                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 16, 1999 Session

             DAN B. WILSON, JR. v. LAWRENCE H. RUBIN, ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 96-3715-I   Irvin H. Kilcrease, Jr., Chancellor



                   No. M1998-00959-COA-R3-CV - Filed November 6, 2002


This appeal involves the termination of an employee by a music publishing company after one of its
songwriters complained that the employee had stalked and harassed her. The employee filed suit in
the Chancery Court for Davidson County alleging gender and age discrimination in violation of the
Tennessee Human Rights Act. The publishing company moved for a summary judgment asserting
that it had a valid non-discriminatory ground for terminating the employee. The employee responded
that the proffered non-discriminatory ground was pretextual. The trial court granted the summary
judgment and dismissed the employee’s complaint. On this appeal, the employee asserts that
genuine material factual disputes regarding the publishing company’s non-discriminatory reasons
for terminating him should have prevented the trial court from granting the summary judgment. We
agree and, therefore, vacate the order dismissing the employee’s complaint.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

W. Gary Blackburn, Nashville, Tennessee, for the appellant, Dan B. Wilson, Jr.

Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees, Lawrence H. Rubin and Sony/ATV
Music Publishing Company, LLC.

                                             OPINION

                                                  I.

        Dan B. Wilson, Jr. has worked as a “song plugger” in Nashville ever since 1972. He joined
Sony/ATV Music Publishing Company, LLC’s (“Sony/ATV”) legendary predecessor, Tree
Publishing, in 1976. His duties included working with new songwriters and artists to develop their
material, helping them record demo tapes and prepare publicity portfolios, and pitching their material
to other artists and record producers. By all accounts, Mr. Wilson was a very successful and
effective song plugger. He was reputedly one of the highest paid song pluggers in Nashville, earning
$106,000 per year in salary and bonuses.
        Mr. Wilson was one of five song pluggers working in Nashville for Sony/ATV in 1995.
Even though he was one of two persons in Sony/ATV’s Nashville office with the title “Vice
President for Creative Services,” his duties remained essentially the same as they had always been.
 All five of Sony/ATV’s song pluggers were male because Sony/ATV’s only female song plugger
had recently taken a job with a record label and had been replaced by a male. Donna Hilley,
Sony/ATV’s president and chief executive officer, made clear her desire to employ another female
song plugger but had not made clear whether she intended to create a new position or to wait until
one of the existing song plugger positions became vacant.

        In April 1995, Chrissy Gabell, a strikingly beautiful 25-year-old woman from Arizona,
arrived in Nashville to “chase that neon rainbow.”1 Her father had arranged an introduction for her
with the late David Skepner, the president of a prominent entertainment management company and
adjunct professor in the music business program at Belmont University. Mr. Skepner, acting as Ms.
Gabell’s “guidance counselor,” referred her to Ms. Hilley, and Ms. Hilley, in turn, asked Mr. Wilson
to evaluate Ms. Gabell’s potential as a songwriter or performing artist.

       After listening to Ms. Gabell’s material, Mr. Wilson thought he “heard a sparkle of
something” and decided that “[t]here was some talent there.”2 Mr. Wilson told Ms. Gabell that he
would begin looking for suitable material for her and that he would assist her in recording a demo
tape. Later in the year, Ms. Hilley inquired into Ms. Gabell’s progress after receiving another
telephone call from Mr. Skepner. In late summer 1995, Mr. Wilson helped Ms. Gabell record a
demo tape using pre-recorded music tracks and told her that he would begin working on a live
recording session for her.

        When Mr. Wilson first met Ms. Gabell, he was a middle-aged father of two adult children
who had been divorced for twelve years. By November 1995, he came to believe that Ms. Gabell
was physically attracted to him “for some reason.” During lunch on November 14, 1995, Mr. Wilson
and Ms. Gabell decided to move beyond their professional relationship to a much more intimate one.
They began dating, and their relationship was not only common knowledge at Sony/ATV but was
also the subject of discussion among other Sony/ATV employees, including Ms. Hilley.

         Mr. Wilson traveled to Arizona during the holidays to visit Ms. Gabell and her family. On
their flight back to Nashville, Ms. Gabell revealed that she was sharing her apartment with Mark
Tims. Up to this point, she had led Mr. Wilson to believe that her roommate was female. Upon their
return from Arizona, Ms. Gabell moved into the apartment Mr. Wilson shared with one of his adult
daughters. In early 1996, Ms. Gabell accompanied Mr. Wilson on a trip to Europe for a country
music convention and shared a hotel room with him. Following the trip, Ms. Gabell told Mr. Wilson
that she had decided to move back into her apartment. When Mr. Wilson asked her to move back
in with him, Ms. Gabell responded that “she didn’t feel like she wanted to do that right at that point.”
Mr. Wilson, trying to be a “man of the nineties,” did not press the issue.


         1
             Alan Jackson, Chasin’ That Neon Rainbow, in Here in the Real World (Arista Records 1989) (CD R ecording).

         2
          Because this is an ap peal from a summ ary jud gment, we are relying on the presently undisputed facts offered
by M r. W ilson reg arding his relatio nship w ith Ms. Gabell.

