                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 9, 2008 Session

          ERICA LIN v. THE METROPOLITAN GOVERNMENT OF
                 NASHVILLE AND DAVIDSON COUNTY

                   Appeal from the Chancery Court for Davidson County
                    No. 05-2605-IV Richard H. Dinkins, Chancellor



                   No. M2008-00212-COA-R3-CV - Filed October 10, 2008



Erica Lin (“Plaintiff”) began working as a teacher for The Metropolitan Government of Nashville
and Davidson County (“Defendant”) in 2002. During her employment, Plaintiff complained of
actions which she believed to be discriminatory based on her race and alleged disability. Defendant
sent Plaintiff a letter on April 1, 2006, informing her that her employment was being terminated
effective May 26, 2006. Plaintiff eventually abandoned her race and disability discrimination claims
and proceeded only on a claim for retaliatory discharge. Defendant filed a motion for summary
judgment claiming the undisputed material facts established that Plaintiff was terminated for poor
work performance. The Trial Court granted the motion for summary judgment, and Plaintiff appeals.
We conclude that Defendant’s motion for summary judgment neither negated an essential element
of Plaintiff’s claim nor conclusively established an affirmative defense. Therefore, we vacate the
order granting Defendant’s motion for summary judgment and remand for further proceedings.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, SP . J., joined.


James L. Harris, Nashville, Tennessee, for the Appellant, Erica Lin.


J. Brooks Fox and Elizabeth A. Sanders, Nashville, Tennessee, for the Appellee, The Metropolitan
Government of Nashville and Davidson County.
                                             OPINION

                                            Background

                 This case began as a race and disability discrimination lawsuit and ended with only
a claim for retaliatory discharge being pursued. In 2002, Plaintiff began employment with Defendant
as a pre-kindergarten teacher. Approximately three years later and while still employed by
Defendant, Plaintiff filed this lawsuit alleging that she was discriminated against on the basis of her
race (Asian) and because she was disabled with “psychiatric problems.” Plaintiff also claimed that
she was retaliated against after making complaints of illegal discrimination. More specifically,
Plaintiff claimed that during the course of her employment, she was scrutinized more closely than
similarly situated non-Asian employees and, in particular, African American employees.

                In her complaint, Plaintiff detailed an event which allegedly occurred on August 22,
2005, when she was bitten “very badly” by her dog and scheduled a doctor appointment for 3:00 p.m.
Plaintiff claimed the school principal, Mr. Ross, refused to let her leave school at 2:45 p.m. so she
could make it to her appointment on time. Instead, according to Plaintiff, Mr. Ross made her stay
at the school until 3:10 p.m., even though Plaintiff’s students had been dismissed from school at 2:00
p.m. Plaintiff claimed that approximately one week later, a teacher, who was African American, fell
in the hallway at the school. Not only did Mr. Ross allow that teacher to leave and go to the hospital,
but Mr. Ross went so far as to drive that employee to the hospital himself. Plaintiff maintains that
she called the Board of Education to complain about the alleged disparate treatment and, thereafter,
Mr. Ross began attending her classes and monitoring her while she worked.

              On April 1, 2006, Defendant sent Plaintiff a letter informing her that her employment
would not be renewed. According to this letter:

               This constitutes official notification that under the terms of Tennessee
               Code Annotated 49-2-302(b)(1)(EE), the Director of Schools has
               approved your non-renewal for the 2006-2007 school year. Your
               employment with Metropolitan Nashville Public Schools will be
               terminated effective May 26, 2006.

After receiving this letter, Plaintiff amended her complaint to assert a retaliatory discharge claim.
Plaintiff claimed that her employment was terminated because she had engaged in protected activity
and that her termination violated the anti-retaliation provisions contained in the Tennessee Human
Rights Act, Tenn. Code Ann. § 4-21-301(1) (2005).

              Defendant responded to the original complaint and the amended complaint, generally
denying the pertinent allegations contained therein. Defendant asserted that there were legitimate
non-discriminatory reasons for all of the actions taken with respect to Plaintiff’s employment.




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             Soon after answering the amended complaint, Defendant filed a motion for summary
judgment. The crux of the motion was that:

               [Plaintiff’s] continued job performance problems over the course of
               four school-years of not preparing lesson plans, a lack of a
               fundamental understanding of the central concepts of what she was
               teaching, and not utilizing key components of the required curriculum
               all were the basis for her termination, and [Plaintiff] cannot show that
               these reasons (which are well documented throughout her
               employment with [Defendant]) are merely “pretextual.”

