Two recent age discrimination cases from the Tennessee Court of Appeals indicate that subjective, perhaps even self-serving, opinion testimony has been sufficient to overcome the employers’ legitimate nondiscriminatory reason and establish pretext. While the appellate court’s standard of review was limited in each case, because the case had reached the jury, the question remains: is a plaintiff’s subjective belief sufficient to establish pretext? Prior precedent holds that it is not.

As a reminder, a plaintiff may establish a prima facie case of age discrimination by showing: (1) that he or she is a member of the protected class of persons 40 years of age or older, (2) that his or her work performance satisfied the employer’s reasonable expectations, (3) that an adverse employment action was taken against him or her, and (4) that the adverse employment action occurred under circumstances given rise to an inference of discrimination based on age.[1] If a plaintiff provides evidence of each of these four factors, the defendant must then “proffer a legitimate, non-discriminatory reason for its actions.”[2] If the defendant meets this burden, the plaintiff must then “rebut this with evidence that the asserted non-discriminatory reason is mere pretext for discrimination.”[3] The pretext issue is where we cast our focus.

In Martin v. Perma-Chink Systems Inc.,[4] the plaintiff filed an age discrimination claim under the Tennessee Human Rights Act (THRA) after he was terminated from his employment as a salesman for log home products. The defendant moved for summary judgment and directed verdict, both of which were denied. The jury returned a verdict for the plaintiff in the amount of $132,040.

On appeal, the defendant argued that the trial court erred in denying its motion for directed verdict because the plaintiff had failed to prove that the legitimate nondiscriminatory reason for his termination was pretextual.

The employer asserted that the plaintiff was terminated because (1) his sales numbers declined, and he failed to grow his sales territory, (2) he was hesitant to embrace a new sales training system, and (3) he failed to properly plan for business meetings and appointments.[5] The plaintiff did not have an overwhelmingly strong case. Indeed, the plaintiff was 56 years old when he was hired, well over the 40-year old threshold for age claims. The plaintiff’s manager, who hired him and also had a role in his termination, was even older than he was. Finally, and perhaps most importantly, there is no indication from the court’s decision that the employee that took over the plaintiff’s territory was substantially younger than the plaintiff.[6]

Nevertheless, the court of appeals ruled that the plaintiff had proffered “material evidence” such that a jury could conclude that the employer’s stated reason for termination was pretextual. In looking at the evidence, the court first looked to a chart, prepared by the defense, that indicated that during plaintiff’s tenure, eight salespersons were terminated, and four of those eight were 60 years of age or older. Second, the court considered the plaintiff’s own testimony, that he was a good sales representative and was terminated under mysterious circumstances. Specifically, the plaintiff testified that “I was the second-to-oldest salesperson with a very large territory, and so I think it had something to do with my age.”[7]

The court of appeals was constrained by the narrow standard of review required when reviewing a jury verdict. In assessing whether a trial court erred in denying a motion for directed verdict, appellate courts must “take the strongest view of the evidence in favor of the non-moving party,” and cannot “weigh the evidence” or “evaluate the credibility of witnesses.”[8] The court was, instead, left to determine whether there was any “material evidence” to support the jury verdict. The chart combined with the plaintiff’s own testimony that he was a good sales representative was, the court held, enough to show that such “material evidence” existed.

The second decision, Vawter v. E.I. DuPont De Nemours and Co.,[9] involves a failure-to-hire claim based on age. Much like Martin, Vawter ended up with a jury verdict for the plaintiff even though his evidence of age discrimination was scant. Moreover, the employer’s legitimate nondiscriminatory reason in Vawter appears stronger than that which was presented in Martin.

There, the plaintiff had worked as a chemical operator for 37 years at a previous employer before he lost his job when the plant closed. He, along with 420 others, applied for a chemical operator position with DuPont. After making it to the final 34 applicants, the plaintiff, who was 59 at the time, was not one of the 12 individuals hired for the open chemical operation position.

