                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 MAY 26, 2010 Session

        JANICE MADDOX v. TENNESSEE STUDENT ASSISTANCE
                         CORPORATION

            Direct Appeal from the Chancery Court for Davidson County
                 No. 08-578-I    Claudia C. Bonnyman, Chancellor


                  No. M2009-02171-COA-R3-CV - Filed July 27, 2010


Employee sued her employer under the Tennessee Human Rights Act, alleging that she was
denied a promotion because of her race. The trial court granted summary judgment to the
employer. We reverse the summary dismissal and remand for further proceedings.




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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

James L. Harris, Nashville, Tennessee, for the appellant, Janice Maddox

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
Steven B. McCloud, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee
Student Assistance Corporation
                                             OPINION

                             I.   F ACTS & P ROCEDURAL H ISTORY

       In 2008, Janice Maddox (“Plaintiff”) filed a complaint against her employer,
Tennessee Student Assistance Corporation (“TSAC”), alleging that TSAC had discriminated
against her in violation of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101,
et seq. Specifically, Plaintiff alleged that she was denied a promotion on the basis of her
race, which is African-American.1 Plaintiff claimed that the “Director of Outreach” position
for which she applied was given to a white male who was far less qualified for the position.
TSAC filed an answer denying the allegations and subsequently filed a motion for summary
judgment.

        The following facts were undisputed. Plaintiff holds a bachelor’s degree and a
master’s degree in business administration. She began working for TSAC in 2003 as an
Outreach Specialist, which is an entry-level position. Outreach Specialists travel to schools
to present information on scholarships and state programs to students and counselors. TSAC
had three Outreach Specialists as part of its Communications Division, one for each grand
division of the State. Plaintiff was assigned to cover West Tennessee, and she traveled on
a weekly basis from her office in Nashville to schools in West Tennessee. In the fall of 2006,
TSAC was in the process of reorganizing its Communications Division staff, and the
Outreach Specialist positions were to be relocated to regional offices throughout Tennessee.
Plaintiff’s position would be moved to Memphis, and she would also have to assume more
presentation and travel duties “in the field.” In October of 2006, the “Director of Outreach”
position within the Communications Division in Nashville became vacant. In November,
Plaintiff approached TSAC’s Associate Executive Director for Communication Services, Ms.
Jeri Fields, and advised her that she was interested in the Director of Outreach position. Ms.
Fields informed Plaintiff that TSAC was looking for someone with a public relations
background and asked if Plaintiff had such a background, and Plaintiff responded that she
did not.

       Shortly thereafter, TSAC’s telephone operator supervisor position also became vacant.
Due to the reorganization of the Communications Division, more administrative
responsibility would soon fall to the call center where the Telephone Operator Supervisor
would be employed. Therefore, TSAC’s administration decided to expand that position into
a new “Director of Counselor Services” position. Plaintiff was ultimately promoted to
Director of Counselor Services at the call center. Another Outreach Specialist, who was a


       1
         Plaintiff’s complaint also alleged discrimination on the basis of age and gender, but she later
abandoned those claims.

                                                  -2-
white male, was ultimately promoted to the Director of Outreach position for which Plaintiff
had originally applied. However, the parties presented conflicting evidence regarding the
events leading up to these promotions.

        TSAC submitted the affidavits of two of its former employees: Ms. Fields, the
Associate Executive Director for Communication Services during the relevant time period,
and Robert Ruble, its Executive Director at the time. Ms. Fields stated that when Plaintiff
originally approached her to express her interest in the Director of Outreach position,
Plaintiff had stated that she was “tired of being on the road.” Ms. Fields stated that when the
new Director of Counselor Services position came about, she felt that Plaintiff would be
appropriate for the position because her “strengths were in her administrative abilities with
the high schools, colleges, students and parents,” and “she could be an asset to have ‘in
house’ dealing with the administrative duties due to her having been with TSAC since the
inception of the lottery scholarship program.” Ms. Fields said she approached Mr. Ruble
about changing the role of the call center supervisor to a professional position and promoting
Plaintiff to the position. She said she advised him of Plaintiff’s strengths in administration
and her desire to stay in Nashville with less travel responsibilities. Ms. Fields stated that Mr.
Ruble agreed that Plaintiff should be offered the promotion to Director of Counselor
Services. Mr. Ruble similarly stated in his affidavit that after discussing with Ms. Fields
Plaintiff’s strengths and her desire to stay in Nashville with less travel, he decided that
Plaintiff should be offered the promotion to Director of Counselor Services.

