PATRICIA ANN WOLFE, BETTIE          )
L. ROBERTS, PATRICIA PELTON,        )    Franklin Chancery
ODIE L. MANN, BOYD                  )    No. 14,240
STUBBLEFIELD, and RICHARD G.        )
RAY,                                )    Appeal No.
                                    )    01-A-01-9611-CH-00514
      Plaintiffs/Appellants,        )
                                    )
VS.

THE UNIVERSITY OF TENNESSEE,
                                    )
                                    )
                                    )
                                            FILED
and THE UNIVERSITY OF               )       November 14, 1997
TENNESSEE SPACE INSTITUTE,          )
                                    )       Cecil W. Crowson
      Defendants/Appellees.         )      Appellate Court Clerk


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

      APPEAL FROM THE CHANCERY COURT OF FRANKLIN COUNTY
                   AT WINCHESTER, TENNESSEE

           HONORABLE WILLIAM DENDER (By Designation) JUDGE


MARY A. PARKER
STEPHEN C. CROFFORD
PARKER AND CROFFORD
209 Tenth Avenue So., Suite 511
Cummins Station
Nashville, TN 37203
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

ALICE M. WOODY                                 ALAN M. PARKER
Assistant General Counsel                      LEWIS, KING, KRIEF,
THE UNIVERSITY OF TENNESSEE                    WALDROP & CATRON
719 Andy Holt Tower                            One Centre Square
Knoxville, TN 37908-0170                       Knoxville, TN 37901

BEN P. LYNCH
LYNCH, LYNCH & LYNCH
P.O. Box 310
Winchester, TN 37398
ATTORNEYS FOR DEFENDANTS/APPELLEES


                        AFFIRMED AND REMANDED


                                    HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE

CONCUR IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE
PATRICIA ANN WOLFE, BETTIE                     )
L. ROBERTS, PATRICIA PELTON,                   )       Franklin Chancery
ODIE L. MANN, BOYD                             )       No. 14,240
STUBBLEFIELD, and RICHARD G.                   )
RAY,                                           )       Appeal No.
                                               )       01-A-01-9611-CH-00514
       Plaintiffs/Appellants,                  )
                                               )
VS.                                            )
                                               )
THE UNIVERSITY OF TENNESSEE,                   )
and THE UNIVERSITY OF                          )
TENNESSEE SPACE INSTITUTE,                     )
                                               )
       Defendants/Appellees.                   )



                                        OPINION



       Six plaintiffs joined in this age discrimination suit under the Tennessee Human Rights

Act, T.C.A. §§ 4-21-101 et seq.. The Trial Court rendered summary judgment dismissing the

suits of all plaintiffs, who have appealed, submitting a single issue for review and the correctness

of the summary judgment.



                                           THE CASE

       On September 26, 1994, the six captioned plaintiffs filed their joint complaint against the

captioned defendants, alleging that on or about February 14, 1994, plaintiffs were forced by

defendants to accept a lay-off or forced to take early retirement in violation of the age

discrimination provisions of the Tennessee Human Rights Act, and in breach of their contract

of employment.



       The action for breach of contract was dismissed by agreed order.



        The defendants answered, denying that the complaint states a claim for which relief can

be granted, admitting the employment of plaintiffs, admitting that the Space Institute was an

integral part of the University which is an agency of the State subject to suit under the Tennessee


                                                -2-
Human Rights Act, T.C.A. §§ 4-21-102 et seq.. The answer admits that plaintiffs were

scheduled to be laid off or assigned a reduced work schedule, but not because of their age, admits

that all of plaintiffs were over 40 years of age, but denies that plaintiffs, or any of them were

subjected to discrimination because of age, or that plaintiffs were replaced by other employees

of a younger age. The answer asserts that the actions complained of were made necessary by a

reduction in the funds available for operation of the Institute.



        An agreed order struck jury demands from the pleadings.



