The plaintiff, Larry W. Barnes, was employed by the defendant, Goodyear Tire & RubberCompany (“Goodyear”). Barnes began working for the defendant in 1970. He had worked inseveral different positions during his employ with the defendant. In 1987, Barnes was commendedfor his outstanding performance as a Process Control Operator.Barnes was diagnosed as having Bell’s Palsy during the summer of 1989. Bell’s Palsy is acondition of the nervous system that affects facial muscles. He presented symptoms of slurredspeech, paralysis of the facial muscles, and paralysis of his right eye. Barnes was unable to workfor approximately six weeks. The manifestations of Bell’s Palsy were present when he returned towork. He testified that his “mouth was still drooped down” and that his “right eye was still open.”He experienced difficulty in speaking. He stated, “I would talk for a minute and I’d get slurred.”His eye “watered profusely” and he “had to have co-workers put Lacrilube cream and drops in” hiseye every two hours. Barnes testified that he was ridiculed when he returned to work. Co-workers made gesturesconcerning his appearance. Others “made hideous remarks” which resulted in an exchange of words. Barnes, however, denied having communication problems other than those resulting from theinstances of personal ridicule. In October of 1989, Barnes’ shift was changed as the result of a reorganization. Barnestestified that he had worked the second shift fifty to sixty percent of the time during periods of shiftrotation and that he “enjoyed the second shift.” Working on the second shift enabled him to “get upin the mornings and go hunting.”In August of 1990, Goodyear began implementing a reduction in work-force (“RIF”) plan.Goodyear had conducted a study indicating that Goodyear was top-heavy with salaried employeesin comparison to its competitors. Goodyear, therefore, decided to reduce its salaried workforce bytwenty percent over the course of three years. Goodyear’s 1990 personnel reduction policy providedtwo methods for selecting employees for layoff. Layoffs could either be made on the basis ofseniority or on the basis of job performance. The plant at which Barnes was employed utilized both methods of reduction. While certaindepartments used the seniority method, a job performance method was utilized in the plaintiff’sdepartment. The seven employees with the lowest performance evaluations were to be laid off.David Nelms, Barnes’ supervisor, evaluated Barnes. The evaluation was performed afterBarnes had been diagnosed with Bell’s Palsy and had returned to work. Barnes’ evaluation was fifthlowest. Barnes received a poor evaluation due to communication problems. At trial, Nelmsexplained that Barnes received a lower evaluation due to Barnes’ failure to communicate with thefirst shift operator. Nelms testified that Barnes refused to communicate with the first shift operatorbecause Barnes was upset about being switched to second shift. Barnes disputed this contention.He proffered his testimony and the testimony of several co-workers indicating that there was not acommunication problem between him and the first shift supervisor. Nelms testified that he spoketo Barnes about his failure to communicate with the first shift. Barnes denied that any suchconversation between Nelms and Barnes took place. Barnes maintained that the onlycommunication problems that may have arisen at work involved situations where he was ridiculedbecause of his Bell’s Palsy. In September of 1990, Barnes was called into Nelms’ office and informed that he was beinglaid off. At trial, Barnes testified:
I said, “Why am I being laid off? Is it because of my jobperformance, my attitude, my attendance? He said, “Naw.” I said,”Is it because I had Bell’s Palsy and I missed time and nobody elsedidn’t?” He said, “That’s right.” He got up and left.