        Ms. Fields further stated that she spoke to Plaintiff in January of 2007 about TSAC’s
intention to create the Director of Counselor Services position and advised Plaintiff that the
position would be well-suited to her strengths and abilities. According to Ms. Fields,
Plaintiff agreed that she was well suited for the position and said that she was interested in
the position. Plaintiff stated that she was pleased that the position would allow her to stay
in Nashville, with less travel, and with an increased salary of $45,000. At the time, she was
earning $41,520. Ms. Fields said she then informed Plaintiff that the process of reclassifying
the Telephone Operator Supervisor position to the Director of Counselor Services position
would begin soon.

      It was undisputed that TSAC interviewed three candidates for the Director of
Outreach position in January and February of 2007, and that all three candidates had degrees
and experience in public relations.2 However, TSAC’s $42,000 budget for the Director of
Outreach position did not meet the salary expectations of the top two candidates. It was also
undisputed that TSAC determined that the core responsibilities of the Director of Outreach


        2
          Plaintiff testified that she was one of four individuals who applied for the position, but Plaintiff
was not interviewed. Mr. Seay did not apply for the Director of Outreach position.

                                                     -3-
would need to change, due to its reorganization of the Communications Division. It was
decided that the Director of Outreach would be required to travel because approximately
seventy percent of his or her time would be devoted to managing the Outreach Specialists
across the State. Certain writing and editing duties previously assigned to the Director of
Outreach were delegated to other employees. TSAC then began looking to hire someone
with hands-on experience from its current staff with a salary expectation within its budget.

       It was undisputed that Plaintiff approached Ms. Fields in mid-February to inquire
about the status of the proposed Director of Counselor Services position because she had
received an outside job offer, but she did not want to leave state employment because her
retirement was not yet vested. According to Ms. Fields, she informed Plaintiff that the
paperwork was in progress and that she would be promoted to the Director of Counselor
Services position once all approvals were received for the employment changes.

         According to Ms. Fields, TSAC management discussed the options for the Director
of Outreach position in late February and decided that the new responsibilities assigned to
the Director of Outreach would require someone who had proven to be “distinctly
aggressive” in the area of “visits and networking of new audiences.” Ms. Fields stated that
Jason Seay, another Outreach Specialist, was TSAC’s “most aggressive outreach employee,
especially with his networking and client building abilities.” TSAC introduced “trip lists”
in an effort to demonstrate Mr. Seay’s aggressive job performance. TSAC claimed that its
trip lists proved that during fiscal year 2007, Mr. Seay made 445 visits and reached 29,778
people, while Plaintiff made only 102 visits to reach 18,060 people. Ms. Fields and Mr.
Ruble said they believed that Mr. Seay could meet the travel expectations of the Director of
Outreach position and that his salary expectation was within their budget. They also believed
that he could “lead by example” and successfully train and support TSAC’s newly hired staff.
As such, Mr. Seay was offered the Director of Outreach position, which he accepted,
effective March 16, 2007, at an annual salary of $40,008 per year.

       According to Ms. Fields, she then told Plaintiff about Mr. Seay’s promotion to
Director of Outreach. Ms. Fields said she had not discussed the Director of Outreach
position with Plaintiff since Plaintiff initially expressed interest in the position in November
of 2006. According to Ms. Fields, she told Plaintiff about the Director of Outreach’s
changed responsibilities and mentioned the fact that Plaintiff had expressed a desire for less
travel. She also reiterated her opinion that Plaintiff’s strengths were best suited for the
Director of Counselor Services position, and the fact that Plaintiff would make $45,000 as
the Director of Counselor Services. According to Ms. Fields, Plaintiff agreed that her
strengths were more closely aligned with the Director of Counselor Services position.




                                              -4-
       In May 2007, TSAC received final approval for the new Director of Counselor
Services position, and Plaintiff was officially promoted to the new position at an annual
salary of $45,000.