        Defendants amended their answer to particularize various defenses.



        On November 30, 1995, defendant University moved for summary judgment as to all

plaintiffs.



        On May 6, 1996, the University filed a Supplement to its Motion for summary judgment

in regard to Bettie L. Roberts.



        On June 18, 1996, plaintiffs were permitted to amend their complaint in regard to Odie

Mann.



        On July 1, 1996, the Trial Judge filed separate memorandum as to the suits of five of the

plaintiffs.



        On July 12, 1996, the Trial Court entered separate orders dismissing the suits of each of

the plaintiffs by summary judgment.



        On July 27, 1996, the Trial Judge filed a separate memorandum as to the suit of Patricia

Ann Wolfe.



                                               -3-
       The memorandum of the Trial Judge discusses separately the facts relating to each

plaintiff. This Court will therefore review the findings separately.



       1.      The findings of the Trial Court as to Patricia Ann Wolfe are:

                       Patricia Ann Wolfe was the only employee in the job
               classification of Senior Administrative Assistant at UTSI.
               She was not terminated in the March 1994 RIF, but she was
               advised that UTSI intended to reduce her employment to 50%
               time. She declined to accept reduced employment and elected
               instead to retire, and she receives retirement pay from the
               Tennessee Consolidated Retirement System. She also
               received unemployment benefits. She claims she was
               constructively discharged.

                      She would have been returned to 100% employment
               and benefits by July 1, 1994, if she had accepted the reduced
               hours of employment decision concerning the March 1994
               RIF. All remaining employees who accepted the reduced
               employment in the March 1994 RIF were returned to 100%
               employment as of July 1, 1994.

                       Ms. Wolfe claims Ms. Linda Crosslin should have
               been included in the RIF instead of her, because Ms. Crosslin
               is younger and had been trained by Ms. Wolfe. Ms. Crosslin
               was Executive Assistant to the Vice President, a job
               classification admittedly different to Ms. Wolfe’s
               classification. [Wolfe deposition, p. 151]

                       The job classification of Senior Administrative
               Assistant was not filled. The evidence before the Court
               indicated the job functions and duties which she performed
               were spread among existing employees, including the
               assignment of her duties to the existing Executive Assistant,
               Ms. Linda Crosslin. However, there are details concerning
               the distribution of those duties which the Court has been
               unable to locate, and the Court feels it is necessary to
               supplement the record as specifically set forth later in this
               memorandum.

                       Ms. Wolfe said she retired in order to be eligible for
               health insurance as a retired state employee.

                       She filed a claim with the Social Security
               Administration for disability benefits claiming that she was
               “unable to work because of allergies and asthma.” [Wolfe
               deposition 2-29-96, p.7 and Ex. 1] She supported her claim
               with statements from her doctor. [Wolfe, p. 164-166]. The
               Social Security Administration denied her claim on 8-22-94,
               and she filed a request for reconsideration. [Wolfe, p.7]

                       Ms. Wolfe claims she was replaced by Mary Helen
               Britton, and that there was a promotional announcement dated


                                            -4-
March 25, 1994, advertising for the position formerly held by
Ms. Wolfe; and a memorandum, dated 4/28/94, announced
that Ms. Mary Helen Brittain was selected as McCay’s
Executive Assistant. Excerpts from that memorandum state:
“This was a new position created to support the vice
president’s office” and “The new position was necessary due
to the retirement of the administrative assistant and in
addition, the Executive Assistant to the Vice President, Ms.
Linda Crosslin, taking the position of Special Events
Coordinator.”

        Defendants claim Ms. Wolfe does not show a prima
facie case because (1) she was not terminated, and (2) she was
not replaced by a younger worker. Defendants also claim she
is barred by judicial estoppel, because of her allegations in her
claim for social security disability.

        Ms. Wolfe asks for reinstatement, and she supports
this request with a statement from Dr. Stephen Hunter Bills.

