The opinion of the court was delivered by: Lee
Before the Court is the motion of Defendants, Southeastern Tennessee State Regional Correctional Facility ("STSRCF"), Virginia Lewis ("Lewis"), Greg Wilson ("Wilson") and Dorothy Shirlene Brewer ("Brewer"), for summary judgment pursuant to Fed. R. Civ. P. 56 [Doc. No. 37]. In support of their motion Defendants filed a supporting memorandum, statement of undisputed fact, and notice of filings [Doc. Nos. 38, 39 & 40]. Plaintiff Sherry L. Boynton has filed a response in opposition to Defendants' motion for summary judgment and a response to the statement of undisputed facts [Doc. Nos. 43 & 44]. Defendants have filed a reply to Plaintiff's response [Doc. No. 45]. Consequently, Defendants' motion is now ripe for review. For the reasons which follow, Defendants' motion for a summary judgment [Doc. No. 37] will beGRANTEDand the Plaintiff's claims will be DISMISSED WITH PREJUDICE.
II. Procedural and Factual Background
Plaintiff filed her original complaint pro se naming only STSRCF as a Defendant [Doc. No. 3]. Subsequently, Plaintiff filed a pro se amended complaint as a matter of right pursuant to Fed. R. Civ. P. 15(a) [Doc. No. 6]. Plaintiff's pro se amended complaint added Lewis (the STSRCF Warden), Wilson (the Health Administrator who oversaw the medical program including the nurses), and Brewer (Plaintiff's immediate supervisor) as Defendants [id. & Doc. Nos. 39 & 44]. Defendants filed their answer to Plaintiff's pro se amended complaint on March 22, 2006 [Doc. No. 11]. On March 27, 2006, Defendants filed a motion to dismiss under Fed. R. Civ. P.12(b)(1) [Doc. No. 14].
Plaintiff retained counsel on May 4, 2006 [Doc. No. 20]. Plaintiff's motions for an extension of time to respond to Defendants' motion to dismiss and for leave to file a second amended complaint were granted [Doc. No. 21]. Thereafter, on June 5, 2006, Plaintiff filed her second amended complaint (the "amended complaint") [Doc. No. 23] and a response in opposition to Defendants' motion to dismiss [Doc. No. 24]. Defendants filed their answer to Plaintiff 's amended complaint on June 15, 2006 [Doc. No. 27].
On July 28, 2006, this Court granted in part and denied in part Defendants' motion to dismiss [Doc. No. 28]. Plaintiff's claims against STSRCF and Lewis, Wilson, and Brewer in their individual and official capacities for monetary damages under Title I of the Americans With Disabilities Act ("ADA") and Plaintiff's claims against STSRCF and Lewis, Wilson, and Brewer in their official capacities under 42 U.S.C. § 1983 were dismissed under Rule 12(b)(1) as barred by the Eleventh Amendment [id. at 11-12]. Plaintiff's claims against STSRCF for prospective injunctive relief under Title I of the ADA, Plaintiff's claims against Lewis, Wilson, and Brewer in their Individual capacities under 42 U.S.C. § 1983, and Plaintiff's state law claims for defamation and for "whistleblower" retaliation under Tenn. Code Ann. § 50-1-304 were not dismissed [id.]
On March 1, 2007, Defendants filed a motion to dismiss Plaintiff's state law claim that she was wrongfully terminated in retaliation for "whistleblowing" activity in violation of the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304, for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) [Doc. No. 29]. On April 10, 2007, the Court granted Defendants' motion and dismissed Plaintiff's claim of wrongful termination in retaliation for "whistleblowing" activity under Tenn. Code Ann. § 50-1-304 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) as barred by the Eleventh Amendment [Doc. No. 32].
Plaintiff was hired as a registered nurse at STSRCF on or about March 1, 2005 [Doc. No. 23 at 2, ¶ 5]. Plaintiff was terminated on or about August 1, 2005 [Doc. No. 43-6 at 1, ¶ 6].