                Attached as exhibits to Defendant’s motion for summary judgment were excerpts
from Plaintiff’s deposition as well as her performance evaluations that were conducted throughout
the course of her employment with Defendant. These exhibits show that Defendant had problems
with Plaintiff’s performance almost from the outset of her employment. However, noticeably
lacking from Defendant’s motion for summary judgment is an affidavit or any sworn testimony from
a decision-maker that Plaintiff’s poor performance was the actual reason or basis for her termination.

                Defendant’s motion for summary judgment was scheduled for a hearing. At the
beginning of that hearing, Plaintiff’s counsel announced that Plaintiff was abandoning her race and
disability discrimination claims and would proceed only on the retaliatory discharge claim.
Following the hearing, the Trial Court entered an order granting Defendant’s motion for summary
judgment and dismissing Plaintiff’s retaliation claim. The Trial Court’s order states:

               The Court hereby finds that, with regards to the Plaintiff’s claim of
               retaliation under the Tennessee Human Rights Act, the Metropolitan
               Government has articulated a properly-supported legitimate, non-
               discriminatory reason for Plaintiff’s employment termination
               (namely, Plaintiff’s alleged performance issues over the course of
               four school-years, involving the preparation of lesson plans and an
               alleged failure to utilize key components of the required curriculum);
               and that the Plaintiff, as the non-moving party, has not met her burden
               in response to a properly-supported motion for summary judgment
               and instead relies on the bare allegations of her complaint, and has
               shown no specific facts that would support a theory that the
               Metropolitan Government’s articulated reasons are merely
               “pretextual.”

               Plaintiff appeals raising the following issue: “Did not the Chancellor err in ruling on
matters touching upon motive, intent, perception, and/or credibility in the context of a motion for
summary judgment, and thereby impermissibly invade the province of the factfinder?”




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                                            Discussion

               In Teter v. Republic Parking System, Inc., 181 S.W.3d 330 (Tenn. 2005), our Supreme
Court recently reiterated the standards applicable when appellate courts are reviewing a motion for
summary judgment. The Court stated:

                       The purpose of summary judgment is to resolve controlling
               issues of law rather than to find facts or resolve disputed issues of
               fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn.
               1988). Summary judgment is appropriate only when the moving
               party demonstrates that there are no genuine issues of material fact
               and that he or she is entitled to judgment as a matter of law. See
               Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181,
               183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).
               In reviewing the record, the appellate court must view all the
               evidence in the light most favorable to the non-moving party and
               draw all reasonable inferences in favor of the non-moving party.
               Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). And
               because this inquiry involves a question of law only, the standard of
               review is de novo with no presumption of correctness attached to the
               trial court's conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306
               (Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Teter, 181 S.W.3d at 337.

             The Tennessee Human Rights Act prohibits, among other things, retaliation against
someone who has made a charge or has filed a complaint of discrimination. According to the statute:

               It is a discriminatory practice for a person or for two (2) or more
               persons to:

                       (1) 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 ….

Tenn. Code Ann. § 4-21-301(1) (2005).

              In Allen v. McPhee, 240 S.W.3d 803 (Tenn. 2007), our Supreme Court set forth the
elements necessary to establish a prima facie case of retaliation pursuant to Tenn. Code Ann. § 4-21-
301(1). The Court stated:



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                        Applying … [Burlington N. & Santa Fe Ry. Co. v. White, 548
               U.S. 53 (2006)], we hold that in order to state a prima facie case for
               retaliation under the THRA an employee must demonstrate: 1) that
               she engaged in activity protected by the THRA; 2) that the exercise
               of her protected rights was known to the defendant; 3) that the
               defendant thereafter took a materially adverse action against her; and
               4) there was a causal connection between the protected activity and
               the materially adverse action. The burden-shifting analysis that
               follows the establishment of a prima facie case remains unchanged by
               White. After an employee establishes a prima facie case of
               retaliation, the burden of production shifts to the defendant to
               articulate a legitimate, non-discriminatory reason for the materially
               adverse action. Miller, 122 S.W.3d at 776; see also Canitia, 903 F.2d
               at 1066. If the defendant articulates such a reason, the employee, who
               bears the burden of persuasion throughout the process, must present
               evidence demonstrating that the articulated reason is pretextual and
               that the defendant’s action was actually motivated by a desire to
               retaliate against the employee. Miller, 122 S.W.3d at 776; see also
               Canitia, 903 F.2d at 1066.

Allen, 240 S.W.3d at 820-21.

                The entire point of Plaintiff’s brief on appeal is that the reason for her termination,
i.e., a legitimate non-discriminatory reason versus illegal retaliation, necessarily involves issues
surrounding her employer’s motivation. Plaintiff argues that an employer’s motivation never can
properly be the subject of a summary judgment motion. A contrary holding, Plaintiff claims, would
be “tantamount to reading the mind of the parties” which would be impermissible in the summary
judgment context.

