                               FILED
                                   November 5, 1999

                                Cecil Crowson, Jr.
                               Appellate Court Clerk
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE



CHRISTINE SPANN,                       )
                                       )
      Plaintiff/Appellant,     )
                                       )     Davidson Chancery
VS.                                    )     No. 94-1849-I
                                       )
                                       )     Appeal No.
BARRY ABRAHAM, individually,           )     M1996-00003-COA-R3-CV
and d/b/a SIR PIZZA,                   )
                                       )
      Defendant/Appellee.              )



                    APPEAL FROM THE CHANCERY COURT
                         FOR DAVIDSON COUNTY
                        AT NASHVILLE, TENNESSEE


        THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



For the Plaintiff/Appellant:                          For the Defendant/Appellee:

Kathleen G. Morris                           C. Eric Stevens
Nashville, Tennessee                               Jeffrey Zager
                                                   Trabue, Sturdivant & DeWitt
Robert J. Turner                                   Nashville, Tennessee
Nashville, Tennessee




                                                                                    Page 1
AFFIRMED AND REMANDED




           WILLIAM C. KOCH, JR., JUDGE




                                         Page 2
                                   OPINION

      This appeal involves a pregnancy discrimination claim asserted by an
employee of a Nashville pizza restaurant. After refusing to accept a temporary
reassignment requested by her employer, the employee quit her job and filed suit,
alleging that her employer had discriminated against her in violation of the Tennessee
Human Rights Act. The Chancery Court for Davidson County granted the employer
’s motion for directed verdict at the close of the employee’s proof after concluding
that she had not made out a prima facie case for disparate treatment because of her
pregnancy. The employee asserts on this appeal that the trial court erred by
directing a verdict for the employer and by amending its final order on its own
motion. We have concluded that the trial court correctly directed a verdict for the
employer in this case and, therefore, affirm the trial court.


                                            I.


      In March 1991, Christine Spann, a high school graduate in her late twenties,
went to work at a Sir Pizza restaurant in Bellevue owned by Barry Abraham. She
started as a daytime delivery driver and a nighttime backup driver. Eventually she
became a full-time cook and, in 1992, was promoted to assistant manager of the
Bellevue restaurant where she worked directly under the manager, Lisa Abraham,
who was Mr. Abraham’s daughter.


      Ms. Spann’s duties as assistant manager included preparation work for the
evening shift, dealing with vendors and customers, assigning duties to the daytime
delivery drivers, and handling money. Her regular work hours were from 9:00 or
9:30 a.m. to 5:00 p.m., Monday through Friday. After she became assistant
manager, Ms. Spann occasionally requested permission to work additional hours as
both a cook and delivery driver in order to earn additional income. Mr. Abraham
was pleased with Ms. Spann’s performance and permitted her to work extra hours
when the work was available.



                                                                                         Page 3
      Ms. Spann was single and had no children when she went to work at Sir
Pizza. In January or February 1993, she discovered that she was pregnant. 1 When
Ms. Spann shared her news with Mr. Abraham and his daughter, she perceived that
Ms. Abraham began to act coolly toward her and to treat her more formally.
Notwithstanding Ms. Abraham’s change in attitude, she still allowed Ms. Spann to
swap work schedules and to work at times other than her normal work hours in
order to accommodate Ms. Spann’s prenatal medical care appointments. On one
occasion, Mr. Abraham himself worked an entire day shift in Ms. Spann’s absence
following a scheduling mix-up between Ms. Spann and Ms. Abraham.


      In late May 1993, when Ms. Spann was five months pregnant, Mr. Abraham
discussed with Ms. Spann how his small business could best accommodate the
later stages of her pregnancy, the birth of her child, and her anticipated maternity
leave. Ms. Spann informed Mr. Abraham that she planned to miss as little work as
possible and that she intended to return to work shortly after her baby was born.
Mr. Abraham suggested a temporary reassignment until she returned from maternity
leave. He proposed that Ms. Spann work as the backup night delivery driver - a
position she had held before - and that his son temporarily take over her assistant
manager position. He assured Ms. Spann that she would be reinstated to her
cook/assistant manager position when she returned from maternity leave and that “he
would see that [she] would not lose any money during this time.” Mr. Abraham
also offered to advance Ms. Spann money to pay her automobile insurance while
she worked as a delivery driver.


      Ms. Spann rejected Mr. Abraham’s proposal. When she refused the
temporary transfer, Mr. Abraham told Ms. Spann that if she did not accept the
temporary reassignment to the backup delivery driver position, he had no other
position for her. However, he repeated that she could still have her cook/assistant
manager position back after her maternity leave. 2 Ms. Spann refused to change her
mind and quit her job at Sir Pizza on May 26, 1993.




