Wilson v. Rubin

• Citation: 104 S.W.3d 39
• Parties: Dan B. WILSON, Jr. v. Lawrence H. RUBIN, et al.
• Decision Date: 06 November 2002
• Court: Tennessee Court of Appeals

104 S.W.3d 39

Dan B. WILSON, Jr. v. Lawrence H. RUBIN, et al.

Court of Appeals of Tennessee, at Nashville.

April 16, 1999 Session.

November 6, 2002.

Permission to Appeal Denied by Supreme Court March 17, 2003.

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W. Gary Blackburn, Nashville, Tennessee, for the appellant, Dan B. Wilson, Jr.

Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees, Lawrence H. Rubin and Sony/ATV Music Publishing Company, LLC.

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM B. CAIN, J., joined.

OPINION

This appeal involves the termination of an employee by a music publishing company after one of its songwriters complained that the employee had stalked and harassed her. The employee filed suit in the Chancery Court for Davidson County alleging gender and age discrimination in violation of the Tennessee Human Rights Act. The publishing company moved for a summary judgment asserting that it had a valid non-discriminatory ground for terminating the employee. The employee responded that the proffered non-discriminatory ground was pretextual. The trial court granted the summary judgment and dismissed the employee's complaint. On this appeal, the employee asserts that genuine material factual disputes regarding the publishing company's non-discriminatory reasons for terminating him should have prevented the trial court from granting the summary judgment. We agree and, therefore, vacate the order dismissing the employee's complaint.

I.

Dan B. Wilson, Jr. has worked as a "song plugger" in Nashville ever since 1972. He joined Sony/ATV Music Publishing Company, LLC's ("Sony/ATV") legendary predecessor, Tree Publishing, in 1976. His duties included working with new songwriters and artists to develop their material, helping them record demo tapes and prepare publicity portfolios, and pitching their material to other artists and record producers. By all accounts, Mr. Wilson was a very successful and effective song plugger. He was reputedly one of the highest paid song pluggers in Nashville, earning $106,000 per year in salary and bonuses.

Mr. Wilson was one of five song pluggers working in Nashville for Sony/ATV in 1995. Even though he was one of two persons in Sony/ATV's Nashville office with the title "Vice President for Creative Services," his duties remained essentially the same as they had always been. All five of Sony/ATV's song pluggers were male because Sony/ATV's only female song plugger had recently taken a job with a record label and had been replaced by a male. Donna Hilley, Sony/ATV's president and chief executive officer, made clear her desire to employ another female song plugger but had not made clear whether she intended to create a new position or to wait until one of the existing song plugger positions became vacant.

In April 1995, Chrissy Gabell, a strikingly beautiful 25-year-old woman from Arizona, arrived in Nashville to "chase that neon rainbow."¹ Her father had arranged an introduction for her with the late David Skepner, the president of a prominent entertainment management company and adjunct professor in the music business program at Belmont University. Mr. Skepner, acting as Ms. Gabell's "guidance counselor," referred her to Ms. Hilley, and Ms. Hilley, in turn, asked Mr. Wilson to evaluate Ms. Gabell's potential as a songwriter or performing artist.

After listening to Ms. Gabell's material, Mr. Wilson thought he "heard a sparkle of something" and decided that "Where was some talent there."² Mr. Wilson told Ms. Gabell that he would begin looking for suitable material for her and that he would assist her in recording a demo tape. Later in the year, Ms. Hilley inquired into Ms. Gabell's progress after receiving another telephone call from Mr. Skepner. In late summer 1995, Mr. Wilson helped Ms. Gabell record a demo tape using pre-recorded music tracks and told her that he would begin working on a live recording session for her.

When Mr. Wilson first met Ms. Gabell, he was a middle-aged father of two adult children who had been divorced for twelve years. By November 1995, he came to believe that Ms. Gabell was physically attracted to him "for some reason." During lunch on November 14, 1995, Mr. Wilson and Ms. Gabell decided to move beyond their professional relationship to a much more intimate one. They began dating, and their relationship was not only common knowledge at Sony/ATV but was also the subject of discussion among other Sony/ATV employees, including Ms. Hilley.