               A more thorough analysis of Allen reveals Plaintiff’s position is without merit. In
Allen, the Supreme Court determined that the plaintiff had established a prima facie case of
retaliation. Nevertheless, the Court concluded that the plaintiff had failed to create a genuine issue
of material fact as to causation when undertaking the burden-shifting analysis that follows the
establishment of a prima facie case. According to Allen:

                       Although we have concluded that a reasonable jury could
               conclude that Allen has established a prima facie case, the State is
               entitled to summary judgment if it can articulate a legitimate,
               non-discriminatory reason for transferring Allen and if Allen is
               unable to present evidence that raises a genuine dispute over whether
               the proffered reason is pretextual. See Young v. Dillon Cos., 468 F.3d
               1243, 1249 (10th Cir. 2006). To meet its obligation to articulate a
               legitimate, non-discriminatory reason for the reassignment, the State


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               contends that it reassigned Allen to MTSU’s Development Office to
               protect her from further harassment. Protecting employees from
               sexual harassment is clearly a legitimate and nondiscriminatory goal.
               Protecting employees is, in fact, one of the central purposes of the
               THRA. See Tenn. Code Ann. § 4-21-101(a)(1)-(4) (2005). By
               articulating a legitimate, non-discriminatory reason for the transfer,
               the State has presented Allen with the burden of producing evidence
               that the State’s proffered motive is pretextual.

                        Allen can meet her burden by presenting evidence that: 1) the
               State’s proffered reason has no basis in fact; 2) the proffered reason
               did not actually motivate the reassignment; or 3) the proffered reason
               is insufficient to explain the reassignment. Carter v. Univ. of Toledo,
               349 F.3d 269, 274 (6th Cir. 2003). Allen has failed to present such
               evidence. On the contrary, the evidence in the record supports the
               State’s assertion that Allen was transferred to protect her from further
               harassment by McPhee. While a reasonable person could conclude
               that Allen has been assigned to a position that is less desirable than
               her previous position, her reassignment is clearly superior to the
               alternative of remaining in a position in which she would be forced
               to interact closely with her harasser. We therefore hold that Allen has
               failed to demonstrate the existence of a genuine issue of material fact
               regarding the State’s motivation for the reassignment. Accordingly,
               we conclude that the State is entitled to summary judgment on this
               issue.

Allen, 240 S.W.3d at 823.

               In light of Allen, we reject Plaintiff’s argument and conclude that retaliatory discharge
claims properly can be the basis for a summary judgment motion. A defendant can be entitled to
summary judgment on a retaliatory discharge claim if the requirements of Tenn. R. Civ. P. 56 have
otherwise been met. The question then becomes whether Defendant’s motion for summary judgment
complies with the requirements of Tenn. R. Civ. P. 56, thus entitling Defendant to summary
judgment. We conclude that it does not.

                Before we address Defendant’s failure to satisfy the Tenn. R. Civ. P. 56 requirements,
we first will address Defendant’s claim that it was entitled to summary judgment because Plaintiff
was unable to establish a prima facie case of retaliation. As set forth above, the Supreme Court in
Allen set forth four elements necessary to establish a prima facie case of retaliation. The fourth
element is a “causal connection between the protected activity and the materially adverse action.”
Allen, 240 S.W.3d at 820. It is this element that Defendant argues is missing from Plaintiff’s case.
As noted by the Allen Court, “close temporal proximity of a complaint and a materially adverse
action are sufficient to establish a prima facie case of causation.” Id. at 823. Defendant argues that


                                                  -6-
there is no “close temporal proximity” because Plaintiff filed her complaint on October 20, 2005,
and it was over five months later when she was notified of her termination on April 1, 2006. As
discussed in more depth later in this Opinion, Defendant has not filed an affidavit from the person
or persons who ultimately decided to terminate Plaintiff’s employment. Thus, regardless of the date
Plaintiff was sent a letter informing her of her termination, we do not when that decision actually was
made. For all this Court knows, the decision could have been made the very day Defendant became
aware of Plaintiff’s lawsuit or any other protected activity, and she simply was not notified of that
decision until the end of the school year. A plaintiff’s prima facie burden is not onerous. Fennell
v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). Given that this Court does not know
from the record when the decision to terminate Plaintiff’s employment was made, we are unable to
conclude that Defendant was entitled to summary judgment because Plaintiff was unable to establish
a prima facie case.