        At the present time, the Court reserves judgment on
the Motion for Summary Judgment or Partial Summary
Judgment concerning Ms. Wolfe, including the question of
judicial estoppel.

        As soon as possible, and at least within 15 days from
the date this memorandum is received, counsel for the
defendants will please supplement the record, or point
specifically to the evidence, in order that the Court can
determine (1) the date Ms. Wolfe retired, (2) the specific
duties of Ms. Wolfe that were distributed to existing
employees and the names and job titles of those employees,
(3) whether these employees had other duties they performed
in addition to the duties of Ms. Wolfe which were distributed
to them, (4) the date Ms. Linda Crosslin accepted the job of
Special Events Coordinator, and (5) the specific duties
assigned to Ms. Mary Helen Britton and how those duties
were different from the duties of Ms. Wolfe, if there were any
differences.

       Counsel for Ms. Wolfe may supplement the record, if
they choose, within 10 days from the date they receive the
supplement to the record filed by defense counsel.



        Memorandum Concerning Patricia Ann Wolfe

        This is a continued consideration of the Motion for
Summary Judgment or Partial Summary Judgment filed
against Patricia Ann Wolfe. The defendants seek summary
judgment on the ground that Ms. Wolfe has not established a
prima facie case of age discrimination.

        In order to be successful in this case, it is basic that the
plaintiff must get over the hurdle of constructive discharge,

                                -5-
otherwise there has been no discharge of the employee. This
is considered to be a factual issue which would have to be
determined by the trier of fact; however, it is not necessary
that this issue be reached at this time.

       The details of Ms. Wolfe’s situation were set forth in
the Court’s Memorandum entered on July 1, 1996, and all
portions of that memorandum pertaining to Ms. Wolfe are
incorporated herein by reference.

        This Court notes that several times, orally and in
writing, it has been stated that Dr. McCay said to Bettie
Roberts that he was going to get rid of Ms. Wolfe and Linda
Crosslin and replace them with younger girls with happy
smiling faces. Plaintiff’s brief even states, “Dr. McCay
indicated that he wanted to move Ann Wolfe from her
position, and the testimony, under oath, by Bettie Roberts was
that he was going to replace her with a younger happy,
smiling face.”

              In fact, Bettie Roberts’ deposition of
       9/13/95 states:

                He asked me while we were in the
       meeting what I thought of Ann Wolfe and
       Linda Crosslin. And I said, “Well you know,
       what do you mean?” And he said, “Well,
       what do you think about them?” I said, “Well,
       I know Ann real well. We’ve worked together
       for years. I don’t know Linda that well.” I
       said, “I know Ann is very capable. She’s had,
       you know, many years experience.”

                And he told me that sometimes those
       two girls, they had ups and downs. They
       weren’t always happy and he wanted -- he
       said, “What I would like to have is two young
       girls in there with happy, smiley faces so that
       when anyone came in, no matter who, they
       would be greeted the same and they would be
       -- see these happy, smiley faces.” That was
       just an off-side comment.

       At the request of the Court, all parties have
supplemented the record through supplemental affidavits, and
the Court will summarize important portions of such evidence
below.

          SUPPLEMENTAL AFFIDAVIT OF
             T. DWAYNE McCAY, Ph. D.

       Ms. Wolfe notified Dr. McCay, by Memorandum
dated February 21, 1994, that she would be retiring from the
UT Space Institute on March 2, 1994.




                             -6-
        Dr. McCay expected Ms. Wolfe to continue work at
50%, and it was his hope that all employees accepting
reduced hours would be returned to full employment by July
1, 1994. If Ms. Wolfe had accepted employment at 50%, she
would have been returned to 100% status on July 1, 1994.
Ms. Wolfe’s duties were limited to answering the phone and
assisting in the preparation of correspondence.

