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Demastus v. University Health System, Inc.

Court of Appeals of Tennessee, Knoxville

March 2, 2017


          Session September 14, 2016

         Appeal from the Circuit Court for Knox County No. 3-554-14 Deborah C. Stevens, Judge.

         Plaintiff Laura Lee Demastus brought this action against her former employer, University Health System, Inc., doing business as the University of Tennessee Medical Center (Employer). After Plaintiff had worked roughly three years as a nurse at the UT Medical Center, Employer suspected that she was illegally diverting medications. When Plaintiff's supervisors confronted her with evidence of several suspicious transactions recorded by the medication monitoring systems, Plaintiff denied doing anything wrong or improper. She, however, could not explain the suspicious transactions. She was terminated shortly thereafter. Plaintiff brought this action under the Tennessee Disabilities Act (TDA), Tenn. Code Ann. § 8-50-103 et seq. (2016), alleging that she was fired solely because Employer perceived her to have the disability of drug addiction. Employer argued that it did not fire her because she was considered a drug addict, but because it thought she was stealing medications. Following discovery, the trial court granted summary judgment, holding that under the undisputed material facts, Plaintiff could not establish that Employer's proffered non-discriminatory reason was a pretext for illegal discrimination. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded.

          Katherine A. Young, Knoxville, Tennessee, for appellant, Laura Lee Demastus.

          Howard B. Jackson, Knoxville, Tennessee, for appellee, University Health System, Inc. dba University of Tennessee Medical Center.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.




         Plaintiff began working for Employer at the UT Medical Center in June 2010. According to her employment record and supervisors' testimony, she was an excellent employee by some measures, and was a diligent worker and a caring and conscientious caregiver. She had a tardiness problem at times, which, according to her, was caused by her Attention Deficit Hyperactivity Disorder diagnosis. Plaintiff's complaint alleges that "[a]s a result of Plaintiff's ADHD, she was often late for obligations. In early 2013, Plaintiff was warned that her tardiness was unacceptable at [Employer's] workplace and she corrected her behavior."

         Kimberly New worked for Employer as a compliance officer, monitoring medication administration in an attempt to prevent employee diversion, which she testified "has become a significant issue in hospitals." In August 2013, New investigated Plaintiff's medication administration transactions. Her affidavit describes her investigation:

If I became aware of medication administration transactions that raised concerns, I followed a typical investigative procedure. I obtained data on transactions from Omnicell reports, often for a period of 60 to 90 days. The Omnicell is a system that records when nurses remove medication. The Omnicell software records the identity of the nurse, the type of medication, the time it was removed, and the identity of the patient who was to receive the medication. I compared data from the Omnicell with information in patient charts, which is recorded electronically, to determine whether there were discrepancies or other troubling indications.
I found several concerning transactions in the review of [Plaintiff's] medication administration transactions. Exhibit B to my affidavit . . . show[s] one example. In this instance, the Omnicell report shows a withdrawal of Oxycodone for patient GB at 22:28 on July 8, 2013. The patient chart does not record that dose of Oxycodone as having been administered or wasted.[1] I noted that this was a missing medication by writing an "m" with a circle around it next to the record of withdrawal on the Omnicell report.
After I analyzed the medication administration records for [Plaintiff], I contacted her manager, Laura Harper. Ms. Harper and I met with [Plaintiff] on August 28, 2013. I presented [Plaintiff] with records of several concerning transactions. She could not explain them.
I met with Ms. Harper, and her supervisor, Jeanne Wohlford, on or about August 29, 2013, to discuss the investigation. I showed documents to Ms. Harper and Ms. Wohlford and explained the facts revealed in the investigation. Those facts pointed to the conclusion that [Plaintiff] had engaged in diversion of medication. I was not asked for my opinion regarding [Plaintiff's] employment with the Hospital, nor did I offer an opinion on that subject.

(Numbering in original omitted; footnote added.) In addition to the missing oxycodone noted above, New provided two other documented examples of concerning medication transactions in her affidavit.