                                                                                       Page 4
      On May 24, 1994, Ms. Spann sued Mr. Abraham in the Circuit Court for
Davidson County alleging that he had discriminated against her in violation of the
Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101, -1004 (1998). The
parties later agreed to transfer the case to the Chancery Court for Davidson County
pursuant to Tenn. Code Ann. § 16-2-107 (1994) because at that time the chancery
court had exclusive subject matter jurisdiction over Ms. Spann’s claim. 3 A jury was
empaneled to hear the case on July 15, 1996. At the close of Ms. Spann’s proof on
July 16, 1996, the trial court granted Mr. Abraham’s motion for a directed verdict
because Ms. Spann had failed to establish a prima facie case that Mr. Abraham had
discriminated against her because she was pregnant. The trial court entered an
order dismissing Ms. Spann’s complaint on July 30, 1996 which the trial court
corrected on its own motion on September 30, 1996. Ms. Spann now appeals from
the amended final judgment.


                                            II.


      Three procedural issues must be dealt with before considering the dismissal
of Ms. Spann’s discrimination claim. First, Ms. Spann asserts that the trial court
lacked the power to direct a verdict for Mr. Abraham because it earlier denied his
motion for summary judgment. Second, she takes issue with the trial court’s
decision that it did not have jurisdiction to consider her Tenn. R. Civ. P. 59 motion
filed after she perfected this appeal. Third, she insists that the trial court erred by
correcting the text of its final order on its own motion after it declined to consider
her Tenn. R. Civ. P. 59 motion.


                                            A.


      At the close of Ms. Spann’s proof on July 16, 1996, Mr. Abraham moved for
a directed verdict on the ground that she had failed “to show that she was treated
differently than similarly-situated employees” and that “telltale comments” cannot be
direct evidence of discrimination. The trial court, after reciting that “one of the



                                                                                          Page 5
grounds” of the “motion to dismiss” was that Ms. Spann had failed to prove that
she had been treated differently from similarly situated employees, stated that it was
“of the opinion that the motion to dismiss is meritorious.” Accordingly, it directed
Mr. Abraham’s lawyer to prepare an order of dismissal. However, the trial court
did not sign an order prepared by Mr. Abraham’s lawyer but rather signed an order
prepared by Ms. Spann’s lawyer. This order, which was entered on July 30, 1996,
recited that the “plaintiff [had] failed to prove that there existed other employees
similarly situated to her that were treated more favorably than plaintiff, and that
reasonable minds could not differ as to this conclusion.”


      On August 28, 1996, Ms. Spann filed her notice of appeal from the July 30,
1996 order along with the appeal bond required by Tenn. R. App. P. 6. Thereafter,
on August 29, 1996, she filed a Tenn. R. Civ. P. 59.04 motion to alter or amend the
judgment arguing that disparate treatment of similarly situated employees was not a
necessary element of her proof because she had presented direct evidence of Mr.
Abraham’s discriminatory intent. Mr. Abraham responded to the motion by
asserting that the trial court lacked jurisdiction to consider Ms. Spann’s motion and
that the motion was substantively without merit. On September 30, 1996, the trial
court entered an order denying Ms. Spann’s Tenn. R. Civ. P. 59.04 motion on
jurisdictional grounds. However, on its own motion pursuant to Tenn. R. Civ. P.
60.01, the trial court “corrected” its July 30, 1996 order to state more broadly that “
the plaintiff has failed to carry her burden to establish a prima facie case, either by
direct or by circumstantial evidence.”


                                           B.


      Ms. Spann asserts, without citation to authority, that the trial court erred by
granting the motion for directed verdict because it had earlier denied the motion for
summary judgment. This argument is not well-taken because these two motions
required the trial court to review different evidence. In addition, trial courts
confronted with a motion for summary judgment must consider the wisdom of



                                                                                          Page 6
terminating a case before trial and may deny a motion for summary judgment if they
entertain any doubt concerning the plaintiff’s ability to make out a prima facie case.
If, at trial, the plaintiff fails to make out a prima facie case, the trial court may then
direct a verdict even though it earlier denied the summary judgment motion. See
Malone v. Microdyne Corp., 26 F.3d 471, 475 n.4 (4th Cir. 1994); Catts Co. v.
Gulf Ins. Co., 723 F.2d 1494, 1502 (10th Cir. 1983).


                                             C.


       Ms. Spann next asserts that the trial court erred by determining that it did not
have jurisdiction to consider her Tenn. R. Civ. P. 59.04 motion, filed one day after
she had filed her notice of appeal and appeal bond. We have determined that Ms.
Spann’s notice of appeal was not premature and that the filing of her notice of
appeal and appeal bond had the legal effect of terminating the trial court’s authority
to act on her later filed Tenn. R. Civ. P. 59.04 motion without leave of the appellate
courts.


