IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 8, 2010 Session

GLADYS DAVIS v. NISSAN NORTH AMERICA, INC.

Appeal from the Circuit Court for Rutherford County

No. 58431 Robert E. Corlew, III, Chancellor

No. M2009-02579-COA-R3-CV - Filed July 13, 2010

Gladys Davis (“Plaintiff”) filed this retaliatory discharge case against her former employer,

Nissan North America, Inc. (“Defendant”). Plaintiff claims Defendant retaliated against her

for filing several workers’ compensation claims. Prior to Plaintiff’s discharge, she

underwent a comprehensive medical examination and, based on this examination, two

physicians who are board certified in occupational and preventive medicine opined that there

was a high risk of re-injury should Plaintiff be returned to work. Relying on the medical

opinions of these two physicians, Defendant filed a motion for summary judgment. The Trial

Court concluded, among other things, that Defendant had negated an essential element of

Plaintiff’s claim and Defendant, therefore, was entitled to summary judgment as a matter of

law. Plaintiff appeals, and we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Affirmed; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J., joined.

Sonya W. Henderson, Murfreesboro, Tennessee, for the Appellant, Gladys Davis.

Keith D. Frazier, Nashville, Tennessee, for the Appellee, Nissan North America, Inc.
OPINION

Background

This lawsuit was filed initially in state court in May of 2006. Plaintiff’s

original complaint alleged a violation of the Tennessee Disability Act, Tenn. Code Ann. § 8-

50-103, as well as a claim for retaliatory discharge based upon her filing several workers’

compensation claims. Plaintiff later amended her complaint to assert a claim pursuant to the

federal Family Medical Leave Act, 29 U.S.C. § 2611. After removing the lawsuit to federal

court, Defendant filed a motion for summary judgment. In October of 2008, the United

States District Court for the Middle District of Tennessee entered a thorough memorandum

opinion dismissing Plaintiff’s FMLA claim with prejudice. As the federal court’s

memorandum opinion sets forth undisputed and important background and medical

information, we will quote heavily from that opinion :

1

Nissan hired Davis as a production technician on

September 8, 1991. Plaintiff described her job as production

technician as “hard work,” “physically demanding,” “fast

pace[d],” and repetitive in nature. Plaintiff was reassigned to

the pre-final line where there are three to five jobs and each job

is rated for its strenuousness. Each pod has the same range of

high and low-rated jobs. A Nissan employee must be able to

perform all jobs within a pod. Plaintiff’s job involved “some

pretty heavy lifting” and use of “some pretty big guns,” with “a

lot of overhead reaching and outstretching of her arms either “up

or out.”

2

By May, 2005, Plaintiff was assigned a carpet job

[which] involved picking up the whole piece of carpet, cutting

it in half, fitting the carpet in the vehicle, and attaching it with

push pins. The pieces of carpet weighed approximately 12

pounds.

Defendant placed much emphasis on the federal court’s findings of fact when re-filing its motion 1

for summary judgment in state court. The federal court’s findings of fact essentially were restated in

Defendant’s statement of undisputed facts filed in support of its motion for summary judgment. Except as

discussed later, Plaintiff admitted to the pertinent undisputed facts.

While we are omitting the federal court’s citations to the record, we note that any quotations from 2

Plaintiff’s testimony come from her pre-trial deposition. 

-2-
In her first eleven years at Nissan, Plaintiff had several

injuries, including on May 12, 1992, January 13, 1995, April 10,

1995, October 18, 1995, November 5, 1996, March 3, 1998,

February 18, 1999, July 14, 2000, October 3, 2001, June 24,

2002, and August 15, 2002. . . . Plaintiff had five additional

work related injuries on April 13, 2003, March 11, 2004, April

1, 2004, November 3, 2004, and January 10, 2005. . . . Plaintiff

had four surgical procedures: on April 21, 2004 for her right

wrist, on May 2, 2005 for her left wrist, on September 30, 2005

for her right elbow, and on June 20, 2005 for her right shoulder.

. . . For these surgeries and various injuries, by November 28,

2005, Plaintiff had four work related leaves of absence totaling

320 days. . . .