The events at STSRCF the evening of July 30, 2005 and into the early morning hours of July 31, 2005 are at the heart of this case. On July 30, 2005, Plaintiff returned*fn1 to STSRCF at 2:00 p.m. to work the second shift [Doc. No. 40-9 at 8]. Plaintiff's duties included handling the nighttime "med pass" at STSRCF, which is the distribution of routine medications to inmatesin housing Units 1, 2, and 7 and the Annex, and is generally conducted at about 8:00 p.m. [id. at 4-5]. The nurse handling the "med pass" generally starts at the Annex at approximately 7:30 p.m. and has about an hour's leeway to distribute the medications [id. at 5-6]. Brewer could only remember two times when the 8:00 "med pass" had not been completed within one hour, one time was the instant situation and the other time was when an inmate died [id. at 5-6].
Defendants contend Plaintiff was terminated because she did not timely distribute medications to Units 1, 2, and 7 on the evening of July 30, 2005. During Plaintiff's deposition, which was taken on January 30, 2007, Plaintiff testified the "med pass" consists of distributing routine medications, which are taken at regular intervals, and "PRN"*fn2 medications, which are used to treat problems such as headaches as needed. During her deposition Plaintiff gave several explanations for her failure to timely distribute the medications but she did not dispute she failed to timely complete the "med pass" around 8:00 p.m.
Plaintiff acknowledged there was an 8:00 p.m. "med pass" at STSRCF [Doc. No. 40-4 at 36]. She stated the "med pass" is done at 8:00 p.m. if the medication is available [id.]. Plaintiff stated all of the medications for the "med pass" were not available on the evening of July 30, 2005 [id.]. Plaintiff stated it was her understanding the available "med pass" medications should be distributed at 8:00 p.m. and it generally takes 15 minutes per unit to handle the 8:00 p.m. "med pass" [id. at 38-40]. She described the events of July 30, 2005 as "just an isolated incident." [id. at 40].
Initially, Plaintiff testified that at about 7:00 p.m. on July 30, 2005, she was in the STSRCF clinic dealing with inmates who had various issues [Doc. No. 40-4 at 21]. She left the clinic at 8:30 or 9:00 p.m. to deliver supplies to the Annex, a housing unit for inmates that is separate from the main prison compound [id. at 23]. Plaintiff spent some time cleaning up calamine lotion she had spilled in the Annex medical supply room and also handled the "med pass" for the Annex [id. at 24-26]. Plaintiff testified she remained at the Annex until approximately 10:00 p.m. [id. at 24]. Plaintiff returned to the clinic at approximately 10:00 p.m. for the "med pass" for Units 1, 2, and 7 [id. at 26]. Plaintiff testified she spent about 20 minutes preparing the medications for Units 1, 2, and 7 [id. at 27]. Plaintiff also telephoned Brewer and obtained permission to stay beyond the 10:00 p.m. end of her shift [id. at 28]. By that time, nurses had arrived for the third shift at STSRCF. Plaintiff asked a third shift nurse, Cindy Woodlee ("Woodlee"), for help [id.]. Plaintiff testified Woodlee took the "med pass" medications to Unit 7 and she took the "med pass" medications to Unit 1 [id. at 29].
Plaintiff went to Unit 1, but on her way she found a live frog in the entrance to Unit 1 [id. at 30]. She told the officer on duty, Officer Phillips, she found the frog and was going to take it outside and wash her hands before distributing the "med pass" medications [id. at 30-31]. Plaintiff returned to the clinic, washed her hands, and then returned to Unit 1 at approximately 10:30 p.m [id. at 32]. She remained there and distributed the "med pass" medications [id.].
Plaintiff testified she then proceed to Unit 2, where she distributed the "med pass" medications for about ten minutes [id. at 32-33]. Plaintiff testified she returned to the clinic at 11:00 p.m. and remained there until 7:30 a.m. the next morning [id. at 34-35].
After being shown a letter Woodlee wrote to Brewer concerning the events of July 30, 2005, Plaintiff changed her deposition testimony concerning the events of that evening. Woodlee's letter stated that personnel from Units 1 and 7 telephoned at approximately 10:30 p.m. because the inmates had not received their 8:00 p.m. "med pass" medications. In her letter, Woodlee stated she asked if Plaintiff needed help, but Plaintiff disputed this in her testimony and stated she asked Woodlee for help [Doc. No. 40-4 at 42]. Plaintiff then testified she had already prepared the "med pass" medications for Units 1, 2, and 7 before she left to go to the Annex [id. at 51, 56]. Plaintiff testified she distributed all the routine medications to Unit 7 after leaving the Annex at about 9:30 [id. at 56-57]. Plaintiff stated she remained at Unit 7 for about 15 to 20 minutes [id. at 57], and proceeded to Unit 2 at about 10:20 p.m [id. at 59]. Plaintiff testified she then went to Unit 1, where she found the frog [id. at 60]. After being at Unit 1 for about five minutes, Plaintiff returned to the clinic to wash her hands [id. at 60-61].
