                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     July 11, 2001 Session

   JERRY MOORE, ET AL. v. NASHVILLE ELECTRIC POWER BOARD
                             (NES)

              A Direct Appeal from the Chancery Court for Davidson County
             No. 99-1042-I  The Honorable Irvin H. Kilcrease, Jr., Chancellor



                    No. M2000-03186-COA-R3-CV - Filed October 2, 2001


         Three civil service employees sued Nashville Electric Service and the individual members
of the civil service board primarily for violation of the age provision of the Tennessee Human Rights
Act resulting in their denial of promotions. The trial court granted summary judgment to defendant,
and plaintiffs appeal. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and ALAN E. HIGHERS, J., joined.

Thomas E. Stewart; Thurman T. McLean, Jr., Madison, For Appellants Jerry Moore, John Bruce,
and Charlie Spears

Parks T. Chastain, Nashville, For Appellees

                                            OPINION

       Plaintiffs, Jerry Moore, John Bruce, and Charlie Spears (collectively “Plaintiffs”) sued the
defendants, Metropolitan Government of Nashville and Davidson County, acting by and through the
Nashville Electric Service Power Board (“NES”), and Charles Cook, Sam Howard, Tom Jackson,
Betty Nixon, and William McDonald, individually, and as members of the National Electric Service
(NES) Civil Service and Pension Board, and Matthew P. Cordero, Jimmy Darylripple, Don
Kohanski, Kate Tallmadge, and Gary Murray, individually, for violation of the Tennessee Human
Rights Act, T.C.A. § 4-21-101 et seq., by discriminating against them because of their age and
thereby denying them promotions.
        Plaintiffs had been employees of Defendant Nashville Electric Service Power Board (“NES”)
for approximately 35, 33, and 35 years, respectively, at the time this action was filed.1 In these
actions, consolidated on appeal2, Plaintiffs allege that NES discriminated against them because of
their age. As NES employees, Plaintiffs are subject to the civil service rules regarding promotions
and suspensions.

       NES is governed entirely by the Nashville and Davidson County Charter (the “Charter”)
which, in turn, created the Electric Employees Civil Service and Pension Board (the “Board”). The
Charter gives the Board the authority to promulgate rules relating to NES employees, including rules
regarding discharge, compensation, and promotion. Under a revised certification process, the Board
rates NES employees by seniority and service, allocating “points” based upon certain criteria, with
a maximum of 81 points available. Under the service rating system, employees can obtain points
based upon their performance evaluations, with a maximum of 30 points awarded for “outstanding”
performance (a score of 0 points is given for “marginal” or “unacceptable” performance). In
addition, employees earn 1 point per year of employment for seniority, up to a maximum of 30
points. An employee may also earn up to a total of 21 points for additional related experience,
education, training, licenses and a good safety record.

        From the record, it appears the point system is used to rank employees who wish to be
considered for promotions. Depending upon the number of employees eligible for a particular
promotion, the Secretary of the Board submits between 3 and 10 names for promotion consideration.
After the Secretary submits the names, the supervisor making the final decision as to promotion takes
into consideration the employee’s ranking on the list, as well as the employee’s personnel record.

        On April 12, 1999, Mr. Moore filed a complaint against defendants, alleging, inter alia,
hostile work environment, age discrimination, retaliation, harassment, and denial of due process and
employment property rights. Specifically, Mr. Moore alleges that he was passed over for promotion
three times: in March of 1995, in July of 1998, and in February of 1999. Mr. Moore also alleges that
he was wrongfully suspended in September of 1998.

        On February 7, 2000, Defendants filed a Motion for Summary Judgment on all claims Mr.
Moore made in his Complaint. In its Order Granting Defendant’s Motion for Summary Judgment
and Denying Plaintiff’s Motion for Partial Summary Judgment dated October 30, 2000, the trial
court found that Mr. Moore had failed to exhaust his administrative remedies prior to seeking
judicial relief and that defendants were entitled to judgment as a matter of law “on all issues raised
by the Motion for Summary Judgment.” Mr. Moore appeals from this Order.




         1
          The record ind icates that M r. Moo re did not w ork for NES during the period of December, 1972, through
January, 1974 but that, other than this brief hiatus, Mr. Moore has been an NES employee since 1964.

