Helen Stewart v. Cadna Rubber Company

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 16, 2013 Session

HELEN STEWART v. CADNA RUBBER COMPANY

An Appeal from the Circuit Court for Shelby County
No. CT-001649-11 Kay S. Robilio, Judge

No. W2013-00670-COA-R3-CV - Filed March 26, 2014

This is an employment discrimination case. The employment of the plaintiff employee was
terminated in the course of a reduction in force. The plaintiff filed this lawsuit against the
defendant employer alleging that she was singled out for termination in the reduction in force
based on her age and/or race. The trial court granted summary judgment in favor of the
employer. The trial court reasoned that the evidence submitted by the plaintiff was
insufficient to create an issue of fact as to whether the employer singled her out for
termination based on her age and/or race, and that the plaintiff’s evidence was insufficient
to prove that the legitimate nondiscriminatory reason proffered by the employer for
terminating the plaintiff’s employment was pretextual. The plaintiff now appeals. We
reverse. The standard for summary judgment applicable in this case is the standard set out
in Hannan and Gossett. Under the very high standard in those cases, the employer cannot
negate an element of the plaintiff’s prima facie case merely by showing that the plaintiff did
not submit sufficient evidence at the summary judgment stage; to obtain summary judgment
under that standard, the employer must show that the plaintiff cannot establish this element
of her claim at trial. Thus, we hold that the employer failed to meet this standard on any of
the plaintiff’s claims of discrimination.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Dan M. Norwood, Memphis, Tennessee, for the Plaintiff/Appellant, Helen Stewart

David A. Prather and Kathryn T. Parham, Memphis, Tennessee, for the Defendant/Appellee,
Cadna Rubber Company1

OPINION

In September 1998, Plaintiff/Appellant Helen Stewart began working full time for
Defendant/Appellee Cadna Rubber Company (“Cadna”) at the company’s plant in Memphis,
Tennessee.2 In early 2010, Stewart was one of six employees who worked in the warehouse
area at the Memphis facility. Out of those six employees, Stewart was the oldest, and she had
been with the company the longest.

In April 2010, Stewart’s employment at Cadna was terminated as part of a reduction in force
(“RIF”). Stewart, an African-American, was 62 years old at the time her employment was
terminated. The record indicates that Cadna’s RIF resulted in the termination of the
employment of one other employee at the Memphis facility, a 28-year-old African-American,
Atasha Rogers. According to Cadna, two other employees were terminated in the RIF, 59-
year-old Jim Dennis and 44-year-old Rene Daudelin, both Caucasian, but those employees
worked at a Cadna facility outside Tennessee.

On April 8, 2011, Stewart filed the instant lawsuit against Cadna in the Circuit Court for
Shelby County, Tennessee. Stewart alleged that her employment was terminated as part of
Cadna’s RIF based on her age and/or race in violation of the Tennessee Human Rights Act,
Tennessee Code Annotated § 4-21-101 et seq. (“THRA”), which prohibits, among other
things, discrimination in employment based on age or race. Stewart alleged that a younger,
less-qualified Hispanic employee with performance problems, Sunia Zamora, was retained
following the RIF.

On June 13, 2011, Cadna filed its answer, asserting affirmative defenses and denying
Stewart’s allegation that her employment was terminated based on her age or race.
Discovery ensued.

1
Appellate counsel did not represent Cadna at the trial court level.
2
In her appellate brief, Stewart states that she began her employment with Cadna in May 1989, and that she
had been working at Cadna for 21 years when her employment was terminated. In contrast, in her complaint,
Stewart avers that she was employed at Cadna for 12 years, and other parts of the record suggest that she
began her employment in September 1998. We need not resolve this inconsistency at this juncture, because
whether Stewart began employment in 1989 or 1998 makes no difference in our analysis. We note the
inconsistency here only for clarification.