       The procedural posture of this case differs from prior cases involving
premature notices of appeal. Several years after the adoption of the Tennessee
Rules of Appellate Procedure, we were called upon to pass upon the effectiveness
of a notice of appeal filed before the trial court had disposed of a pending post-trial
motion filed before the notice of appeal. A Western Section panel , construing
Tenn. R. App. P. 4(a) as it read at the time, held that the notice of appeal was “
premature” and that parties who did not file another notice of appeal after all
pending post-trial motions were resolved were not entitled to an appeal as of right.
See Steele v. Wolfe Sales Co., 663 S.W.2d 799, 803 (Tenn. Ct. App. 1983). This
decision caused the Tennessee Supreme Court to amend Tenn. R. App. P. 4 in
1984 to state that a prematurely filed notice of appeal would be treated as filed after
the entry of a final order disposing of all the claims between all the parties. See
Tenn. R. App. P. 4(d). Notices of appeal, in circumstances like those in the Steele
case, were “premature,” not because they were filed before the thirtieth day



                                                                                             Page 7
following the entry of the judgment appealed from, but because they were filed
before the trial court had resolved all the claims between all the parties.


      Ms. Spann’s notice of appeal differs from the premature notice of appeal at
issue in the Steele case. Here, there were no post-trial motions pending when Ms.
Spann filed her notice of appeal. Because the trial court’s order itself was final and
because there were no post-trial motions pending at the time, Ms. Spann’s notice of
appeal was not premature. At the time she filed it, the trial court had fully and finally
resolved all the claims between all the parties.


      Ms. Spann “perfected” her appeal on August 28, 1996, when she filed her
notice of appeal and appeal bond. See Blue Cross Blue Shield of Tenn. v. Eddins,
516 S.W.2d 76, 77 (Tenn. 1974) (holding that an appeal is perfected when the
appeal bond is filed). The legal effect of perfecting an appeal is to divest the trial
court of further authority to act without leave of the appellate court and to vest
jurisdiction in the court of appeals. See Suggs v. Suggs’ Executors, 1 Tenn. (1
Overt.) 2, 3 (1794); Steele v. Wolfe Sales Co., 663 S.W.2d at 802. Accordingly, the
trial court correctly held that it no longer had jurisdiction to consider Ms. Spann’s
Tenn. R. Civ. P. 59.04 motion because jurisdiction over the case had vested with
the court of appeals on August 29, 1996 when Ms. Spann filed her notice of appeal
and appeal bond.


                                           D.


      Finally, Ms. Spann insists that the trial court erred by altering the July 30,
1996 order on its own motion. We need not tarry long with this argument because
Tenn. R. Civ. P. 60.01 specifically addresses this circumstance. Tenn. R. Civ. P.
60.01 empowers trial courts, on their own motion, to correct “errors [in judgments]
. . . arising from oversight or omissions” anytime “before the appeal is docketed in
the appellate court.” Accordingly, the only two questions that must be answered
are whether the appeal had been docketed in the appellate court when the trial court



                                                                                            Page 8
entered its September 30, 1996 order and whether the change the trial court made in
the July 30, 1996 order was correcting an error arising from an oversight or
omission.


       In its September 30, 1996 order, the trial court found as a fact it had not been
notified that Ms. Spann’s appeal had been docketed by the court of appeals. The
record contains no evidence to the contrary regarding the status of Ms. Spann’s
appeal; therefore, we find that the evidence does not preponderate against the trial
court’s findings regarding the status of the appeal. Accordingly, the trial court had
authority to correct its order on its own motion without leave of this court.


       The second question is whether the narrow language concerning the basis for
the trial court’s decision to direct a verdict for Mr. Abraham arose from an
oversight or omission. The transcript of the trial permits a conclusion that the trial
court was not limiting its decision to grant the directed verdict on a single ground
but rather on all the grounds presented in Mr. Abraham’s oral motion for a directed
verdict. Accordingly, we conclude that the trial court must have overlooked the
substance of the order drawn by Ms. Spann’s lawyer and that it undertook to
correct the narrowness of the order once it was brought to the court’s attention.
This is a proper exercise of Tenn. R. Civ. P. 60.01 authority. Accordingly, we
decline to fault the trial court for correcting the July 30, 1996 order to conform the
scope of its wording to the trial court’s own understanding of the scope of its
earlier decision.


                                          III.


       We now turn to the question of the proper standard of review for the
remaining issues on this appeal. This case presents a question of law rather than a
question of fact because the trial court directed a verdict for Mr. Abraham. See
Norman v. Southern Ry., 119 Tenn. 401, 422, 104 S.W. 1088, 1093-94 (1907).
Thus, our task is to review the record to determine whether Ms. Spann’s evidence



                                                                                          Page 9
was sufficient to create an issue for the jury to decide. See Underwood v.
Waterslides of Mid-America, Inc., 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991);
Norman v. Liberty Life Assurance Co., 556 S.W.2d 772, 773 (Tenn. Ct. App.
1977). In conducting this review, we do not weigh the evidence, see Conatser v.
Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995), or
evaluate the credibility of the witnesses. See Benson v. Tennessee Valley Elec.
Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Rather, we review the
evidence most favorably to the party opposing the motion, give that party the
benefit of all reasonable inferences from the evidence, and also disregard all
evidence contrary to that party’s position. See Eaton v. McLain, 891 S.W.2d 587,
590 (Tenn. 1994); Gann v. International Harvester Co., 712 S.W.2d 100, 105
(Tenn. 1986).