         2
          Although only Mr. M oore sub mitted an ap pellate brief in this matter, Mr. Moore filed an individual notice of
appeal to this court, and M r. Bruce a nd Mr. S pears filed a j oint notice o f appeal.

                                                          -2-
         Similarly, on August 17, 1999, Plaintiffs Bruce and Spears filed a separate action against
Defendants, also alleging hostile work environment, age discrimination, retaliation, harassment, and
denial of due process and employment property rights. Although the Bruce/Spears Complaint is
unclear on this point, it appears both Mr. Bruce and Mr. Spears allege they were wrongfully passed
over for the same promotions four times: in October of 1998; in December of 1998; in January of
1999; and in May of 1999.3 In light of the trial court’s ruling in the Moore matter, the parties agreed
to waive oral argument on Defendants’ Motion for Summary Judgment and Plaintiffs’ Motion for
Partial Summary Judgment, and allowed the trial court to rule based on the memoranda and materials
submitted by the parties. On December 7, 2000, the trial court entered an Order, substantially similar
to that in the Moore case, granting Defendants’ Motion for Summary Judgment in the Bruce/Spears
case. Plaintiffs Bruce and Spears appeal from this Order.

        The issues on appeal are: (1) Whether a civil service employee must first exhaust his
administrative remedies by following grievance procedures set out in the civil service rules before
bringing an action under the Tennessee Human Rights Act; (2) Whether Plaintiffs failed to prove that
discrimination was the reason they did not receive promotions and, in the case of Plaintiff Moore,
that discrimination was the reason for his suspension; (3) Whether Plaintiff Moore’s claims dating
from 1995 and 1998 are barred by the applicable statute of limitations; (4) Whether individual NES
employees and Board Members affirmatively aided and abetted discrimination by preventing
Plaintiffs from taking remedial action; and (5) Whether the NES violated Plaintiffs’ due process
rights. We affirm the trial court’s Orders, although for reasons different from those upon which the
trial court relied.

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:

                   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.


         3
           The Complaint does not enumerate any of the incidents complained of by either Mr. Bruce or Mr. Spears, but
Plaintiffs’ Memo randum o f Law in Sup port of Pla intiffs’ Motion fo r Partial Sum mary Judg ment indica tes that Plaintiffs
were each denied promotion four (4) time s.

                                                            -3-
Id. at 210-11 (citations omitted).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

Exhaustion of Remedies

        The first, and threshold issue in this case is whether an employee’s civil service status
requires him to first exhaust his administrative remedies under civil service rules before bringing a
direct action in chancery or circuit court under the Tennessee Human Rights Act (the “THRA”). We
hold that it does not.

        The Tennessee Human Rights Act was enacted to “[s]afeguard all individuals within the state
from discrimination because of race, creed, color, religion, sex, age or national origin in connection
with employment.” T.C.A. § 4-21-101(3) (1998). The Act applies to all Tennessee employers,
including private employers with eight or more employees, as well as state and local government
employers. See T.C.A. § 4-21-102(4). The THRA forces individuals filing under the Act to pursue
either an administrative path and, if they wish, seek judicial review of the administrative decision,
or file a direct action in circuit or chancery court. See T.C.A. 4-21-307; Hoge v. Roy H. Park
Broadcasting of Tenn., Inc., 673 S.W.2d 157, 158 (Tenn. Ct. App. 1984).

        The administrative path under the THRA involves review of discrimination claims by the
Tennessee Human Rights Commission (the “Commission”). See T.C.A. § 4-21-302. If a THRA
claimant follows the administrative path, he or she may only challenge the Commission’s decision
in court after the administrative proceedings have been concluded. See T.C.A. § 4-21-307(a);
Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1485 (6th Cir. 1989). The administrative
procedure available under the THRA is not the same administrative procedure Defendants claim
Plaintiffs must first exhaust before bringing their THRA action.4

       In this case, NES alleges that Plaintiffs were bound to exhaust their administrative remedies
under civil service rules NES has adopted pursuant to the Nashville and Davidson County Charter.
We disagree. While Plaintiffs were clearly entitled to pursue remedies under the civil service rules,
the THRA provides them with another, independent right of redress for any perceived wrongs


         4
          Defendants have argued that some of Plaintiff Moore’s claims are barred because Mr. Moore instituted
administrative proceed ings under the civil service rules. In support o f its position, NE S cites the case of Pucke tt v.
Tennessee Eastman Co., 889 F.2d 1481 (6th Cir. 1989). Ho wever, Pucke tt only addressed the issue of exhaustion of
the administrative remedy available under the THRA. Since NES has cited no other cases in support of this position,
we find this argum ent to be witho ut merit.