Nelms testified that he could not recall this conversation with Barnes. Nelms, did not, however,deny that it occurred. Goodyear designated Barnes’ layoff as “recallable.” The record reflects that Barnes waseligible for recall for up to a four-year period. He, however, apparently lost the right to be recalledto a salaried position if he accepted an hourly position with Goodyear. Goodyear offered Barnes atemporary hourly position with Hamilton-Ryker that paid $8.25 per hour or approximately one-halfof his previous salary. Barnes rejected this offer. In September of 1991, Barnes filed suit against Goodyear pursuant to Tenn. Code Ann.� 8-50-103, the Tennessee Handicap Act (“THA”). Barnes alleged that Goodyear terminated hisemployment in violation of the THA because he was handicapped or perceived by Goodyear to behandicapped. In July of 1993, Goodyear offered Barnes an hourly position that paid over $16.00 perhour. Barnes accepted this hourly position and lost his right to be recalled to a salaried position.Barnes’ action for handicap discrimination went to trial in May of 1996. Goodyear movedfor a directed verdict at the conclusion of Barnes’ proof. The trial judge held that the evidence didnot demonstrate that Barnes was handicapped. Accordingly, the trial judge granted a directed verdictas to that claim. The trial court, however, denied Goodyear’s motion for a directed verdict on theissue of whether Barnes sustained an adverse employment action on the basis of a perceivedhandicap in violation of the THA. The jury found that Goodyear perceived Barnes as being handicapped and that Barnessustained an adverse employment action as a result of this perception. The jury awarded damagesof $150,000 for back pay and $150,000 for humiliation and embarrassment. The trial court upheldthe jury’s finding of liability but suggested a remittitur of Barnes’ damages to $100,000 for back payand $75,000 for humiliation and embarrassment. The trial court also awarded Barnes $28,690 forattorney’s fees and $1,073.37 for court costs. Barnes accepted the remittitur under protest andappealed. Barnes also appealed the calculation of the attorneys’ fees awarded by the trial court.Goodyear appealed the trial court’s denial of Goodyear’s motion for a directed verdict. In thealternative, Goodyear appealed the amount of the remittitur, contending that the verdict should befurther reduced due to Barnes’ failure to mitigate his damages. The Court of Appeals reversed the jury’s finding of liability. The court reasoned that therecord was devoid of evidence suggesting “that Goodyear regarded Barnes as suffering from animpairment that substantially limited any of his major life activities.” The court also found thatGoodyear did not regard Barnes as substantially limited in his ability to work or perform manualtasks because Goodyear offered Barnes the temporary hourly rate position with Hamilton-Ryker.The remaining issues were pretermitted. We granted review. ANALYSIS The standard of appellate review when reviewing a jury verdict approved by a trial court iswhether there is any material evidence to support the verdict. Tenn. R. App. P., Rule 13(d). Whenaddressing whether there is material evidence to support a verdict, an appellate court shall: (1) takethe strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of allevidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)discard all [countervailing] evidence. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4,5 (Tenn.1978); Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn. App. 1982). Appellate courts shallneither reweigh the evidence nor decide where the preponderance of the evidence lies. If the recordcontains “any material evidence to support the verdict, [the jury's findings] must be affirmed; if itwere otherwise, the parties would be deprived of their constitutional right to trial by jury.” CrabtreeMasonry Co., 575 S.W.2d at 5. The issue now before us is whether the plaintiff proffered any material evidence during trialwhich would support the jury’s finding of handicap discrimination. The THA prohibitsdiscrimination in the workplace and is codified at Tenn. Code Ann. � 8-50-103. Specifically, theTHA prohibits:
discrimination in the hiring, firing and other terms and conditions ofemployment . . . of any private employer, against any applicant foremployment based solely upon any physical, mental or visualhandicap of the applicant, unless such handicap to some degreeprevents the applicant from performing the duties required by theemployment sought or impairs the performance of the work involved.