As to her specific injuries, on May 19, 1992, Plaintiff

complained of bilateral hand pain and numbness since May 12,

1992 due [to] “work[ing] on the engine line doing a lot of fine

hand movements such as assembling pistons.” Nissan assigned

Plaintiff restrictive work that avoided “heavy gripping or

twisting [and] no power tools right hand for six days.”

Dr. James K. Lanter, Plaintiff’s physician diagnosed

Plaintiff with “flexor tendonitis of both wrists with some

symptoms of carpal tunnel syndrome while using her hands at

work.” Dr. Lanter attributed Davis’ numbness “to using her

hands in a gripping fashion at work and placed Davis on

modified duty of “avoid[ing] power tools and repetitive

gripping.” . . . Dr. Lanter released Davis to full duty on June 15,

1992. . . . Upon her return, Nissan provided Plaintiff with an

Impacto glove with a thumb pad for her left hand to decrease

recurrence of her symptoms. . . . On December 22, 1992, Davis

began a workers’ compensation leave of absence until January

6, 1993. On January 13, 1995, Davis reported right palm [pain]

due to pushing and twisting cable brackets. . . .

On April 10, 1995, Davis reported a left pectoral strain,

while she was leaning over in a vehicle performing the bumper

deck job. On September 14, 1995, Davis reported a right hand

strain caused by repetitively pushing pins into the fender liner.

Davis was told to “avoid repetitive use and pushing with [the]

-3-
extended fingers [of her right hand] for the rest of [the] day.”

On October 18, 1995, Davis reported a left shoulder strain

resulting from lifting and “pulling down [on] the trunk of the

cars,” but returned to full duty.

On November 5, 1996, Davis reported a left hand strain

caused by “using a heavy air gun for a long period of time,” but

returned to duty. On March 3, 1998, Plaintiff reported

experiencing a foreign body in her right eye. On February 18,

1999, Plaintiff complained of suffering a right wrist contusion

(pinky injury). Dr. Tony Adams placed Plaintiff on temporary

restrictions, but later Plaintiff returned to work. . . .

On July 14, 2000, Plaintiff reported a thoracic strain with

spasm resulting from “new job tools and [the] method of

performing [her] job.” Dr. Adams set lifting,stooping, bending,

and twisting restrictions for Plaintiff. On October 3, 2001,

Davis had a right wrist strain. Dr. Adams diagnosed as

“thumb/wrist tendonitis,” and placed Plaintiff on temporary

restrictions, which Nissan accommodated.

On June 24, 2002, Davis suffered a left elbow sprain, but

returned to duty. On August 15, 2002, Plaintiff sustained a right

hand contusion, but returned to duty. On April 3, 2003, Plaintiff

had an injury to her right wrist from “rapid stringing usage,” and

Dr. Adams diagnosed Plaintiff with right hand tendonitis. Dr.

Adams also referred Plaintiff to Dr. David M. Schmidt of

Tennessee Orthopaedic Alliance and placed Plaintiff on

temporary restrictions that Nissan accommodated.

On October 30,2003, Plaintiff reported to Nissan a

medical recurrence of her right hand pain and stated that “[my]

right hand has hurt the worst it has ever hurt over this past

weekend, and I need something done about it.” On November

3, 2003, Plaintiff was placed on temporary modified duty. Dr.

Adams set restrictions on Plaintiff's use of her right hand.

Plaintiff returned to work at Nissan on November 7, 2003, but

also complained of pain after the modified duty. On December

2, 2003, Dr. Schmidt examined Plaintiff's right thumb and

-4-
conducted a bone scan for her right wrist on December 8, 2003

as well as a CT scan on January 14, 2004.

On January 9, 2004, Dr. Schmidt imposed temporary

restrictions on Plaintiff’s use of her right wrist. On January 20,

2004, Dr. Schmidt released Plaintiff to return to work full duty.

On February 2, 2004, Davis reported to Nissan’s medical clinic

complaining of “severe pain” in her right hand and stating “I

can't keep working like this.” On February 6, 2004, Dr. Schmidt

examined Plaintiff for wrist pain and restricted her use of her

wrist . . . .