                                                           -4-
committed by Defendants. The Act’s protection is available to “all individuals” within the State of
Tennessee. See T.C.A. § 4-21-101(3).

        Nor do we find language of limitation in the Act which would lead us to believe civil service
employees should be treated differently from other employees. Defendants have not brought our
attention to any such language, instead citing several cases decided before the passage of the THRA,
and an unpublished case, Haynes v. Knoxville Utilities Bd., No. 03A01-9209-CH-362, 1993 WL
104639 (Tenn. Ct. App. 1992), in which this Court held that a civil service employee was required
to exhaust his remedies before seeking judicial redress for his employer’s unfavorable employment
action. See id. at *1.

         Although, on its face, the Haynes case appears to apply to the case at bar, we believe it is
both easily and clearly distinguishable. First, the two civil service employees who sought judicial
relief voluntarily non-suited their age-discrimination claims and age-discrimination was not an issue
before the Civil Service Merit Board, so the issue of application of the THRA to those claims was
not before this Court. Id. at *3. Secondly, the Haynes court noted that the remaining claims,
involving due process under the applicable civil service rules, were “personnel issues that fall
squarely within the plaintiff’s civil service protection.” Id. The heart of Plaintiffs’ claims in this
case is that the NES discriminated against them because of their age. Such discrimination is not an
issue which we see as inherently within the protection of the civil service.

       As to cases decided before the passage of the THRA, we believe these cases are no longer
applicable. The list of remedies the Act provides in T.C.A. § 4-21-306 is extensive.5 This full

       5
           That section provid es:

       § 4-21-306. Remedies
                  (a) Affirmative action ordered under this section may include, but it is not limited to:
                  (1) Hiring, reinstatement or upgrading of employe es with or witho ut back pa y. Interim
       earnings or amou nts earnable with reasonable diligence by the p erson or persons d iscriminated against
       shall operate to reduce the back pay otherwise allowable;
                  (2) Admission or restoratio n of individuals to union membership, admission to, or
       participation in, a guidance program, apprenticeship, training program, on-the-job training program,
       or other occupational training or retraining program, and the utilization of objective criteria in the
       admission of individuals to such p rograms;
                  (3) Adm ission of individ uals to a place of public ac commo dation, reso rt or amusem ent;
                  (4) The extension to all individuals of the full and eq ual enjoyment of the advan tages,
       facilities, privileges a nd services o f the respond ent;
                  (5) Reporting as to the manner of compliance;
                  (6) Posting notices in conspicuous places in the respondent's place of business in the form
       prescribe d by the com mission and inclusion of suc h notices in ad vertising mater ial;
                  (7) Payment to the complainant of damages for an injury, including humiliation and
       embarra ssment, caused by the discriminatory practice, and cost, including a reasonable attorney's fee;
                  (8) Such other remedies as shall be necessary and proper to eliminate all the discrimination
       identified by the evidence submitted at the hearing or in the record; and
                  (9) In cases involving discriminatory housing practices only, payment by the respondent of
                                                                                                           (continued ...)

                                                         -5-
measure of damages has been, and continues to be, one of the most important reasons courts have
refused to bar actions under the THRA when an administrative procedure and remedy were available
to a plaintiff alleging discrimination. For example, in Harmon v. Moore’s Quality Snack Foods,
Inc., 815 S.W.2d 519 (Tenn. Ct. App. 1991), appeal denied (July 29, 1991), this Court held that the
exclusive remedy provision of the Tennessee Workers’ Compensation Act (the “TWCA”) did not
bar a THRA claim or any damages under the Act. See id. at 520. The Harmon court based its
reasoning in part upon a belief that the plaintiff’s injuries would be more fully compensated under
the Tennessee Human Rights Act. See id. at 521 (noting that back pay was limited to two-thirds of
the employee’s wages under the TWCA, whereas the THRA provided the employee with a full
measure of back pay). Similarly, in 1999, the Tennessee Supreme Court noted that the THRA was
designed to provide victims of discrimination with a “full recovery.” Anderson v. Save-A-Lot, Ltd.,
989 S.W. 2d 277, 289, n.10 (Tenn. 1999). While the full extent of Plaintiffs’ remedies available
under the civil service rules is unclear on this record, when viewed in the light most favorable to
Plaintiffs, we cannot say the civil service remedies are more extensive or even coextensive with
those provided in the THRA.