                                                          -2-
        Although Mr. Wilson and Ms. Gabell were beginning to experience some ups and downs,
they continued their intimate relationship into the spring. Mr. Wilson helped Ms. Gabell complete
another demo tape in February 1996. He had already used his own money to pay for Ms. Gabell’s
breast augmentation surgery prior to their trip to Europe, and his generosity toward her continued.
He paid for a number of her recording sessions and for her publicity portfolio. He also bought Ms.
Gabell clothes and gave her $3,000 for a down payment on a car. Finally, in April 1996, Mr. Wilson
obtained Ms. Hilley’s agreement to sign Ms. Gabell to a one-year contract with Sony/ATV as a
songwriter. As he said later, “[t]his woman could have had anything she wanted from me if she had
just played fair and honest.”

         Mr. Wilson’s “big blowup” with Ms. Gabell occurred during the summer of 1996 when he
discovered that she had made over $5,000 in purchases on two of his personal credit cards without
telling him. He left a message on her answering machine to the effect that “[i]f you don’t get these
credit cards straightened out, you are going to have to figure out some other way to get around
because I’m coming to get my car,3 and I’ll get them straightened out.” Ms. Gabell promised to
return the credit cards in two days. When she did not, Mr. Wilson decided to stop by her apartment
on the way to work to retrieve them and left a message on her answering machine that he was
coming to pick up the cards. Mr. Wilson was able to enter Ms. Gabell’s gated apartment complex
by following another car through the gate. He left a short time later after he discovered that Ms.
Gabell was not home.

        Approximately two weeks later, on August 13, 1996, Ms. Hilley called Mr. Wilson into her
office. There, in the presence of Don Cook, a Sony/ATV senior vice president, and Chris Waters
Dunn, a Sony ATV/vice president, Ms. Hilley informed Mr. Wilson that Ms. Gabell had complained
that he had threatened to kill her and that he had broken into her apartment complex. Ms. Hilley also
recounted that Ms. Gabell had denied having consensual sexual relations with Mr. Wilson and had
claimed that Mr. Wilson was stalking her, making unwanted sexual advances toward her, and
threatening to ruin her career if she did not agree to continue dating him.

       Mr. Wilson was surprised by Ms. Gabell’s allegations and denied that his conduct with Ms.
Gabell had been inappropriate or unwelcomed. He recounted the details of his relationship with Ms.
Gabell for Ms. Hilley and Messrs. Cook and Dunn and was surprised to discover that they did not
appear to believe him. Finally, to conclude the meeting, Ms. Hilley told Mr. Wilson that he would
be allowed to resign with a severance package from Sony/ATV but that he would be fired if he
declined the offer.

        Over the course of the next several days, Mr. Wilson provided Ms. Hilley with corroboration
of his version of his relationship with Ms. Gabell, including her love notes and entries on her
personal calendar where she had drawn hearts on the days commemorating the monthly anniversary
of their first romantic encounter in November 1995. None of this information seemed to sway Ms.
Hilley, and Mr. Wilson eventually declined to accept the severance package by telling Sony/ATV



       3
           The automob ile M s. Gabell had purchased using M r. W ilson’s $3,00 0 as he r down pa yment.

                                                          -3-
that they could “take their money and . . . give it to the poor boys’ home.” Shortly thereafter, Mr.
Cook ordered Mr. Wilson to pack up his personal belongings and to leave the premises permanently.

       After Mr. Wilson’s departure, Sony/ATV promoted Amy McKeehan, the 31-year-old
administrative assistant to the song pluggers, to take his place.4 Sony/ATV declined to renew Ms.
Gabell’s contract when it expired, and she returned to Arizona without making any further noise on
Sixteenth Avenue.5

        In November 1996, Mr. Wilson filed suit in the Chancery Court for Davidson County,
alleging that Sony/ATV had engaged in age and gender discrimination in violation of the Tennessee
Human Rights Act by firing him and replacing him with a younger employee. Sony/ATV denied the
allegation and, following discovery by both sides, moved for a summary judgment on the ground that
it had a legitimate, non-discriminatory reason for firing Mr. Wilson. Mr. Wilson responded to the
motion by asserting that Sony/ATV’s proffered reasons for firing him were pretextual. He supported
his response with the detailed affidavit of Ms. McKeehan who by this time had also been fired by
Sony/ATV. The trial court granted Sony/ATV’s motion for summary judgment, and Mr. Wilson has
appealed to this court.

                                                         II.
                                          THE STANDARD OF REVIEW

        Granting a summary judgment is warranted in virtually any civil case where the moving party
demonstrates that no genuine issues of material fact exist and that it is entitled to a judgment as a
matter of law. Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Armoneit
v. Elliott Crane Serv., 65 S.W.3d 623, 627 (Tenn. Ct. App. 2001). Because a summary judgment
involves an issue of law rather than an issue of fact, Planters Gin Co. v. Federal Compress &
Warehouse Co., 78 S.W.3d 885, 889 (Tenn. 2002), an order granting a summary judgment is not
entitled to a presumption of correctness on appeal. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d
528, 534 (Tenn. 2002).