       When Ms. Wolfe retired, her duties were
spontaneously absorbed by the Executive Assistant, Ms.
Linda Crosslin, who continued to perform her primary duties.
No other arrangements had been made because it was
expected that Ms. Wolfe would work 50% time. When Ms.
Wolfe refused to provide 50% support to the office, Dr.
McCay gave additional thought to the staffing requirements.

        On March 24, 1994, UTSI issued a promotional
announcement to recruit a new Executive Assistant from
existing UTSI employees.

       On April 4, 1994, Ms. Crosslin’s title was changed to
Special Events Coordinator; and as such she had full
responsibility for planning and conducting all special events
conducted by UTSI, including professional, social, and
service events. She was also assigned responsibility for
management of the UTSI Industry-Student Center, which
contains the cafeteria and dormitory. Ms. Wolfe was not
assigned any of these duties while Dr. McCay has been Vice
President.

       Ms. Crosslin’s duties required her own secretarial
support, and she was moved to a larger office, leaving the
Vice President’s office with no direct support.

        Ms. Mary Helen Brittain was selected as the new
Executive Assistant, effective April 24, 1996. Her duties
included, in addition to maintaining Dr. McCay’s calendar
and preparing correspondence, the authoring of some of his
correspondence, representing him in some meetings,
reorganizing and upgrading the computer and office
electronics, including software, supervision of six research
group secretaries (formed later), and chairing the Cafeteria
Committee. None of these other duties had been assigned to
either Ms. Crosslin or Ms. Wolfe.

        After Ms. Brittain was selected to serve in the
expanded role of Executive Assistant, UTSI’s long-time
Public Affairs Coordinator retired, and that position was split
into two positions, one full-time and one part-time. An
internal search was made for a replacement, and Ms. Brittain
applied for the full-time position. However, Ms. Brittain’s
position was included in a further RIF in October 1995, as a
result of the continuing money crisis, and Ms. Brittain is no
longer at UTSI.




                             -7-
              Ms. Brittain was replaced by a non-exempt hourly
       paid secretary, Ms. Dee Robinette. Her job title was and is
       Administrative Services Assistant, and she is not a
       replacement for either the Senior Administrative Assistant or
       Executive Assistant position. Some of the previous Executive
       Assistant’s duties have been redistributed and some are no
       longer performed at all.

              As far as Dr. McCay is concerned, the position of
       Senior Administrative Assistant has been deleted.

             None of the above evidence stated in Dr. McCay’s
       supplemental affidavit is contradicted by Ms. Wolfe’s
       supplemental affidavit.

                  SUPPLEMENTAL AFFIDAVIT OF
                      PATRICIA ANN WOLFE

               Ms. Wolfe states in her supplemental affidavit, “All of
       the duties listed in the promotional announcement are duties
       that I was very capable of performing and duties that I had
       performed for the individuals that were the Deans prior to Dr.
       Dwayne McCay taking his position.”

                Ms. Wolfe also includes in her affifavit (sic) a copy of
       Exhibit 2 to Ms. Wolfe’s deposition of 9/12/95 and Exhibit
       “CC” to Plaintiff’s Summary Judgment Response. A
       comparison of these documents shows many comparable
       items; however, the comparison also shows there are
       numerous additional duties listed on Exhibit “CC” which are
       not listed on Exhibit 2.

               The Court now turns to consideration of judicial
       estoppel. In order to maintain an age discrimination case, the
       plaintiff must be ready, able, and qualified to perform the job
       plaintiff claims was lost as a result of age discrimination.
                                    ----
               In the opinion of the Court, Ms. Wolfe has not
       established a prima facie case of age discrimination; because
       the evidence, viewed in favor of Ms. Wolfe and allowing all
       reasonable inferences in her favor, does not establish either
       (1) she was ready, able, and qualified to perform the job she
       claims was lost as a result of age discrimination, or (2) she
       was replaced by another employee, or that younger employees
       in the same position were treated more favorably. Her duties
       were assumed by other existing employees, and her position
       has essentially been eliminated. There is no evidence that age
       was a factor in the employment decision concerning Ms.
       Wolfe and that “but for” this factor the action would not have
       been taken.

