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Upshaw v. Sunrise Community of Tennessee, Inc.

Court of Appeals of Tennessee, Knoxville

August 16, 2017


          Session: January 24, 2017

         Appeal from the Circuit Court for Knox County No. 3-491-11Deborah C. Stevens, Judge

         This appeal concerns a claim of retaliatory discharge. After a trial before a jury, judgment was entered against the defendant employer. The plaintiff was awarded $225, 000 in compensatory damages and $200, 000 in punitive damages. The employer appeals. We affirm.

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

          Tonya Kennedy Cammon, Chattanooga, Tennessee, for the appellant, Sunrise Community of Tennessee, Inc.

          J. Myers Morton, Knoxville, Tennessee, for the appellee, Latisia Upshaw.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ., joined.



         I. BACKGROUND

         In Tennessee, services to persons with developmental disabilities are administered by the Tennessee Department of Developmental Disabilities ("DIDD"). Sunrise Community of Tennessee, Inc. ("Sunrise") is an organization paid by the State to provide medical care and services to serve such individuals for the duration of their lives. An employee at Sunrise testified that

[s]upported living is the term that involves folks who live in their own homes in the community. [Sunrise] provide[s] staffing to them around the clock. The staff is there to help them to learn skills to be as independent as they possible can be but also to provide support to them for things that they can't do on their own. So the staff is there to help them with personal hygiene, grooming, and dress. Preparing meals in their home. They provide transportation for them to medical appointments, go out in the community, to go visit with family and friends, to go to church, to be involved in community activities of their choosing.

         The plaintiff in this case, Latisia Upshaw, began working for Sunrise as an office worker in 2008. At some point, Upshaw began providing in-home Licensed Practical Nurse ("LPN") care to Sunrise's client, H.G. Upshaw typically worked 16 hour shifts on Saturday and Sunday.

         H.G.'s many medical problems included gastroesophageal reflux disease ("GERD"), a history of a gastrointestinal ("GI") bleed, difficulty swallowing (dysphagia), and chronic obstructive pulmonary disease ("COPD"). She was on continuous oxygen and tube feedings. A hospice patient, H.G. was limited to occasional "pleasure feedings" of 2 teaspoons of thin liquids with each meal. Because overfeeding of H.G. could lead to the development of aspiration pneumonia, standing doctor's orders provided that H.G. was to be taken immediately for x-rays and lab work if she presented with symptoms of that condition.

         Throughout each shift, Sunrise's nurses were required to document the activities and medical events of patients. During an assessment, a nurse first checks the nurses' notes, summary sheets, records and logs from previous shifts in order to understand the patient's condition. According to Upshaw, upon starting her shifts, she began noticing that H.G. was exhibiting symptoms of lung congestion, wheezing, fever, and strong smelling urine. She was also vomiting thick green and yellow phlegm. According to Upshaw, these are signs of overfeeding. Additionally, Upshaw claimed to notice discrepancies regarding feeding in the nursing records from the previous nursing shifts. One summary sheet reflected H.G. being fed 2 tablespoons of pleasure foods instead of 2 teaspoons. According to Upshaw, on June 21, 2010, LPN Marie Ford documented at the end of her shift that H.G. "did not eat . . . ."; however, the oncoming nurse wrote that when she arrived for her shift, H.G. was seated at the dining room table eating food prepared by the day nurse, i.e., Ford. Another feeding record denoted "5tp of potato salad." Upshaw also contends that she observed H.G. projectile vomiting chunks of non-pureed food. Additionally, H.G. informed Upshaw that Ford was overfeeding her. Upshaw recalled that H.G. would argue with her about wanting more food and would sometimes say, "Marie gives me more." Upshaw concluded that Ford was documenting that she was providing H.G. with the proper amount of food, but she was actually giving her more.

         According to Upshaw, she reported her thoughts regarding H.G.'s overfeeding in writing with Sunrise, as the Sunrise Employee Handbook required nurses to report suspected incidents of neglect to Sunrise in order that the employer could "conduct its own investigation . . . ." Upshaw recalled that Sunrise's nurses were specifically and repeatedly instructed to report neglect internally up a chain of command. Thus, according to Upshaw, she began at the end of 2009 and continued up until September 2010 to report H.G.'s overfeeding to a number of staff at Sunrise, including her supervisor, her supervisor's supervisor, incident management, and Sunrise's compliance officer. Upshaw claims that she even questioned a State employee about how she could file a grievance to stop H.G.'s overfeeding. Instead of taking action, however, Upshaw's supervisor and director of nursing, Cathie Cardwell ("the DON") told her that the nurse involved, Ford, "was thinking with her heart . . . ."


