IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2010 Session
GARY M. GOSSETT v. TRACTOR SUPPLY COMPANY
Appeal by Permission from the Court of Appeals, Middle Section
Chancery Court for Davidson County
No. 04-1484-IV Richard H. Dinkins, Chancellor
No. M2007-02530-SC-R11-CV - Filed September 20, 2010
C ORNELIA A. C LARK, J., concurring in part and dissenting in part.
I concur in part II of the majority opinion, holding that the reporting of an illegal
activity is not an essential element of an employee’s claim of retaliatory discharge for
refusing to participate in an illegal activity, and, as I explain subsequently, I ultimately
concur in the judgment denying the defendant’s motion for summary judgment. Nonetheless,
I write separately to dissent from the majority’s decision in part I to dispense with the
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), at the
summary judgment stage in all employment discrimination and retaliation cases.
The McDonnell Douglas framework is compatible with our summary judgment
framework as set forth in the Tennessee Rules of Civil Procedure and Hannan v. Alltel
Publishing Co., 270 S.W.3d 1 (Tenn. 2008). Pursuant to Rule 56.04, a moving party obtains
summary judgment by “show[ing] 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.” As that rule is interpreted
in Hannan, a party moving for summary judgment and “seek[ing] to shift the burden of
production to the nonmoving party who bears the burden of proof at trial must either: (1)
affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that
the nonmoving party cannot prove an essential element of the claim at trial.” 270 S.W.3d at
8-9. A moving party cannot merely “challenge the nonmoving party to ‘put up or shut up’
or . . . cast doubt on a party’s ability to prove an element at trial.” Id. at 8.
To establish the employer’s liability for retaliatory discharge of an at-will employee
at common law, the employee must prove that (1) the employee’s discharge violated a clear
public policy and (2) said violation of clear public policy was a substantial factor in the
employee’s termination. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn.
2002); Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988). In a motion for
summary judgment, when an employer submits evidence that the plaintiff-employee was
discharged for a legitimate, non-pretextual reason, the employer affirmatively negates the
final element of the cause of action for retaliatory discharge. To put it another way, the
employer shows that the plaintiff cannot prove that the violation of clear public policy was
a substantial factor in the termination decision because the employer has pointed to the
legitimate factor that actually prompted the decision. When the employer supports this
assertion with evidence from the record, the employer does more than identify deficiencies
in the non-moving party’s evidence or tell the non-moving party to “put up or shut up.”
Instead, the employer makes an affirmative showing that shifts the burden of production to
the non-moving plaintiff.
Admittedly, as the majority opinion points out, our Court has not reached, in the
context of a summary judgment motion on a common-law claim for retaliatory discharge, the
question of what the employee must do after the employer has proffered a legitimate reason
for the discharge.1 Nonetheless, in other causes of action for employment discrimination and
retaliation, such as a claim brought under the Tennessee Human Rights Act (“THRA”), we
have held that the employee must then “present evidence demonstrating that the articulated
reason is pretextual and that the defendant’s action was actually motivated by a desire to
retaliate against the employee.” Allen v. McPhee, 240 S.W.3d 803, 821 (Tenn. 2007). The
employee can meet the burden of production through evidence that (1) the employer’s reason
lacks a basis in fact, (2) the employer’s reason was not the actual motivation for the
discharge, or (3) the employer’s reason is not sufficient to warrant a discharge. Id. at 823
(citing Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003)).
Although the majority criticizes the McDonnell Douglas framework as applied to
motions for summary judgment, we do not need to abrogate that framework in order to deny
1
The majority also states that, in the common-law retaliatory discharge context, we have never “been
called on . . . to demonstrate how the employer’s burden of showing a legitimate reason for discharge applies
at the summary judgment stage.” A review of the cited cases suggests otherwise. Through an excerpt from
a prominent secondary authority, we have given examples of legitimate, non-pretextual reasons. Anderson
v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993) (quoting 2A A. Larson, The Law of Workmen’s
Compensation § 68.36(d), at 188-91 (1990)). Our quotation from Larson’s treatise specifically explained
that, when the employer invoked general business conditions as the legitimate reason, evidence of other
layoffs unrelated to retaliation would be a particularly appropriate showing to substantiate that reason. Id.