        Plaintiff disputed various aspects of Ms. Fields’ account of what transpired. Plaintiff
admitted that Ms. Fields informed her in January of 2007 that a Director of Counselor
Services position was being created, but she said “she didn’t approach me, as far as wanting
it. She was letting us know what changes were about to take place in the office.” Plaintiff
denied that Ms. Fields discussed her strengths being well suited for the position and stated,
“She only said we were having changes in the department, and this is going to be one of
them.” Plaintiff claimed that when Mr. Seay was ultimately chosen for the Director of
Outreach position, Ms. Fields did not explain the reasons for the decision but merely said it
was “beyond [her] control.” Plaintiff testified that she worked for approximately two months
as an Outreach Specialist under Mr. Seay in his capacity as Director of Outreach, and that
she was subsequently told by Ms. Fields that if she did not accept the new position of
Director of Counselor Services, she would no longer have a job with TSAC. Plaintiff
testified that the Director of Counselor Services position was forced upon her, and that it was
not a professional position but a telephone operator position.

        Plaintiff testified during her deposition that she was more qualified for the Director
of Outreach position than Mr. Seay because she had been employed at TSAC for three years,
while Mr. Seay had worked there only ten months. In addition, Plaintiff trained Mr. Seay for
his position as Outreach Specialist. Plaintiff testified that everyone was aggressive at their
jobs, but she disputed the accuracy of the “trip lists” relied upon by TSAC and claimed that
she had other documents to prove that he did “nowhere near 400-and-something
presentations.” She offered to submit those documents as a late-filed exhibit but never did.
However, Plaintiff did attempt to explain why Mr. Seay may have had more visits during
2007 than she did. She explained that one “job requirement” for new Outreach Specialists
was to visit every school in their territory in order to learn the region and allow contacts to
“put a face with the name.” She said that such school visits did not include presentations.
Plaintiff said that she had to do the same thing when she first began as an Outreach
Specialist, but because she had been covering her territory for three years, she was not
required to visit every school.

       Plaintiff also testified about the salary expectations for the Director of Outreach. She
was already earning $41,520 annually as an Outreach Specialist, and the budget for the
Director of Outreach position was only $42,000. However, Plaintiff testified that she would
have accepted the position at $42,000 because “it was never about the money.” She said Ms.
Fields was aware of the fact that Plaintiff was interested in the position for its “higher status,”
recognition, “and the job title.”

                                                -5-
      Plaintiff also discussed her travel expectation. She testified that as Outreach
Specialist, she was traveling 85 percent of the time, while the Director of Outreach at the
time was only traveling 35 percent of the time. Plaintiff testified that since the
reorganization, the current Director of Outreach, Mr. Seay, had been required to travel
approximately 50 to 60 percent of the time.

       In its motion for summary judgment, TSAC argued that it had demonstrated
legitimate, non-discriminatory reasons for failing to promote Plaintiff. In response, Plaintiff
argued that there were genuine issues of fact regarding the motive for TSAC’s decision. She
also claimed that TSAC’s stated reasons were pretextual.

        The trial court granted summary judgment to TSAC, finding that the legitimate,
nondiscriminatory reasons it offered were sufficient to negate an essential element of
Plaintiff’s discrimination claim, and that Plaintiff had failed to demonstrate that those reasons
were pretextual. Plaintiff timely filed a notice of appeal.

                                 II.   S TANDARD OF R EVIEW

         A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov’t of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)).
Assuming that the facts being considered are found in the record and admissible in evidence,
the next inquiry is whether a factual dispute actually exists. Id. at 514. “If reasonable minds
could justifiably reach different conclusions based on the evidence at hand, then a genuine
question of fact exists.” Id. (citing Martin, 271 S.W.3d at 84; Louis Dreyfus Corp. v. Austin
Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993)). “If, on the other hand, the evidence and
the inferences reasonably drawn from the evidence would permit a reasonable person to
reach only one conclusion, then no material factual dispute exists, and the question can be
disposed of as a matter of law.” Id. (citing Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.
2002); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn. 1999)). Still,
not every factual dispute requires the denial of a motion for summary judgment. Id. To
warrant denial of a motion for summary judgment, the factual dispute must be material,
meaning “germane to the claim or defense on which the summary judgment is predicated.”
Id. (citing Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d
635, 639 (Tenn. 1999)).