               The final issue is whether Defendant complied with the requirements of Tenn. R. Civ.
P. 56 and thus was entitled to summary judgment. In Mills v. CSX Transp. Inc., No. E2006-01933-
COA-R3-CV, 2007 WL 2262052 (Tenn. Ct. App. Aug. 8, 2007), no appl. perm. appeal filed, this
Court discussed the summary judgment standard in some detail, relying heavily on our earlier
opinion in Hannan v. Alltel Pub. Co., No. E2006-01353-COA-R3-CV, 2007 WL 208430 (Tenn. Ct.
App. Jan. 26, 2007), perm. app. granted June 18, 2007. Quoting Hannan, we stated:

               [The Tennessee] Supreme Court continues to adhere to the principle
               that a defendant seeking summary judgment must actually negate an
               essential element of the plaintiff’s claim or establish an affirmative
               defense before the plaintiff’s burden to produce evidence establishing
               the existence of a genuine issue of material fact is triggered. An
               assertion that a plaintiff cannot prove an essential element of her
               claim does not constitute the negating of that element. Hence, it is
               insufficient to support a grant of summary judgment. See, e.g.,
               Lawson v. Edgewater Hotels, Inc., 167 S.W.3d 816, 823-24 (Tenn.
               Ct. App. 2004); Hankins v. Chevco, Inc., 90 S.W.3d 254, 261 (Tenn.
               Ct. App. 2002).

Mills, 2007 WL 2262052, at * 5.

               In accordance with the above analysis, in Mills we concluded that the trial court
improperly granted summary judgment based on the defendant’s argument that the plaintiff would
be unable to prove his claim at trial. Id., at *6. According to Mills:

                       Because Defendant failed to affirmatively negate an essential
               element of Plaintiff’s claim or to conclusively establish an affirmative
               defense, Plaintiff’s burden at this summary judgment stage to
               establish the existence of a genuine issue of material fact never was
               triggered. See Blair, 130 S.W.3d at 767. While Plaintiff may well


                                                 -7-
               not be able to meet his burden at trial, his burden at this summary
               judgment stage is far different. Therefore, the Trial Court erred when
               it granted Defendant’s motion for summary judgment.

                       Finally, we note that there is a disagreement between the
               Eastern Section and the Middle Section of this Court regarding the
               proper standard for evaluating a motion for summary judgment. This
               disagreement was examined in detail in Hannan, 2007 WL 208430,
               at *7, 8. In short, the two sections are in disagreement over whether
               it is sufficient, for summary judgment purposes, to claim that a
               plaintiff will be unable to prove his or her case at trial. We continue
               to adhere to our decision in Hannan that such proof is insufficient
               under the standard set by Blair, and we will continue to do so until
               instructed otherwise by the Tennessee Supreme Court. We note,
               however, that our Supreme Court has granted permission to appeal in
               the Hannan case, and, hopefully, this disagreement will be resolved
               in the near future.

Mills, 2007 WL 2262052, at * 6 (footnote omitted).

                 The fatal flaw with Defendant’s motion for summary judgment is the fact that no
affidavit or other form of sworn testimony was presented by Defendant from a representative of
Metropolitan Nashville Public Schools stating the actual basis for Plaintiff’s termination. Neither
has Defendant cited us to anything in the record nor have we found anything in our review of the
record stating that Defendant’s reason for terminating Plaintiff’s employment was her poor job
performance. There is nothing in this record, other than counsel’s arguments and briefs, which
articulates this nondiscriminatory reason of poor job performance as being the basis for Defendant’s
termination of Plaintiff’s employment. Simply filing Plaintiff’s unsatisfactory performance
evaluations is insufficient. While these employment evaluations certainly show that Defendant had
problems with Plaintiff’s job performance, Defendant has filed nothing establishing that these
negative performance evaluations actually impacted the reason for Plaintiff being terminated, and
we cannot assume that they did. We also note that Defendant’s April 1, 2006, termination letter to
Plaintiff does not state that the reason for her termination was her unsatisfactory job performance,
and, in fact, no reason for the termination is stated in the letter. Assuming, without deciding, that
Plaintiff’s job performance was unsatisfactory, that does not necessarily mean that she was fired
because of her poor job performance and that she was not retaliated against.

                In the absence of an affidavit or any other form of sworn testimony by the decision-
maker articulating why Plaintiff was terminated, Defendant has failed to negate an essential element
of Plaintiff’s claim or conclusively establish an affirmative defense. Thus, Plaintiff’s burden to
produce evidence which creates a genuine issue of material fact surrounding the reasons for her
termination never was triggered. The Trial Court, therefore, erred when it granted Defendant’s
motion for summary judgment, and the Trial Court’s judgment must be vacated.


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                                          Conclusion

               The judgment of the Trial Court is vacated and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion and for collection of the costs below.
Costs on appeal are taxed to the Appellee, the Metropolitan Government of Nashville and Davidson
County.




                                                     ___________________________________
                                                     D. MICHAEL SWINEY, JUDGE




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