000,000.00 for Northern Alabama was not raised by Regions
when he assumed Mr. White's territory and that this goal was, then, arguably easier to reach because
of the greater potential of his now expanded territory. However, Mr. Hall testified without
contradiction that, subsequent to Mr. White's termination, the Tennessee region formerly assigned


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to Mr. White has generated maximum monthly sales in the range of $2,000,000.00 to $3,000,000.00.
The record shows that Mr. White's maximum sales for that same region never reached $2,000,000.00
per month.

        Finally, Mr. White's salary at Regions at the time of his discharge was $60,000.00 per year
whereas Mr. Brown's annual salary at that time, and throughout 1999, remained less than $40,000.00
per year. Mr. White presents the disparity between his salary and that of Mr. Brown as
circumstantial evidence that the actual reason for his discharge was not his sales record but, rather,
Regions's desire to replace him with a younger employee at a lower salary. It is our determination,
however, that given the fact that Mr.White was not meeting Regions's sales expectations and had
never met those expectations Regions made a legitimate non-discriminatory business decision when
it terminated his employment and assigned his duties to another employee at a lower salary and Mr.
White has not submitted any evidence to the contrary. The fact that Mr. White and Mr. Brown
received substantially different salaries does, on the other hand, show that these two employees were
not similarly situated and that they were, therefore, not comparable for the purpose of establishing
that Regions's proffered reason for discharging Mr. White was insufficient.

        Mr. White also attests that he is unaware of any business development officer who has been
discharged by Regions for failure to meet sales performance goals and that he is further unaware that
any other bank with which he has worked has discharged an employee in that position for failing to
meet such sales goals. However, again, Mr. White has failed to demonstrate that any of these
employees with whom he seeks to compare himself were similarly situated. For this reason, if no
other, it is our finding that these assertions will not suffice to create a genuine factual issue as to
whether Regions's proffered reason for terminating Mr. White's employment was pretextual.

        It being our determination that Mr. White has not established a genuine issue with regard to
whether the reason for his discharge by Regions was pretextual, we need not, and do not, determine
whether Mr. White has submitted sufficient evidence to overcome a summary judgment with respect
to establishing a prima facie case of age discrimination.

        For the foregoing reasons we affirm the judgment of the Trial Court and remand the case for
collection of costs below. Costs of appeal are adjudged against Mr. White and his surety.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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