        For these reasons, we hold that a civil service employee may bring an action under the THRA
without first exhausting his remedies under civil service rules. Further, we hold that there is no
requirement that, once an employee has chosen to institute administrative proceedings under the civil
service rules, he must see those proceedings through to their conclusion before bringing an action
under the THRA.

Failure to Promote Claims

        This Court has construed the Tennessee Human Rights Act under the framework of the
federal statutes upon which it was patterned, such as the Age Discrimination in Employment Act
(“ADEA”). See Bruce v. Western Auto Supply Co., 669 S.W.2d 95, 97 (Tenn. Ct. App. 1984).
Under the ADEA, as well as other federal anti-discrimination statutes, a plaintiff may assert claims

       5
        (...continued)
       a civil penalty:
                 (A) In an amoun t not exceed ing ten thousan d dollars ($ 10,000 ) if the respondent has not been
       adjudged to ha ve committed any prio r unlawful discriminatory housing practices;
                 (B) In an amount not exceeding twenty-five thousand dollars ($25,000) if the respondent has
       been adjudged to have committed one (1) other unlawful discriminatory housing practice during the
       five-year period ending on the date of the filing of the complaint; or
                 (C) In an amou nt not excee ding fifty thousand dollars ($50,000) if the respondent has been
       adjudged to have committed two (2) or more unlawful discriminatory housing practices during the
       seven-year p eriod end ing on the da te of the filing of the co mplaint.
       If the acts constituting the discriminatory housing practice that is the object of the complaint are
       committe d by the same natural perso n who has b een previo usly adjudg ed to have committed acts
       constituting an unlawful disc riminatory ho using practice , then the civil pen alties set forth in
       subdivisions (a)(9)(B) and (C) may be imposed without regard to the period of time within which any
       subsequent discriminatory housing practice occurred.
                 (b) The commission may publish, or cause to be published, the names of persons who have
       been determined to have engaged in a discriminatory practice.

                                                          -6-
of “disparate treatment” or “disparate impact” discrimination. See 45C Am. Jur. 2d Job
Discrimination § 2703 (1993). A “disparate treatment” case involves an employer who treats
individuals from a protected group differently and less-favorably than other individuals. See id. A
“disparate impact” case is one in which a facially-neutral employment policy, such as an applicant
testing procedure or height and weight requirement, has the effect of treating individuals in the
protected class less favorably. See id.

       A disparate impact action alleging age discrimination is generally established by: (1) alleging
systemic discrimination; and (2) presenting statistical evidence of discrimination. See id. In
response to such evidence, the employer may directly challenge the plaintiff’s proffered statistical
evidence, or demonstrate that the employment policy being challenged arises out of a “business
necessity.” See id. No showing of discriminatory motivation is required for purposes of disparate
impact theory. See id.

        A disparate treatment claim, on the other hand, does require a showing of intent to
discriminate. See id. Recognizing that direct evidence of discriminatory animus is often hard to
produce, the United States Supreme Court adopted a four-part, burden-shifting analysis in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which allows a discrimination plaintiff
to prove motivation with indirect or circumstantial evidence. Although McDonnell Douglas dealt
with race discrimination, in a case involving both the THRA and ADEA, the Sixth Circuit Court of
Appeals applied the same analysis to age discrimination claims6:

                           In evaluating age-discrimination claims, this court applies the
                  four-step "McDonnell Douglas Test." Under this test, to establish a
                  prima facie case of age discrimination, the plaintiff bears the initial
                  burden to prove by a preponderance of the evidence that: (1) he was
                  at least 40 years of age at the time of the alleged discrimination ("a
                  member of a protected class"); (2) he was subjected to adverse
                  employment action; (3) he was qualified for the position; and (4) he
                  was replaced by a younger person.

                          Once the plaintiff proves his prima facie case, the burden
                  shifts to the employer to "articulate some legitimate non-
                  discriminatory reason for the employee's discharge." . . . If the
                  employer meets the burden of articulation, then the burden shifts back
                  to the plaintiff to prove by a preponderance of the evidence that the
                  reason proffered by the employer was not its true reason but merely
                  a pretext for discrimination.