              The Motion for Summary Judgment concerning Ms.
       Wolfe is sustained.


The findings of the Trial Court as to Bettie L. Roberts are:


                                       -8-
        Bettie L. Roberts was the Registrar at the UTSI, and
was the only employee in that department with that job
classification. She was not terminated in the March 1994
RIF, but she was notified that UTSI intended to reduce her
employment to 75% time. She continued to work at the 75%
level for a period of one month, but at that time decided not
to continue employment at the 75% level. There is a
controversy over her being able to continue to be insured at
75% time. She claims Mr. Beardsley, an employee and agent
of UT at the UT Retirement Office told her she should retire
in order to keep insurance; but in her deposition she admitted
she could continue insurance. It seems there is a question
whether she could draw her benefits, including insurance, if
she were laid off at 75%.

        The position of Registrar was not filled. Her
supervisor, Dr. Edward Gleason, assumed the professional
duties of Registrar, and Mary Frances Ferber, the Recorder,
continued performing the clerical duties. Some functions
previously performed by Ms. Roberts are not performed in the
Graduate office of UTK.

        Ms. Ferber was hired and trained by Ms. Roberts as
the new recorder, the position held by Ms. Roberts before she
was appointed Registrar in 1983. Ms. Ferber was a clerical
employee before Ms. Roberts retired, and she performed
duties for Ms. Roberts. The Recorder was responsible for the
data base, and her skills and duties were different from Ms.
Roberts.

       Ms. Roberts would have been returned to 100%
employment by July 1, 1994, as were all others who accepted
reduced hours.

        On June 11, 1994, she filed a Disability Report in
order to claim Social Security Benefits. On June 27, 1994,
she executed an Application for Disability Benefits, where
she claimed she was unable to work on April 1, 1994, because
of her “disabling condition.” Her claim for Social Security
Disability Benefits was denied, and she filed a request for
reconsideration of her claim on September 13, 1994.

        Plaintiff claims: (1) constructive discharge and (2) she
could have performed the duties of the employees to whom
her duties were assigned.

        Defendants claims she fails to state a prima facie case
because (1) she was not terminated, (2) she was not replaced
by a younger employee, and (3) her duties were reassigned to
existing employees or they are no longer being performed at
UTSI. Defendants also claim she is barred by judical (sic)
estoppel, because of her allegations in her claim for social
security disability.




                              -9-
              She also claims in her affidavit that she is able to
       resume her duties as Registrar, and she asks for reinstatement.

               In the opinion of the Court, Ms. Roberts has not
       established a prima facie case of age discrimination; because
       the evidence, viewed in favor of Ms. Roberts and allowing all
       reasonable inferences in her favor, does not establish that she
       was replaced by another employee, or that younger employees
       in the same position were treated more favorably. Her
       position has been abolished, and her duties have been
       distributed to other existing employees. There is no evidence
       that age was a factor in the employment decision and that “but
       for” this factor the action would not have been taken.

              The Motion of Summary Judgment concerning Ms.
       Roberts is sustained.


The findings of the Trial Court as to Patricia A. Pelton are:

               Patricia A. Pelton was employed as a switchboard
       operator and then became classified as the telephone operator
       supervisor. Her duties were to answer the phone, and she
       acted as the receptionist for the Institute. When UTSI decided
       to acquire an automated telephone system, Ms. Pelton was
       assigned to begin performing some clerical work for the
       Director of Development.

              Ms. Pelton claims she was working for Campaign 94
       when she was terminated, and she claims she was replaced by
       Betty Wilkerson in Campaign 94.