Tenn. Code Ann. � 8-50-103(a). Accordingly, an individual alleging discrimination under the THAmust show: (1) that the individual was qualified for the position; (2) that the individual wasdisabled; and (3) that the individual suffered an adverse employment action because of thatdisability. As a preliminary matter, we note that we are neither bound by nor restricted by the federallaw when interpreting our own anti-discrimination laws. The THA embodies the definitions andremedies provided by the Tennessee Human Rights Act (“THRA”). Forbes v. Wilson CountyEmergency, 966 S.W.2d 417, 420 (Tenn. 1998). The legislature’s stated purpose in codifying theTHRA was to prohibit discrimination in a manner consistent with “the federal Civil Rights Acts of1964, 1968, and 1972, . . . .” Tenn. Code Ann. � 4-21-101(a)(1), -101(a)(2). We, therefore, maylook to federal law for guidance in enforcing our own anti-discrimination laws. I. Our initial inquiry is whether Barnes was qualified for the position he formerly occupied.An individual may be deemed qualified if the individual can perform, with or without reasonableaccommodation, the essential functions of the employment position in question. See generally 425-U.S.C. � 12111(8); Southeastern Comm. College v. Davis, 442 U.S. 397, 406 (1979). We believethat an analysis of the qualifications of an individual alleging discrimination under the THA shouldfocus on the time frame during which the employment decision was made. A record of absenteeism may be relevant when addressing an ongoing qualification toperform a specific job. See generally Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6thCir. 1998) (holding that plaintiff was not qualified for position due to lengthy absence); Waggonerv. Olin Corp., 169 F.3d 481, 482-84 (7th Cir. 1999) (holding that plaintiff was not a qualifiedindividual due to unexplained “excessive erratic absences”). An employee “who does not come towork cannot perform any of his job functions, essential or otherwise.” Tyndall v. National Educ.Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (quoting Wimbley v. Bolger, 642 F.Supp. 481, 485(W.D. Tenn. 1986), aff’d, 831 F.2d 298 (6th Cir. 1987)); Greer v. Emerson Elec. Co., 185 F.3d 917,921 (8th Cir. 1999). In determining whether an individual is a “qualified individual,” courts maylook to whether the level of unscheduled absenteeism was detrimental to the employer’s operation.Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997). The defendant does not argue that the employee’s absenteeism interfered with companyoperations or job performance. To the contrary, the defendant concedes that the plaintiff wasqualified for the position and could perform his duties. Accordingly, the record supports a findingthat the plaintiff was qualified for the position from which he was laid off. The Court of Appeals held that “[taking] adverse employment action against an employeefor past absenteeism as a result of an impairment is not a violation of the THA.” The analysisemployed by the appellate court would have been appropriate in this case to determine whether theplaintiff were a “qualified individual.” However, the issue of whether any disability-related conductthat is neither illegal nor egregious can form a permissible basis for an adverse employment actionunder our anti-discrimination laws has yet to be decided. A causal nexus with the disability-relatedconduct combined with direct evidence of improper motivation may be sufficient under the THA tosustain a claim for handicap discrimination. Such is the case now before us. II. The second element requires that the claimant be disabled. The term “handicap” is notdefined by the THA. We have previously recognized that the THA embodies the rights anddefinitions of the THRA. Forbes v. Wilson County Emergency, 966 S.W.2d 417, 420 (Tenn. 1998).The THRA defines “handicap” as:
(i) A physical or mental impairment which substantially limitsone (1) or more of such person’s major life activities;
(ii) A record of having such an impairment; or
(iii) Being regarded as having such an impairment;