         6
           W e note that, although the basic McDonnell Douglas framework applies to the case at bar, in the context of
a suit alleging failure to promote based upon age discrimination, a plaintiff would have to show that the employee who
received th e promo tion was youn ger than the p laintiff.

                                                         -7-
                       A plaintiff can prove pretext "by showing that the Company's
               reasons have no basis in fact, or if they have a basis in fact, by
               showing that they were not really factors motivating the discharge, or,
               if they were factors, by showing that they were jointly insufficient to
               motivate the discharge."

Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 29-30 (6th Cir. 1994) (citations omitted). Contrary
to defendants’ assertions in this case, an ADEA plaintiff is not required to show that the individual
promoted was someone outside the protected class (i.e., less than 40 years of age), but only that the
individual was younger than the plaintiff. See id.

        Although a plaintiff may assert a claim under either disparate treatment, disparate impact,
or both theories of discrimination, courts have held that it is unfair to allow a plaintiff to present a
new theory on appeal. See 45C Am. Jur. 2d Job Discrimination § 2704. In the case at bar, Plaintiffs’
do not indicate upon which theory they rely. However, given the Plaintiffs’ and Defendants’ reliance
on the McDonnell Douglas framework cited above, we must assume they are alleging disparate
treatment based upon age. It is under this framework that defendants have responded to Plaintiffs’
allegations, and it is under this framework that we analyze each of Plaintiffs’ claims of
discrimination.

        In his appellate brief, counsel for Mr. Moore argues that “the contention of the Appellees that
there exists in the record legitimate non discriminatory reasons for the adverse job actions . . . is an
issue of a material fact which is not appropriate for summary judgment.” We take this to mean that
when Defendants rebutted Plaintiffs’ prima facie cases of discrimination under the McDonnell
Douglas test cited above, a genuine issue of material fact was created which would preclude
summary judgment in this case. This is a misinterpretation of the McDonnell Douglas burden-
shifting analysis.

         In order to survive summary judgment under the McDonnell Douglas analysis, a plaintiff
must offer some evidence to prove that the employer’s legitimate, non-discriminatory reasons are
pretext for discrimination. See Cooley, 25 F.3d at 30. In a case applying the McDonnell Douglas
test to both race and age discrimination claims, the Sixth Circuit Court of Appeals wrote:

                It is now quite well-established that, in order to withstand a motion
                for summary judgment, the party opposing the motion must present
                “affirmative evidence” to support his/her position: a mere “scintilla
                of evidence” is insufficient. Anderson v. Liberty Lobby, [477 U.S.
                242, 247-48 (1986)]; Street v. J.C. Bradford & Co., [886 F.2d 1472,
                1479 (6th Cir. 1989)].

Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992).

Mr. Moore’s Claims


                                                  -8-
        Regarding Mr. Moore’s 1995 failure to promote incident, NES has offered evidence in the
form of an affidavit by Gary Murray, a supervisor in the department in which Mr. Moore works. Mr.
Murray indicates that Mr. Moore was rated number 7 of 18 applicants for the job in question, but that
the job was given to the number one candidate on the list.

        To rebut NES’s proffered, non-discriminatory reason for failing to promote him, Mr. Moore
has offered his own deposition testimony and a copy of the administrative law judge’s Findings of
Fact and Conclusions of law in McLaurine v. Nashville Electric Service, Case No. 97G-6-93-15-M,
Docket No. 97-002 (January 6, 1998), a case heard before the Electric Employees’ Civil Service and
Pension Board. Judge Russell’s findings, dated January 6, 1998, indicate that the old NES policy
regarding promotions failed to give adequate weight to seniority.

        This evidence is insufficient to rebut NES’ non-discriminatory explanation for several
reasons. First, although Mr. Moore testified that he failed to receive the 1995 promotion because
he had filed numerous grievances on the part of NES employees, none of the grievances had anything
to do with age or any other type of discrimination. As we note below regarding the Plaintiffs’
general claims of retaliation, only certain retaliatory conduct violates the THRA. Filing grievances
which fall within the category of general employment issues is not protected conduct under the Act.