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On October 4, 2012, after the parties completed discovery, Cadna filed a motion for summary
judgment. Cadna’s motion asserted as undisputed facts that Stewart was the primary
employee who ran labels. As part of the company’s restructuring and RIF, Cadna purchased
a system designed to automate the label-making process. As explanation for its decision to
retain Zamora but terminate Stewart, Cadna asserted that it “determined that Zamora’s ability
to speak Spanish was an important skill the Company required, because she was the only full-
time employee who spoke Spanish.” Furthermore, Cadna pointed out, all of the workers in
the Memphis warehouse at the time Stewart’s employment was terminated were African-
American, except for Zamora. Based on these undisputed facts, Cadna argued that Stewart
could not establish that she was “replaced” by either a younger employee or an employee of
a different race. Cadna contended that Stewart could not establish through additional
evidence that either age or race, or a combination of the two, was the determining factor in
Cadna’s decision to terminate her employment. Therefore, Cadna argued, it was entitled to
summary judgment. In support of the motion, Cadna relied on its responses to Stewart’s
interrogatories and on Stewart’s own deposition testimony.3

In her response to Cadna’s summary judgment motion, Stewart argued that there were
genuine issues of material fact as to whether Cadna discriminated against her based on her
age and race, and as to whether the non-discriminatory reasons proffered by Cadna for
terminating Stewart’s employment were pretextual. Stewart pointed out that, in Cadna’s
personnel files on Stewart and Zamora, both were titled as a “warehouse worker,” in contrast
to Cadna’s assertion in discovery responses that Stewart was a “Labelmaker, Janitor” and
Zamora was a “Repacker.” In discovery responses, Cadna also described an employee who
was younger than Stewart, Corry McHenry, as an “Order Puller,” while McHenry’s personnel
file described him as a “warehouse worker.” Stewart argued that, by providing false titles
to the employees, Cadna sought to obfuscate the truth and establish a false pretext for
terminating Stewart’s employment. In reality, Stewart claimed, she was the only hourly-
wage “warehouse worker” in the Memphis facility whose employment was terminated in the
RIF; the remaining workers — all younger — were retained. The only other employee at
the Memphis facility whose employment was terminated in the RIF was an office worker.
In addition, Stewart noted that Cadna’s assertion that Zamora was retained in part because
of her fluency in Spanish appeared for the first time in the litigation in Cadna’s summary
judgment motion.4 Stewart argued that the totality of the evidence and circumstances
surrounding her termination demonstrate that genuine issues of fact remain about the reasons

3
The appellate record does not include a transcript of Stewart’s deposition.
4
Stewart notes that Cadna did not make this assertion in its answer to Stewart’s charge with the Equal
Employment Opportunity Commission.

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Stewart was selected for termination in the RIF and support a finding that Cadna
discriminated against Stewart based on her age and/or race.

On January 18, 2013, the trial court conducted a hearing on Cadna’s motion for summary
judgment. At the conclusion of the hearing, the trial court rendered an oral ruling granting
Cadna’s motion for summary judgment. The trial court did not give its reason for the ruling,
but said only, “I’m going to grant your motion . . . . It will be interesting to see what the
appellate court does.” Counsel for Stewart asked the trial judge to give her reasons for the
grant of summary judgment, but the trial judge declined to give any reasons and directed
counsel for Cadna to prepare the order and to include findings of fact and conclusions of law
in the order.5

On January 31, 2013, the trial court entered a written order granting Cadna’s motion for
summary judgment. In the order, the trial court found that Cadna had “affirmatively negated
the fourth element of [Stewart’s] prima facie case of age and race discrimination.” As to the
age discrimination claim, the order concluded that Stewart was not replaced by a younger
employee, and that she could not prove by additional evidence that age was the determining
factor in Cadna’s decision to terminate her. Because Stewart was the primary label maker
and the label-making tasks became automated, the trial court held, the undisputed facts
established that Stewart was not singled out based on her age. The trial court’s order
commented that Stewart’s seniority at Cadna did not obligate Cadna to retain Stewart in the
RIF because “the law does not impose a seniority system on every covered employer.” The
trial court also held that Stewart could not establish that Cadna’s decision to terminate
Stewart’s employment but retain Zamora, an Hispanic, was based on race. The trial court’s
order found that Cadna retained Zamora because she possessed a skill, namely, fluency in
Spanish, that Stewart did not possess. It also found that Zamora and Stewart were not
similarly situated because the label-making part of Stewart’s job was rendered obsolete, but
Zamora’s duties were unaffected by the automation of the label-making. The order also
noted that Stewart had proffered no statistical evidence that Cadna discriminated against her
based on race.