Tenn. Code Ann. � 4-21-102(9)(A). The THRA’s definition of handicap includes individualsperceived or “regarded” as having an impairment “which substantially limits a major life activity.”Forbes, 966 S.W.2d at 420. The relevant inquiry in this case is whether the evidence supported a finding that thedefendant regarded the plaintiff as being impaired. The plaintiff has presented evidence that hesuffered from an impairment. The plaintiff further submitted evidence that the defendant premisedits adverse employment decision on the fact that the plaintiff suffered an impairment. While the impairment may not have substantially limited a major life activity, the plaintiffmay be regarded as disabled if the defendant treated him as if his impairment substantially limiteda major life activity. Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 2149-150 (1999).Major life activities include communicating by speech and the ability to report for work. Animpairment that may disqualify one from working at a job of choice does not limit a major lifeactivity. See id. at 2150. However, an impairment that results in the inability to appear for worklimits a major life activity by disqualifying one from a broad class of jobs. The record contains evidence that the defendant premised its employment decision upon theplaintiff’s absences and communication problems. The defendant argues that the communicationproblems were not impairment-related but were the result of personality conflicts. The plaintiffdenied any personality conflicts and proffered evidence that any communication problems were aconsequence of his Bell’s Palsy. Whether the communication problems arose from a personalityconflict or were a consequence of the Bell’s Palsy was a disputed issue of fact. While the THA may permit an employer to consider the ability to communicate in assessingwhether an individual is qualified for a position, the THA prohibits an employer from terminatingan employee for a perceived disability or handicap. See generally Sutton, 527 U.S. at ____, 119S.Ct. at 2149. The record supports a finding that the basis for the layoff was an impairment. Theplaintiff proffered evidence of a statement that indicated that he was laid off “because [he] had Bell’sPalsy and [he] missed [work].” This statement supports an inference that the defendant believed thatthe plaintiff’s impairment interfered with his ability to appear for work. The standard of review in this case does not permit this Court to determine where thepreponderance of the evidence lies or to assess witness credibility. These assessments were the soleprovince of the jury. The jury apparently resolved the evidentiary conflicts in favor of the plaintiffand found that the defendant perceived the plaintiff’s impairment as substantially limiting his abilityto talk and appear for work. Discarding all countervailing evidence, as we must, we cannot concludethat the record lacks any material evidence to support the jury’s finding that the plaintiff washandicapped as defined by the THRA. III. An affirmative answer to the first two criteria leads us to the next inquiry under the THA.We must now address whether the plaintiff suffered an adverse employment action. An adverse.-7-employment action, as contemplated by the THA, is a material and adverse change in the terms andconditions of employment. See generally Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). The change must be more disruptive than a mere inconvenience or an alteration of jobresponsibilities. Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993). The following is a non-exhaustive list of adverse employment actions: termination of employment;demotion evidenced by a decrease in wage or salary, by a less distinguished title, or by a materialloss of employment benefits; or a significant reduction of material responsibilities. Crady, 993 F.2dat 132; see also DiMeglio v. Haines, 45 F.3d 790, 804 (4th Cir. 1995) (indicating a reprimand andreassignment may constitute an adverse employment action); Dahm v. Flynn, 60 F.3d 253, 257 (7thCir.1994) (stating dramatic downward shift in skill level required can constitute an adverseemployment action); Goodwin v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 547 (8thCir.1984) (holding transfer, with the same pay, from hearing officer to staff attorney was adversebecause less prestigious); Frazier v. Heritage Fed. Bank for Savings, 955 S.W.2d 633, 636 (Tenn.Ct. App. 1997) (noting reduction in duties and prestige were “materially adverse changes” in termsand conditions of employment). The plaintiff was laid off. A layoff is clearly an adverse employment action. Even assumingthat the plaintiff accepted the Hamilton-Ryker offer, the plaintiff still would have sustained anadverse employment action. The Hamilton-Ryker position was a temporary, hourly position whichwould have paid the plaintiff approximately one-half of his previous salary. The Hamilton-Rykerposition apparently did not include employee benefits, and acceptance of the position may haveterminated the plaintiff’s right to be recalled as a salaried worker. Goodyear’s decision to lay offthe plaintiff and to offer him the Hamilton-Ryker position constituted an adverse employment action. The third element of the analysis further requires a claimant to establish that a prohibitedmotivation made a difference in the adverse employment decision. There are two evidentiarymethods for establishing this “but for” causation. A claimant may either use the direct method orthe indirect method. Matthews v. Commonwealth Edison Co., 941 F.Supp. 721, 724 (N.D. Ill.1996). Under the direct method, the claimant simply relies on direct evidence of intentionaldiscrimination. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) (“Direct evidenceof discrimination would be evidence which, if believed, would prove the existence of a fact withoutinference or presumption.”). Once direct evidence of intentional discrimination is shown, the burdenshifts to the employer. The employer must then proffer a non-discriminatory reason which, whenstanding alone, would have induced the employer’s action. Wall v. Trust Co. of Ga., 946 F.2d 805,809 (11th Cir. 1991); see also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1184 (6thCir. 1996) (stating “no need” for further burden shift when direct evidence is available.).The indirect method employs the burden-shifting analysis developed in Texas Dep’t ofComm. Affairs v. Burdine, 450 U.S. 248 (1981). The initial inquiry under the indirect burden-shiftinganalysis is whether the claimant can establish a prima facie case of disability discrimination.Wolf v. Buss America, 77 F.3d 914, 919 (7th Cir. 1996). A prima facie case of disabilitydiscrimination requires a showing that: (1) the claimant is a member of a protected class; (2) theclaimant’s work performance met the employer’s legitimate expectations; (3) the claimant sustainedan adverse employment action; and (4) employees not in the protected class were treated more.-8-favorably. Matthews, 941 F.Supp at 724, 725; Wolf, 77 F.3d at 919. The elements of a prima faciecase may vary depending upon the method of discrimination and the unique circumstances of eachcase. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995). The establishmentof a prima facie case shall create a reputable presumption of disability discrimination. Wolf, 77 F.3dat 919. The next stage of the indirect method imposes a burden of production on the employer. Ifthe claimant successfully establishes the prima facie case, the employer must articulate a legitimatenon-discriminatory reason for the adverse employment action. Kiel v. Select Artificials, Inc.,169F.3d 1131, 1135 (8th Cir.1999). The articulation of a non-discriminatory reason rebuts thepresumption of discrimination and shifts the burden back to the claimant. Id. The last stage of theinquiry requires the claimant to show that the employer’s proffered reasons for the employmentdecision were pretext for unlawful discrimination. Id. To establish pretext, the claimant can eithershow: (1) that the employer was more likely than not motivated by a discriminatory reason; or (2)that the employer’s explanation was not credible. Wolf, 77 F.3d at 919. The case now before us involves a RIF. Accordingly, the plaintiff was required to prove:(1) that he was disabled as defined by the THRA; (2) that he could perform his job of “ProcessControl Operator”; and (3) that Goodyear selected him for layoff because of his disability.The evidence adduced at trial supported a finding of “but for” cause under the direct method.See Maldonado v. U.S. Bank, 186 F.3d 759, 763 (7th Cir. 1999) (stating if plaintiff emphasizes onemethod, “but the proper result is clear under the other method, we need not rely on proceduralniceties and ignore the obvious”). Barnes testified that when he asked whether he were being laidoff due to his Bell’s Palsy and the impairment-related absences, Nelms responded affirmatively.This affirmation was contemporaneous with the adverse employment action, concerned theemployment action at issue, and was uttered by Nelms, Barnes’ supervisor. Nelms has not directlyrefuted this testimony. Accordingly, Barnes has presented evidence of intentional discriminationsufficient to satisfy “but for” cause or element (3). Goodyear’s burden under the direct method has been triggered. To avoid a finding ofliability, Goodyear must proffer evidence of a legitimate justification for the employment decision.Goodyear could attempt to meet this burden by showing that the employment action was premisedon a bona fide occupational qualification. See generally, International Union v. Johnson Controls,499 U.S. 187, 200-01 (1989). Under the direct method