Plaintiff testified she asked Woodlee to handle the "med pass" for Unit 1 at about 10:35 p.m. [id. at 62]. Woodlee was going to Unit 1 to distribute both the "med pass" medications and the PRN medications as neither had been distributed at that time [id. at 64]. Plaintiff testified she returned to Unit 2 to dispense PRN medication to an inmate at approximately 10:40 p.m [id. at 62]. She stated that at approximately 11:00 p.m. she returned to the clinic to prepare PRN medication for Unit 7 [id. at 66]. She left the clinic at about 11:15 p.m. to deliver the PRN medication to Unit 7 [id. at 66-67]. Plaintiff stated she returned to the clinic at about 11:30 p.m., left to eat supper and returned to the clinic at about midnight, where she remained until 7:30 a.m. [id. at 67, 68].
Plaintiff was then shown a letter written by Lewis which sets forth a detailed account of the events that allegedly transpired at STSRCF on the evening of July 30, 2005. After reading the letter during her deposition, Plaintiff stated she agreed with Lewis' statement she left for the Annex at 7:40 p.m., not 8:30 p.m. or 9:00 p.m. as she had previously testified [Doc. No. 40-5 at 25-26]. Plaintiff also agreed with the assertion in Lewis' letter that she had not distributed the "med pass" medications to Units 1, 2, or 7 by the time she returned to the clinic at approximately 10:00 p.m [id. at 26].
Plaintiff was then shown a letter she had written to Commissioner Little of the Tennessee Department of Correction ("TDOC") [id. at 37]. In her letter to Commissioner Little, Plaintiff stated Woodlee had distributed the "med pass" medications to Units 1 and 2, while Plaintiff had distributed the "med pass" medications to Unit 7 [id. at 38-39].
Plaintiff was next shown the prison log books for the evening of July 30, 2005 [Doc. No. 40-6 at 7-25]. Based upon her review of one of the log books, Plaintiff stated she went to the Annex to distribute medications at about 7:40 p.m. and returned from the Annex at about 10:00 p.m. on July 30, 2005 [Doc. No. 40-6 at 12]. According to the log book for Unit 2, Plaintiff signed into Unit 2 to distribute medications at 9:33 p.m. and signed out at 9:40 p.m. Plaintiff denied writing the times in the log book, stating she had left the times blank for the officers to fill in [Doc. No. 40-6 at 15]. Although Plaintiff had testified she arrived at Unit 2 after 10:00 p.m. to distribute the "med pass" medications, the log book indicated Woodlee arrived at Unit 2 at 12:05 a.m. on July 31, 2005 to distribute the 8:00 p.m. "med pass" medications [id. at 17].
Plaintiff was then shown a copy of the log book from Unit 1, which indicated Plaintiff arrived at Unit 1 at 10:17 p.m. and left at 10:34 p.m. because she had forgotten the medications [id. at 19]. Plaintiff admitted arriving at Unit 1 at that time, but denied forgetting the medications [id.]. The log book further indicated at 11:25 p.m. an officer called the clinic because no one had delivered the "med pass" medications [id. at 19-20]. The log book noted Woodlee had arrived at Unit 1 at 12:35 a.m. on July 31, 2005, to distribute the "med pass" medication [id. at 20]. Plaintiff testified she had no reason to believe this entry in the log book was incorrect [id.].
Plaintiff was shown the log book for Unit 7 [Doc. No. 40-6 at 23]. She admitted she had signed into Unit 7 at 10:30 p.m. and back out at 10:45 p.m [id. at 25]. The next entry indicated someone had signed into Unit 7 at 11:50 p.m. and out at 12:40 a.m. to deliver medications, but Plaintiff was unable to remember whether she had returned to Unit 7 [id.]. Plaintiff stated she might have returned to Unit 7 to give someone PRN medication [id.].