For these reasons, the trial court granted summary judgment in favor of Cadna on all of
Stewart’s claims. From this order, Stewart now appeals.

5
We note that, in a case in which the trial judge failed to articulate grounds for summary judgment and
instead directed the successful party to establish such grounds in a proposed order, the appellate court held
that the trial judge abrogated the court’s responsibility to “state the legal grounds” for granting summary
judgment. See Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *10
(Tenn. Ct. App. Jan. 18, 2013).

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 ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Stewart argues that the trial court erred in granting summary judgment in favor
of Cadna because Stewart presented sufficient evidence from which a jury could conclude
that she had established a prima facie case of both age and race discrimination. Stewart
contends that the evidence in the record was sufficient for a reasonable juror to conclude that
Cadna chose to terminate Stewart’s employment in the RIF because of her age and/or race,
and that Cadna’s proffered reasons for choosing to terminate Stewart’s employment were a
mere pretext for age and/or race discrimination.

We review the trial court’s grant of summary judgment as a question of law, subject to de
novo review, with no presumption of correctness in the trial court’s decision. Gossett v.
Tractor Supply Co., 320 S.W.3d 777, 780 (Tenn. 2010); see also Kinsler v. Berkline, LLC,
320 S.W.3d 796, 799 (Tenn. 2010). “Generally speaking, a defendant moving for summary
judgment may avail itself of one of two avenues: it may negate an essential element of the
nonmoving party’s claim, or it may establish an affirmative defense, such as the statute of
limitations, that defeats the claim.” Allied Sound, Inc. v. Neely, 909 S.W.2d 815, 820 (Tenn.
Ct. App. 1995). Under either avenue, summary judgment is to 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 summary judgment standard to be applied in this employment discrimination case is the
standard announced in Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008). See
Gossett, 320 S.W.3d at 781-83 (rejecting the McDonnell Douglas framework at the summary
judgment stage in discriminatory and retaliatory discharge cases and applying the standard
in Hannan).6 To obtain summary judgment under this standard, the movant employer must
negate an essential element of the employee’s claim or defense or show by undisputed
evidence that the employee cannot prove an essential element of the claim or defense at trial.
Id.; see also Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83-84 (Tenn. 2008) (citing
Hannan, 270 S.W.3d at 5); 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). It is insufficient for the
moving party to “merely point to omissions in the nonmoving party’s proof and allege that

6
The Tennessee General Assembly has enacted legislation providing for a different summary judgment
standard than the standard set forth in both Gossett and Hannan, but the new statutes only apply to cases
filed on or after June 10, 2011 and July 1, 2011, respectively. See Tenn. Code Ann. § 4-21-311(e), 50-1-
304(g) (setting forth burden of proof in discrimination cases); Tenn. Code Ann. § 20-16-101 (setting forth
a new summary judgment standard in other cases). Stewart’s complaint in this case was filed prior to June
10, 2011.

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the nonmoving party cannot prove the element at trial.” Hannan, 270 S.W.3d at 10.
“Similarly, the presentation of evidence that raises doubts about the nonmoving party’s
ability to prove his or her claim is also insufficient.” Martin, 271 S.W.3d at 84. If there are
disputed facts, we must ascertain whether the facts in dispute are material either to an
essential element of the employee’s claim or to an element of an affirmative defense on
which the employer seeks to rely. “A disputed fact is material if it must be decided in order
to resolve the substantive claim or defense at which the motion is directed.” Byrd, 847
S.W.2d at 215. There is a genuine issue of fact if “a reasonable jury could legitimately
resolve that fact in favor of one side or the other.” Id. The trial court should grant summary
judgment only when a reasonable person could reach but one conclusion based on the facts
and the inferences drawn from those facts. Id.; see also Gossett, 320 S.W.3d at 784 (citing
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)).

