                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                On Briefs May 17, 2004 Session

JEAN ANN TRUDEAU, ET AL. V. DEPT. OF LABOR AND WORKFORCE
     DEVELOPMENT FOR THE STATE OF TENNESSEE, ET AL.

                 Appeal from the Chancery Court for Henry County
                     No. 19069 Ron E. Harmon, Chancellor


              No. W2003-01920-COA-R3-CV - Filed October 26, 2004
                                    ________________________


This is an age discrimination case. In October 2001, a thirty-seven year old woman interviewed for
a job position at the defendant’s Career Center. She was recommended for hire for the job.
Subsequently, the defendant Career Center began accepting applications for a second job position,
similar to the first. The forty-five year old aunt of the first applicant submitted an application for the
second job position. The second job position was never filled. The forty-five year old job applicant
filed a lawsuit, alleging that she was not hired due to age discrimination. The trial court granted
summary judgment in favor of the Career Center. We affirm, finding that the forty-five year old
applicant failed to establish a prima facie case of age discrimination.

                  Tenn. R. App. 3; Judgment of the Chancery Court Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J. and DAVID
R. FARMER , J., joined.

James L. Harris, Nashville, for the appellant Jean Ann Trudeau

Paul G. Summers and Brandy M. Gagliano, Nashville, for the appellee the Dept. Of Workforce
Development for the State of Tennessee


                                               OPINION

       Defendant/Appellee, the Department of Labor and Workforce for the State of Tennessee
(“Dept. of Labor”), has an office in Paris, Tennessee, commonly referred to as the “Career Center.”
The Dept. of Labor’s employees and other state and federal agencies provide employment-related
services to Tennessee residents at the Career Center. District Manager Charles Brown (“Brown”)
supervises the employees at the Career Center.
        In August 2001, the Career Center had a job opening for the position of Employment Security
Interviewer 1 (“ESI 1") as a temporary, part-time position created to assist with heavy workloads.
An ESI 1 works only when needed, no more than thirty hours a week, and must travel to other
Department of Labor offices if the need arises.

       In August 2001, Gala Matheny (“Matheny”), who was 37 years old, was informed by Mark
Chandler, a Dept. of Labor employee, that the Career Center was looking to fill the position of ESI
1. By October 2, 2001, Chandler had received Matheny’s completed application and submitted it
to Brown for his consideration. Two days later on October 4, 2001, Brown and another Dept. of
Labor employee, Edd Goodman, interviewed Matheny for the position of ESI 1. Later that day,
Brown recommended to his supervisor that Matheny be hired for the job.

        Shortly after Brown recommended Matheny, a second ESI 1 position became available at the
Career Center. To fill this second position, Brown contacted Rex Smith, an employee with the
federal Workforce Investment Act, and asked for his assistance in locating applicants for the
position. Smith contacted Plaintiff/Appellant Jean Ann Trudeau (“Trudeau”) and informed her that
the employment office was accepting applications for a part-time clerical position. Trudeau was
forty-five years old at the time, and is the aunt of Matheny, the thirty-seven year old applicant who
had been recommended for hire for the first position of ESI 1. Trudeau submitted an application to
Smith, dated October 17, 2001.

       In November 2001, Matheny was hired for the position of ESI 1 with the Dept. of Labor. The
second position of ESI 1 was never filled. Brown never conducted interviews for the second part-
time position and never recommended any of the applicants. Trudeau was never contacted about her
application.

        On December 26, 2001, Trudeau filed this age discrimination action against the defendant
Dept. of Labor under the Tennessee Human Rights Act (“THRA”). Trudeau claimed that her age,
forty-five years old, placed her in a protected class under the statute, and that she was not hired for
the position of ESI 1 because of her age.

        Discovery ensued. In his deposition, Brown testified that on October 4, 2001, Matheny was
the only applicant for the first job position of ESI 1. He testified that after Matheny was
recommended to be hired, another ESI 1 position became available at the Career Center. Brown
received eight applications, including Trudeau’s, but he never interviewed any of the applicants. The
position was never filled, because an anticipated increase in workload never materialized. In her
deposition, Trudeau maintained that she and Matheny applied for the same job, but had no
documentation or other evidence to support her belief.

        On April 28, 2003, the Dept. of Labor filed a motion for summary judgment. The Dept. of
Labor asserted that Trudeau could not establish a prima facie case of age discrimination because she
had no evidence that she was rejected in favor of a substantially younger person. The Dept. of Labor
asserted, inter alia, that Trudeau and Matheny applied for similar but different positions, and that


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the job Trudeau applied for was never filled. The Dept. of Labor contended that when Brown
interviewed and recommended Matheny for the position, Trudeau had not yet applied for the second
job position of ESI 1. Therefore, Brown was unable to even consider Trudeau for the position filled
by Matheny.

        In opposition to the Dept. of Labor’s motion for summary judgment, Trudeau asserted that
whether she applied for the same job that Matheny later received was a question of fact and
inappropriate for summary judgment. Trudeau maintained that the reason provided by the Dept. of
Labor for its hiring decision relied on Brown’s testimony and witness credibility should be reserved
for the trier of fact. Trudeau claimed that she did not need to provide evidence that the Dept. of
Labor’s reason for its hiring decision was mere pretext in order to overcome its motion for summary
judgment.

       The trial court found no genuine issue of material fact and granted summary judgment in
favor of the Dept. of Labor. From that order, Trudeau now appeals.

