August 2, 2011
New Tennessee Summary Judgment Standard Affects Employment Cases
Readers familiar with Tennessee law will understand that, since the 2008 Tennessee Supreme Court opinion in Hannan v. Alltel Publishing Co. (and arguably for several years before that), it had become extremely difficult for a party to prevail on a summary judgment motion in Tennessee's state courts. The Supreme Court clarified in Hannan a standard which had been developing over several years, under which a moving party was not able to argue that the opponent had insufficient evidence to survive at the summary judgment stage (i.e., that the non-movant must "put up or shut up"), which is one of the standards applied in federal court cases. This restrictive rule placed Tennessee's summary judgment standard at odds with decades of established standards and rules utilized in federal court cases, and it made achieving a summary judgment nearly impossible.
Effective July 1, 2011, the Tennessee legislature has taken Tennessee "back to" the federal standard for summary judgments with the passage of Tenn. Coce Ann. section 20-16-101 (which will only apply to actions filed on or after July 1, 2011). While it is beyond the scope of this news update to attempt to fully explain all the legislative changes, the general effect is that in new cases, Tennessee will follow the federal court standards for summary judgment, which will permit movants to argue that the non-moving party has insufficient evidence to establish its claim or defense (i.e., that the non-movant must "put up or shut up" at the summary judgment stage).
Companion legislation effective June 10, 2011 also clarifies that this same standard is applicable in employment-related cases involving claims of discrimination or retaliation, which will hereafter be governed by the familiar federal McDonnell Douglas standard. The Tennessee Supreme Court had ruled in Gossett v. Tractor Supply, a 2010 opinion, that the McDonnell Douglas burden shifting standard was not applicable in Tennessee cases at the summary judgment stage because it was incompatible with the standards of Hannan. The new legislation amends Tenn. Code Ann. sections 4-21-311 and 50-1-304, and it provides that the federal McDonnell Douglas standard is to be applied in all cases filed after the effective date involving Tennessee state claims of employment discrimination or retaliation, including at the summary judgment stage.
This new legislative standard should be beneficial to employers in future Tennessee employment cases, as it will take Tennessee back into alignment with the standards which have been defined and refined over decades in federal cases. The end result should be that employers will be able to defend employment cases with summary judgment motions challenging the sufficiency of the employee's evidence, at the summary judgment stage.