approach, however, Goodyear must stillestablish that the same decision would have been made absent any improper motivation. A mereshowing that the decision would have been justified is insufficient. See generally Price Waterhousev. Hopkins, 400 U.S. 228, 252 (1989). Accordingly, Goodyear must show that the profferedlegitimate reason, standing alone, would have induced its decision to lay off Barnes.Barnes was laid off during a RIF. While a RIF is generally a legitimate, non-discriminatoryreason for an employment action, an employer may not utilize a RIF as a convenient opportunity torid its workforce of disabled workers. Matthews v. Commonwealth Edison Co., 128 F.3d 1194,1194 (7th Cir. 1997); Montana v. First Federal Savings & Loan Ass’n, 869 F.2d 100, 106 (2nd Cir.1989); Herold v. Hajoca Corp., 864 F.2d 317, 320 (4th Cir. 1988); Hardin v. Hussmann Corp., 45F.3d 262, 265-66 (8th Cir. 1995). “A RIF is not an open sesame to discrimination against a disabledperson.” Matthews, 128 F.3d at 1194. An employer should not be permitted to circumvent theAmericans with Disabilities Act through a practice of overhiring and later utilizing a RIF to weedout disabled workers. Id. Accordingly, the mere assertion of a RIF in a direct evidence disabilitydiscrimination case does not, as a matter of law, entitle the employer to summary judgment. Wehold that it was a question of fact whether Goodyear had established by a preponderance of theevidence that Barnes would have been laid off during the RIF absent any impermissible motivations. Reweighing the evidence of this case and re-assessing the witnesses’ credibility is simplybeyond the purview of this Court. Whether this Court would have made the same credibilityassessments or findings of fact that the jury did in this case is of no consequence. The assessmentof witness credibility and resolution of evidentiary conflicts was within the sole province of the jury. The jury obviously believed that discriminatory animus was a motivating factor in this case. Whilethe case is extremely close, we cannot conclude that there is no material evidence in this record tosupport the jury’s finding. CONCLUSION We hold that the appropriate framework for analyzing a handicap discrimination claim underthe THA and the THRA is as follows. First, a claimant must establish that he or she is a qualifiedindividual with a disability. Next, the claimant must show that he or she can perform the essentialfunctions of the job with or without reasonable accommodation. Finally, the claimant must showthat he or she was subjected to an adverse employment action on the basis of a protected disability.The claimant can establish causation under either a direct evidence method or an indirect evidencemethod. A showing of direct evidence of intentional discrimination entitles the claimant to judgmentunless the employer shows that an impermissible motive did not play a role in the employmentdecision. If the claimant is unable to proffer direct evidence of discrimination, the claimant can relyon circumstantial evidence under the indirect evidence method. We adopt the Burdine burden-shiftinganalysis to analyze indirect evidence cases. In the case now before us, Barnes presented direct evidence of discrimination. Goodyearattempted to establish that a RIF led to the employment decision and that an impermissible motivedid not play a role in the employment decision. Goodyear, therefore, created a material issue of factas to the element of causation. A jury listened to the evidence, viewed witness demeanor, and foundthat Barnes’ perceived disability was a factor in the decision to lay off Barnes. We cannot supplantthe jury’s findings and inferences with those of our own. We hold that the record contains materialevidence to support a finding of handicap discrimination under Tenn. Code Ann. � 50-8-103 and theTHRA. The decision of the Court of Appeals is reversed. The jury’s verdict is reinstated. The caseis remanded for consideration of the issues pretermitted by the appellate court. Costs of this appealshall be taxed against the defendant, Goodyear Tire and Rubber Company, for which execution mayissue if necessary.
Barnes v. The Goodyear Tire and Rubber Company Supreme Court of Tennessee At Jackson LARRY W. BARNES, Appellant, v. THE GOODYEAR TIRE AND RUBBERCOMPANY, Appellee. Appeal From: Chancery Court for Obion County No. W1997-00247-SC-R11-CV Decided: May 30, 2000 Before: HOLDER, J., ANDERSON, C.J., DROWOTA, BIRCH, and BARKER, JJ. Counsel for Appellant: Dan M. Norwood Counsel for Appellee: Larry W. Barnes, Tim K. Garrett, Michael S. Moschel, and James M. Glascow, Jr.