        Secondly, the administrative law judge did not make a finding of discrimination, but rather
determined that the Charter required “service ratings and seniority” to constitute the “principal
factors” in employment decisions under the civil service rules. The judge found that the policy in
effect at that time did not comply with the Charter’s “principal factors” requirement. While the
judge’s findings might be relevant for purposes of a disparate impact claim, under disparate
treatment theory, Mr. Moore would still need to show causation: that, but for the discriminatory
policy, he would have been higher up on the list of candidates and would have received the
promotion. See generally Reed v. Alamo Rent-a-car, Inc., 4 S.W.3d 677, 684-85 (Tenn. Ct. App.
1999) (requiring proof of causation in action for retaliation discharge). See also Sasser v. Averitt
Express, Inc., 839 S.W.2d 422, 426 (Tenn. Ct. App. 1992) . He has presented no evidence to this
effect. For these reasons, we agree with the trial court that there is no genuine issue of material fact
as to the 1995 failure to promote incident.

       Similarly, the trial court properly dismissed Mr. Moore’s 1998 failure to promote claim.
Under the new evaluation policy the NES instituted after McLaurine, NES ranked Mr. Moore
number 1 on the list of four candidates for promotion to Meter Service Foreman. NES presented
evidence indicating that Mr. Moore did not get the promotion because he had been reprimanded in
1997 for violating the “mutual respect policy”, had a long history of abusing sick days, had been
counseled several times regarding his performance and the need for him to improve his quantity of
acceptable work, and that he had been counseled regarding his need for improvement in the area of
dependability.

       In response, Mr. Moore testified in deposition that the candidate who received the promotion,
Steve Tucker, should not have been promoted because he was younger, worked in another division,


                                                  -9-
and did not “know how the field work went on.” Other than this conclusory statement, however, Mr.
Moore has presented no evidence that Mr. Tucker was unqualified for the job. Neither has Mr.
Moore presented evidence to contradict NES’ proffered reasons for denying Mr. Moore the
promotion. Mr. Moore also indicated that he believed Mr. Tucker got the promotion because Mr.
Tucker’s father used to work at NES, and because Mr. Tucker played on the company softball and
golf teams. While this evidence may, if taken as true, show that NES engaged in political favoritism,
it is irrelevant to proving a case of age discrimination.

        The final failure to promote incident involving Mr. Moore occurred in 1999. Here, NES has
presented evidence that Mr. Moore was ranked third on the promotions list. Mr. Murray’s affidavit
indicates that Max Ragsdale, who was ranked second on the list, received the promotion instead of
Mr. Moore. In the affidavit, Mr. Murray explains that Mr. Moore’s September 3, 1998 suspension
for “conduct unbecoming of an NES employee” was a major factor in Mr. Moore’s failure to be
promoted.

        Mr. Moore claims that, although Mr. Ragsdale had 30 years seniority, Mr. Moore had more
than 30 years at that point in time and, therefore, should have received the promotion in question.
However, Mr. Moore has failed to show that the few years’ difference in seniority resulted in his
failure to win the promotion. Mr. Moore also claims the entire incident that led to his suspension
was in retaliation for his filing a grievance against a coworker. In spite of this claim, Mr. Moore has
presented no evidence other than his own testimony to refute the events which led to his suspension.

      For these reasons, we hold that the trial court properly granted NES summary judgment on
Mr. Moore’s failure to promote claims.

Mr. Spears’ Claims

        In response to Mr. Spears’ prima facie discrimination case, NES has produced affidavits from
Melvin Bess and Ray Clark. Mr. Bess, the Manager of the Transmission and Distribution Operations
Department, interviewed Mr. Spears regarding the October 1998, December 1998, and May 1999
promotions. Mr. Bess claims he based his decision not to give Mr. Spears the promotions in
question because he “did not believe Spears would [be] effective as a member of management.” Mr.
Bess also indicated that, from Mr. Spears’ interviews for the open positions, as well as Mr. Spears’
references, he did not believe Mr. Spears would be able to “effectively communicate management
decisions to his subordinates in a manner which would help to gain understanding and acceptance
of those decisions.”

        Ray Clark’s affidavit indicates that, as Manager of the Transmission and Distribution
Operations Department, he promoted employees from the January 1999 and May 1999 certification
lists. Although he, like Melvin Bess, indicated he was aware of Mr. Spears “good” and “very good”
performance ratings, he chose to promote other employees instead of Mr. Spears because he felt the
other employees were better qualified for the positions. Specifically, Mr. Clark says that Mr. Spears
“failed to follow NES guidelines imposed on all supervisors, which require fair evaluations of


                                                 -10-
employees,” noting that Spears “insisted on giving all crewmembers ‘excellent’ performance
evaluations.” Mr. Clark also indicated that, having seen Mr. Spears supervise employees, he did not
believe Mr. Spears functioned well in a supervisory capacity.