We have also explained that defendants will obtain summary judgment in such cases “only when the facts
and inferences drawn from those facts permit a reasonable person to reach only one conclusion,” ultimately
denying summary judgment where the employer had cited a legitimate reason for discharge but the evidence
allowed the trier of fact to infer that a retaliatory motive was a substantial factor in the employee’s discharge.
Guy, 79 S.W.3d at 534, 539.
-2-
summary judgment in this case. Here, the employer predicated its motion for summary
judgment on the testimony of its vice-president and controller, David Lewis, who stated that
he terminated the plaintiff because plaintiff’s position was redundant and the employer
desired to reduce its workforce. Eliminating redundancies and reducing the workforce are
legitimate reasons to terminate employees. Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 350-51 (6th Cir. 1998); Brenner v. Textron Aerostructures, 874 S.W.2d 579, 588
(Tenn. Ct. App. 1993). Nonetheless, the record is replete with evidence that the employer’s
stated reasons for discharging plaintiff were pretextual: the testimony of plaintiff’s successor
concerning the “dramatically different” job responsibilities of plaintiff’s position, Lewis’s
statement to plaintiff’s successor that plaintiff was terminated for “unacceptable
performance,” a newspaper advertisement for a position in plaintiff’s department that ran
earlier in the week when plaintiff was terminated, and the demotion rather than discharge of
plaintiff’s predecessor. This evidence suggests that the employer was not actually
eliminating redundancies or reducing its workforce but discharged the plaintiff for some
other reason. Accordingly, there is a genuine issue of material fact whether plaintiff’s refusal
to participate in allegedly illegal activity was a substantial reason for plaintiff’s termination.
Therefore, applying the McDonnell Douglas framework to this record, I readily
concur that we should affirm the judgment of the Court of Appeals and deny the employer’s
motion for summary judgment. Nonetheless, my conclusion begs the question of why the
majority has chosen this case to depart from McDonnell Douglas. The suitability of the
McDonnell Douglas framework for the analysis of these facts makes it unnecessary, in my
view, to use this case as a vehicle for upending summary judgment practice in all of the
employment discrimination and retaliation cases in Tennessee’s courts.
Indeed, the McDonnell Douglas framework has served Tennessee courts long and well
in employment law cases, even in cases decided since we began to depart from the federal
summary judgment standard. Fewer than three years ago, we capably applied the McDonnell
Douglas framework to analyze a THRA retaliation claim at the summary judgment stage in
Allen, a decision that the majority opinion unduly maligns today. In that case, among other
issues, we were able to conclude that the employer was entitled to summary judgment on the
plaintiff’s retaliation claim. Id. at 823. Although the plaintiff made out a prima facie case
of retaliation by showing that she had been reassigned shortly after she filed a sexual
harassment complaint, the employer articulated a legitimate, non-discriminatory reason for
the transfer: protecting the plaintiff from further sexual harassment. Id. We then concluded
the plaintiff lacked any evidence that her employer’s motive was pretextual. Id. We
specifically concluded, “While a reasonable person could conclude that [the plaintiff] has
been assigned to a position that is less desirable than her previous position, her reassignment
is clearly superior to the alternative of remaining in a position in which she would be forced
to interact closely with her harasser.” Id.
-3-
Our decision in Allen validated the merit of the McDonnell Douglas framework as “‘a
sensible, orderly way to evaluate the evidence . . . as it bears on the critical question of
discrimination’”—a function that the framework serves just as well at the summary judgment
phase as it does at trial. See George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (quoting
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)) (other
internal quotation omitted). Applying the McDonnell Douglas framework in Allen allowed
us to evaluate, in logical sequence, (1) the circumstantial evidence of causation, which was
limited to the close temporal proximity between plaintiff’s sexual harassment complaint and
the reassignment; (2) the employer’s legitimate reason for reassigning the plaintiff; and (3)
the absence of evidence to show that the employer’s reason was pretextual, that is, not the
real reason for the reassignment.
Our analysis in Allen withstands the criticisms that the majority levels against it here.