      Directed verdicts are appropriate only when reasonable minds can reach one
conclusion. See Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993); Crosslin
v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980). A case should go to the jury, even if
the facts are undisputed, when reasonable persons could draw conflicting
conclusions from the facts. See Gulf, M. & O.R.R. v. Underwood, 182 Tenn. 467,
474, 187 S.W.2d 777, 779 (1945); Pettus v. Hurst, 882 S.W.2d 783, 788 (Tenn. Ct.
App. 1993). These conclusions, however, must be based on more than
speculation, conjecture, and guesswork. See Daniels v. White Consol. Indus., Inc.,
692 S.W.2d 422, 425 (Tenn. Ct. App. 1985). A trial court may direct a verdict
where the plaintiff’s evidence fails to establish a prima facie case. See Eaton v.
McLain, 891 S.W.2d at 590-91 n.3; Harrogate Corp. v. Systems Sales Corp., 915
S.W.2d 812, 818 (Tenn. Ct. App. 1995).


                                          IV.
      Ms. Spann’s claim against Mr. Abraham is based on the Tennessee Human
Rights Act. Specifically, she asserts that Mr. Abraham violated the Act by
discriminating against her because she was pregnant. Accordingly, we must first
turn to the Act to determine the elements of Ms. Spann’s claim and the nature of her



                                                                                       Page 10
burden of proof.


      The Tennessee Human Rights Act is a comprehensive anti-discrimination
statute. See Carr v. United Parcel Serv., 955 S.W.2d 832, 834 (Tenn. 1997). It is
intended to further the policies of the federal Civil Rights Acts of 1964, 1968, and
1972, including the Pregnancy Discrimination Act of 1978 (“PDA”). See Tenn.
Code Ann. § 4-21-101(a)(1); Mayberry v. Endocrinology - Diabetes Assocs., 926
F. Supp. 1315, 1326-27 (M.D. Tenn. 1996). Accordingly, the Act proscribes
discriminatory employment practices with respect to compensation, terms,
conditions, or privileges of employment. See Tenn. Code Ann. § 4-21-401(a)(1).


      Although the Act’s wording differs slightly from the language of Title VII of
the Civil Rights Act of 1964, it is clear that the Tennessee General Assembly
envisioned that the Act would be coextensive with federal law. See Parker v.
Warren County Util. Dist., ___ S.W.2d ___, ___ (Tenn. 1999); 4 Carr v. United
Parcel Serv., 955 S.W.2d at 834. Accordingly, Tennessee courts may
appropriately look to decisions of federal courts construing Title VII when
analyzing claims under the Act. See Weber v. Moses, 938 S.W.2d 387, 390 (Tenn.
1996). These federal precedents do not, however, bind or limit Tennessee’s courts
in giving the fullest possible effect to Tennessee’s own human rights legislation. See
Carr v. United Parcel Serv., 955 S.W.2d at 835.


                                          A.
                             Pregnancy Discrimination


      As originally enacted in 1964, Title VII prohibited the discharge of an
employee on the basis of race, color, religion, sex, or national origin. In 1976, the
United States Supreme Court held that Title VII could not be extended to prohibit
discrimination based on pregnancy because it made no mention of pregnancy. See
General Elec. Co. v. Gilbert, 429 U.S. 125, 145-46, 97 S. Ct. 401, 412-13 (1976).
The Congress responded by amending Title VII with the PDA. As the Supreme



                                                                                         Page 11
Court later observed, the PDA was intended to overrule its Gilbert decision. See
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 670, 103 S.
Ct. 2622, 2624 (1983).


      The PDA amended Title VII by providing that the terms “because of sex” or
“on the basis of sex” in Title VII shall include “on the basis of pregnancy, childbirth
or related medical conditions.” See 42 U.S.C.A. § 2000e(k) (West 1994);
Soreo-Yasher v. First Office Mgmt., 926 F. Supp. 646, 649 (N.D. Ohio 1996);
Mayberry v. Endocrinology - Diabetes Assoc., 926 F. Supp. at 1322. It provided
no new substantive rules governing discrimination based on pregnancy but rather
brought discrimination on the basis of pregnancy within the existing Title VII
statutory framework prohibiting employment discrimination based on sex. See
Grant v. General Motors Corp., 908 F.2d 1303, 1307 (6th Cir. 1990); Mayberry v.
Endocrinology - Diabetes Assocs., 926 F. Supp. at 1322. Thus, PDA claims are
analyzed just like any other Title VII discrimination claim. See DeJarnette v.
Corning Inc., 133 F.3d 293, 297 (4th Cir. 1998); Boyd v. Harding Academy of
Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996).