        Mr. Spears has presented no evidence in response to these non-discriminatory reasons. He,
like Mr. Moore, has failed to show how NES’ promotion policy influenced NES’ decision not to
promote him on the four occasions in question. When asked why he believed he did not receive the
promotions, Mr. Spears testified that management told him he wasn’t a “team player,” that there was
an incident on his record in which his supervisors claimed he did not let them know where he was,
and that his supervisors penalized him for rating the men he supervised “too high” on their
performance reviews. If anything, Mr. Spears’ testimony bolsters NES’ reasoning for not giving him
the promotions. Although Mr. Spears disputes the validity of his supervisors’ claims, there is
nothing in the record aside from his deposition testimony which supports his version of what
happened. Given the “affirmative evidence” standard required to survive summary judgment under
the McDonnell Douglas burden-shifting analysis, we have no choice but to affirm the trial court’s
ruling as to Mr. Spears’ discrimination claims.

Mr. Bruce’s Claims

         The NES also presented affidavits from Melvin Bess and Ray Clark in support of its position
that it did not discriminate against Mr. Bruce based upon age. Mr. Bess cites Mr. Bruce’s “bad
attitude” during one of the interviews he conducted as evidence of Mr. Bruce’s “negative attitude
toward management.” Mr. Bess claims he based his promotion decisions upon his knowledge of the
candidates’ supervisory experience, or lack thereof, and upon the interviews and references of the
candidates. Mr. Clark cited Mr. Bruce’s abuse of overtime and poor safety record as some of the
factors which influenced the promotion decisions.

        Mr. Bruce, like the other Plaintiffs in this case, presented no evidence other than his own
testimony to refute NES’ proffered non-discriminatory reasons for failing to promote him. Mr.
Bruce mentions that one of the candidates promoted was 52 or 53 years old, but does not indicate,
in testimony or by affidavit, whether the candidate had more or less seniority than he at the time of
the promotion. He alleges that NES wanted to thin out the ranks of the older NES employees, but
when asked in his deposition if he had any evidence of this practice, he responded that he did not.
Again, given the burden of proof required in McDonnell Douglas, we must concur with the trial
court’s Order granting summary judgment on all Mr. Bruce’s claims.

Retaliation Claims

       Mr. Moore alleges in his Complaint:

                     8. That, in general, the Plaintiff was employed by the
               Nashville Electric Service, as Meter Service Technician, and was
               wrongfully harassed, discriminated against because of age, denied


                                                -11-
                equal protection under the law, denied equal rights, discriminated
                against by age and the seniority system, was subject to retaliation,
                harassment, a hostile work environment, and was denied his due
                process of law in regard to his employment “property rights.”

The Spears/Bruce Complaint contains substantially the same language.

       It is unclear from the above language if Plaintiffs’ claims are for retaliation under the
Tennessee Human Rights Act, or for exercising their rights to file grievances under the civil service
rules. However, since the trial court granted summary judgment on all Plaintiffs’ claims, we will
address the Plaintiffs’ general claims of retaliation, as well as the suspension incident involving Mr.
Moore.

       The THRA provides that it is a “discriminatory practice” to:

                Retaliate or discriminate in any manner against a person because such
                person has opposed a practice declared discriminatory by this chapter
                or because such person has made a charge, filed a complaint, testified,
                assisted or participated in any manner in any investigation,
                proceeding or hearing under this chapter. . .

T.C.A. § 4-21-301(1) (emphasis added). Here, Plaintiffs have not alleged retaliation based upon
their exercise of any of the activities protected under the Act. Mr. Moore has alleged retaliation for
filing grievances which he claims culminated in his suspension in 1998, however, the grievances he
refers to arose from work-related issues such as requiring employees to obtain special driver’s
licenses and general job qualifications. These general grievances which are not related to
discrimination cannot be the basis of a retaliation claim under the THRA.