                                               -6-
        When the moving party does not bear the burden of proof at trial, it may shift the
burden of production to the nonmoving party by either: (1) affirmatively negating an essential
element of the nonmoving party’s claim; or (2) showing that the nonmoving party cannot
prove an essential element of the claim at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d
1, 8-9 (Tenn. 2008). “[T]o negate an essential element of the claim, the moving party must
point to evidence that tends to disprove an essential factual claim made by the nonmoving
party.” Martin, 271 S.W.3d at 84 (citing Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn.
2004)). “If the moving party makes a properly supported motion, then the nonmoving party
is required to produce evidence of specific facts establishing that genuine issues of material
fact exist.” Id. (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Martin, 271 S.W.3d at 84. However, “we are
required to review the evidence in the light most favorable to the nonmoving party and to
draw all reasonable inferences favoring the nonmoving party.” Id. (citing Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). Summary judgment is appropriate “when the
undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,
support only one conclusion – that the moving party is entitled to a judgment as a matter of
law.” Green, 293 S.W.3d at 513 (citing Griffis v. Davidson County Metro. Gov't, 164
S.W.3d 267, 283-84 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,
620 (Tenn. 2002)).

                                     III.   D ISCUSSION

                                             A.

        “The Tennessee Human Rights Act is a comprehensive anti-discrimination statute,”
Spann v. Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999), which prohibits
discriminatory practices in employment. Marpaka v. Hefner, 289 S.W.3d 308, 313 (Tenn.
Ct. App. 2008). It provides that it is a “discriminatory practice” for an employer to fail or
refuse to hire any person because of such individual’s race, creed, color, religion, sex, age
or national origin. Tenn. Code Ann. § 4-21-401(a)(1). The Tennessee Human Rights Act
was designed to execute “the policies embodied in the federal Civil Rights Acts of 1964,
1968 and 1972, the Pregnancy Amendment of 1978, and the Age Discrimination in
Employment Act of 1967, as amended.” Tenn. Code Ann. § 4-21-101(a)(1). As such,
“[t]his Court has construed the Tennessee Human Rights Act under the framework of the
federal statutes upon which it was patterned[.]” Moore v. Nashville Elec. Power Bd., 72
S.W.3d 643, 651 (Tenn. Ct. App. 2001). “The same general analytical framework and
allocation of the burden of proof is used for claims under both federal and state statutes,

                                             -7-
irrespective of whether the claim asserts discrimination on the basis of race, age, sex, or any
other class protected under the Act.” Bundy v. First Tenn. Bank Nat’l Ass’n, 266 S.W.3d
410, 416 (Tenn. Ct. App. 2007) (citing Dennis v. White Way Cleaners, L.P., 119 S.W.3d 688,
693 (Tenn. Ct. App. 2003)).

        Under the federal anti-discrimination statutes, a plaintiff may assert claims of
“disparate treatment” or “disparate impact” discrimination. Moore, 72 S.W.3d at 651 (citing
45C Am. Jur. 2d Job Discrimination § 2703 (1993)). “Title VII prohibits both intentional
discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are
not intended to discriminate but in fact have a disproportionately adverse effect on minorities
(known as ‘disparate impact’).”3 Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009). Here,
Plaintiff alleges disparate treatment. “Disparate-treatment cases present the most easily
understood type of discrimination and occur where an employer has treated a particular
person less favorably than others because of a protected trait.” Id. (quotations omitted). For
this type of claim, the plaintiff must establish that the employer had “a discriminatory intent
or motive” for taking the job-related action. Id. (citing Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 986 (1988)). Direct evidence of an employer’s discriminatory intent is seldom
available to a plaintiff.4 Frame v. Davidson Transit Org., 194 S.W.3d 429, 434 (Tenn. Ct.
App. 2005). “Recognizing that direct evidence of discriminatory animus is often hard to
produce, the United States Supreme Court adopted a four-part, burden-shifting analysis in
McDonnell Douglas Corp. v. Green, [411 U.S. 792] (1973), which allows a discrimination
plaintiff to prove motivation with indirect or circumstantial evidence.” Moore, 72 S.W.3d
at 651. Tennessee courts now regularly apply the McDonnell Douglas analysis in
discrimination cases. Wilson, 104 S.W.3d at 50. Under the McDonnell Douglas approach,
the employee bears the initial burden of presenting evidence establishing a prima facie case
of discrimination. Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000); Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 200 (Tenn. Ct. App. 1999)).