        Appellate courts do not employ the standard of review in Tenn. R. App. P. 13(d) when
reviewing an order granting a summary judgment. Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn.
1997); Estate of Kirk v. Lowe, 70 S.W.3d 77, 79-80 (Tenn. Ct. App. 2001). Rather, we determine
for ourselves whether the moving party has satisfied the requirements of Tenn. R. Civ. P. 56. Hunter
v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cantrell v. DeKalb County, 78 S.W.3d 902, 905
(Tenn. Ct. App. 2001). In this process, we must consider the evidence in the light most favorable
to the nonmoving party and resolve all inferences in the nonmoving party's favor. Johnson v.
LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 342 (Tenn. 2002); Webber v. State Farm Mut.
Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).


        4
          As it turned out, Ms. McKeehan’s tenure at Sony/ATV was short-lived. In May 1998, M s. McKeehan filed
a com plaint with the EEO C alleging a hostile work environment at Sony/ATV due to sexual harassment by fellow
emp loyees and su perio rs. Sony/AT V fired Ms. McKeehan app roxim ately two weeks after she filed the comp laint.

        5
            Lacy J . Dalto n, 16th Avenue, in 16th Avenue (Columbia Records 1982) (33 rpm LP reco rding).

                                                         -4-
        Litigants may use a motion for summary judgment to challenge their adversaries to put up
or shut up on a critical issue in a case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.
1989). A moving party will be entitled to a summary judgment if it can demonstrate that the non-
moving party will be unable to prove an essential element of its case on which it will bear the burden
of proof at trial. Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn. 1993); Solomon v. FloWarr Mgt., Inc.,
777 S.W.2d 701, 706 (Tenn. Ct. App. 1989). Customarily, defendants employ this strategy either
to negate an essential element of the plaintiff’s claim or to establish an affirmative defense to the
plaintiff’s claim. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Pendleton v. Mills,
73 S.W.3d 115, 121 (Tenn. Ct. App. 2001).

        Once a party seeking a summary judgment demonstrates that its motion complies with the
requirements of Tenn. R. Civ. P. 56, the burden of going forward shifts to the non-moving party to
demonstrate either that material factual disputes exist or that the moving party is otherwise not
entitled to a judgment as a matter of law. Nelson v. Martin, 958 S.W.2d 643, 647 (Tenn. 1997);
Cantrell v. DeKalb County, 78 S.W.3d at 905. Mere conclusory allegations will not suffice to create
a material factual dispute. Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn. Ct. App.
2001). Non-moving parties may deflect a summary judgment motion challenging their ability to
prove an essential element of their case by (1) pointing to evidence either overlooked or ignored by
the moving party that creates a factual dispute, (2) rehabilitating evidence challenged by the moving
party, (3) producing additional evidence that creates a material factual dispute, or (4) submitting an
affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery.
McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Davis v. Campbell, 48
S.W.3d 741, 747-48 (Tenn. Ct. App. 2001). A non-moving party who fails to carry its burden faces
summary dismissal of the challenged claim or defense because, as our courts have repeatedly
observed, the failure of proof concerning an essential element of a case renders all other facts
immaterial. Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993);
Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).

        A summary judgment is not appropriate when a case’s determinative facts are in dispute.
Thus, courts reviewing an order granting a summary judgment must determine whether factual
disputes exist and whether these disputes are material to the claim or defense implicated by the
summary judgment motion. Byrd v. Hall, 847 S.W.2d at 214; Cantrell v. DeKalb County, 78 S.W.3d
at 905-06. For a question of fact to exist, reasonable minds must be able to differ over whether some
alleged occurrence or event did or did not happen or whether a particular condition did or did not
exist. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Davis
v. Campbell, 48 S.W.3d at 747. If reasonable minds could justifiably reach different conclusions
based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin
Co., 868 S.W.2d 649, 655 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the
inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only
one conclusion, then there are no material factual disputes and the question can be disposed of as a
matter of law. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d at 269; Brown v. Birman
Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Seavers v. Methodist Med. Ctr., 9 S.W.3d 86,
91 (Tenn. 1999).




                                                 -5-
        Not all factual disputes warrant denying a motion for summary judgment. Many factual
disputes have no bearing to the ultimate outcome of the parties’ dispute. Thus, factual disputes
warrant denying a motion for summary judgment only when they are material. Tenn. R. Civ. P.
56.04 (requiring the moving party to demonstrate “that there is no genuine issue as to any material
fact”). A factual dispute is material for the purposes of Tenn. R. Civ. P. 56 if it must be decided in
order to resolve the substance of the claim or defense being tested by the summary judgment motion.
Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Byrd v. Hall, 847 S.W.2d at 215; Chambers
v. City of Chattanooga, 71 S.W.3d 281, 284 (Tenn. Ct. App. 2001).