Application of the McDonnell Douglas framework in Allen did not “skew[] our summary
judgment analysis in favor of the employer,” as the majority asserts. Instead, we concluded
that, given the employer’s unrebutted intent to protect the plaintiff from further harassment,
there was no genuine issue of material fact as to whether the plaintiff was reassigned in
retaliation against her protected activity. Similarly, in Allen we did not “separate[] the
evidence supporting the employee’s prima facie case . . . from our consideration of whether
the employee presented evidence of pretext” when we concluded that the plaintiff had done
nothing to contradict the evidence that her employer had reassigned her as protection against
further sexual harassment. Even in making out her prima facie case, the plaintiff’s only
evidence of causation was an inference predicated on the temporal proximity between the
filing of her sexual harassment complaint and her reassignment. Under those circumstances,
no genuine issue remained for trial on the ultimate question of retaliation.
Given our longstanding reliance on the McDonnell Douglas framework, we should
be more deliberate about the decision to abandon it. Before Allen, this Court and the Court
of Appeals had issued a long line of published decisions applying McDonnell Douglas at the
summary judgment stage. Indeed, the framework was first used by our Court of Appeals
more than a quarter-century ago to affirm the dismissal of a THRA age discrimination claim.
Bruce v. W. Auto Supply Co., 669 S.W.2d 95, 97 (Tenn. Ct. App. 1984). Since that time,
the McDonnell Douglas framework has been used in at least twenty-five published decisions
of this court or the Court of Appeals, including eighteen cases involving motions for
summary judgment. Allen, 240 S.W.3d at 819 (summary judgment); Barnes v. Goodyear
Tire & Rubber Co., 48 S.W.3d 698, 708 (Tenn. 2000); Phillips v. Interstate Hotels Corp. No.
L07, 974 S.W.2d 680, 684 (Tenn. 1998) (summary judgment); Marpaka v. Hefner, 289
S.W.3d 308, 313 (Tenn. Ct. App. 2008) (summary judgment); Bundy v. First Tenn. Bank
Nat’l Ass’n, 266 S.W.3d 410, 416-17 (Tenn. Ct. App. 2007) (summary judgment); Frye v.
St. Thomas Health Servs., 227 S.W.3d 595, 610 (Tenn Ct. App. 2007) (summary judgment);
-4-
Oates v. Chattanooga Publ’g Co., 208 S.W.3d 418, 425 (Tenn. Ct. App. 2006) (summary
judgment); Frame v. Davidson Transit Org., 194 S.W.3d 429, 434-35 (Tenn. Ct. App. 2005)
(summary judgment); Arnett v. Domino’s Pizza I, L.L.C., 124 S.W.3d 529, 540 n.6 (Tenn.
Ct. App. 2003); Miller v. City of Murfreesboro, 122 S.W.3d 766, 776 (Tenn. Ct. App. 2003)
(summary judgment); Dennis v. White Way Cleaners, L.P., 119 S.W.3d 688, 694 (Tenn. Ct.
App. 2003) (summary judgment); Fox v. Baptist Mem’l Hosp. Tipton, 148 S.W.3d 903, 906
(Tenn. Ct. App. 2002) (summary judgment); Davis v. Reliance Elec., 104 S.W.3d 57, 62-63
(Tenn. Ct. App. 2002); Wilson v. Rubin, 104 S.W.3d 39, 50-51 (Tenn. Ct. App. 2002)
(summary judgment); Moore v. Nashville Elec. Power Bd., 72 S.W.3d 643, 651-52 (Tenn.
Ct. App. 2001) (summary judgment); Perlberg v. Brencor Asset Mgmt., Inc., 63 S.W.3d 390,
394-95 (Tenn. Ct. App. 2001) (summary judgment); Versa v. Policy Studies, Inc., 45 S.W.3d
575, 580-81 (Tenn. Ct. App. 2000) (summary judgment); Spann v. Abraham, 36 S.W.3d 452,
465 (Tenn. Ct. App. 1999); Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 200-01
(Tenn. Ct. App. 1999) (summary judgment); Frazier v. Heritage Fed. Bank for Sav., 955
S.W.2d 633, 636 (Tenn. Ct. App. 1997); Mangrum v. Wal-Mart Stores, Inc., 950 S.W.2d 33,
39 (Tenn. Ct. App. 1997) (summary judgment); Newsom v. Textron Aerostructures, 924
S.W.2d 87, 96 (Tenn. Ct. App. 1995) (summary judgment); Loeffler v. Kjellgren, 884
S.W.2d 463, 469 (Tenn. Ct. App. 1994); Brenner, 874 S.W.2d at 583 (summary judgment);
Silpacharin v. Metro. Gov’t, 797 S.W.2d 625, 629-30 (Tenn. Ct. App. 1990).