Plaintiff was also shown the officers' notes/log book from Unit 7 [id. at 26]. It showed Plaintiff had been in Unit 7 from 10:30 p.m. to 10:45 p.m [id. at 27]. The log book further stated that Plaintiff had emptied her bag of medications onto the desk and floor [id. at 28]. Plaintiff testified she did put her medications on the desk, but she was unable to recall if any of the medications had fallen on the floor [id. at 28-29]. The next entry indicated Plaintiff returned to Unit 7 around midnight. Plaintiff testified she was able to recall returning to Unit 7 to distribute PRN medications from about 11:50 p.m. to 12:40 a.m. after seeing the log book [id. at 31].
A copy of Woodlee's handwritten letter to Brewer of August 1, 2005, detailing the events of July 30-31, 2005 appears in the record. It states in pertinent part:
On Saturday 7/31/05 at approx. 9:59 p.m I reported to work at STSRCF. At shakedown an officer told me that the nurse had been at the Annex for 2 hours without a reason. When I reached the clinic the Lieutenant called the clinic & said someone had checked on Nurse Sherry Boynton at the Annex and she had the clinic door locked and told the officers she was cleaning out expired medicines. When RN Sherry Boynton entered the clinic she told me she had spilled some calimine [sic] lotion at the Annex and was cleaning it up.
At approx. [10:30] pm Unit 1 and Unit 7 called and said they had inmates yelling about 8 pm medicine. I asked RN Sherry Boynton about the 8 pm medicine & she said "I'm getting them" I asked if I could help her, she said "NO she had it under control." She went out of the clinic . . . she came back to the clinic in about 20 minutes and sat down and started talking. At approx. [11:30] p.m. Unit 1 called & said "what do you want me to tell these inmates about their 8pm meds? I told him I thought Sherry Boynton had given them. The officer . . . informed me that RN Boynton had come up there and laid a live frog on his desk & then told him she had forgotten to bring inmate medicine to his unit. . . I asked RN Boynton & she said "Oh, I forgot" and went into the medicine room . . . I came into the medicine room and RN Boynton was getting inmate medicine out of the carts and putting the medicine in envelopes to take to Unit 1 . . . At approx. midnight Lt. Terry Brock called the clinic & asked what was wrong with Nurse Sherry Boynton. He informed me that she had gone to Unit 7 & had given some inmates the wrong medicine & then had spilled medicine all over the floor. The Lt. asked if I would go to unit & calm things down. When I got to unit 7 Nurse Boynton was on her way out & told me everything was alright. When we returned to the clinic I asked Nurse Boynton if she was finished with all her 2nd shift work. She told me she still had to go to unit 2 to give 8 pm medicines. I told her I would do that if she would go eat supper. I then prepared & delivered medicine to unit 2 inmates. When I got back to the clinic the phone was ringing and it was unit 1. Co. Phillips of unit 1 was upset & wanted to know why his inmates had not gotten their 8 pm meds. I asked Nurse Boynton & she casually stated "No I've not been up there yet." I told her I would do unit 1 medicine. I prepared and delivered meds to Unit 1. [Doc. No. 40-7 at 2-4].
2. Plaintiff's Termination and No Rehire Status
On August 1, 2005, Lewis sent a letter to Plaintiff terminating her employment at the prison [Doc. No. 40-7 at 27]. The letter stated in pertinent part:
As discussed in our telephone conversation on August 1, 2005 with RN3 Dottie Brewer and myself, your recent behavior/work practices are not acceptable for continued employment at Southeastern Regional.
On July 29, 2005, you were given permission to stay over and complete the chain bus charts from July 28th; however, you did not leave the facility until the following morning at 7:30 am (7/30/05). On July 30, 2005, you returned to work for your regular 2nd shift assignment. During your shift, you failed to distribute medications to the annex and instead of delivering medications to the segregation units you placed a frog on the officer's desk and stated that you had forgotten to bring the medication. There have also been complaints that you have poured medications all over the desk and floor and have issued some inmates the wrong medications.
Medical personnel are vital to the operation of this facility.