                                     III.
  GENDER AND AGE DISCRIMINATION CLAIMS UNDER THE TENNESSEE HUMAN RIGHTS ACT

        The Tennessee Human Rights Act is a comprehensive anti-discrimination law, Phillips v.
Interstate Hotels Corp., 974 S.W.2d 680, 683 (Tenn. 1998), intended to further the policies
embodied in the similar federal laws against employment discrimination. Tenn. Code Ann. § 4-21-
101(a)(1) (1998); Frazier v. Heritage Fed. Bank for Savs., 955 S.W.2d 633, 636 n. 1 (Tenn. Ct. App.
1997). The Act proscribes 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 Tennessee Human Rights Act and federal anti-discrimination laws, Tennessee’s
courts regularly consult the decisions of their federal counterparts for guidance when called upon to
construe and apply the Tennessee Human Rights Act. Weber v. Moses, 938 S.W.2d 387, 390 (Tenn.
1996); Frazier v. Heritage Fed. Bank for Savs., 955 S.W.2d at 636 n.1.6

                                              A.
                      Methods For Proving Employment Discrimination Claims

        The burden of proving the ultimate issue of unlawful employment discrimination always rests
with the employee. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089,
1093 (1981); Spann v. Abraham, 36 S.W.3d at 464. Whether the claim involves discrimination
based on gender or age, the framework for allocating the burden of production and the order of the
presentation of proof is the same. Employees pursuing an employment discrimination claim under
the Tennessee Human Rights Act may carry their burden of proof by employing either the direct or
the indirect method of proof. Moore v. Nashville Elec. Power Bd., 72 S.W.3d 643, 651 (Tenn. Ct.
App. 2001); Perlberg v. Brencor Asset Mgt., Inc., 63 S.W.3d 390, 394-95 (Tenn. Ct. App. 2001).

       In the context of an employment discrimination case, the direct method of proof focuses on
the motivation of the employer responsible for the contested decision. Walker v. Glickman, 241 F.3d
884, 888 (7th Cir. 2001). Direct evidence of discrimination consists of evidence of an employer’s



         6
            These federal precedents are, of course, not binding on T ennessee co urts and d o not limit our ability to give
the fullest possible effect to the Tennessee Hum an Rights Act. Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698,
705 (Te nn. 20 00); Parker v. Wa rren C oun ty Util. D ist., 2 S.W .3d 1 70, 1 73 (Tenn. 19 99); Spann v. Abraham, 36 S.W.3d
452, 463 (Tenn. Ct. App. 1999 ).

                                                            -6-
conduct or statements7 which, if believed, requires a conclusion that unlawful discrimination was
a substantial motivating factor for the employer’s actions. Clearwater v. Independent Sch. Dist. No.
166, 231 F.3d 1122, 1126 (8th Cir. 2000); Jacklyn v. Schering-Plough Healthcare Prods. Sales
Corp., 176 F.3d 921, 926 (6th Cir. 1999); Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861
(5th Cir. 1993). Evidence that can be interpreted as an acknowledgment of discriminatory intent will
suffice as direct evidence even if it stops short of a virtual admission of illegality. Gorence v. Eagle
Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th
Cir. 1999).

        Persons relying on the direct method of proof may use both direct and circumstantial
evidence to support their claim. Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 664
(3d Cir. 2002); Sattar v. Motorola, Inc., 138 F.3d 1164, 1168-69 (7th Cir. 1998); Spann v. Abraham,
36 S.W.3d at 464. The evidence must satisfy two conditions to be probative. First, it must relate
to conduct or statements by persons directly involved in the decision-making process. Kerns v.
Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). Statements by persons who are not part
of the decision-making process will not suffice. Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th
Cir. 2000). Second, the conduct or statements must relate to the particular employment decision
being challenged. Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999); Thomas v.
National Football League Players Ass’n, 131 F.3d 198, 204 (D.C. Cir. 1997). Stray remarks in the
workplace, statements made long before the contested employment action, and statements otherwise
unrelated to the action at issue will not suffice. Markel v. Board of Regents of Univ. of Wis. Sys., 276
F.3d 906, 910 (7th Cir. 2002); Smith v. Leggett Wire Co., 220 F.3d at 760; Fast v. Southern Union
Co., 149 F.3d 885, 890 (8th Cir. 1998).

        Direct evidence of intentional employment discrimination is often hard to come by. Price
Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S. Ct. 1775, 1802 (1989) (O.Connor, J., concurring);
Moore v. Nashville Elec. Power Bd., 72 S.W.3d at 651. Accordingly, employees who cannot prove
unlawful discrimination using the direct method resort to the indirect method of proof. This method
employs the familiar framework for allocating the burden of production and the order of presentation
of proof8 set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). The
goal of this approach is to progressively sharpen the inquiry into the elusive factual question of
intentional discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255 n.8, 101 S. Ct.
at 1094 n. 8.

        Tennessee courts regularly employ the McDonnell Douglas approach in discrimination cases.
See, e.g., Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d at 708; Spann v. Abraham, 36 S.W.3d
at 465. Under this approach, the employee has the initial burden of presenting evidence establishing


         7
           Erickson v. Farmland Indus., Inc., 271 F.3d 71 8, 724 (8th Cir. 2001) (holding that direct evidence is evidence
of conduct or statements by persons involved in making the employment decision directly manifesting a discriminatory
attitude).

         8
          The United States Supreme Co urt characterized its Mc Do nne ll Dou glas opinion as establishing “an allocation
of the burden of production and an order for the presentation of proof.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
506 , 113 S. Ct. 2742 , 274 6 (1993 ).