A NALYSIS

Age Discrimination

Stewart argues first that the trial court erred in granting summary judgment in favor of Cadna
on her claim of age discrimination. Stewart asserts that the evidence presented was sufficient
to create a genuine issue of material fact regarding whether she established her prima facie
case, and that evidence in the record supports a finding that Stewart was singled out for
termination in the RIF because of her age.

To establish a prima facie claim for age discrimination, a plaintiff must show that: (1) she
was at least 40 years of age at the time of the alleged discrimination, i.e., “a member of a
protected class”; (2) she was subjected to adverse employment action; (3) she was qualified
for the position; and (4) she was replaced by a substantially younger person or she must
present additional evidence that the termination occurred under circumstances giving rise to
an inference that she was singled out for termination based on her age. Kremp v. ITW Air
Mgmt., No. 11–3235, 2012 WL 1237790, at *1 (6th Cir. 2012) (quoting Geiger v. Tower
Automotive, 579 F.3d 614, 622-23 (6th Cir. 2009)); see Williams v. Greater Chattanooga
Pub. Television Corp., 349 S.W.3d 501, 509-10 (Tenn. Ct. App. 2011). It is undisputed that
Stewart was over 40 years old at the time of the events in question, and that she was
subjected to an adverse job action in the form of the termination of her employment. Cadna
does not argue that Stewart was not qualified for the position she held. The trial court below
held that Cadna had negated the fourth element of Stewart’s prima facie claim, so we focus
on that.

When a plaintiff claims discrimination in the course of a RIF, the plaintiff is held to a “higher
burden” in that the plaintiff must establish her prima facie case by using direct,

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circumstantial, or statistical evidence that she was singled out based on discriminatory intent.
Brenner v. Textron Aerostructures, 874 S.W.2d 579, 588 (Tenn. Ct. App. 1993). “The
mere termination of a competent employee when an employer is making cutbacks due to
economic necessity is insufficient to establish a prima facie case of age discrimination.” Id.
at 584 (quoting Barnes v. Gencorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) ((quoting
McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073 (6th Cir. 1989), LaGrant v. Gulf &
W. Mfg. Co., 748 F.2d 1087, 1090 (6th Cir.1984); Sahadi v. Reynolds Chem., 636 F.2d
1116, 1118 (6th Cir. 1980)). This Court has explained:

If a plaintiff can show that age was a determining factor in his termination, he
may be entitled to recover under the Act, but he must produce direct or
circumstantial evidence that his age was a determining factor in his
termination. Brenner, 874 S.W.2d at 585. “The mere termination of a
competent employee when an employer is making cutbacks due to economic
necessity is insufficient to establish a prima facie case of age discrimination.”
Id. at 584 (quoting McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073 (6th
Cir. 1989)). Further, mere conclusory allegations do not suffice to prove
intentional discrimination based on age. Simpson v. Midland-Ross Corp., 823
F.2d 937, 941 (6th Cir.1987).

McKinna v. Lasco, Inc., No. 02A019604CH00083, 1997 WL 340918, at *4 (Tenn. Ct. App.
Mar. 20, 1997) (reversing summary judgment for employer under McDonnell Douglas
framework because employer made age-based derogatory remarks about employee prior to
termination). The fact that a younger employee assumed some of the plaintiff’s job duties
after the plaintiff’s employment was terminated does not, in and of itself, establish that the
terminated employee was “replaced” by the younger employee. Kremp, 2012 WL 1237790,
at *2.