Distributing incorrect medications, and not performing your duties creates a serious problem. You are being dismissed from employment effective August 1, 2005.
You are a probationary employee and have no appeal rights to your job. [id.]. On August 11, 2005, Lewis sent a letter to Plaintiff in response to a letter Plaintiff sent to one of the Acting Commissioners in the TDOC [Doc. No. 40-7 at 28-29]. The letter stated in pertinent part:
You also indicate that you were not allotted more intense training; but that other RN's hired after you had received the training. You received the same training as other RN's other than the training for new supervisors.
On April 25, 2005, we received a "return to practice" authorization from your [TNPAP] Case Manager . . . The "return to practice authorization contained the following restriction . . . No agency, registry, PRN, float pool or supervising nurse . . . Since your contract with [TNPAP] prohibited you from supervising anyone, you were not scheduled for new supervisor's training.
I have reviewed the certified letter that was sent to you on August 1, 2005 in regard to your dismissal. I concur that there is a misleading or false allegation in the statement that "you failed to distribute medication to the annex and instead of delivering medications to the segregation units you placed a frog on the officer's desk and stated that you had forgotten to bring the medication." As a matter of routine, one of the 2nd shift nurses remains in the compound clinic to handle the evening medication call for inmates coming to the clinic and the other 2nd shift nurse administers medication at the annex, units 1, 2 and 7. On the evening of July 30, 2005, you reported to the annex clinic at 7:40pm to distribute medications; but you did not return to the clinic on the compound until approximately 10:00pm. You had not gone to housing units 1, 2 or 7 to distribute the 8:00pm medications. At 10:30 pm, Officer Kris Phillips in unit 1 called to inquire about the medications. At that time Cindy Woodlee, LPN3, 3rd shift nurse, inquired to [sic] you in regard to the 8:00pm medications for the segregation units. You stated to her "I am getting them." When asked if she could help you told Ms. Woodlee "no, that you had it under control." According to Officer Phillips you did present to housing unit 1 and placed a live frog on his desk. When he asked about the medications for the inmates in housing unit 1, you indicated that you had forgot to bring the medicine to the unit. You indicated to Officer Phillips that you would return in approximately 5 minutes. At approximately 11:30 pm, Officer Phillips again called the clinic wanting to know when the 8:00 pm medications would be delivered to the unit. Ms. Woodlee inquired again about the medicines for unit 1 and you indicated to her that you had forgot to take the medicines to unit 1. You went to the medication room and Ms. Woodlee inquired again if she could be of assistance in helping you to take the medications to unit 1. You told her at that time that [sic] "no" and you left the clinic. Ms. Woodlee thought that at that time you were going to housing unit 1, you did proceed to housing unit 7. Officer Jewell in unit 7 reported to Lt. Brock that you had poured medication all over the desk and floor and had issued some inmate the wrong medications. At that time this was reported to shift supervisor, Lt. Brock, who in turn requested that Ms. Woodlee go to unit 7 to assist with the situation. At that time you indicated to Ms. Woodlee that everything was okay. When Ms. Woodlee inquired if you had completed your 2nd shift work you indicated to her that you still needed to go to housing unit 2. At that time Ms Woodlee volunteered to take the medications to housing unit 2 and did so for you. Upon Ms. Woodlee's return to the clinic, Officer Phillips was again calling regarding the 8:00 pm medications for housing unit 1 inmates. Ms. Woodlee prepared and delivered the 8:00 pm medications to unit 1 inmates. Ms. Woodlee prepared and delivered the 8:00 pm medications to unit 1 around midnight.
Not administering medications at the prescribed times constitutes negligence. The fact that you were not able to deliver the 8:00 pm medications to housing units 1, 2 and 7 in a 4-hour period of time indicates inefficiency or incompetence in the performance of your duties. Taking a frog and placing it on the officer's desk rather than taking the medication for the inmates and administering medication shows poor judgment.
Further, on September 30, 2005, Lewis sent Plaintiff a letter regarding her dismissal which states:
It has been brought to my attention that your dismissal letter was unclear on your rehire rights for the State of Tennessee. Due to the type of environment in the Department of Correction and the problems that were encountered during your employment at STSRCF, I am recommending a "no rehire" for TDOC be placed in your file. This restriction is ...