                                                           -7-
a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142,
120 S. Ct. 2097, 2106 (2000); Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 200 (Tenn. Ct.
App. 1999). This is an evidentiary standard, not a pleading requirement. Swierkiewicz v. Sorema,
534 U.S. 506, 510-11, 122 S. Ct. 992, 997 (2002).

        Establishing a prima facie case of discrimination creates a rebuttable presumption that the
employer unlawfully discriminated against the employee. St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
at 506, 113 S. Ct. at 2747; Gonzalez v. El Dia, Inc., 304 F.3d 63, 68-69 (1st Cir. 2002). The effect
of the presumption is to place on the employer the burden of producing evidence that the challenged
employment action was taken for legitimate, non-discriminatory reasons. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. at 254, 101 S. Ct. at 1094; Moore v. Nashville Elec. Power Bd., 72
S.W.3d at 652. This burden is one of production, not persuasion. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. at 142, 120 S. Ct. at 2106. It requires the employer to clearly set forth, through
the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the cause of the employment action.
Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).

        If the employer succeeds in carrying its burden of production, the presumption of
discrimination drops out of the picture, and the trier of fact proceeds to decide the ultimate question
of whether the employee has proved that the employer unlawfully discriminated against him or her.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S. Ct. at 2106; St. Mary’s Honor
Ctr. v. Hicks, 509 U. S. at 510-11, 113 S. Ct. at 2749. At this stage, the employee must have a full
and fair opportunity to demonstrate that the employer’s proffered reasons are pretextual and that
unlawful discrimination was the true reason for the challenged employment action. Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095; Versa v. Policy Studies, Inc., 45
S.W.3d 575, 580 (Tenn. Ct. App. 2000).

         An employee may demonstrate that an employer’s proffered, non-discriminatory reasons for
an adverse employment action are pretextual by revealing the “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the employer’s explanation. Garrett v. Hewlett-
Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002). Three of the most common ways to undermine
an employer’s proffered reasons include: (1) establishing that the proffered reasons have no basis
in fact, (2) establishing that the proffered reasons did not actually motivate the adverse employment
action, or (3) establishing that the proffered reasons were insufficient to motivate the adverse
employment action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000); Cliff v. Board of
Sch. Comm’rs, 42 F.3d 403, 412 (7th 1994); McNabola v. Chicago Transit Auth., 10 F.3d 501, 513
(7th Cir. 1993); Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d at 708. Proof that an employer’s
explanation is unworthy of credence is a persuasive way to prove unlawful discrimination. As
Justice O’Connor has pointed out:

                In appropriate circumstances, the trier of fact can reasonably infer
                from the falsity of the explanation that the employer is dissembling
                to cover up a discriminatory purpose. . . . [O]nce the employer’s
                justification has been eliminated, discrimination may well be the most
                likely alternative explanation, especially since the employer is in the

                                                  -8-
               best position to put forth the actual reason for its decision. . . . Thus,
               a plaintiff’s prima facie case, combined with sufficient evidence to
               find that the employer’s asserted justification is false, may permit the
               trier of fact to conclude that the employer unlawfully discriminated.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 147-48, 120 S. Ct. at 2108-09.

                                          B.
       Prima Facie Discrimination Claims Under the McDonnell Douglas Framework

        The precise requirements of a prima facie case of unlawful discrimination can vary depending
on the context. They were “never intended to be rigid, mechanized, or ritualistic.” Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949 (1978). Thus, the elements of a prima
facie case using the direct method of proof may differ from the elements of a prima facie case using
the indirect method. Swierkiewicz v. Sorema, 534 U.S. at 511-12, 122 S. Ct. at 997; McDonnell
Douglas. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621-22 (1985)
(holding that the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence
of discrimination).

                             Prima Facie Age Discrimination Claims

        The Tennessee Human Rights Act prohibits employers from discriminating against their
employees who are forty years old or older because of their age. Tenn. Code Ann. § 4-21-101(a)(3),
(b). The Act’s goal is to require employers to evaluate the performance of their older employees on
their real, demonstrable merits rather than on the stereotypes often associated with aging. Western
Air Lines, Inc. v. Criswell, 472 U.S. 400, 423, 105 S. Ct. 2743, 2756 (1985). Accordingly, Tenn.
Code Ann. § 4-21-401(a)(1), (2) specifically prohibits age discrimination in hiring, firing, fixing
compensation, or defining the terms and conditions of employment.

         An employee seeking to recover for unlawful age discrimination must prove that
considerations of age not only played a role in but determinatively influenced the employer’s
decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 U.S. 1701, 1706 (1993); Loeffler v.
Kjellgren, 884 S.W.2d 463, 469 (Tenn. Ct. App. 1994); Bruce v. Western Auto Supply Co., 669
S.W.2d 95, 97 (Tenn. Ct. App. 1984). To establish a prima facie case of age discrimination using
the indirect method of proof, an employee who has been terminated must demonstrate (1) that he or
she is a member of the protected class of persons 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. Collins v. New York City Transit Auth., 305 F.3d 113,
118 (2d Cir. 2002). The fourth element of a prima facie age discrimination claim may be satisfied
by presenting proof that the employee was replaced by someone substantially younger. O’Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12, 116 S. Ct. 1307, 1310 (1996) (holding
that an inference of discrimination cannot be drawn from the replacement of one worker with another
worker insignificantly younger); Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 721 (4th Cir.
2002); Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir. 1998); see also Moore v. Nashville Elec.