In this case, the trial court stated in its order that Cadna had negated the fourth element of
Stewart’s prima facie case because Stewart was the primary label-maker and label-making
became automated, and because Stewart was not replaced by a younger employee. In light
of this, the trial court concluded that Cadna had established by undisputed facts that its
proffered reason for terminating Stewart’s employment was not pretextual. Even if Stewart
could establish a prima facie case, the trial court went on to say, Stewart “would face the
difficult task of proving” that Cadna’s reason for terminating her was not the automation of
the label-making portion of her job. In other words, the trial court was convinced by Cadna’s
proffered legitimate non-discriminatory reason for terminating Stewart’s employment, so it
held that Stewart likely could not persuade a reasonable trier of fact that Cadna’s proffered
reason was pretexual.

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In the trial court below, Stewart did not argue that she was replaced by a younger employee.
She claimed instead that evidence in the record showed that she was a victim of
discrimination based on her age. Stewart asserted that Cadna’s reliance on the automation
of label-making at the Memphis facility was pretextual because label-making was not a
significant part of her job and others also did label-making to some degree. Stewart also
pointed out that Cadna’s personnel files show that Stewart worked with at least two other
younger “warehouse workers,” but Cadna now wants to give Stewart the title of
“Labelmaker, Janitor” to make it easier for Cadna to claim that Stewart’s employment was
terminated because the label-making job became automated. Stewart insists that these facts
indicate that Stewart was singled out for termination based on her age.

We think that it is unlikely that Cadna would have been entitled to summary judgment under
the summary judgment standard that preceded Hannan, sometimes referred to as the “put up
or shut up” standard. At the summary judgment stage under the prior standard, as well as
under Hannan, we must resolve all factual disputes in favor of the nonmovant and give that
party the benefit of all reasonable inferences. Therefore, we must presume the truth of
Stewart’s assertion that label-making was an insignificant part of her job and that other
employees also did label-making. Moreover, even the trial judge’s musings at the summary
judgment hearing indicate that age discrimination can be inferred from the evidence in the
record. At the hearing, the trial judge commented, “[M]any folks do retire at 62 . . . . And
practically — I mean, I don’t have statistics, but we all know 65 is many, many times the
cutoff date. So she was nearing retirement.” In essence, it appears that the trial judge may
have inferred from the evidence that Stewart’s employment was terminated because she was
“nearing retirement,” i.e., impermissible age discrimination.

However, we need not address whether summary judgment would have been appropriate
under the standard that preceded Hannan because summary judgment in favor of Cadna was
so clearly inappropriate under Hannan, the standard applicable in this case. Under Hannan,
it is not sufficient for Cadna to merely cast doubt on Stewart’s ability to prove the fourth
element of her claim, discriminatory intent. Hannan, 270 S.W.3d at 10; Martin, 271 S.W.3d
at 84. To obtain summary judgment under the Hannan standard, Cadna must affirmatively
negate that element of Stewart’s claim; this Cadna has not done.

Under Hannan, the standard is not whether Stewart has submitted — at the summary
judgment stage — sufficient evidence of discriminatory intent; rather, the standard is whether
Cadna has shown definitively that Stewart cannot at trial submit sufficient evidence of
discrimination. Hannan, 270 S.W.3d at 10; Martin, 271 S.W.3d at 84. Under Hannan,
unless the employer shows otherwise, we must assume that Stewart may by the time of trial
obtain evidence to prove discrimination at trial. See White v. Target Corp., No. W2010-
02372-COA-R3-CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012) (under

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Hannan, it is not enough to rely on lack of evidence of nonmoving party, even if the
discovery deadline has passed; “we are required to assume that the nonmoving party may
still, by the time of trial, somehow come up with evidence to support her claim”). This Court
has explained:

. . . [A]t the summary judgment stage of the proceedings, the trial court “must
take the strongest legitimate view of the evidence in favor of the nonmoving
party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence.” Gossett, 320 S.W.3d at 784 (quoting Blair, 130
S.W.3d at 768 (quoting Byrd, 847 S.W.2d at 210-11)). Under Hannan and
Gossett, in order to negate an element of a claim, the movant cannot simply
show that the nonmovant has submitted insufficient evidence to support each
element of her claim; rather, it must demonstrate affirmatively that she cannot
establish an element of her claim. In other words, “[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 789 (Clark, J.,
concurring) (quoting Hannan, 270 S.W.3d at 8). Under this standard, even if
the situations of the compared male employees were not similar as a matter of
law, this demonstrates only that Ms. Pierce has not yet submitted sufficient
evidence to establish her claim; it does not negate this element or show that
she cannot establish the fourth element of her claim.