On February 24, 2004, Plaintiff reported to Nissan

medical with “severe pain” in her right hand and stated that “she

is using the left hand and right elbow more since she is guarding

the right hand and now these other areas right elbow and left

hand are hurting.” On February 26, 2004, Plaintiff returned to

Nissan’s medical clinic again complaining of “severe pain” in

her right hand. While “working on the line, Plaintiff felt a pop

in the right hand and totally lost strength in her right hand with

numbness and tingling.” Dr. Schmidt placed Plaintiff on a ten

day temporary restriction of “no power tools, no gripping and no

push pull over 5 pounds or lifting over 5 pounds with the right

hand.”

Plaintiff then took workers’ compensation leave of

absence from February 27, 2004 through March 8, 2004. On

March 22,2004, Davis reported another injury to her right wrist

and Dr. Schmidt placed Plaintiff on temporary leave.

On April 21, 2004, Dr. Schmidt performed surgery on

Plaintiff’sright hand and set Plaintiff’stemporary restrictions on

Plaintiff’s use of her right hand. Plaintiff then began a workers’

compensation leave of absence for 86 days until July 16, 2004.

Dr. Schmidt continued to see Plaintiff for follow-up visits on

May 25, 2004 and June 22, 2004. On August 4, 2004, Dr.

Schmidt noted Plaintiff [had] “wrist soreness and swelling” and

that “sometimes [she] can hardly turn the key in her car.” Dr.

Schmidt advised Plaintiff to continue wearing her wrist support

and was concerned about “[rleturning to repetitive use [that]

-5-
may cause continuation of symptoms.” Plaintiff notes that prior

to this visit, Nissan’s physician had [told] her to stop wearing

the wrist support.

On September 17, 2004, Plaintiff left a voice mail

message with Nissan’s medical clinic that her “wrist is hurting

just as bad as it did before” and requested an earlier date for her

next doctor’s appointment. Dr. Schmidt examined Plaintiff on

September 29, 2004 and noted “she still has pain in her right

wrist which hurts when she does her regular job” and that this

pain “goes up to her elbow.” In response, Dr. Schmidt

explained that Davis “has arthritic changes in her wrist” that

causes the pain and that she had maximum recovery or

improvement.

On November 3, 2004, Davis reported to Nissan medical

that with “the same movement over and over” in “lifting glass

[and] bending [and] twisting on wires,” she suffered a right

wrist strain. On November 9 and 16, 2004, Dr. McHugh

examined Plaintiff for her wrist pain and advised Plaintiff to

wear a splint while she slept and released her to return to work

on November 16, 2004. On March 15, 2004, Davis sustained an

injury to her left [hand]/wrist and on March 18, 2004, Dr.

Woodberry diagnosed Davis with a ganglion cyst on her left

hand and placed her on temporary restrictions. On March 22,

2004, Dr. Schmidt examined Plaintiff’s right wrist and set

temporary restrictions. On April 15, 2004, Dr. Woodberry

examined Plaintiff’s left wrist injury.

On June 10, 2004, Dr. Woodberry continued Davis’

temporary restrictions for her left wrist and elbow. On July 15,

2004, Dr. Woodberry removed his restrictions on Davis’ left

wrist and Plaintiff returned to work on July 16, 2004. After

Davis’s return to work, Nissan assigned Plaintiff to a new work

group for Maxima trim. Plaintiff wore an elbow brace, but

reported to Nissan medical that her right elbow had “burning

and sticking pain.” In October, 2004 Davis underwent an MRI

for her right elbow. On November 30, 2004, Dr. Schmidt noted

that Davis “has failed conservative measures to date,” and

administered a cortisone shot, and imposed restrictions for ten

-6-
days. Davis returned to modified duty in December, 2004. On

January 5, 2005, Plaintiff complained to Dr. Schmidt that her

elbow pain had not completely resolved, but “settled . . . down.”

On January 10, 2005, Plaintiff reported a right shoulder strain

that she attributed to “lifting overhead or up and over moving.”