               She claims, after her initial termination, favoritism
       was shown a younger employee, Dee Dee Jones, by hiring her
       at $6.50 per hour. UTSI had only offered Ms. Pelton $5.00
       per hour (along with 2 other employees) to temporarily
       answer the phone. After Dee Dee Jones left, Ms. Pelton was
       offered $6.50 per hour to answer the phone temporarily for 2
       weeks.     She actually worked in that capacity for
       approximately 3 months until the new phone system became
       fully operational. There is no longer a switchboard operator
       at UTSI, and the position was completely phased out.

               After the March 1994 RIF, there were no clerical
       workers in the Development Office (sic), but later funding
       became available for clerical assistance in that office.
       However, the new job classification was a different position
       from the one Ms. Pelton was training for, and the new
       position required greater skills than Ms. Pelton possessed.
       Actual job duties were different from the work Ms. Pelton
       performed for the Director of Development. Ms. Pelton does
       not dispute that the subsequent job in the Development Office
       required more skills than she possessed. [Pelton deposition,
       104:25-105:5]




                                    -10-
               Defendants claim Ms. Pelton does not state a prima
       facie case because (1) her job classification as telephone
       switchboard operator supervisor was no longer needed, being
       deleted by the installation of automatic equipment, and (2) her
       job classification was not replaced by a younger worker.

               In the opinion of the Court, Ms. Pelton has not
       established a prima facie case of age discrimination; because
       the evidence, viewed in favor of Ms. Pelton and allowing all
       reasonable inferences in her favor, does not establish she was
       replaced by another employee, or that a younger employee in
       the same job was treated more favorably. Her position has
       been abolished because an automated telephone system has
       been installed. The Court is not of the opinion that the mere
       hiring of Ms. Dee Dee Jones, on a temporary basis, at $6.50
       per hour, after Ms. Pelton had only been offered and refused
       $5.00 per hour, is such favoritism as would trigger an age
       discrimination case. This is true especially when Ms. Pelton
       accepted temporary employment in that job at $6.50 per hour
       when Ms. Jones left, and Ms. Pelton worked in that capacity
       for approximately 3 months.

             There is no evidence that age was a factor in the
       employment decision and that “but for” this factor the action
       would not have been taken.

               The Motion for Summary Judgment concerning Ms.
       Pelton is sustained.


The findings of the Trial Court as to Odie L. Mann are:

               Odie L. Mann was the only employee in the cafeteria
       with the job classification of Senior Chef. The job was not
       filled after she retired, and UTSI reduced the overall scope
       and level of the food services offered at its cafeteria.
       Previously, several daily hot plate lunches were offered, but
       now it is mostly a fast food type service and a soup/salad bar.
       As of November 1995, the staffing of the cafeteria had been
       reduced to only 2 part time employees.

               Ms. Mann complains that Bea Hill transferred into the
       cafeteria, but Bea Hill replaced Valerie Watson, who was
       already in the cafeteria and later resigned. Ms. Hill was 58
       when she replaced Ms. Watson.

              Ms. Mann’s termination date was delayed until May
       1994, in order for her to be able to receive her longevity pay
       and become eligible at 62 years of age to draw her Social
       Security Benefits. [Mann deposition 2/29/96, p. 31-32]

               On October 20, 1995, Ms. Mann was seriously injured
       in an auto accident. On February 9, 1996, her attorney filed
       suit on her behalf in Franklin County, Tennessee, and the suit
       claims that “(S)he is now permanently injured, has lost the
       capacity to earn, has lost the ability to enjoy life, and has


                                    -11-
       suffered and continues to suffer great pain, for all of which
       she is entitled to recover.” [See Mann, p. 3 paragraph 11]

              Defendants claim Ms. Mann fails to state a prima facie
       case because (1) the position of Senior Chef was not filled,
       and (2) she was not replaced by a younger worker.
       Defendants also claim she is barred by judicial estoppel,
       because of allegations in her suit concerning the auto
       accident; but that could only affect events following the auto
       accident.