Pierce v. City of Humboldt, No. W2012-00217-COA-R3-CV, 2013 WL 1190823, at *12
(Tenn. Ct. App. Mar. 25, 2013).

In Cadna’s argument to the trial court, counsel for Cadna erroneously asserted that the
“[McDonnell] Douglas burden shifting analysis applies.” This misconception was carried
over into the trial court’s order granting summary judgment to Cadna. The trial court
concluded in the alternative that, even if Stewart had established a prima facie case, it would
be difficult for Stewart to overcome Cadna’s legitimate non-discriminatory reason for
terminating her employment. The trial court openly applied the old “put up or shut up”
standard in holding, “Simply put, [Stewart] has no proof that would cause this Court or a jury
to doubt [Cadna’s] rationale” that Stewart was terminated because the position of label-
maker was made obsolete by the new automation system.

As in the trial court, Cadna’s argument to this Court appears based on the premise that the
McDonnell Douglas burden-shifting analysis applies at the summary judgment stage. Many
of the cases on which Cadna relies — for example, Kremp, Barnes, and Brenner — were
decided under the McDonnell Douglas burden-shifting analysis. See Kremp, 2012 WL
1237790, at *1-2; Barnes, 896 F.2d at 1464-65; Brenner, 874 S.W.2d at 583-85.

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The premise of Cadna’s argument to the trial court and to the appellate court is off the mark.
Our Supreme Court in Gossett discarded the McDonnell Douglas burden-shifting framework
at the summary judgment stage. Gossett, 320 S.W.3d at 782. In explaining why the
McDonnell Douglas framework should be inapplicable at the summary judgment stage, the
Tennessee Supreme Court in Gossett stated: “A legitimate reason for discharge . . . is not
always mutually exclusive of a discriminatory or retaliatory motive and thus does not
preclude the possibility that a discriminatory or retaliatory motive played a role in the
discharge decision.” Id. Thus, the fact that Cadna proffered a legitimate nondiscriminatory
reason for selecting Stewart for termination instead of another warehouse worker does not
entitle Cadna to summary judgment, because we are required to assume that Stewart may still
obtain evidence for trial that Cadna’s termination of Stewart’s employment was
discriminatory.

Accordingly, we conclude that the trial court erred in granting summary judgment in favor
of Cadna on Stewart’s claim of age discrimination. Applying the standard in Hannan, “there
are genuine issues of material fact that are readily ascertainable from the record as to whether
[Cadna] terminated [Stewart] for the reasons claimed by [Cadna] or . . . because of [her]
age.” See Williams v. Greater Chattanooga Pub. Television Corp., 349 S.W.3d 501, 512
(Tenn. Ct. App. 2011) (citing Kinsler, 320 S.W.3d at 801).

Race Discrimination

Stewart also argues that the trial court erred in granting summary judgment on her claim of
race discrimination. Similar to a claim of age discrimination, to establish a claim of race
discrimination, a plaintiff must show: (1) she was a member of a protected class; (2) she was
qualified for the position; (3) she suffered an adverse employment action; and (4) she was
treated differently than similarly situated employees outside the protected class. When the
plaintiff’s employment is terminated as part of a valid RIF, the fourth element is established
by producing “additional direct, circumstantial, or statistical evidence that [race] was a factor
in [her] termination.” EEOC v. Lucent Techs., Inc., 226 Fed. Appx. 587, 590 (6th Cir.
2007) (quoting LaGrante v. Gulf & W. Mfg. Co., 748 F.2d 1087, 1091 (6th Cir. 1984)).
Again, we focus on the fourth element, because the trial court below held that Cadna had
negated the fourth element of Stewart’s prima facie claim of race discrimination.