On March 2, 2005, Davis informed Nissan medical that

“Dr. Schmidt gave me a cortisone shot in my elbow. It’s still

hurting.” On April 11, 2005, Dr. Blake Garside, Jr., from

workers’ compensation panel of physicians examined Davis

who reported that she had “approximately a three-month history

of pain in her right shoulder” which she attributed to “doing

repetitive work including overhead and outstretched lifting.”

Dr. Garside recommended “a short course of antiinflammatories” astreatment. Thistreatment was notsuccessful

and Davis saw Dr. Garside on April 29, 2005, and reported that

her right shoulder pain was “worse than previously.” On March

17, 2005, Davis reported to Nissan medical that “I’ve got to

have surgery. I’ll do whatever it takes to get out of pain.” On

May 2, 2005, Dr. Woodberry performed surgery on Davis’ left

wrist and joint debridement and imposed restrictions on her

work. Plaintiff also began another workers’ compensation leave

that extended 30 months.

On June 10, 2005, Plaintiff reported that her shoulder

pain “recurred to the level it was previously,” and elected to

have shoulder surgery that Dr. Garside performed on June 20,

2005. On June 30, 2005, Dr. Woodberry released his

restrictions for Davis’s use of her left hand, but due to Dr.

Garside’s shoulder restrictions, Plaintiff did not return to work,

and continued on her workers’ compensation leave.

On August 25, 2005, Philip G. Coogan, M.D., of

Tennessee Orthopaedic Alliance Hand Care, examined

Plaintiff’s elbow, and noted that Davis “has had injections for

tennis elbow with transient benefit.” On September 16, 2005,

Dr. Garside placed temporary restrictions on Plaintiff until

October 3, 2005. On September 30, 2005, Dr. Coogan

performed surgery on Davis’ elbow and she remained on

restrictions. On October 28, 2005, Dr. Garside found Plaintiff

-7-
had reached maximum improvement on her right shoulder and

assigned her a 10% rating to her right upper extremity. On

November 9, 2005, Dr. Coogan placed right hand restrictions

that Davis could not use power tools nor occasional gripping

and twisting, and her push and pull was limited to up to five

pounds. Dr. Coogan noted Davis as having a 2% impairment,

Exhibit 73, but released Plaintiff to return to work with no

restrictions for her right hand effective November 23, 2005.

Davis v. Nissan North America, Inc., No. 3:06-1106, 2008 WL 4773116, at *1-5 (M.D. Tenn.

Oct. 27, 2008) (citations to the record omitted).

After setting forth Plaintiff’s extensive history of work-related injuries and the

leave she received as a result of those injuries, the federal district court concluded that the

undisputed material facts demonstrated that Plaintiff had received all of the leave she was

entitled to under the Family Medical Leave Act and, therefore, Defendant was entitled to

summary judgment on that claim. The federal district court declined to continue to exercise

its supplemental jurisdiction over Plaintiff’s remaining state law claims, which were

dismissed without prejudice. Plaintiff then re-filed her state law retaliatory discharge claim

on February 3, 2009. According to the complaint:

3

Plaintiff . . . was employed by [Defendant] on or about

September 8 , 1991, and had worked there continuously until

th

her employment was terminated on or about March 31, 2006.

Around March 31, 2006, the day Plaintiffs employment

was terminated, her job title was “Technician” . . . .

Plaintiff’s employment record shows that she was a

reliable employee with little or no history of absenteeism, and

any absences were scheduled prior. Also, Plaintiff was fully

qualified for her job duties as she was able to perform them with

no accommodation. . . .

Plaintiff . . . sustained a work-related injury to her right

wrist on April 1, 2003, for which she was treated and released

Plaintiff did notre-file her claimbased upon the Tennessee Disability Act, Tenn. Code Ann. § 8-50- 3

103.

-8-
to full duty without restrictions on January 5, 2005. She was

returned to work at Nissan full duty.

On March 11, 2004, Dr. Woodbury discovered a left

dorsal wrist mass and ganglion cyst in her left hand, which she

removed on May 2, 2005. She was then released to full duty

without restrictions on June 30, 2005. She was not returned to

work at Nissan for this injury.

Plaintiff sustained an injury to her right elbow on April

1, 2004, for which she was treated and released to full duty

without restrictions on November 9, 2005. . . .