Mr. Wilson traveled to Arizona during the holidays to visit Ms. Gabell and her family. On their flight back to Nashville, Ms. Gabell revealed that she was sharing her apartment with Mark Tims. Up to this point, she had led Mr. Wilson to believe that her roommate was female. Upon their return from Arizona, Ms. Gabell moved into the apartment Mr. Wilson shared with one of his adult daughters. In early 1996, Ms. Gabell accompanied Mr. Wilson on a trip to Europe for a country music convention and shared a hotel room with him. Following the trip, Ms. Gabell told Mr. Wilson that she had decided to move back into her apartment. When Mr. Wilson asked her to move back in with him, Ms. Gabell responded that "she didn't feel like she wanted to do that right at that point." Mr. Wilson, trying to be a "man of the nineties," did not press the issue.

Although Mr. Wilson and Ms. Gabell were beginning to experience some ups and downs, they continued their intimate relationship into the spring. Mr. Wilson helped Ms. Gabell complete another demo tape in February 1996. He had already used his own money to pay for Ms. Gabell's breast augmentation surgery prior to their trip to Europe, and his generosity toward her continued. He paid for a number of her recording sessions and for her publicity portfolio. He also bought Ms. Gabell clothes and gave her $3,000 for a down payment on a car. Finally, in April 1996, Mr. Wilson obtained Ms. Hilley's agreement to sign Ms. Gabell to a one-year contract with Sony/ATV as a songwriter. As he said later, "[t]his woman could have had anything she wanted from me if she had just played fair and honest."

Mr. Wilson's "big blowup" with Ms. Gabell occurred during the summer of 1996 when he discovered that she had made over $5,000 in purchases on two of his personal credit cards without telling him. He left a message on her answering machine to the effect that "[i]f you don't get these credit cards straightened out, you are going to have to figure out some other way to get around because I'm coming to get my car,³ and I'll get them straightened out." Ms. Gabell promised to return the credit cards in two days. When she did not, Mr. Wilson decided to stop by her apartment on the way to work to retrieve them and left a message on her answering machine that he was coming to pick up the cards. Mr. Wilson was able to enter Ms. Gabell's gated apartment complex by following another car through the gate. He left a short time later after he discovered that Ms. Gabell was not home.

Approximately two weeks later, on August 13, 1996, Ms. Hilley called Mr. Wilson into her office. There, in the presence of Don Cook, a Sony/ATV senior vice president, and Chris Waters Dunn, a Sony ATV/vice president, Ms. Hilley informed Mr. Wilson that Ms. Gabell had complained that he had threatened to kill her and that he had broken into her apartment complex. Ms. Hilley also recounted that Ms. Gabell had denied having consensual sexual relations with Mr. Wilson and had claimed that Mr. Wilson was stalking her, making unwanted sexual advances toward her, and threatening to ruin her career if she did not agree to continue dating him.

Mr. Wilson was surprised by Ms. Gabell's allegations and denied that his conduct with Ms. Gabell had been inappropriate or unwelcomed. He recounted the details of his relationship with Ms. Gabell for Ms. Hilley and Messrs. Cook and Dunn and was surprised to discover that they did not appear to believe him. Finally, to conclude the meeting, Ms. Hilley told Mr. Wilson that he would be allowed to resign with a severance package from Sony/ATV but that he would be fired if he declined the offer.

Over the course of the next several days, Mr. Wilson provided Ms. Hilley with corroboration of his version of his relationship with Ms. Gabell, including her love notes and entries on her personal calendar where she had drawn hearts on the days commemorating the monthly anniversary of their first romantic encounter in November 1995. None of this information seemed to sway Ms. Hilley, and Mr. Wilson eventually declined to accept the severance package by telling Sony/ATV that they could "take their money and ... give it to the poor boys' home." Shortly thereafter, Mr. Cook ordered Mr. Wilson to pack up his personal belongings and to leave the premises permanently.

After Mr. Wilson's departure, Sony/ATV promoted Amy McKeehan, the 31-year-old administrative assistant to the song pluggers, to take his place.⁴ Sony/ATV declined to renew Ms. Gabell's contract when it expired, and she returned to Arizona without making any further noise on Sixteenth Avenue.⁵

In November 1996, Mr. Wilson filed suit in the Chancery Court for Davidson County, alleging that Sony/ATV had engaged in age and gender discrimination in violation of the Tennessee Human Rights Act by firing him and replacing him with a younger employee. Sony/ATV denied the allegation and, following discovery by both sides, moved for a summary judgment on the ground that it had a legitimate, nondiscriminatory reason for firing Mr. Wilson. Mr. Wilson responded to the motion by asserting that Sony/ATV's proffered reasons for firing him were pretextual. He supported his response with the detailed affidavit of Ms. McKeehan who by this time had also been fired by Sony/ATV. The trial court granted Sony/ATV's motion for summary judgment, and Mr....