Stewart’s race discrimination claim was based on many of the same facts as the age
discrimination claim, discussed fully above. With respect to the race discrimination claim,
however, Stewart also argued that the fact that Cadna terminated Stewart but retained the less
senior, less qualified, Hispanic Zamora demonstrated race discrimination. Cadna contended
that Zamora was retained because she was fluent in Spanish, a legitimate nondiscriminatory
reason. Stewart argues that Cadna’s proffered nondiscriminatory reason is pretextual by

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pointing to the fact that, until Cadna submitted its responses to Stewart’s discovery, Cadna
had never identified Zamora’s fluency in Spanish as a reason for terminating Stewart’s
employment instead of Zamora’s. Stewart argues as well that Cadna did not establish that
fluency in Spanish was important to the job of warehouse worker. Cadna’s belated position
on this issue, Stewart argues, could serve as a basis for concluding that its reasons for
terminating Stewart’s employment were pretextual, and that Cadna selected Stewart for
termination because of her age and/or race.

As with Stewart’s age discrimination claim, it appears likely that summary judgment in favor
of Cadna would have been inappropriate under the summary judgment standard that preceded
Hannan. Under either Hannan or the standard that preceded it, we are obliged to accept
Stewart’s version of the facts, giving Stewart the benefit of all reasonable inferences. We
“must take the strongest legitimate view of the evidence in favor of the nonmoving party,
allow all reasonable inferences in favor of that party, and discard all countervailing
evidence.” Gossett, 320 S.W.3d at 784 (quoting Blair, 130 S.W.3d at 768 (quoting Byrd,
847 S.W.2d at 210-11)). In our view, whether Zamora’s fluency in Spanish was valuable and
whether Cadna in fact relied on Zamora’s language skills in deciding to terminate Stewart
over Zamora appear to be disputed issues of fact. A reasonable trier of fact could infer that
Zamora’s fluency in Spanish was an afterthought conjured up by lawyers in order to justify
terminating Stewart over Zamora, whom Stewart claims is both less qualified and less senior.
In addition, the evolving description of Stewart as “Labelmaker, Janitor” instead of a
“warehouse worker” like Zamora could be perceived as an after-the-fact attempt to justify
the selection of Stewart for termination and also to make it appear that Stewart and Zamora
are not similarly situated. Whether Stewart and Zamora are “similarly situated” also appears
to be a disputed issue of fact.

However, as with Stewart’s age discrimination claim, we need not determine whether
Stewart’s race discrimination claim would survive under the prior summary judgment
standard, because the Hannan standard is applicable. As noted above, under Hannan, the
issue is not whether Stewart had submitted evidence of race discrimination at the summary
judgment stage, but whether Stewart cannot submit evidence of race discrimination at trial.
Hannan, 270 S.W.3d at 10; Martin, 271 S.W.3d at 84. See White, 2012 WL 6599814, at *7
n.3. Under Hannan and Gossett, we must conclude that Cadna did not negate the fourth
element of Stewart’s prima facie claim of race discrimination and did not establish that
Stewart cannot prove the fourth element of her race discrimination claim at trial.
Accordingly, we conclude that the trial court erred in granting summary judgment in favor
of Cadna on Stewart’s race discrimination claim as well.

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For the same reasons, we also conclude that the trial court erred in granting summary
judgment to Cadna on Stewart’s claim that her employment was terminated based on a
combination of age and race.

C ONCLUSION

The decision of the trial court is reversed, and the case is remanded for further proceedings
consistent with this opinion. Costs on appeal are to be taxed to Defendant/Appellee Cadna
Rubber Company, for which execution may issue if necessary.

_________________________________
HOLLY M. KIRBY, JUDGE

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