      The PDA does not require employers to make it easier for pregnant
employees to work or to treat them specially. See Maldonado v. U.S. Bank, 186
F.3d 759, 762-63 (7th Cir. 1999); Kennedy v. Schoenberg, Fisher & Newman, Ltd.,
140 F.3d 716, 722 (7th Cir. 1998). It does, however, require employers to treat
pregnant employees the same as other employees on the basis of their ability or
inability to work. See Reva B. Siegel, Note, Employment Equality Under the
Pregnancy Discrimination Act of 1978, 94 Yale L.J. 929, 931 (1985). Thus, as
noted in a leading case, the PDA requires employers to ignore an employee’s
pregnancy as far as practically possible. See Troupe v. May Dep’t Stores Co., 20
F.3d 734, 738 (7th Cir. 1994).


      Pregnancy under the PDA is to be treated just like any other temporary
disability. See Maganuco v. Leyden Community Sch. Dist. 212, 939 F.2d 440, 444



                                                                                          Page 12
(7th Cir. 1991); Wetzel v. Liberty Ins. Co., 511 F.2d 199, 206 (3rd Cir. 1975),
vacated on other grounds, 424 U.S. 737, 96 S. Ct. 1202 (1976). Thus, employees
who are able to work must be permitted to work on the same conditions as other
employees, and pregnant employees who are unable to work must be accorded the
same leave and fringe benefits provided to other employees who are temporarily
unable to work. See 42 U.S.C.A. § 2000e(k); EEOC v. Hacienda Hotel, 881 F.2d
1504, 1511 (9th Cir. 1989); Best v. Distribution & Auto Servs., Inc., No.
01A01-9812-CH-00652, 1999 WL 704730, at *4 (Tenn. Ct. App. Sept. 13, 1999)
(No Tenn. R. App. P. 11 application filed).


      Under the PDA, an unlawful employment practice occurs whenever
pregnancy alone is a motivating factor for an adverse employment action. See
Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1010 (7th
Cir. 1997). Thus, in order to prevail with a disparate treatment 5 PDA claim, an
employee must demonstrate that she was treated differently than other temporarily
disabled employees because of her pregnancy or pregnancy-related condition. See
Maldonado v. U.S. Bank, 186 F.3d at 763; Deneen v. Northwest Airlines, Inc., 132
F.3d 431, 435 (8th Cir. 1998); Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1382 (11th
Cir. 1994); EEOC v. Hacienda Hotel, 881 F.2d at 1511-12.


      The burden of proving the ultimate issue of discrimination always falls on the
employee. See Texas Dep’t of Community Affairs v. Burdine, 450 U. S. 248, 253,
101 S. Ct. 1089, 1093 (1981); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992); Smith v. Bridgestone/Firestone, Inc., No. 01A01-9803-CV-00146, 1999 WL
86977, at *6 (Tenn. Ct. App. Feb. 23, 1999), perm. app. denied, (Tenn. Sept. 13,
1999); Brenner v. Textron Aerostructures, 874 S.W.2d 579, 583 (Tenn. Ct. App.
1993). Discrimination claims brought in accordance with the PDA are no exception.
Thus, an employee asserting a PDA claim has the ultimate burden of establishing
that her employer discriminated against her “because of” her pregnancy. See 42
U.S.C.A. § 2000e-2(a)(1)&(2) (West 1994); DeJarnette v. Corning Inc., 133 F.3d
at 297; Quarantino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995).



                                                                                       Page 13
      Pregnancy discrimination may be established in two ways. First, using the
direct method, a PDA plaintiff may present enough evidence to demonstrate that the
adverse employment action was the result of intentional discrimination. See
Maldonado v. U.S. Bank, 186 F.3d at 763. This method focuses primarily on the
discriminatory conduct. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185
(2d Cir. 1992). Employees using this method may present either direct or
circumstantial evidence of intentional discrimination or a combination of both. See
Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999); Kennedy v.
Schoenberg, Fisher & Newman, Ltd., 140 F.3d at 722-23. 6 Direct evidence of
intentional discrimination includes an acknowledgment by an employer of
discriminatory intent. Circumstantial evidence of discrimination includes ambiguous
statements, suspicious timing, instances in which similarly situated, non-pregnant
employees received systematically better treatment. See Marshall v. American
Hosp. Ass’n, 157 F.3d at 525; Troupe v. May Dep’t Stores Co., 20 F.3d at 736.