                                                  -9-
Power Bd., 72 S.W.3d at 651-52 (holding that a prima facie case of age discrimination requires proof
that an employee was replaced by a “younger person”).

                          Prima Facie Gender Discrimination Claims

        The Tennessee Human Rights Act also prohibits employers from discriminating against their
employees because of their gender. Tenn. Code Ann. § 4-21-101(a)(3); Roberson v. University of
Tenn., 829 S.W.2d 149, 150 (Tenn. Ct. App. 1992). Its purpose is to prohibit all gender
discrimination in the workplace no matter whether the discrimination disadvantages women or men.
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, 103 S. Ct. 2622, 2630
(1983). The Act specifically outlaws gender discrimination in hiring, firing, setting wages and
benefits, and other conditions of employment. Tenn. Code Ann. § 4-21-401(a)(1), (2).

        An employee seeking to recover for unlawful gender discrimination must present evidence
directly showing or raising a reasonable inference that his or her employer’s actions were based in
a determinative way on considerations of the employee’s gender. Price Waterhouse v. Hopkins, 490
U.S. at 241-42, 109 S. Ct. at 1786; Turgeon v. Premark, Int’l, Inc., 87 F.3d 218, 221 (7th Cir. 1996).
To establish a prima facie case of gender discrimination using the indirect method of proof, an
employee who has been terminated must present evidence (1) that he or she belongs to a protected
class, (2) that he or she was performing at a level that met 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 unlawful gender discrimination. Lim v. Trustees
of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002); Karpel v. Inova Health Sys. Serv., 134 F.3d 1222,
1228 (4th Cir. 1998); Shumway v. United Parcel Serv., 118 F.3d 60, 63 (2d Cir. 1997); Johnson v.
Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996).

                                            IV.
                   MR . WILSON ’S PROOF OF EMPLOYM ENT DISCRIMINATION

        Mr. Wilson does not insist on this appeal that he established a prima facie case of either
gender or age discrimination using the direct method of proof. Accordingly, our task is limited to
determining whether he presented sufficient evidence to establish a prima facie case of gender and
age discrimination using the indirect method of proof and whether he presented evidence that would
permit the trier of fact to conclude that Sony/ATV’s reasons for terminating him were pretextual.
We answer both questions in the affirmative.

                                              A.
                                 Mr. Wilson’s Prima Facie Case

        The parties do not dispute that Mr. Wilson presented evidence that he belonged to a protected
class of employees and that his performance was consistent with his employer’s reasonable
expectations. However, Sony/ATV asserts that Mr. Wilson failed to establish a prima facie case of
either age or gender discrimination because he failed to present proof that he had been subjected to
an adverse employment action and that he had been replaced as Vice President of Creative Services.


                                                -10-
After considering the evidence in the light most favorable to Mr. Wilson, we have determined that
he has established a prima facie case of both gender and age discrimination.

        Sony/ATV’s first argument that Mr. Wilson failed to demonstrate that he was subjected to
an adverse employment action is premised on its insistence that Mr. Wilson resigned from his job.
Notwithstanding Ms. Hilley’s belief that Mr. Wilson had resigned during their August 13, 1996
meeting, Mr. Wilson has staunchly denied that he resigned during this meeting or at any other time.
In his words, Sony/ATV “turned on me like a pack of dogs.” He insists that he rejected Sony/ATV’s
severance package and that he continued to come to work following the August 13, 1996 meeting
until Mr. Cook finally ordered him to clean out his desk and leave the building.

         Mr. Wilson’s version of the events surrounding the August 13, 1996 meeting is corroborated
by Ms. McKeehan’s testimony regarding the parties’ contemporaneous statements.9 In her August
3, 1998 affidavit, Ms. McKeehan states that, as he left Mr. Cook’s office, Mr. Wilson told her that
“I just got fired. I can’t believe it, after twenty years.” She also recounted that Mr. Cook later told
her “Dan has been let go” and that Ms. Hilley likewise told her that Mr. Wilson “has gotten fired.”
For summary judgment purposes, Mr. Wilson’s actions immediately following the August 13, 1996
meeting and the parties’ characterizations of what had occurred at the meeting provide an adequate
basis for concluding that Sony/ATV terminated Mr. Wilson and, therefore, that he had been
subjected to an adverse employment action.

        Sony/ATV’s second argument is that Mr. Wilson has failed to establish a prima facie case
of gender or age discrimination because he has failed to demonstrate that he was terminated under
circumstances that give rise to an inference of unlawful gender or age discrimination. Specifically,
Sony/ATV asserts that Mr. Wilson’s prima facie case fails because he did not produce evidence that
it hired another Vice President for Creative Services to replace him. We attach far less legal
significance to Mr. Wilson’s official title than does Sony/ATV.