He filed suit under the THRA, alleging that age was a factor in the decision not to hire him. Like in Martin, the employer moved for a directed verdict, which was denied. The jury found in favor of the plaintiff and awarded him $100,000 in compensatory damages.[10] The employer appealed, arguing that the trial court erred in failing to grant its motion for directed verdict and that the jury’s verdict was not supported by the evidence.

The legitimate nondiscriminatory reason proffered by the employer was that the plaintiff did not interview well, and this was the determining factor in not hiring him. As proof, the employer offered (1) the plaintiff’s low interview scores and (2) testimony from an individual involved in the interview process. Each interviewee was scored on a scale from one to five, with one the lowest and five the highest. The plaintiff received a score of 17 — the fourth lowest score out of all candidates. One of the individuals who interviewed the plaintiff also testified that although the plaintiff had the requisite experience, he did not exhibit strong communication or conflict resolution skills.

Importantly, the notes from plaintiff’s interview were not saved by DuPont. He argued that without the interview notes, it was up to the jury to assess the credibility of the witnesses and to make a factual determination of how he performed during the interview.

In an attempt to establish pretext, the plaintiff, much like what had occurred in Martin, offered only his own subjective belief that the interview had gone well. The court of appeals held this was “some evidence” of pretext.[11]

There is no doubt that the appellate courts in both Martin and Vawter were constrained by the applicable standards of review. However, the lingering question that remains is how did these cases advance to the jury in the first place? Well-established precedent, both in Tennessee and the federal courts, holds that a plaintiff’s subjective belief alone is insufficient to establish pretext.[12] The chart in the Martin case may have been the distinguishing factor — creating just enough evidence, when combined with the plaintiff’s own testimony to get the case to a jury. But Vawter is more difficult to reconcile — the court found evidence of pretext by relying solely on the plaintiff’s own subjective beliefs.

It is unclear whether an application for permission to appeal to the Tennessee Supreme Court has been filed in either case. However, we imagine that most Tennessee employment law practitioners would welcome additional guidance on these cases from the state’s highest tribunal.

Notes

1. Williams v. Greater Chattanooga Public Television Corp., 349 S.W.3d 501, 509-10 (Tenn. Ct. App. 2011).
2. Trudeau v. Dept. of Labor and Workforce Development, W2003-01920-COA-R3-CV, 2004 Tenn. App. LEXIS 709, *3, (Tenn. Ct. App. Oct. 26, 2004).
3. Id.
4. 2016 Tenn. App. LEXIS 432 (Tenn. Ct. App. June 27, 2016).
5. Id. at *5.
6. In fact, there is no indication in the court’s decision exactly how old the plaintiff’s replacement was.
7. Id. at *8.
8. Id. at *22.
9. 2016 Tenn. App. LEXIS 387 (Tenn. Ct. App. June 2, 2016).
10. The court later awarded an additional $112,120.07 as front pay and $74,200.00 in attorney’s fees.
11. Id. at *14.
12. EEOC v. Ford Motor Co., 782 F.3d 753, 768 (6th Cir. 2015) (“We look at the facts as they appear to the person making the decision to terminate the employee, not at the employee’s subjective beliefs” (internal quotes and citations omitted)); Speakman v. Ada Ferrell Garden Apts, 2000 Tenn. App. LEXIS 344 *16-17 (Tenn. Ct. App. May 30, 2000) (plaintiff’s subjective beliefs as to why he was terminated do not create a genuine issue of material fact on the issue of pretext); Robinson v. Nissan Motor Mfg. Corp. USA, 2000 Tenn. App. LEXIS 190, **17-18 (Tenn. Ct. App. 2000) (same); Bruce v. Western Auto Supply Co., 699 S.W.2d 95 (Tenn. Ct. App. 1984) (“The ultimate burden of proof may not be satisfied by the plaintiff’s conclusion concerning his belief that he was terminated or forced to retire solely because of his age.”).

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.

The authors extend their sincere gratitude to STANTON A. FEARS, an associate at Kramer Rayson LLP, for his invaluable assistance with this article.