         The 1998 incident which resulted in Mr. Moore’s suspension appears to have been triggered
by Mr. Moore’s refusal to abide by his supervisor’s request that Mr. Moore and his coworkers delay
their dinner break. When Mr. Moore’s supervisor chastised him for not following his instructions
regarding dinner, Mr. Moore brought several “counter-grievances” against the supervisor, alleging
the supervisor slept on the job and babysat his grandchild on company premises. Mr. Moore testified
that he handed the counter-grievances to the supervisor, who got very angry and became “[u]nglued.”
He alleges the supervisor threw the grievance papers at him twice, which caused Mr. Moore to suffer
an “anxiety attack.” Mr. Moore testified that, “I was standing there in front of him, shaking. My arm
was hurting. I was holding my right arm. I did have a closed fist right here . . . but I never swung
at him.” Even taken in the light most favorable to Mr. Moore, we find nothing in his story which
would indicate that Mr. Moore was suspended for exercising his rights under the THRA. If anything,
it appears that the incident involved the exercise of Mr. Moore’s rights under civil service rules.

        To the extent that any of Plaintiffs’ claims are based upon retaliation for the exercise of their
rights under the applicable civil service rules, those claims are not properly before this court, since


                                                  -12-
they are clearly matters within the particular expertise of the Civil Service and Pension Board. See
generally Haynes, No. 03A01-9209-CH-362, 1993 WL 104639, at *3. For these reasons, we hold
Plaintiffs’ retaliation claims were properly dismissed.

        In sum, Plaintiffs have failed to offer any “affirmative evidence” in response to NES’
articulated, non-discriminatory reasons for the adverse job actions in question. Other than
unsubstantiated allegations of coverups7, nepotism and political favoritism, Plaintiffs’ only evidence
of age discrimination appears to be NES’ promotion policy itself, which caps seniority at 30 years,
or 30 “points.” Even if we assume that NES’ policy is discriminatory, we find no evidence in the
record that Plaintiffs would have received the promotions if they had been given points equal to their
actual years of service. Plaintiffs have presented no evidence comparing their performance and
seniority ratings to the employees who received the promotions in question. Nor have Plaintiffs
attempted to directly rebut NES’ proffered explanations as to why Plaintiffs did not get promoted.
Without any evidence to support their claims, we are constrained to hold that none of the Plaintiffs
has carried his burden of proof of discrimination under McDonnell Douglas.

Statute of Limitations

       Since, as we have discussed above, Mr. Moore failed to prove discrimination in his 1995 and
1998 claims, this issue is pretermitted on appeal.

Remaining Claims

        Plaintiffs have alleged that individual board members and supervisors of the NES are liable
for aiding and abetting discrimination which resulted in their failure to be promoted and in Mr.
Moore’s suspension. Since we have held that the trial court properly granted summary judgment on
these claims, these allegations are without merit.

       Plaintiffs have also alleged that the certification process does not comply with the
Metropolitan Nashville, Davidson County Charter. As discussed above, since Plaintiffs have not
brought a claim of disparate treatment based upon the certification process, we need not reach this
claim.

        Finally, Plaintiffs allege that NES violated their due process rights under the Tennessee and
United States Constitutions. As we understand it, Plaintiffs are alleging violations of due process
rights both in connection with NES’ failure to follow the Charter’s provisions, as well as defendants’
failure to follow proper procedure before Mr. Moore was suspended in 1998. To the extent that
defendants failed to follow the Charter’s provisions or failed afford Plaintiffs due process due under


         7
          Plaintiff Bruce claims NES covered up an incident involvin g an alcohol-related accident by one of the
individuals who receiv ed a pro motion. H owever, o ther than M r. Bruce’s alle gation in his deposition testimony and Mr.
Spear’s testimony that he had heard about the incident as “hearsay”, there is no evidence in the record in any form to back
up Mr. Bru ce’s claims.

                                                          -13-
the civil service rules, summary judgment was also properly granted. In order to pursue such claims,
Plaintiffs would have been required to proceed under the Charter and the applicable civil service
rules. Only after they exhausted the remedies available to them under the rules and the Charter
would they be able to seek a judicial remedy.

       For the foregoing reasons, we affirm the order of the trial court granting Defendants summary
judgment as to all of Plaintiffs’ claims. This case is remanded to the trial court for such further
proceedings as necessary. Costs of this appeal are assessed to the Appellants, Plaintiffs Jerry Moore,
John Bruce, and Charlie Spears.

                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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