Session September 14, 2016
from the Circuit Court for Knox County No. 3-554-14 Deborah
C. Stevens, Judge.
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.
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.
B. Jackson, Knoxville, Tennessee, for appellee, University
Health System, Inc. dba University of Tennessee Medical
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
CHARLES D. SUSANO, JR., JUDGE.
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
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. 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
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
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
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
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
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."
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."
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
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
timely filed a notice of appeal.
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
Rye v. Women's Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 250, 264-65 (Tenn. 2015) (emphasis in original).
making the determination of whether summary judgment was
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.,