How "Hannan" Continues Its Role as a Gift That Keeps On Giving

The Hannan case from 2008 changed the way our state courts in Tennessee approach summary judgment. In essence, Hannan made it much more difficult, for example, for employers to get summary judgment in employment discrimination cases based upon state law.

A recent Tennessee Supreme Court decision all but eliminated the ability to have a case summarily dismissed (that is, without a trial) when the claim is based upon common law retaliatory discharge. In Gossett v. Tractor Supply Company, Inc., the Court held that an employer must offer evidence that disproves the employee's claim that the discharge was motivated by retaliation. This is a swing in methodology from the Court's previous use of the U.S. Supreme Court burden-shifting posture: if an employee demonstrates a reasonable jury could conclude retaliation occurred, the employer has an opportunity to refute that presumption by demonstrating a legitimate business reason existed for the discharge. Notable is that in the U.S. Supreme Court body of law, employers can have "mixed motives" in discharging employees without being liable for a violation of the law. Cases brought under state law in Tennessee are now no longer eligible for the mixed motive consideration.

In the end, it doesn't change the cautions we extend to employers concerning retaliation cases. We warned about the difficulty in getting rid of them once they appeared in court. Now we have the court language to back it up.

Toto, I've a feeling we're not in Kansas anymore

Exactly the thought that ran through my head when I read the Hannan v. Alltel decision handed down on Halloween from the Tennessee Supreme Court. The next thought was, "Perhaps the justices are putting on their idea of a haunted house? What you see is not real, only put before you to scare your wits off."

No such luck. For those of you who are familiar with litigation, you probably recall your attorney talking to you about possibly filing a Motion for Summary Judgment. In effect, the motion asks the court to believe everything the opposing party is saying and still find for your side because the facts are insufficient to support the claim, the facts fail to support an essential part of the opposing side's claim based upon case and/or statutory law, you get the idea. You're saying to the court, "Your Honor, it does not matter to us if the story presented by the other side is true. In fact, please give the other side the benefit of the doubt. At the end of the day, the case law and the statute require that you find for us." It's a powerful tool to have on your side.

The Alltel decision works to reduce the probability that the party moving for summary judgment will be successful by, for all intents and purposes, raising the bar you must clear in order to prevail. The standard to take away from Alltel is that summary judgment will only be granted where the party asking for it can "(1) affirmatively negate an
essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial." May not sound like much, but these two options will most likely change the way your attorney weighs the use of this tool in his/her litigation strategy.

The Court, in its opinion, says it is reinforcing over 10 years of precedent in this state of when summary judgment is appropriate. Perhaps, but I would venture the guess that some summary judgments granted before the Alltel opinion might not have been upheld if challenged in the post-Alltel court system. The opinion, for those of us who practice employment defense litigation, is reminiscent of something we would read out of a California state court, not the warm surroundings of Tennessee's judicial system.

So does this change the way you conduct your daily operations? No. But it is something to keep in mind next time you find yourself in the Tennessee court system. If you are in those shoes, you certainly would be wise to ask your attorney if there is some way to have your case removed to the federal court system, where the employer-friendly opinions for our Circuit remain relatively intact. . . at least for now.

[Cue Vincent Price's laugh from "Thriller"] Happy trick-or-treating!