The experience of other jurisdictions confirms that the abandonment of McDonnell
Douglas does not inevitably accompany a departure from the federal summary judgment
standard. A recent scholarly article on summary judgment in Tennessee identified eight other
states that, like us, have rejected the federal standard set forth in Celotex Corp. v. Catrett, 477
U.S. 317 (1986) (plurality opinion): Alaska, Connecticut, Florida, Indiana, Kentucky, New
Mexico, Oklahoma, and Texas.2 Judy M. Cornett, Trick or Treat? Summary Judgment in
Tennessee After Hannan v. Alltel Publishing Co., 77 Tenn. L. Rev. 305, 344 (2010). At least
two of these states have adopted a summary judgment regime that imposes even greater
burdens on the moving party and/or lesser burdens on the non-moving party than does
Tennessee. Id. at 344-45. All of these states, however, continue to apply the McDonnell
Douglas framework at the summary judgment stage in employment cases. Mahan v. Arctic
Catering, Inc., 133 P.3d 655, 660 (Alaska 2006); Ford v. Blue Cross & Blue Shield of Conn.,
Inc., 578 A.2d 1054, 1060-61 (Conn. 1990); Byrd v. BT Foods, Inc., 948 So. 2d 921, 927
(Fla. Dist. Ct. App. 2007); Purdy v. Wright Tree Serv., Inc., 835 N.E.2d 209, 213 (Ind. Ct.
App. 2005); Bohl v. City of Cold Spring, — S.W.3d —, 2009 WL 3786633, at *3 (Ky. Ct.
2
By amending its summary judgment rule in 1997 to add a no-evidence motion that allows the
moving party to obtain summary judgment without presenting evidence, Texas “obviated, to some extent,
the differences in summary judgment procedure” between the Texas and federal systems. Huckabee v. Time
Warner Entm’t Co., 19 S.W.3d 413, 421 (Tex. 2000) (discussing Tex. R. Civ. P. 166a(i)).
-5-
App. Nov. 13, 2009); Juneau v. Intel Corp., 127 P.3d 548, 551 (N.M. 2005); Buckner v. Gen.
Motors Corp., 760 P.2d 803, 806-07 (Okla. 1988); Tex. Dep’t of Human Servs. v. Hinds, 904
S.W.2d 629, 636 (Tex. 1995). Furthermore, the majority’s decision places Tennessee among
a small minority of jurisdictions, as we become only the fourth state to abandon wholesale
the McDonnell Douglas framework in all employment discrimination and retaliation causes
of action at the summary judgment stage.3
Going forward, the majority’s abandonment of the McDonnell Douglas framework
is likely to engender uncertainty among both courts and counsel as to when defendants can
obtain summary judgment in employment discrimination and retaliation cases filed in
Tennessee courts. The majority maintains that, consistent with Hannan, the employer must
set forth evidence affirmatively negating an essential element of the plaintiff’s claim or show
that the plaintiff cannot prove an essential element of the claim at trial. However, when the
employer submitted evidence in this case of its legitimate, non-retaliatory reason for
discharging the plaintiff, the majority dismissed this proof as insufficient because it failed
to show that the non-retaliatory reason “was the exclusive reason for discharging Mr.
Gossett” and because it does not show “an absence of a retaliatory motive.” However, the
majority provides little, if any, specific guidance as to how employers could otherwise shift
the burden of production onto the plaintiff at the summary judgment phase. If proof of a
legitimate explanation for the employee’s termination (or other adverse employment action)
can no longer affirmatively negate, or show that the plaintiff cannot prove, the causation
element of the plaintiff’s claim, then the majority has foreclosed perhaps the most common
argument among defendants seeking summary judgment in employment discrimination and
retaliation cases. See Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The
Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203,
244-45 (1993) (explaining that a defendant “will not wait for the plaintiff to establish a prima
facie case in response to the motion” for summary judgment but instead, “in the moving
papers, . . . will attempt to articulate a legitimate, non-discriminatory reason for the
employment decision”); see also Christopher R. Hedican et al., McDonnell Douglas: Alive
and Well, 52 Drake L. Rev. 383, 424 (2004) (describing the instance when a plaintiff cannot
make the prima facie showing as an “unusual case”).