Plaintiff sustained an injury to her right shoulder on

January 10, 2005, for which she had surgery and was released

on November 28, 2005. Plaintiff was released to return to work

at full duty.

After treatment and release of her shoulder injury,

Plaintiff . . . expected to return to work on November 23, 2005.

However, before allowing [Plaintiff] to return to work to her

normal job duties, Defendant . . . required [Plaintiff] to be

evaluated by Dr. Renata Bluhm on January 23, 2006.

[Plaintiff] met with Nissan representatives Patti Dixon,

Lisa Batten, and Glen Lewis, and Esis representative Carolyn

Lawson who encouraged her to apply for long-term disability

due to the letter from Dr. Renata Bluhm. The content of the

letter they relied on states to Nissan Medical director Dr. Karen

Oldham, “For her own safety concern, due to the recurrent

significant injuries that she has already experienced, it would

probably pose a risk for her to continue in this line of work.”

After this meeting with various Nissan representatives, Plaintiff was offered

a voluntary severance package, which she refused. Plaintiff apparently sought disability

benefits, but that claim was denied. Plaintiff was placed on leave and her employment was

terminated on November 30, 2007 after all available leave had expired. In her complaint,

Plaintiff maintained that the assertion of her rights pursuant to the Tennessee Workers’

Compensation Act was the motivating factor in Defendant’s decision to discharge her from

active employment and was in retaliation for Plaintiff exercising her statutory rights.

-9-
Defendant has established a Comprehensive Medical Examination program

(“CME program”) in an attempt to avoid having employees continue to sustain injuries while

performing their job duties. With regard to Defendant’s CME program and how that

program was utilized in Plaintiff’s case, Plaintiff admitted to the following facts:

Nissan’s CME program was established in order to

review whether employees who had sustained “multiple injuries

and [had] multiple surgeries for multiple body parts,” and who

had been cleared by their attending physician to return to work

would be able to safely continue performing their production

jobs at Nissan on a long-term basis.

Under Nissan’s CME program, the CME committee

decides who will undergo a comprehensive medical examination

by an independent physician.

Renata Bluhm, M.D., was chosen by Nissan to perform

a comprehensive medical examination of employees. Dr. Bluhm

is board-certified in internal, occupational, and preventive

medicine.

Dr. Bluhm’s role was to examine the employee and

evaluate her medical condition “holistically” taking into account

all of the medical issues that the employee may have had in the

past and then to make a medical determination as to whether the

employee can successfully return to work in the long term. . . .

In its review, the CME committee noted that [Plaintiff]

“continues to experience upper extremity injuries including 7

work related leaves of absence” which resulted in excess of 320

leave of absence days. . . . The committee expressed the

concern that should [Plaintiff] continue to work in production at

full duty, this “may contribute to future new or exacerbation of

past problems” and that “[h]er long term success [at Nissan] is

a concern.” . . . Based upon [Plaintiff’s] past history and

4

concern for her long term success at Nissan, the CME

Even though Plaintiff admitted to the CME committee’s findings and that the statements attributed

4

to the committee were made, etc., she repeatedly qualified her admission by noting that she had been returned

to work full duty with no restrictions by her treating physicians.

-10-
committee requested [Plaintiff] undergo a “holistic” medical

evaluation.

On January 23, 2006, Dr. Bluhm conducted her

evaluation of [Plaintiff]. Bluhm reviewed [Plaintiff’s] medical

records and her job duties and performed a physical

examination. . . . During the examination, Dr. Bluhm performed

a number of tests. . . . [Plaintiff] informed Dr. Bluhm about the

surgeries she had undergone, and that she had not been working

since May, 2005. In that month, she had a ganglion cyst

removed from her left hand, which [Plaintiff] attributed to

“repetitive use of her hands.” Prior to surgery, [Plaintiff]

reported she had pain when putting any pressure on her left

hand. [Plaintiff] also reported to Dr. Bluhm that she had a slight

tear of the rotator cuff, which was caused by “a lot of lifting,

repetitive lifting, lifting overhead” of items weighing five to ten

pounds. . . . [Plaintiff] had additional problems with her elbow

“caused by the lifting up,” which was a “repetitive problem.”