        Mr. Wilson’s testimony regarding his duties and his job title is essentially undisputed. He
stated that he had always been a song plugger and that the title of Vice President for Creative
Services was simply an honorific bestowed on him because of his long tenure with Sony/ATV. He
also stated that the title carried no additional compensation and did not change his duties as a song
plugger. It is likewise undisputed that Sony/ATV hired a female song plugger twenty years Mr.
Wilson’s junior immediately after Mr. Wilson’s departure. In light of these circumstances, it is
immaterial that Sony/ATV did not bestow the title of Vice President for Creative Services on Mr.
Wilson’s replacement. A song plugger by any other name remains a song plugger. Accordingly, we
find that Mr. Wilson presented evidence that Sony/ATV had replaced him with a substantially
younger woman and that this circumstance was sufficient to establish a prima facie case of gender
and age discrimination.


         9
            Sony/ATV takes vigorous issue with Ms. McKe ehan’s credibility and with some cause. However, it is not our
prerogative at this stage of the proceeding to determine what weight, if any, should be given to Ms. McKeehan’s
testimony. At this juncture, we need only determine whether Ms. McK eehan’s testimony regarding the statements made
to he r b y Ms. Hilley and Messrs. W ilson and Cook regarding M r. Wilson’s termination are admissible. W e have
determined that they are.

                                                        -11-
                                        B.
   Mr. Wilson’s Proof That Sony/ATV’s Reasons for Terminating Him Were Pretextual

       Under the McDonell Douglas framework, Mr. Wilson’s prima facie case gave rise to a
rebuttable presumption that Sony/ATV terminated him because of his gender and age. Accordingly,
the burden shifted to Sony/ATV to produce evidence that its decision to terminate Mr. Wilson was
made for legitimate, non-discriminatory reasons. Sony/ATV successfully carried this burden by
presenting evidence that it terminated Mr. Wilson because its Nashville executives believed that he
had sexually harassed Ms. Gabell.

        Sony/ATV’s evidence regarding its innocent, nondiscriminatory reasons for terminating Mr.
Wilson assumed pivotal importance at this stage of the proceeding. Not only did it dispel the
presumption that Sony/ATV had engaged in unlawful gender and age discrimination, but it also
shifted the burden of production back to Mr. Wilson to demonstrate that Sony/ATV’s proffered
reasons for terminating him were pretextual and that unlawful discrimination was the true reason for
terminating him. At this stage of the proceeding, had Mr. Wilson been unable to produce or point
to some evidence that Sony/ATV’s proffered reasons were pretextual, Sony/ATV would have been
entitled to a summary judgment dismissing Mr. Wilson’s discrimination claims because the evidence
regarding its legitimate, non-discriminatory reasons for terminating Mr. Wilson would have been
undisputed. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 507-08, 113 S. Ct. at 2747; Foster v.
Alliedsignal, Inc., 293 F.3d 1187, 1196 (10th Cir. 2002); Moore v. Nashville Elec. Power Bd., 72
S.W.3d at 652.

       We have concluded that the evidence in the current record, viewed in the light most favorable
to Mr. Wilson, could provide the trier of fact with a factual basis for concluding that the innocent
reasons articulated by Sony/ATV for terminating Mr. Wilson were pretextual. The evidence
supporting this conclusion falls into three categories – the comments of Ms. Hilley and Mr. Cook
regarding Mr. Wilson shortly before he was terminated, Sony/ATV’s investigation of Ms. Gabell’s
harassment allegations, and Sony/ATV’s apparent laxity in enforcing its sexual harassment policies
with regard to other employees.

         We turn first to the comments of Ms. Hilley and Mr. Cook in June and July 1996 before Mr.
Wilson’s termination. Mr. Wilson testified that Ms. Hilley made no secret of her desire to employ
a female song plugger. According to Ms. McKeehan, both Ms. Hilley and Mr. Cook told her that
Sony/ATV needed “new blood” and “younger people on the job.” In addition, Ms. McKeehan stated
that Ms. Hilley told her that she would have an opportunity to take Mr. Wilson’s song plugger’s job
if he left and that Ms. Hilley made repeated derogatory comments regarding a man of Mr. Wilson’s
age dating a young woman like Ms. Gabell.

        The comments attributed to Ms. Hilley and Mr. Cook would not suffice as direct evidence
of discriminatory intent using the direct method of proof because they do not relate directly to Mr.
Wilson’s termination. Expressions of a desire to employ a female song plugger or to have “younger
people on the job” do not necessarily reflect a settled intent to terminate an older male employee to
make room for a younger female employee. Even the reference to needing “new blood” is


                                                -12-
ambiguous.10 While the term frequently connotes the replacement of older workers with younger
ones, it also connotes replacing existing employees with new ones. Fortier v. Ameritech Mobile
Communications, Inc.,161 F.3d 1106, 1113 (7th Cir. 1998). Thus, while a reference to needing “new
blood” standing alone does not raise an inference of age discrimination, Beatty v. Wood, 204 F.3d
713, 716-17 (7th Cir. 2000), it can, when viewed in the context of other statements, support an
inference of discriminatory intent. Buckley v. Hospital Corp. of Am., Inc., 758 F.2d 1525, 1530 (11th
Cir. 1985).