         Photographs and Purchases

         According to Upshaw, after she reported H.G.'s overfeeding, Ford and others began to retaliate against her. On May 12, 2010, four months prior to H.G.'s hospitalizations, Sunrise gave Upshaw a "Disciplinary Warning Notice & Action Taken" for two "violations" of company policy: "Photographing individual without written consent & Purchasing gifts (clothes) for individual against company policy."

         The violations arose from H.G.'s request to have her hair colored. H.G.'s sister (her conservator) and the DON each agreed to allow the coloring of H.G.'s hair. Once H.G.'s makeover occurred, including make up and a new outfit, [1] the sister arrived for a party on February 17, 2010. The sister requested pictures of H.G. with the Sunrise staff. Because Upshaw had taken some of the pictures at the request of the sister, she was cited for violating corporate policy[2] and received a formal write up for this incident on May 12, 2010.[3]

          License Renewal

         Another write up was received when Upshaw allowed her nursing license to lapse.[4] Upshaw's LPN license, which required renewal every two years on her birthday, expired on April 30, 2010. Upshaw asserts that weeks prior to that date, on March 15, 2010, she had scheduled vacation time for the weekend of her birthday. While she was off, a flood struck Nashville and she was unable to renew her license before her next shift the following weekend. According to Upshaw, if the flood had not occurred, her license would have been renewed within 24 hours before she had to return to work again. However, after she was unable to quickly renew her license, Upshaw took two additional vacation days until the renewed license was received. Sunrise notes that the lapse of the nursing license, on its own, was grounds for immediate termination of Upshaw's employment.

         Upshaw claims that Sunrise provided reminders for license renewals to employees, but she was not provided with one. Indeed, Sunrise employee Ann Williams admitted that she had "talked with several" nurses and they "indicated that . . . a reminder notice [was sent] to them in the mail." The trial court observed that Sunrise did not dispute that the employer regularly placed notifications in the monthly newsletter of renewal dates for licenses and certificates but claimed that there was no policy requiring them to do so.

         H.G.'s Hospitalization

         On September 4, 2010, Upshaw assessed H.G. and determined that she was exhibiting symptoms of crackling sounds in her lungs, wheezing, decreased oxygen saturation, and vomiting. As directed by the standing orders, Upshaw took H.G. to outpatient services to have x-rays and lab work completed. According to Upshaw, she advised her supervisor at that time that H.G. was being overfed and that she was taking the client for tests. As they were leaving outpatient services, H.G. began projectile vomiting large chunks of food from her mouth and her nose. In response, Upshaw took H.G. immediately to the emergency room, where she was admitted to the hospital with pneumonia. Upshaw informed the emergency room doctor that, in her opinion, H.G. had been overfed non-pureed food.

         Prior to Upshaw's next nursing shift the following Saturday, H.G. had been released from the hospital back to the nursing care of Sunrise. During Upshaw's shift, on September 11, 2010, H.G. again projectile vomited chunks of food and was admitted to the hospital with double aspiration pneumonia. Upshaw told the same emergency room doctor that the same person was continuing to overfeed H.G. and that nothing was being done by the employer to stop it. When H.G. was again released from the hospital back to the same nurse Upshaw believed was engaging in the overfeeding, Upshaw called the State hotline to report Sunrise's failure to stop the alleged neglect. According to Upshaw, a little over a month later, on October 21, 2010, Sunrise informed her that she was being fired because she had lied to the emergency room doctor about the overfeeding.

         DIDD Investigator

         A DIDD investigator investigated Upshaw's complaint of neglect, requiring Sunrise to provide documents reflecting H.G.'s medical care. The DIDD investigator's file consisted of 281 pages. The first 12 pages of the file are the investigator's final report, issued on September 29, 2010. The report describes the investigation and summarizes all the evidence upon which the investigator relied in making his decision about whether H.G. was neglected. The DIDD investigator found that he could not determine definitively that H.G. was being overfed; thus, he could not conclude that there had been neglect. A physician where H.G. was treated informed the investigator that there was no medical way to determine for certain if anyone had overfed H.G. because she could easily aspirate on the fluid that she was receiving through the G Tube. The investigator's report did cite Sunrise ...

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