Bruce v. Western Auto Supply Co.

• Decision Date: 16 February 1984
• Citation: 669 S.W.2d 95
• Parties: 37 Fair Empl.Prac.Cas. (BNA) 361 John A. BRUCE, Jr., Plaintiff-Appellant, v. WESTERN AUTO SUPPLY COMPANY, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 95

669 S.W.2d 95

37 Fair Empl.Prac.Cas. (BNA) 361

John A. BRUCE, Jr., Plaintiff-Appellant, v. WESTERN AUTO SUPPLY COMPANY, Defendant-Appellee.

Court of Appeals of Tennessee,

Middle Section.

Feb. 16, 1984.

Application for Permission to Appeal

Denied by Supreme Court

April 23, 1984.

Edward C. White, John C. Dockins, Nashville, for plaintiff-appellant.

G. Thomas Nebel, Karen L.C. Ellis, Bass, Berry & Sims, Nashville, for defendant-appellee.

OPINION

LEWIS, Judge.

Plaintiff John A. Bruce, Jr. filed his complaint against defendant Western Auto Supply Company (Western Auto) and alleged that he was terminated from his employment with Western Auto solely because of his age in violation of T.C.A. Sec. 4-21-101 et seq. At the conclusion of an evidentiary hearing, the Chancellor found that plaintiff had not carried the necessary burden of proof and dismissed the complaint.

T.C.A. Sec. 4-21-105 prohibits an employer from discriminating in hiring and firing on the basis of age. T.C.A. Sec. 4-21-126(a) provides: "The prohibitions imposed by this chapter relating to age discrimination in employment shall be limited to individuals who are at least forty (40) years of age but less than seventy (70) years of age." Plaintiff was fifty seven years of age at the time his employment with Western Auto came to an end and is, therefore, one of those the statute protects.

Our research reveals no cases in which the appellate courts of Tennessee have construed these statutes. We therefore look to cases which have construed the federal "Age Discrimination in Employment Act," 29 U.S.C.A. Sec. 621 et seq. The Tennessee legislation specifically states that "[i]t is the purpose and intent of the general assembly by this enactment to provide for execution within Tennessee of the policies embodied in the Federal Civil Rights Acts of 1964, 1968 and 1972 and the Age Discrimination in Employment Act of 1967, as amended...." T.C.A. Sec. 4-21-101.

The Sixth Circuit, in discussing the burden of proof placed on a plaintiff in an age discrimination case, stated:

The ultimate issue in this age discrimination suit is whether age was a determining factor in the employer's decision to fire the plaintiff. [Citations omitted.] The plaintiff can establish a prima facie case of age discrimination by using the McDonnell Douglas [McDonnell Douglas Corp v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973) ] criteria. The plaintiff can also establish a prima facie case using statistical information, direct evidence of discrimination, and circumstantial evidence other than that which is used in the McDonnell Douglas criteria. See Stanojev v. Ebasco Services, 643 F.2d 914 at 920-21. Once a prima facie case is established through either of these methods, the burden shifts to the employer to produce a legitimate non-discriminatory reason for his decision. The ultimate burden of proving discrimination also remains with the plaintiff. [Citation omitted.]

Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1180 (6th Cir.1983).

Once a prima facie case of age discrimination has been established by the plaintiff, the employer may rebut by a showing that the employment decision affecting plaintiff was based on reasonable factors other than age. Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.1980); Laugesen v. The Anaconda Co., 510 F.2d 307 (6th Cir.1975). The burden is not upon the employer to show an absence of age discrimination. The employer must simply produce evidence of legitimate non-discriminatory reasons. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978).

The purpose of T.C.A. Sec. 4-21-101 et seq., among other things, is to "prohibit discrimination in employment" and not to restrict the employer's right to make bona fide business decisions. See Blackwell, 696 F.2d 1176.

Once an employer has articulated a legitimate non-discriminatory reason for its employment decision, the plaintiff must then prove by a preponderance of the evidence that the reason given by the employer was a mere pretext for what was in truth a discriminatory purpose. Loeb v. Textron, Inc., 600 F.2d 1003, 1011-12 (1st Cir.1979); Laugesen, 510 F.2d at 311-312.

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. There is no automatic presumption arising from the fact that a worker in the forty to seventy age group was terminated and replaced by a worker of a different age. Sahadi, 636 F.2d at 1118; Laugesen, 510 F.2d at 312.

From a review of the record, it appears that the Chancellor followed the instructions laid down in the federal cases. His oral findings of fact and conclusions of law are, in pertinent part, as follows:

As noted by counsel for Western Auto, this appears to be a case of first impression in Tennessee. The Tennessee statute which prohibits employment discrimination on account of age is new. Moreover, persons who perceive themselves victims of age discrimination routinely file suits in Federal Court where they can litigate the issue under an act of congress which constitutes a federal remedy parallel to a state remedy followed by the Tennessee statute.

In the absence of any Tennessee decisions construing the age discrimination statute, I think it is necessary and appropriate to look to Federal Court decisions which construe the corresponding federal statute. Particularly I think it is necessary to utilize the federal decisions to determine the standard by which this Court will weigh the evidence to determine if the Plaintiff has carried his burden of proof.

The standard is enunciated by the Sixth Circuit Court in the case which was provided the Court by the Defendant, Blackwell versus Sun Electric Company, decided in January, 1983 by the Sixth Circuit and as yet unreported.

That standard is that the Plaintiff must prove age was a determining factor in the employer's decision to terminate the Plaintiff.

Measured against that standard, the Court concludes that the evidence falls far short of that necessary to prove a case of age discrimination.

In 1980 for the first time in its long history of operation, Western Auto lost money. At that time the company went through a rather dramatic change in management; management at the highest level. The new management assessed the problem and decided to make a substantial change in the concept of the stores, changing them from stores of the general hardware nature to stores specializing in automotive parts and accessories and automotive service.

The company decided to pattern its new concept after two California companies which were visited by management.

As a result of the new concept, the number of Western Auto stores in Nashville was reduced by two, thus two store managers in the Nashville area had to be removed.

Western Auto evaluated the store managers and decided that the Plaintiff and one other person would not be retained as managers.

The fundamental issue in this suit then is whether the Plaintiff's age was a determining factor in Western Auto's decision to include him in one of the two store managers who would not be retained as store managers.

The Plaintiff has not proven by a preponderance of the evidence that age was a determining factor.

Western Auto made a careful evaluation of the Nashville managers, took into consideration the number of objective and subjective factors, and among the objective factors was the Plaintiff's principle involvement in the appliance and other phases of Western Auto's operation, as opposed to the automotive phase, the high percentage of nonautomotive sales at the store that Plaintiff manages and the low percentage of automotive sales at those stores and the overall sales figures for the Plaintiff's store.

Among...