               In the opinion of the Court, Ms. Mann has not
       established a prima facie case of age discrimination; because
       the evidence, viewed in favor of Ms. Mann and allowing all
       reasonable inferences in her favor, does not establish that she
       was replaced by another employee, or that younger employees
       in the same job were treated more favorably. Her position as
       Senior Chef has been abolished, the overall operation in the
       cafeteria has been modified, and there are only two part time
       employees in the cafeteria at this time. There is no evidence
       that age was a factor in the employment decision and that “but
       for” this factor the action would not have been taken.

             The Motion for Summary Judgment concerning Ms.
       Mann is sustained.


The findings of the Trial Court as to Boyd Stubblefield are:

               Boyd Stubblefield was employed as a media
       production assistant, he was the only employee with that job
       classification, and he was the only full time employee in that
       department. He primarily functioned as the photographer for
       UTSI. He was not terminated, but in the March 1994 RIF, he
       was advised that UTSI intended to reduce his employment to
       50% time. He claims this was a constructive discharge.

                He has not presented evidence that he meets the fourth
       criteria of McDonnell Douglas, or that a younger employee in
       the same job was treated more favorably. Mr. Stubblefield
       claims Ms. Linda Horton was treated more favorably, but it is
       clear Ms. Horton was not in the same job and did not have the
       same responsibilities. He was not replaced by a younger
       employee, and his duties were either distributed to existing
       employees or left unperformed. Scientific photography is
       either not being done, or is being performed by existing
       research workers. Public relations photography was done by
       an older employee until his retirement, and upon that
       employee’s retirements, these duties were spread among other
       employees. UTSI no longer developes film and does not print
       photographs in-house.

               In the opinion of the Court, Mr. Stubblefield has not
       established a prima facie case of age discrimination; because
       the evidence, viewed in favor of Mr. Stubblefield and
       allowing all reasonable inferences in his favor, does not


                                    -12-
              establish that he was replaced by another employee, or that a
              younger employee in the same job was treated more
              favorably. His duties have been distributed to existing
              employees, left undone, or not done in-house. There is no
              evidence that age was a factor in the employment decision
              and that “but for” this factor the action would not have been
              taken.


       The motion for Summary Judgment concerning Mr. Stubblefield is sustained.



       The findings of the Trial Court as to Richard G. Ray are:

                      Richard G. Ray was employed as the supervisor in the
              Gas Dynamics Laboratory, and he was the only employee in
              that job classification within that department. He supervised
              only two other workers in his department. The evidence does
              not show that he meets the fourth requirement of the
              McDonnell Douglas test. He was not replaced by a younger
              employee. His job was deleted entirely in the March 1994
              RIF, and the supervisory responsibilities of several
              laboratories were merged. Another laboratory supervisor, Mr.
              Goodman, was selected to be the supervisor over the
              laboratories. Mr. Goodman had more senority than Richard
              G. Ray, and in addition, Mr. Goodman had expertise different
              from Mr. Ray.

                      He complains that Ricky Meeker should have been
              laid off instead of him, but it is clear that Meeker was in a
              different job classification, that he was not a supervisor, and
              that he was and is a technician level individual performing
              maintenance.

                      In the opinion of the Court, Mr. Ray has not
              established a prima facie case of age discrimination; because
              the evidence, viewed in favor of Mr. Ray and allowing all
              reasonable inferences in his favor, does not establish that he
              was replaced by another employee, or that a younger
              employee in the same job was treated more favorably. His
              position has been abolished, and the supervisory
              responsibilities of several laboratories were merged.

                      The Motion for Summary Judgment against Mr. Ray

              is sustained.


                                THE APPLICABLE LAW



       The party seeking a summary judgment has the initial burden of demonstrating by

undisputed competent evidence that the moving party is entitled to summary judgment as a

                                             -13-
matter of law. A conclusory assertion that the non-moving party has no evidence is clearly

insufficient. Competent evidence that the non-moving party has no evidence may be sufficient.