         These comments, however, provide a framework for considering Ms. Hilley’s and Mr.
Cook’s actions after receiving Ms. Gabell’s complaint about Mr. Wilson. To the extent that they
reflect a settled intent to replace Mr. Wilson with a younger woman, the comments provide some
insight into why Ms. Hilley and Mr. Cook might have decided against thoroughly investigating the
truth of Ms. Gabell’s complaint. As long as Ms. Gabell’s allegations of sexual harassment remained
unrebutted, they provided Sony/ATV with a facially appropriate reason to terminate Mr. Wilson.

         Mr. Wilson also argues that Sony/ATV’s failure to investigate the truth of Ms. Gabell’s
sexual harassment allegations provides additional support for concluding that the company’s reliance
on Ms. Gabell’s claims was pretextual. While Ms. Hilley and Mr. Cook insist that they conducted
an appropriate inquiry into Ms. Gabell’s allegations, a reasonable trier of fact could conclude to the
contrary. While it is undisputed that Sony/ATV officials heard both Ms. Gabell’s and Mr. Wilson’s
accounts of their relationship, there is little indication that they were concerned about who was
telling the truth.11 After Mr. Wilson produced Ms. Gabell’s love notes, calendar marked with hearts,
and the cancelled checks to corroborate his version of his relationship with Ms. Gabell, no
Sony/ATV official required Ms. Gabell to respond or to corroborate her allegations against Mr.
Wilson.

        Sony/ATV’s sexual harassment policy required the company to “thoroughly and promptly
investigate all claims of harassment.” After reviewing the evidence regarding Sony/ATV’s
investigation of Ms. Gabell’s allegations in the light most favorable to Mr. Wilson, we have
concluded that a trier of fact could conclude that Sony/ATV did not conduct a thorough investigation
into the truth of Ms. Gabell’s allegations because it was not interested in determining whether Mr.
Wilson had actually harassed Ms. Gabell. A trier of fact could conclude that Sony/ATV viewed Ms.
Gabell’s complaint as a convenient pretext for terminating him in order to hire a significantly
younger woman.

       Finally, Mr. Wilson argues that he presented evidence demonstrating that Sony/ATV’s
professed concern about sexual harassment in its workplace was not genuine and that he was
terminated for conduct far less serious than other employees’ conduct that was apparently condoned


         10
           Despite Judge Posn er’s prediction, the expression “new blood” has apparently not disappeared from the
emp loyer’s lexicon despite the increasing prevalence o f age discrimina tion litigation . Karlen v. City Colleges of
Chicago, 837 F.2d 314 , 316 (7th C ir. 198 8).

         11
          W hen asked about the importance of determining who was telling the truth, Mr. Coo k blithely responded
“Well, you know, that wasn’t my call.”

                                                        -13-
by Sony/ATV. This evidence is found in Ms. McKeehon’s August 3, 1998 affidavit which sets out
a veritable parade of sexual harassment horribles occurring at Sony/ATV both before and after Mr.
Wilson’s termination. The affidavit also alludes to a systematic cover-up orchestrated by
Sony/ATV’s management during the discovery phase of this case.

        Not surprisingly, Sony/ATV has launched a furious attack on Ms. McKeehon’s affidavit. It
asserts that Ms. McKeehon did not have personal knowledge of many of the facts recounted in her
affidavit, that many of the events Ms. McKeehon describes in her affidavit are not relevant to Mr.
Wilson’s discrimination claims, and that Ms. McKeehon’s testimony should be disregarded because
she conceded that she did not respond truthfully to all the questions posed to her in an earlier
deposition. We find these arguments unpersuasive at the summary judgment stage. There is little
question that Ms. McKeehon has personal knowledge of most of the conduct described in her
affidavit because she witnessed it. Her affidavit is relevant because it provides corroboration for Mr.
Wilson’s claim that Sony/ATV’s concern about sexual harassment was pretextual. Finally, Ms.
McKeehan’s credibility goes to the weight, not the admissibility, of her testimony.

        After reviewing the record in the light most favorable to Mr. Wilson, we have concluded that
he has created a triable issue on the question of pretext. Sony/ATV asserts that he forfeited his job
because he violated its policy against sexual harassment. Mr. Wilson’s evidence tends to show that
Sony/ATV was not genuinely concerned about sexual harassment of female employees and that
Sony/ATV did not seriously investigate Ms. Gabell’s harassment claim. On this evidence a
reasonable trier of fact could disbelieve the company’s proffered reason for terminating Mr. Wilson’s
employment and could believe that he was pushed out specifically to make his position available for
a younger female. Accordingly, the trial court erred by granting Sony/ATV’s motion for summary
judgment.

                                                  V.

        We vacate the order granting the summary judgment and remand the case to the trial court
for further proceedings consistent with this opinion. We tax the costs of this appeal to Sony/ATV
Music Publishing, LLC for which execution, if necessary, may issue.



                                                        _____________________________
                                                        WILLIAM C. KOCH, JR., JUDGE




                                                 -14-