The majority’s commentary on our prior decision in Allen only heightens this
uncertainty. In citing Allen as a textbook example of the flaws of the McDonnell Douglas
3
At summary judgment the McDonnell Douglas framework remains viable throughout the federal
courts and is used in at least some aspect of employment law by every state except Missouri, Hill v. Ford
Motor Co., 277 S.W.3d 659, 664-65 (Mo. 2009), Oregon, Lansford v. Georgetown Manor, Inc., 84 P.3d
1105, 1115 (Or. Ct. App. 2004), and Virginia, Jordan v. Clay’s Rest Home, Inc., 483 S.E.2d 203, 206-08 (Va.
1997).
-6-
framework, and specifically criticizing it as “skewed . . . in favor of the employer,” the
majority states unequivocally that the case would have come out differently if it had been
analyzed without reference to that framework. In so doing, the majority’s opinion has gone
beyond circumscribing defendants’ ability to obtain summary judgment and has also sharply
reduced the quantum of proof that a plaintiff needs to survive summary judgment. In Allen,
the only evidence of causation was an inference created by the temporal proximity between
the filing of the sexual harassment complaint and the reassignment. A majority of the federal
courts of appeals have affirmatively rejected the proposition that, where the employer has set
forth a legitimate, non-discriminatory reason for its action, temporal proximity alone is
sufficient evidence of pretext to survive summary judgment. See, e.g., Mariani-Colón v.
Dep’t of Homeland Security ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir. 2007); Aryain v.
Wal-Mart Stores Texas LP, 534 F.3d 473, 487 (5th Cir. 2008); Asmo v. Keane, Inc., 471
F.3d 588, 598 (6th Cir. 2006); Bourbon v. Kmart Corp., 223 F.3d 469, 473 (7th Cir. 2000);
Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 916 (8th Cir. 2006); Hashimoto
v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997); Annett v. Univ. of Kan., 371 F.3d 1233, 1241
(10th Cir. 2004); Wascura v. City of S. Miami, 257 F.3d 1238, 1244-45 (11th Cir. 2001).
Here, the majority has not cited a single case from any jurisdiction finding that temporal
proximity alone is sufficient to create a genuine issue of material fact for the purpose of
denying an employer’s summary judgment motion in a retaliatory discharge case.
By simultaneously eliminating the McDonnell Douglas framework and repudiating
our analysis in Allen, the majority opens the door for an employee to survive summary
judgment on the causation element through temporal proximity alone, even where the
employer affirmatively shows from the record that it took an adverse employment action for
a legitimate reason apart from discrimination or retaliation. In other words, an employer
advancing a legitimate reason for its personnel action may now fail at the summary judgment
stage even if the employee has no evidence of pretext. This sweeping change in our law will
make it needlessly more difficult for defendants to obtain summary judgment in employment
discrimination and retaliation cases, leaving chancery and circuit courts to bear the brunt of
heavier trial calendars.4
4
We should also be cautious about the effects—both intended and unintended—of discarding the
McDonnell Douglas framework. Three potential effects are worth mentioning here. First, the framework
remains intact in summary judgment proceedings in Tennessee’s federal courts. Harris v. Metro. Gov’t, 594
F.3d 476, 484-85 (6th Cir. 2010); Clark v. Hoops, LP, — F. Supp. 2d —, 2010 WL 1417744, at *5-6 (W.D.
Tenn. Apr. 1, 2010). Defendants will, therefore, continue to be able to obtain summary judgment in federal
court on grounds that are foreclosed by the majority opinion. The likely upshot of the majority’s opinion is
different outcomes in employment discrimination and retaliation cases in Tennessee, depending on whether
those cases are decided in state or federal court. This divergence marks an abrupt change in our
jurisprudence, which, up to this point, has drawn on the corresponding federal law to interpret our own
(continued...)
-7-
In arguing for the preservation of the McDonnell Douglas framework at the summary
judgment phase, I do not purport to maintain that our lower courts have always applied the
framework perfectly. Indeed, there are surely instances of the “rigid, mechanized, or
ritualistic” application of the framework that the United States Supreme Court has warned
against. Aikens, 460 U.S. at 715 (internal quotation omitted). The McDonnell Douglas
framework was never intended to preclude courts from considering evidence in the pretext
analysis that was also relevant to establishing the plaintiff’s prima facie case. See, e.g.,
Longs v. Ford Motor Co., 647 F. Supp. 2d 919, 937 (W.D. Tenn. 2009); Smith, 2 S.W.3d at
200-01. Similarly, because of the fact-intensive nature of employment disputes, they are
typically less amenable to summary judgment than other types of cases. See Singfield v.
Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004). But see Elizabeth M.
Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on
Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 549-50 (2010)
(presenting empirical evidence that federal district courts grant summary judgment in
employment discrimination cases at a higher rate than any other type of civil case). Nothing
in the McDonnell Douglas framework permits courts to weigh evidence when there is a
4
(...continued)
discrimination and retaliation statutes. See, e.g., Allen, 240 S.W.3d at 820; Parker v. Warren County Util.
Dist., 2 S.W.3d 170, 176 (Tenn. 1999); Newsom, 924 S.W.2d at 96; Bruce, 669 S.W.2d at 97. This overlap
is consistent with one stated purpose of the THRA: to “[p]rovide for execution within Tennessee of 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) (2005).
Second, though not at issue in this case, the impact of the majority’s analysis may extend farther than
intended and raise issues pertinent to the trial of employment discrimination and retaliation cases. One
example is the viability of an employer’s motion for directed verdict at the conclusion of the proof, based
on uncontradicted evidence that the employee was discharged for a legitimate, non-pretextual reason. The
majority has determined that such a motion is inappropriate at the summary judgment phase, and the
reasoning behind that decision may likewise undercut this kind of motion at trial. In other words, the
elimination of McDonnell Douglas at the summary judgment stage may ultimately impact the viability of the
framework at trial. We need not decide that issue today.
Third and finally, Tennessee is firmly a “right-to-work” state that recognizes the employment-at-will
doctrine. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992) (“this Court has no intention
of creating unwarranted judicial exceptions to the general rule of employment at will”). At least with regard
to retaliatory discharge claims like the ones involved here, this Court has cautioned that such claims are “very
exceptional tort action[s],” Chism, 762 S.W.2d at 556, that should be “narrowly applied and not be permitted
to consume the general rule,” Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 n.3 (Tenn. 1997). The
majority’s decision today does not undermine the principle that retaliatory discharge claims are narrow
exceptions to the employment-at-will doctrine.
-8-
genuine issue of material fact as to whether the employer acted out of a discriminatory or
retaliatory motive.
Potential flaws in the way that courts apply the McDonnell Douglas framework
provide no justification, however, for dispensing with that framework altogether. The United
States Supreme Court has described the framework as a “procedural device,” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993), that is “intended progressively to sharpen the
inquiry into the elusive factual question of intentional discrimination,” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). The framework provides an orderly
structure for managing the complexities of employment discrimination and retaliation cases,
and trial courts have become comfortable with this framework after many years of usage.
See Brown v. Packaging Corp. of Am., 338 F.3d 586, 597 (6th Cir. 2008) (Clay, J.,
concurring) (quoting Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (1st Cir. 1987)).
Furthermore, summary judgment itself remains “a helpful device, in appropriate cases, for
the just, speedy, and inexpensive resolution of litigation,” Byrd v. Hall, 847 S.W.2d 208, 216
(Tenn. 1993), and “a screening device used to identify those cases that are not trial-worthy,”
Cornett, 77 Tenn. L. Rev. at 337. In this case we could have re-educated our lower courts
on the proper application of the framework in the summary judgment context. Instead, the
majority has simply written McDonnell Douglas out of our summary judgment law.
In conclusion, I believe the procedures that we set forth in Hannan are consistent with
the McDonnell Douglas burden-shifting framework for resolving employment discrimination
and retaliation cases at the summary judgment phase. The record in this case contains
adequate evidence of pretext to affirm the judgment of the Court of Appeals. Instead of
adhering to the framework that has guided Tennessee decisions in employment
discrimination and retaliation law for over a quarter-century, however, the majority concludes
that our law should move in a new direction. I do not believe that this change has been
adequately justified or explained, and I believe that it will engender considerable uncertainty
in this area of the law going forward. Therefore, I respectfully dissent.
I am authorized to state that Justice Koch concurs in this opinion.
_________________________________
CORNELIA A. CLARK, JUSTICE
-9-