        3
            “A ‘disparate impact’ case is one in which a facially-neutral employment policy, such as an
applicant testing procedure or height and weight requirement, has the effect of treating individuals in the
protected class less favorably.” Moore, 72 S.W.3d at 651. No showing of discriminatory motivation is
required in a disparate impact case. Id.
        4
           “Direct evidence of discrimination consists of evidence of an employer’s conduct or statements
which, if believed, requires a conclusion that unlawful discrimination was a substantial motivating factor for
the employer’s actions.” Wilson v. Rubin, 104 S.W.3d 39, 49 (Tenn. Ct. App. 2002). It includes an
acknowledgment by an employer of discriminatory intent. Spann, 36 S.W.3d at 464. However, evidence
that can be interpreted as acknowledging discriminatory intent will also suffice “even if it stops short of a
virtual admission of illegality.” Wilson, 104 S.W.3d at 49. Direct evidence, if believed, establishes the
existence of discriminatory intent without any inferences or presumptions. Frye v. St. Thomas Health
Servs., 227 S.W.3d 595, 609 (Tenn. Ct. App. 2007).

                                                     -8-
“This is an evidentiary standard, not a pleading requirement.” Id. (citing Swierkiewicz v.
Sorema, 534 U.S. 506, 510-11 (2002)).

       To establish a prima facie case of employment discrimination based upon a failure to
promote, Plaintiff must prove by a preponderance of the evidence (1) that she is a member
of a protected class, such as a racial minority, (2) that she applied for and was qualified for
the position, (3) that she was subjected to adverse employment action, i.e., denied the
promotion, and (4) that a person outside the protected class received the promotion. See
McDonnell Douglas, 411 U.S. at 802; Allen v. Michigan Dep’t of Corr., 165 F.3d 405, 410
(6th Cir. 1999); Moore, 72 S.W.3d at 651.5 “Establishing a prima facie case of
discrimination creates a rebuttable presumption that the employer unlawfully discriminated
against the employee.” Wilson, 104 S.W.3d at 50 (citing St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506 (1993); Gonzalez v. El Dia, Inc., 304 F.3d 63, 68-69 (1st Cir. 2002)). In this
case, TSAC admitted, for purposes of summary judgment, that Plaintiff had established a
prima facie case of employment discrimination.

        Once a plaintiff proves a prima facie case of discrimination, the burden of production
shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. In other words, the defendant
bears “the burden of producing an explanation to rebut the prima facie case – i.e., the burden
of ‘producing evidence’ that the adverse employment actions were taken ‘for a legitimate,
nondiscriminatory reason.’” St. Mary’s Honor Ctr., 509 U.S. at 506-507 (citing Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). “‘[T]he defendant must clearly set
forth, through the introduction of admissible evidence,’ reasons for its actions which, if
believed by the trier of fact, would support a finding that unlawful discrimination was not the
cause of the employment action.” Id. at 507 (quoting Burdine, 450 U.S. at 254-55, n.8).
However, this burden is one of production, not one of persuasion. Reeves, 530 U.S. at 142.
“[T]he defendant need not persuade the court that it was actually motivated by the proffered
reasons.”6 St. Mary’s Honor Ctr., 509 U.S. at 510 (citing Burdine, 450 U.S. at 254). This


        5
           The precise requirements for establishing a prima facie case of unlawful discrimination can vary
depending on the context, as “[t]hey were ‘never intended to be rigid, mechanized, or ritualistic.’” Wilson,
104 S.W.3d at 51 (quoting Furnco Constr. Corp. v. Waters, 98 S. Ct. 2943, 2949 (1978)). As the Supreme
Court noted in McDonnell Douglas, 411 U.S. at 802 n.13, the facts “necessarily will vary” in discrimination
cases, and the prima facie proof required in one case “is not necessarily applicable in every respect to
differing factual situations.” Still, the same general analytical framework applies “irrespective of whether
the claim asserts discrimination on the basis of race, age, sex, or any other class protected under the Act.”
Bundy, 266 S.W.3d at 416.
        6
            It is important to note that although burden of production shifts to the defendant, “the ultimate
                                                                                                (continued...)

