During the final days of its 2011 session, the Tennessee General Assembly legislatively overruled two Tennessee Supreme Court decisions by statutorily changing Tennessee's summary judgment standard to more closely track the federal standard.

In 2008, the Tennessee Supreme Court dramatically departed from the summary judgment standard applied in the federal courts. The federal courts follow the so-called "put up or shut up" rule which basically allows the moving party to shift the burden of production to the nonmoving party by alleging the absence of evidence. In Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), the Tennessee Supreme Court held that Tennessee does not follow the "put up or shut up" approach. Rather, in order for the moving party to shift the burden, the movant must either affirmatively negate an essential element of the nonmoving party's claim or show that the nonmoving party cannot prove an essential element of the claim at trial. Pragmatically, the Hannan standard has made it very difficult for a defendant to obtain summary judgment.

This shift in summary judgment standard was particularly troublesome in employment discrimination cases. For instance, in Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 779 (Tenn. 2010), the Tennessee Supreme Court held that the long-followed three-part test used to evaluate employment discrimination and retaliation claims, as articulated by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was "incompatible with Tennessee summary judgment jurisprudence."

The Tennessee General Assembly, however, has now legislatively overruled both the Hannan and the Gossett decisions. HB 1358 will add the following new provision at Tenn. Code Ann. § 20-16-101:

In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

  1. Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or
  2. Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.

Absent an unlikely gubernatorial veto, the new summary judgment standard will go into effect on July 1, 2011, and will apply to all actions filed on or after that date.

Additionally, to address the Gossett decision, the legislature approved a related bill, HB 1641. This legislation specifically adds sections to the Tennessee Code providing that the principles in the three-part McDonnell Douglas test apply to all discrimination, wrongful discharge, and retaliation claims brought in Tennessee. This legislation will go into effect immediately upon being signed by the Governor and will apply only to causes of action accruing on or after its effective date.