      The second way to establish discrimination is the indirect method. The
indirect method embodies the now ubiquitous burden-shifting approach set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 762, 807, 93 S. Ct. 1817, 1826-27
(1973). 7 Under this method, once a PDA plaintiff makes out a prima facie case of
discrimination, the burden shifts to the employer to show a legitimate,
nondiscriminatory reason for the plaintiff’s treatment. If the employer offers a
legitimate, nondiscriminatory reason for its treatment of the plaintiff, the burden
shifts back to the plaintiff to show that the employer’s proffered reason is
pretextual. See Maldonado v. U.S. Bank, 186 F.3d at 763; Geier v. Medtronic, Inc.
, 99 F.3d 238, 241-42 (7th Cir. 1996).


      A plaintiff using the indirect method establishes a prima facie case of
pregnancy discrimination by showing: (1) that she was pregnant; (2) that she was
qualified for her job; (3) that she was subjected to an adverse employment action;
and (4) that there is a nexus between her pregnancy and the adverse employment



                                                                                      Page 14
action. See Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1148 (10th Cir. 1999);
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); Boyd v. Harding
Academy of Memphis, Inc., 88 F.3d at 413; Smith v. F.W. Morse & Co., 76 F.3d
413, 421 (1st Cir. 1996). Plaintiffs establish the connection between their pregnancy
and the adverse employment action by demonstrating that comparable non-pregnant
employees received more favorable treatment. See McDonnell Douglas Corp. v.
Green, 411 U.S. at 802; 93 S. Ct. at 1824; Ensley-Gaines v. Runyon, 100 F.3d
1220, 1224 (6th Cir. 1996); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1538
(11th Cir. 1987).



                                         B.
                    Ms. Spann’s Pregnancy Discrimination Claim


      Ms. Spann is asserting a disparate treatment, as opposed to a disparate
impact, discrimination claim. It is unclear, however, whether she undertook to
prove her claim using the direct method or the indirect method. 8 PDA plaintiffs may
simultaneously employ the direct method and the indirect method. See Maldonado
v. U.S. Bank, 186 F.3d at 763; Kennedy v. Schoenberg, Fisher & Newman, Ltd.,
140 F.3d at 723. In addition, a PDA plaintiff’s emphasis on one method does not
prevent the courts from basing their decision on the other method if they conclude
that a discrimination claim has been established. See Indurante v. Local 705, Int’l
Bhd. of Teamsters, 160 F.3d 364, 366-67 (7th Cir. 1998). Accordingly, we must
analyze the directed verdict taking both methods of proof into consideration.


                                         1.
                         Ms. Spann’s Direct Method Case


      Ms. Spann’s direct case for pregnancy discrimination contains five
ingredients. She rests her claim on (1) Ms. Abraham’s change of attitude upon
discovering that Ms. Spann was pregnant; (2) Ms. Abraham’s inquiry concerning


                                                                                        Page 15
whether she had considered her “options;” (3) Mr. Abraham’s comment that if she
did not “quit it [horse playing with Mr. Abraham’s son], that I just might end up
miscarrying;” (4) Mr. Abraham’s monitoring her attendance more closely after he
learned she was pregnant; and (5) Mr. Abraham’s request that she accept a
temporary reassignment during the later stages of her pregnancy. Ms. Spann asserts
that this evidence, considered together, is sufficient to create a jury question
regarding Mr. Abraham’s intent to discriminate against her because she was
pregnant.


         We turn first to the evidence regarding the statements and attitudes of Mr.
Abraham and his daughter. Title VII was never envisioned to be a “general civility
code” for the American workplace, see Faragher v. City of Boca Raton, 524 U.S.
775, ___, 118 S. Ct. 2275, 2283-84 (1998), nor does it guarantee a utopian
workplace or even a pleasant one. See Vore v. Indiana Bell Tel. Co., 32 F.3d 1161,
1162 (7th Cir. 1994). Rather than prohibiting all verbal or physical harassment in the
workplace, Title VII prohibits discrimination in the workplace based on gender. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, ___, 118 S. Ct. 998,
1002 (1998); Ulloa v. American Express, 822 F. Supp. 1566, 1571 (S.D. Fla.
1993).


         Accordingly, isolated and ambiguous comments and changes in attitude
tending to suggest a discriminatory frame of mind are insufficient, standing alone, to
prove an employer’s discriminatory intent. See Speen v. Crown Clothing Corp.,
102 F.3d 625, 636 (1st Cir. 1996); Burns v. AAF-McQuay, Inc., 96 F.3d 728, 733
(4th Cir. 1996); LaPointe v. United Auto Workers Local 600, 8 F.3d 376, 380 (6th
Cir. 1993). In order for comments to be germane, they must be contemporaneous
or causally related to the employer’s decision-making process. See Wichmann v.
Board of Trustees of Southern Ill. Univ., 180 F.3d 791, 801 (7th Cir. 1999);
Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d at 723.