                                                      -9-
stage of the analysis “can involve no credibility assessment.” Id. at 509. “[B]y producing
evidence of a nondiscriminatory reason, persuasive or not, defendant meets its burden of
production.” Davis v. Reliance Elec., 104 S.W.3d 57, 62 (Tenn. Ct. App. 2002) (citing St.
Mary’s Honor Ctr., 113 S. Ct. at 2747).

          If the employer carries its burden of production, “the presumption of discrimination
drops out of the picture.” St. Mary’s Honor Ctr., 509 U.S. at 511. However, the plaintiff
retains that ultimate burden of persuading the trier of fact that she has been the victim of
intentional discrimination. Id. at 508. As such, the burden shifts back to the plaintiff to
prove by a preponderance of the evidence that the reason proffered by the employer was not
the true reason for its action, but merely a pretext for discrimination. Marpaka, 289 S.W.3d
at 313; Moore, 72 S.W.3d at 652. “That is, the plaintiff may attempt to establish that he was
the victim of intentional discrimination ‘by showing that the employer's proffered
explanation is unworthy of credence.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S.
at 256). The employee may demonstrate that the employer’s proffered reasons are pretextual
“by revealing the ‘weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions’ in the employer’s explanation.” Frame, 194 S.W.3d at 438-39 (quoting
Wilson, 104 S.W.3d at 50-51). Three of the most common ways of undermining the
employer’s proffered reasons are by showing that the employer’s proffered reasons (1) have
no basis in fact, (2)were not really the factors motivating the adverse decision, or (3) even
if they were factors, they were jointly insufficient to motivate the decision. Wilson, 104
S.W.3d at 51; Moore, 72 S.W.3d at 652. An employer’s proffered reason has no basis in fact
if it is “factually false.” Versa v. Policy Studies, Inc., 45 S.W.3d 575, 581 (Tenn. Ct. App.
2000) (citing Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994)).

                                                    B.

       We now turn to the facts of the case before us. Plaintiff conceded before the trial
court that she had no direct evidence of TSAC’s discriminatory intent and that she was
relying upon the McDonnell Douglas analysis to prove discriminatory motivation with
indirect or circumstantial evidence. As noted above, TSAC conceded, for purposes of
summary judgment, that Plaintiff had established a prima facie case of discrimination by
proving: (1) that she is black, (2) that she was qualified for the position of Director of


        6
          (...continued)
burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” St. Mary's Honor Ctr., 509 U.S. at 507. The burden is not upon the
employer to show an absence of discrimination. Bruce v. W. Auto Supply Co., 669 S.W.2d 95, 97 (Tenn.
Ct. App. 1984). “The employer must simply produce evidence of legitimate non-discriminatory reasons.”
Id. (citing Bd. of Trustees of Keene State Coll. v. Sweeney, 99 S. Ct. 295 (1978)).

                                                   -10-
Outreach, (3) that she was denied the promotion,7 and (4) that the position was ultimately
filled by a white man. However, TSAC claimed that it had carried its burden of production
by offering legitimate nondiscriminatory reasons for its decision. TSAC lists the following
as nondiscriminatory reasons for its decision:

               There was another employee on TSAC’s staff, Mr. Seay, who had
        proven to be TSAC’s most aggressive outreach employee, especially with his
        networking and client building abilities. TSAC believed that Mr. Seay could
        best meet the new expectations for travel and networking to train and support
        the soon to be hired staff. TSAC staff believed that Mr. Seay would be the
        best employee to lead by example. The position was budgeted at $42,000 per
        year and was within the salary expectation of Mr. Seay.