         Trudeau raises two issues on appeal. First, Trudeau asserts that she has satisfied three
elements of a prima facie age discrimination claim and the remaining element is a genuine issue of
material fact. Trudeau maintains that the evidence presented proves she is a member of a protected
class, she was qualified for the position in question, and was denied the position in favor of someone
eight years younger. Trudeau contends that the remaining element, whether she and Matheny applied
for the same position, is a genuine issue of material fact rendering the case inappropriate for
summary judgment. Second, Trudeau asserts that she is not required to prove that the Dept. of
Labor’s proffered reason for its hiring decision is mere pretext in order to overcome its motion for
summary judgment.

         We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate, 954 S.W.2d 722, 723 (Tenn. 1997). Summary judgment is
appropriate where “the pleadings, depositions, answers to interrogatories, and admission on file,
together with 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. We “must
view the evidence in the light most favorable to the nonmoving party,” giving that party the benefit
of all reasonable inferences. Warren, 954 S.W.2d at 723 (quoting Bain v. Wells, 936 S.W.2d 618,
622 (Tenn. 1997)).

       Once it is shown by the moving party that there is no genuine issue of material fact,
       the nonmoving party must then demonstrate, by affidavits or discovery materials, that
       there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
       provides that the nonmoving party cannot simply rely upon his pleadings but must
       set forth specific facts showing that there is a genuine issue of material fact for trial.
       Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).




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Unless the facts and legal conclusions drawn from the facts reasonably permit only one conclusion,
summary judgment is inappropriate. Carvel v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

        Under the THRA, section 4-21-401 of the Tennessee Code Annotated, “[i]t is a
discriminatory practice for an employer to . . . [f]ail or refuse to hire or discharge any person or
otherwise to discriminate against an individual with respect to compensation, terms, conditions or
privileges of employment because of such individual’s . . . age.” Tenn. Code Ann. § 4-21-401
(1998). The Tennessee statute notes that “[i]t is the purpose and intent of the general assembly by
this chapter to “[p]rovide for execution within Tennessee of the policies embodied in the federal
Civil Rights Acts of 1964, 1968, and 1972 and the Age Discrimination in Employment Act of 1967
(“ADEA”), as amended.” Tenn. Code Ann. § 4-21-101 (1998).

         Under these federal statutes, a plaintiff can establish a prima facie case of employment
discrimination by two methods. By the first method, the plaintiff provides direct, statistical, or
circumstantial evidence that the unlawful discrimination was the motivating factor in the employer’s
decision. Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir. 1983); see Stanojev v.
Ebasco Services, Inc., 643 F.2d 914, 920 (2d Cir. 1981). By the second method, the plaintiff relies
on the framework established by the United States Supreme Court in McDonnell Douglas v. Green,
411 U.S. 792 (1973). McDonnell Douglas addressed racial discrimination, but a modified version
of its framework has been applied to age discrimination claims brought under the ADEA and the
THRA. Moore v. Nashville Elec. Pwr. Bd., 72 S.W.3d 643, 651-52 (Tenn. Ct. App. 2001) (citing
Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1328-30 (6th Cir. 1994). Under this framework,
to establish a prima facie case of age discrimination for failure to hire, a plaintiff must prove that:
“(1) she was a member of the protected class” (at least 40 years old); “(2) she applied for and was
qualified for the position” in question; “(3) she was considered for and denied the position; and (4)
she was rejected in favor” of a substantially younger person with similar qualification. Bush v.
Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998); Betkerur v. Aultman Hospital Assoc., 78
F.3d 1079, 1095 (6th Cir. 1996). If, and only if, the plaintiff establishes a prima facie case, then the
defendant must proffer a legitimate, nondiscriminatory reason for its actions. If the defendant does
so, the plaintiff must rebut this with evidence that the asserted nondiscriminatory reason is mere
pretext for discrimination. Bush, 161 F.3d at 369.

        In this case, Trudeau does not purport to have any direct evidence to support her claim.
Instead, she relies on the McDonnell Douglas framework to establish her prima facie case of age
discrimination. Therefore, she maintains that she was rejected for the job position in question in
favor of a substantially younger person. Trudeau asserts that she, at forty-five years old, was rejected
in favor of her niece, Matheny, who was thirty-seven years old. However, it is undisputed that on
October 4, 2001, Matheny was interviewed and recommended for the position of ESI 1 with the
Dept. of Labor. Thereafter, the defendant began to seek applicants for a second job position of ESI
1. On October 17, 2001, Trudeau and seven other individuals submitted applications for the second
position, which was never filled. In November 2001, Matheny was offered the first position of ESI
1.



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        Based on these undisputed facts, it is clear that Matheny and Trudeau applied for different
jobs. Matheny was interviewed and recommended for hire for the first position before Trudeau even
applied for the second position. Trudeau alleges that she is similarly situated to Matheny, but
proffers no evidence that she and Matheny applied for the same job. In order to create a genuine
issue of fact to overcome the defendant’s motion for summary judgment, Trudeau must offer more
than conclusory allegations. This she has failed to do.

       Since Trudeau has failed to proffer evidence to establish a prima facie case of age
discrimination, we must conclude that the trial court did not err in granting summary judgment in
favor of the defendant Dept. of Labor.

      The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Jean
Ann Trudeau, and her surety, for which execution may issue, if necessary.



                                              __________________________________________
                                              HOLLY M. KIRBY, JUDGE




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