         Title VII did not require either Mr. Abraham or his daughter to be enthusiastic



                                                                                           Page 16
or even supportive of Ms. Spann’s pregnancy, and thus, their undisguised
disapproval, by itself, does not give rise to a cause of action under the Tennessee
Human Rights Act. Personality conflicts alone cannot supply a basis for a
discrimination claim, see Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 871
(1st Cir. 1997); Aramburu v. The Boeing Co., 112 F.3d 1398, 1406 (10th Cir.
1997); Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir. 1982).
Accordingly, unkind or insensitive statements made to an employee, even if in front
of others, ordinarily will not rise to the level of a discriminatory employment action.
See Caussade v. Brown, 924 F. Supp. 693, 701-02 (D. Md. 1996), aff’d, 107 F.3d
865 (4th Cir. 1997).


      When considered in the context in which they were made, the comments
relied on by Ms. Spann provide no evidence of discriminatory intent. Ms. Alexander
’s inquiry concerning Ms. Spann’s consideration of her “options” (presumably
alluding to her decision to continue her pregnancy) was a question prompted by
Ms. Spann’s relationship with the father of her child. Mr. Abraham’s warning about
the possibility of a miscarriage came at a time when Ms. Spann was engaged in
horseplay with his son. There is nothing in this record to link Mr. Abraham’s or his
daughter’s comments or Ms. Abraham’s attitude to a discriminatorily motivated
adverse employment action.



      By the same token, the fact that Mr. Abraham’s concern about Ms. Spann’s
absences after she announced she was pregnant does not give rise to an inference of
pregnancy discrimination. Employers in Tennessee have the right to expect
employees to report to work at the agreed-upon time and to work for the
agreed-upon shift. See Trice v. Traughber, 797 S.W.2d 886, 888 (Tenn. 1990);
Wallace v. Stewart, 559 S.W.2d 647, 648 (Tenn. 1977). The PDA does not require
an employer to overlook a pregnant employee’s absences from work, unless, as a
general matter, the employer overlooks the absences of non-pregnant employees.
See Troupe v. May Dep’t Stores Co., 20 F.3d at 738. Accordingly, monitoring a



                                                                                          Page 17
pregnant employee’s absences is not proof of discriminatory intent. See Kennedy
v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d at 725. The evidence is
unrefuted that Ms. Abraham and Ms. Spann continued to swap shifts after Ms.
Spann announced that she was pregnant and that Mr. Abraham did not take an
adverse employment action against Ms. Spann for her missing her shift following
the scheduling misunderstanding with Ms. Abraham.


      Finally, Mr. Abraham’s proposal of a temporary reassignment during the later
stages of Ms. Spann’s pregnancy and maternity leave does not amount to either
direct or circumstantial evidence of pregnancy discrimination. Ms. Spann argues
that the proposal is evidence of discriminatory intent because it is based on Mr.
Abraham’s misperception of her ability to continue working. Ms. Spann’s
arguments to the contrary, Title VII does not require employers to make fair and
accurate assessments of their employees’ abilities, nor does it require employers to
assign employees to appropriate positions. See Mayberry v.
Endocrinology-Diabetes Assocs., 926 F. Supp. at 1323-24.


      Title VII is not intended to intrude the courts directly into complex
assessments of employment qualifications, transferability of skills, staffing
requirements, and employee productivity. See Levin v. Delta Air Lines, Inc., 730
F.2d 994, 1001 (5th Cir. 1984). Accordingly, Title VII does not require courts to
act as super personnel departments to re-examine an employer’s judgment or its
management prerogatives and business decisions. See Barbour v. Browner, 181
F.3d 1342, 1346 (D.C. Cir. 1999); Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,
181 F.3d 15, 22 (1st Cir. 1999); Simms v. Oklahoma ex rel. Dep’t of Mental Health
, 165 F.3d 1321, 1330 (10th Cir. 1999); Brill v. Lante Corp., 119 F.3d 1266, 1272
(7th Cir. 1997). Accordingly, the issue in Title VII cases is not whether the
employer made a correct decision, but rather whether the employer discriminated
against an employee in a protected class. See McDaniel v. Temple Indep. Sch.
Dist., 770 F.2d 1340, 1349 (5th Cir. 1985).




                                                                                       Page 18
      Ms. Spann’s testimony demonstrates that Mr. Abraham’s temporary
reassignment proposal was a business-related decision in anticipation of her
inevitable maternity leave. Mr. Abraham desired to maintain a manager at the
Bellevue restaurant at all times and desired to train his son to take Ms. Spann’s
place temporarily while she was on maternity leave. Mr. Abraham’s assurances that
Ms. Spann’s income would not be affected by the temporary reassignment and that
she would be able to reclaim her assistant manager job after returning from maternity
leave dispel any inference that his proposal was discriminatory. Rather, it was
premised on the non-discriminatory assumption that once Ms. Spann was no longer
temporarily disabled as an assistant manager, she could expect to and would resume
her duties. That is anything but discriminatory.