                TSAC believed that Plaintiff’s strengths were in her administrative
        abilities with high schools, colleges, students, and parents and that she could
        best be utilized as an asset to have in-house dealing with administrative duties
        due to her having been with TSAC since the inception of the lottery
        scholarship program. The Director of Outreach position required extensive
        travel and Plaintiff had expressed a desire for less travel and a higher salary
        than was budgeted for the Director of Outreach position. Plaintiff was
        determined to be more qualified for the Director of Counselor Services
        position within TSAC, a position that paid a higher annual salary and did not
        require travel.

We readily conclude that TSAC carried its burden of “producing evidence” that its action
was taken for a legitimate, nondiscriminatory reason.8 See St. Mary’s Honor Ctr., 509 U.S.
at 506-507. TSAC “clearly set forth, through the introduction of admissible evidence,

        7
            We note that TSAC did not argue that Plaintiff was not subjected to an adverse employment action,
even though she was promoted to another position with a higher salary. An employee’s “purely subjective
preference for one position over another” will not suffice. Frye, 227 S.W.3d at 611. However, “a material
and adverse change in the terms and conditions of employment” is sufficient, such as a “demotion evidenced
by . . . a less distinguished title[;] or a significant reduction of material responsibilities.” Id. at 610.
        8
            Plaintiff argues on appeal that TSAC’s proffered reasons are based “on matters of perception
which cannot be the basis for the granting of summary judgment.” In Moore, 72 S.W.3d at 652, the plaintiff
similarly argued that whether legitimate nondiscriminatory reasons existed was an issue of material fact that
was not appropriate for summary judgment. The Court explained that the plaintiff’s position was “a
misinterpretation of the McDonnell Douglas burden-shifting analysis.” Id. Again, the employer’s burden
at this stage is “one of production, not one of persuasion.” Wilson, 104 S.W.3d at 50. “[T]he defendant need
not persuade the court that it was actually motivated by the proffered reasons,” and there is no credibility
assessment at this point of the analysis. St. Mary’s Honor Ctr., 509 U.S. at 510.

                                                    -11-
reasons for its actions which, if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment action.” Id. at 507.

        The issue before us, then, is whether Plaintiff sufficiently demonstrated that those
reasons were pretextual. “In order to survive summary judgment under the McDonnell
Douglas analysis, a plaintiff must offer some evidence to prove that the employer’s
legitimate, non-discriminatory reasons are pretext for discrimination.” Moore, 72 S.W.3d
at 652. Because we are at the summary judgment stage, “‘the plaintiff need not totally refute
the defendant’s assertions as to its reasons for its actions, but must present some evidence,
whether direct or circumstantial, that is sufficient to create a genuine issue of material fact
as to the motivations of the defendant.’” Bundy, 266 S.W.3d at 417 (quoting Dennis, 119
S.W.3d at 694). A successful challenge to the employer’s stated reason negates the defense
claimed. Frame, 194 S.W.3d at 440. “[I]f the plaintiff succeeds in making the employer’s
stated non-discriminatory reason a disputed fact, then it is up to the fact-finder to resolve the
factual dispute as well as the ultimate question – whether the employer discriminated against
the employee.” Id. at 439. “‘If the only reason an employer offers for [its action] is a lie, the
inference that the real reason was a forbidden one . . . may rationally be drawn. This is the
common sense behind the rule of McDonnell Douglas. The point is only that if the inference
of improper motive can be drawn, there must be a trial.’” Versa, 45 S.W.3d at 582 (quoting
Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)).

        As noted above, Plaintiff challenged TSAC’s suggestion that Mr. Seay was its most
aggressive outreach employee by testifying that its “trip lists” included inaccurate
information and by testifying that Mr. Seay only had more “visits” than she did because he
was a new Outreach Specialist who was required to travel to all of the schools in his territory.
She testified that these visits would not have included presentations. With regard to TSAC’s
contention that it believed Mr. Seay could best train the “soon-to-be hired staff,” Plaintiff
stated that it was unclear as to whom TSAC was referring, as the department consisted of
only a few employees. However, she stated that she had previous experience in hiring and
training, and that Mr. Seay had never worked in a supervisory role according to his resume.
She also testified that it was she who trained Mr. Seay. Plaintiff also disputed TSAC’s
suggestion that she would not have accepted the position because of its travel responsibilities
and lower salary. Plaintiff’s affidavit stated that she “had no problem with the travel
expectation of this job,” and that she was aware of the travel requirement when she applied
for the position.9 Regarding the salary, Plaintiff similarly stated that she was “well aware”


        9
           TSAC contends that there is a conflict between Plaintiff’s affidavit and her response to TSAC’s
statement of undisputed facts regarding whether she desired a job with less travel. “Issues of witness
credibility present issues of fact and must be construed in favor of a nonmoving party when considering a
                                                                                              (continued...)