When the initial burden of the movant has been satisfied, the burden of proceeding shifts to the

opponent of the motion to present competent evidence and/or law which negatives the ground

of the motion. Byrd v. Hall, Tenn. App. 1993, 847 S.W.2d 208.



       In respect to employees’ suits for unlawful discrimination, the motion of the employer

for summary judgment must be supported by more than a simple conclusory oath that “I did not

discriminate.” The employer must “articulate a legitimate lawful reason” for the discharge or

discrimination of the employee. Brenner v. Textron Aerostructures, Tenn. App. 1993, 874

S.W.2d 579, Bruce v. Western Auto Supply Co., Tenn. App. 1984, 669 S.W.2d 95. This does not

mean that the employer must initially present competent evidence of facts supporting the reason

for the management decision. It is sufficient to present the affidavit of the management official

that he had received reports of employees which he deemed sufficient to support this action.



       When the employer has thus supported his action, the burden of proceeding shifts to the

employee to present competent evidence that the adverse report received by management was

untrue, thus creating an issue of material fact which would render summary judgment improper.

Silpacharin v. Metropolitan Government, Tenn. App. 1990, 797 S.W.2d 625, Bruce v. Western

Auto Supply Co., Tenn. App. 1984, 669 S.W.2d 95, and authorities cited therein.



       In these suits by employees for age discrimination, the ultimate issues are: (1) whether

the employee was a member of a protected class, (2) Whether the employee was subjected to

adverse employment action, (3) Whether he or she was qualified for the position held, and (4)

he or she was replaced by a younger person. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 37 L. Ed.2d 668 (1973). Such may be shown by direct, circumstantial, or

statistical evidence. Bruce v. Western Auto Supply Co., Supra.




                                              -14-
       While statistical testimony has been admitted and considered in some cases, it is

generally looked upon with caution or suspicion. The inquiry is how a particular individual has

been treated, rather than any practice in the industry or even in the general practice or policy of

the employer. Cumpiano v. Banco Santander P.R., 1st Cir. 1990, 902 F.2d 148; Mack v. Great

Atl. & Pac. Tea Co., 1st Cir. 1989, 871 F.2d 179; Walther v. Lone Star Gas Co., 5th Cir. 1992,

977 F.2d 161; Gadson v. Concord Hospital, 1st Cir. 1992, 966 F.2d 32.



       In the present case, the Trial Court held that the statistical evidence offered by plaintiffs

in response to defendant’s motion was an insufficient response to defendant’s articulated

legitimate reason for the action taken.



       Appellants argue that the affidavit of Dr. McCay as to the reasons for his decisions

concerning plaintiffs is not sufficient to support defendant’s motion for summary judgment

because Dr. McCay kept no notes of his reasons which renders them suspect, thereby providing

a basis for consideration of the testimony of the statistician. This Court agrees with the holding

of the Trial Court that Dr. McCay’s credibility was not impeached and that the statistics were

insufficient to contradict his testimony.



       Some of the plaintiff’s arguments cannot be considered because they do not comply with

Rule 6(b) of the Rules of this Court by citing the pages of the record where evidence may be

found. Alexander v. Tennessee Farmers Mutual Insurance Co., Tenn. App. 1995, 905 S.W.2d

177, Pearman v. Pearman, Tenn. App. 1989, 781 S.W.2d 585.



       This Court concurs in all of the above findings of the Trial Court, and also finds that the

efforts of plaintiffs to impeach the character of Dr. McCay were not sufficiently supported.




                                               -15-
       The judgment of the Trial Court dismissing these suits are affirmed. Costs of this appeal

are taxed to the plaintiffs. The causes are remanded to the Trial Court for further necessary

proceedings.



                          AFFIRMED AND REMANDED



                                             _______________________________________
                                             HENRY F. TODD
                                             PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


___________________________
SAMUEL L. LEWIS, JUDGE


CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JUDGE




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