                                           2.
                        Ms. Spann’s Indirect Method Case


      In order to make out a prima facie case of pregnancy discrimination using the
McDonnell Douglas indirect method, Ms. Spann must show (1) that she was
pregnant, (2) that she was qualified for her job, (3) that she was subjected to an
adverse employment action, and (4) that there is a nexus between her pregnancy and
the adverse employment action. The fourth element may be proven by showing that
Ms. Abraham treated similarly situated, non-pregnant employees better than Ms.
Spann.


      Ms. Spann easily satisfies the first two elements. She was undoubtedly
pregnant when the alleged adverse employment action or actions occurred. In
addition, it is equally clear that her work performance was meeting Mr. Abraham’s
expectations. Even after Ms. Spann filed suit, Mr. Abraham stated that she was a
good worker and that he would still hire her back if she wished to return to work.
Thus, for the purpose of this appeal, it is undisputed that Ms. Spann was qualified
to be a cook and an assistant manger at the Sir Pizza in Bellevue.




                                                                                        Page 19
       Whether Ms. Spann was subjected to an adverse employment action is a
closer question. Not every unpleasant matter occurring at work and not every
action by an employer that an employee disagrees with or dislikes constitutes an
adverse employment action. See Wanamaker v. Columbian Rope Co., 108 F.3d
462, 466 (2d Cir. 1997); Leson v. ARI of Conn., Inc., 51 F. Supp. 2d 135, 142
(D.Conn. 1999); Fortner v. Kansas, 934 F. Supp. 1252, 1266-67 (D. Kan. 1996), aff
’d, 122 F.3d 40 (10th Cir. 1997). For the purposes of Title VII, an “adverse
employment action” is a materially adverse change in terms and conditions of
employment, such as termination of employment, demotion with a decrease in
salary, reclassification to a less distinguished title, material loss of benefits, or
significantly diminished material responsibilities. See Scusa v. Nestle U.S.A. Co.,
181 F.3d 958, 969 (8th Cir. 1999); Richardson v. New York State Dep’t of
Correctional Servs., 180 F.3d 426, 446 (2d Cir. 1999); Boone v. Goldin, 178 F.3d
253, 255 (4th Cir. 1999); Kocsis v. Multi-Care Mgt., Inc., 97 F.3d 876, 885-86 (6th
Cir. 1996). It must be more than a mere inconvenience or alteration of an employee’
s job responsibilities. See Fortier v. Ameritech Mobile Communications, Inc., 161
F.3d 1106, 1111-12 n.7 (7th Cir. 1998).


       It is not altogether apparent how Ms. Spann’s temporary reassignment during
the later stages of her pregnancy amounts to an adverse employment action. During
oral argument, the worst face that Ms. Spann’s attorney could put on Mr. Abraham’
s proposal was that the temporary position was “lower in status” and that the
reassignment would make Ms. Spann a “supervised employee” rather than a
supervisor. Thus, Ms. Spann perceived the reassignment as a demotion to a
position with diminished status and with fewer responsibilities. Taking this evidence
in a light most favorable to Ms. Spann, the evidence creates a jury issue on this
point. Accordingly we will consider the proposed reassignment as an adverse
employment action for the purposes of this appeal.


       The final element of a discrimination claim under the McDonnell Douglas
approach requires proof that the employer treated similarly situated non-pregnant



                                                                                        Page 20
employees better. To meet this element of proof, a PDA plaintiff must make
meaningful comparisons between herself and other employees who are similarly
situated in all material respects. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997). The comparable employees should have held similar positions, dealt
with the same level of supervision, and been subject to the same general
employer-imposed work rules and requirements. See Mitchell v. Toldeo Hosp., 964
F.2d at 583.
      None of the employees to whom Ms. Spann compared herself were similarly
situated to her. Mr. Kimbrough was only a part-time employee. None of the other
management employees, including Ms. Abraham, ever took or needed to take off
time from work because of a temporary disability. Ms. Spann’s chief complaint
appears to be that other Sir Pizza employees were permitted to swap work
schedules “without a problem.” However, as far as this record shows, so was Ms.
Spann. The record does not contain one instance where Ms. Spann’s request to
trade shifts was refused or where she was formally disciplined or reprimanded for
swapping a shift. Accordingly, the trial court correctly concluded that Ms. Spann
failed to prove that Mr. Abraham treated similarly situated non-pregnant employees
better than he treated her.


                                         V.


      Ms. Spann failed to establish by either direct or circumstantial evidence a
prima facie case of discrimination under the Tennessee Human Rights Act.
Consequently, the trial court correctly granted the employer’s motion for a direct
verdict. We affirm. We tax the costs of this appeal to Christine Spann for which
execution, if necessary, may issue.

                                              _____________________________
                                              WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________



                                                                                      Page 21
SAMUEL L. LEWIS, JUDGE


__________________________________
BEN H. CANTRELL, JUDGE




                                     Page 22