                                                   -12-
of the salary when she applied and that she never asked for the position’s salary to be
increased. Plaintiff testified that “it was never about the money.” Finally, regarding TSAC’s
contention that Plaintiff’s strengths were well-suited for the Director of Counselor Services
position, Plaintiff stated that the abilities mentioned by TSAC were also those stated in the
job description for the Director of Outreach. She stated that the posted job description
required someone with three to five years of professional experience in public relations,
outreach and communication, and she contended that she had such experience while Mr.
Seay did not.10

        We reiterate that the issue before the Court at this stage is not whether Plaintiff was
discriminated against because of her race. The issue is whether she has created a genuine
issue of material fact. On a motion for summary judgment, Plaintiff was not required to
“totally refute the defendant’s assertions as to its reasons for its actions.” Bundy, 266
S.W.3d at 417. It was only necessary for her to “present some evidence, whether direct or
circumstantial, that is sufficient to create a genuine issue of material fact as to the employer’s
motivations.” Bundy, 266 S.W.3d at 417. “If reasonable minds could justifiably reach
different conclusions based on the evidence at hand, then a genuine question of fact exists.”
Green, 293 S.W.3d at 514. Considering the evidence in the light most favorable to Plaintiff,
as we are required to do at the summary judgment stage, we find that she has demonstrated
a genuine issue of material fact by revealing “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in her employer’s explanation. See Frame, 194 S.W.3d at
438. Plaintiff’s evidence is sufficient to permit a rational factfinder to conclude that TSAC’s
proffered reasons were pretextual. See Versa, 45 S.W.3d at 581. Thus, summary judgment
was not appropriate.

      Again, we are not determining that Plaintiff is entitled to prevail on her claim for
employment discrimination.11 We have merely found that she raised genuine issues of

        9
        (...continued)
motion for summary judgment.” Lawrence County Educ. Ass'n v. Lawrence County Bd. of Educ., 244
S.W.3d 302, 320 (Tenn. 2007). The alleged inconsistencies in Plaintiff’s evidence do not compel a grant of
summary judgment in TSAC’s favor. These are issues for the trier of fact to consider.
        10
            We note that the issue is not whether TSAC’s decision was sound, but whether the asserted reason
for its decision was pretextual. Versa, 45 S.W.3d at 582. However, the reasonableness of an employer’s
decision may be considered insofar as it illuminates the employer’s motivations. Id.
        11
          Even if TSAC’s proffered reasons are ultimately rejected by the factfinder, that does not compel
a judgment for Plaintiff. See Reeves, 530 U.S. at 146. The factfinder’s disbelief of an employer’s proffered
reasons may, together with the elements of the prima facie case, suffice to show intentional discrimination.
St. Mary’s Honor Ctr., 509 U.S. at 511. “Thus, rejection of the defendant’s proffered reasons will permit
                                                                                               (continued...)

                                                    -13-
material fact as to her claim, which make summary judgment inappropriate.

                                          IV.     C ONCLUSION

      For the aforementioned reasons, we reverse the order of the chancery court and
remand for further proceedings. Costs of this appeal are taxed to the appellee, Tennessee
Student Assistance Corporation, for which execution may issue if necessary.




                                                           _________________________________
                                                           ALAN E. HIGHERS, P.J., W.S.




        11
           (...continued)
the trier of fact to infer the ultimate fact of intentional discrimination,” and “[n]o additional proof of
discrimination is required.” Id. However, “[t]hat the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the plaintiff's proffered reason of race is correct.”
Id. at 524. “In other words, it is not enough to disbelieve the employer; the factfinder must believe the
plaintiff’s explanation of intentional discrimination.” Reeves, 530 U.S. at 147 (quotation omitted).


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