         Plaintiff testified as follows about the meeting on August 28, 2013:

Q. Was there discussion of occasions when medication was documented as being removed from the Omnicell but then not charted as being given to the patient? Was that something that Ms. New mentioned?
A. Yes, she did. She asked me if I could explain situations in which medications were removed but she could not find it in the charting where they had been administered, to which I responded, "If I removed the medication from the Omnimed or Omnicell, I either administered it to the patient or I returned it to the Omnimed or Omnicell. If the charting doesn't reflect that, I have no explanation as to why that is. I'm not an IT person. I'm a nurse, but all I can tell you is what I know to be the truth, which is if I removed it, I either gave it or returned it, period."
Q. Did Ms. New or Ms. Harper respond when you made that comment?
A. They responded by continuing to go down the list of medications that Ms. New had compiled to see if I had an explanation for any of the discrepancies that she had come across.
Q. Did Ms. New make mention of a discrepancy such as medication documented as being administered to a patient before it had been documented as being removed from the Omnicell?
A. I believe that there was one instance, maybe more, of something of that. Sitting there, I was so in shock of what was being alluded to and what we were discussing, it was all very confusing for me, as far as how could it be that I administered medication that hadn't been pulled from an Omnimed before? I mean, how do I even procure medication unless it's through the Omnimed?
I was in such shock and in such a twirl mentally about the whole scenario that I didn't have the wherewithal to say, "I need to see charts, I need to see my notes, I need to see this, that and the other, " and so with the limited amount of information that I had there, I just went with the truth and said, "If it says I removed it, I removed it, and I gave it or I returned it. That's all I can tell you."

         Plaintiff testified that she assured her supervisors she did not have a drug abuse problem. She also consented to a drug screen. Before the results of the drug screen came back, Employer terminated Plaintiff's employment on August 30, 2013. The reason stated on Employer's supervisor separation evaluation form is "gross misconduct."

         Plaintiff filed this action on August 26, 2014. She alleged that although she does not and has not ever had a drug addiction, Employer perceived her to have one, and fired her solely for that reason. In its answer, Employer denied a discriminatory intent, stating: "University Health did not regard Plaintiff as disabled. University Health regarded Plaintiff as a person who had diverted prescription medication."

         Employer moved for summary judgment. Following a hearing, the trial court granted the motion, stating in pertinent part:

[The TDA] requires the plaintiff to prove that [she was] terminated solely because of the disability. I think everybody this morning agreed that if the plaintiff had been terminated solely because of addiction she would have a disability claim. For purposes of reviewing this motion for summary judgment, the court has presumed plaintiff can make a prima facie case of disability.
What the court has focused on is whether or not once the defendant has presented a business reason for the termination, whether or not the plaintiff can . . . meet [her] burden of proof in showing that the termination was pretextual.
I can't help but find that the basis for the termination was, in fact, drug diversion, that [Plaintiff] was given an opportunity as per standard protocol to explain the discrepancies. She chose to explain it by basically admitting that the records are what the records are.
And in this case, clearly, while there may have been discussions about what caused the medicine diversion of ‒ discrepancy, the fact is that the plaintiff was terminated for medication diversion, which was a violation of the drug-free workplace, not in the sense of the fact that she was using the medicine, but in the sense that she had medication that was not accounted for.
[T]he motion for summary judgment is properly taken and should be granted on the basis that, as a matter of law, the plaintiff cannot establish that the reasons for termination were pretextual particularly as set out in [Plaintiff's] deposition. No reasonable minds could differ on the factual conclusions.

         Plaintiff timely filed a notice of appeal.


         Our standard of review of a grant of summary judgment is as stated by the Supreme Court:

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. We review a trial court's ruling on a motion for summary judgment de novo, without a presumption of correctness.
[I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense. . . . The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party.

Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015) (emphasis in original).

         In making the determination of whether summary judgment was correctly granted,

3[w]e must view all of the evidence in the light most favorable to the nonmoving party and resolve all factual inferences in the nonmoving party's favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one conclusion, then the court's summary judgment will be upheld because the moving party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745 at *2 (Tenn. Ct. App., ...

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