[Plaintiff] had surgery for her right hand in 2004 because of

“wear” from “repetitive usage” and which required a “ligament”

repair.

Dr. Bluhm noted that [Plaintiff’s] medical records

evidenced “a history of multiple injuries, requiring multiple

surgeries, which were attributable to the repetitive nature of the

activities” in which [Plaintiff] had been engaged at work. . . .

Dr. Bluhm found significant the fact that [Plaintiff] had “failed

conservative treatment for the injuries that eventually required

surgery.” Nissan also had allowed [Plaintiff] to work “in jobmodified situations,” but she continued to suffer reinjury. . . . In

assessing [Plaintiff’s] ability to return to work at Nissan, Dr.

Bluhm noted that “her work duties will include multiple

activities for all her body areas” and that [Plaintiff’s] current job

duties remain essentially ‘repetitive’ and these are the activities

that she relates have led to her present injuries which required

surgical treatment. . . . Dr. Bluhm determined that [Plaintiff]

would be considered in the “high” category in terms of certainty

of an adverse outcome and the “high” category in terms of the

-11-
severity of the outcome. Dr. Bluhm wrote in her January 23,

5

2006 report to Nissan’s on-site medical director, Karen Oldham,

M.D., that “[c]onsidering that she has had multiple injuries, four

of which required surgery for correction and resolution of

‘severe pain,’ her likelihood of re-injury is considerable.” . . .

Dr. Bluhm advised Dr. Oldham that “[f]or her own safety

concern” and “due to her recurrent significant injuries that she

had already experienced,” it would pose “a risk for her to

continue” her job at Nissan.

Nissan’s on-site medical director, Dr. Karen Oldham,

M.D., is board certified in preventive medicine with a specialty

in occupational and environmental medicine and has a master’s

degree in business administration. . . . Dr. Oldham had the

responsibility for making the recommendation as to whether an

employee who had undergone a [CME] should return to

work. . . . It was a “medical call” for Nissan’s medical director

to make. . . . As Dr. Oldham explained, “[i]t is a professional

judgment based on medical and statistical probabilities of what

we know about people who undergo surgery, who have

sustained previous injuries and whether or not they are at a low

or a high risk. In [Plaintiff’s] case, Dr. Oldham made her

evaluation and . . . [recommended] that [Plaintiff] should not

return to work because she was at very high risk of future injury.

Dr. Oldham met with [Plaintiff] on January 25, 2006 and

discussed the results of Dr. Bluhm’s examination. Dr. Oldham

informed [Plaintiff] that based upon Dr. Bluhm’s report and the

fact that her pattern of multiple injuries from repetitive work

puts [Plaintiff] at high risk of future injury, it would not be safe

to return to her job at Nissan.

As noted previously, once this case was re-filed in state court, Defendant again

filed a motion for summary judgment claiming that the undisputed material facts

demonstrated that it was entitled to summary judgment as a matter of law. The Trial Court

agreed, concluding that Defendant had negated an essential element of Plaintiff’s claim and

that Plaintiff had failed to establish the requisite causal connection between her filing of

workers’ compensation claims and her termination from employment. Alternatively, the

Again, while Plaintiff disagrees with Dr. Bluhm’s conclusions, she admitsthat Dr. Bluhmdid reach 5

these conclusions. The same can be said for the conclusions reached by Dr. Oldham.

-12-
Trial Court found that even if Plaintiff had established some sort of causal connection,

Defendant nevertheless established a neutral basis for terminating Plaintiff’s employment,

i.e., two physicians who are board certified in occupational medicine determined that

Plaintiff’s physical condition “was such that it was unsafe for her to return to her former

job.” Accordingly, the Trial Court granted Defendant’s motion for summary judgment.

Plaintiff appeals asserting that granting Defendant summary judgment was error.

Discussion

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is

well established. Because our inquiry involves a question of

law, no presumption of correctness attachesto the judgment, and

our task is to review the record to determine whether the

requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,

50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816

S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is

no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.

Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the

summary judgment has the ultimate burden of persuasion “that

there are no disputed, material facts creating a genuine issue for

trial . . . and that he is entitled to judgment as a matter of law.”

Id. at 215. If that motion is properly supported, the burden to

establish a genuine issue of material fact shifts to the

non-moving party. In order to shift the burden, the movant must

either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party

cannot establish an essential element of his case. Id. at 215 n.5;

Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).

“[C]onclusory assertion[s]” are not sufficient to shift the burden

to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our

state does not apply the federalstandard for summary judgment.

The standard established in McCarley v. West Quality Food

-13-
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the

words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The

Legacy of Byrd v. Hall: Gossiping About Summary Judgment

in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable

inferences therefrom in the light most favorable to the

non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997). A grant of summary judgment is appropriate only

when the facts and the reasonable inferences from those facts

would permit a reasonable person to reach only one conclusion.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

In making that assessment, this Court must discard all

countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

In Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993), the

Supreme Court set forth the various elements a former employee must prove in order to

establish a claim for retaliatory discharge based upon the filing of a workers’ compensation

claim. According to the Court:

the following elements are found to establish a cause of action

for discharge in retaliation for asserting a workers’

compensation claim: (1) The plaintiff was an employee of the

defendant at the time of the injury; (2) the plaintiff made a claim

against the defendant for workers’ compensation benefits; (3)

the defendant terminated the plaintiff’s employment; and (4) the

claim for workers’ compensation benefits was a substantial

factor in the employer’s motivation to terminate the employee’s

employment.

The burden of proof rests, of course, upon the plaintiff to

prove the elements of the cause of action, including a causal

relationship between the claim for workers’ compensation

benefits and the termination of employment. Proof of discharge

without evidence of a causal relationship between the claim for

benefits and the discharge does not present an issue for the jury.

-14-
However, proof of a causal link between the claim for benefits

and the employee’s discharge imposes upon the employer the

burden of showing a legitimate, non-pretextual reason for the

employee’s discharge. As stated in 2A A. Larson, The Law of

Workmen’s Compensation, § 68.36(d), pp. 188-191 (1990):

Once the employee has made a prima facie case of

retaliation, the burden devolves upon the employer of

proving a legitimate nonpretextual nonretaliatory reason

for the discharge. The reason may involve the

employee’s own shortcomings, such as unexplained

tardiness, excessive absenteeism, lying as to previous

compensation claims, or physical inability to do the

job. . . .

In this case, the plaintiff presented no evidence that her

assertion of a claim for workers’ compensation benefits was a

factor in causing her discharge. . . . There is no evidence in the

record of this case on which to submit the issue of causation to

a trier of fact. Accordingly, the judgment for the employer is

affirmed.

Anderson, 857 S.W.2d at 558-59.

In a factually similar case, a former employee of Nissan filed suit after he was

not returned to work following a CME evaluation by Dr. Bluhm. Bennett v. Nissan North

America, Inc., No. M2008-01019-COA-R3-CV, 2009 WL 837726 (Tenn. Ct. App. Mar. 27,

2009), perm. app. denied Nov. 23, 2009. While factually very similar to the present case,

Bennett involved a claim pursuant to the Tennessee Disability Act, Tenn. Code Ann. § 8-50-

103 (the “TDA”), as opposed to a claim for retaliatory discharge for filing a workers’

compensation claim. In any event, the relevant facts in Bennett showed that:

Mr. Bennett’s CME was conducted by Dr. Renata Bluhm,

the medical director of OccuPatient. Dr. Bluhm reviewed Mr.

Bennett’s medical records and the job requirements in the trim

and chassis department where Mr. Bennett most recently

worked. She obtained a medical history from Mr. Bennett and

conducted a physical examination, observing that Mr. Bennett

had several well-healed scars on his neck, right shoulder, right

wrist, and left palm, but that he had “good range of motion in his

-15-
back, neck and shoulders with good strength throughout.” Dr.

Bluhm’s CME concluded, however, that “the activitiesthat have

led to [Mr. Bennett’s] injuries will continue if he were to return

to work.” She concluded that “[f]or his own safety concern, due

to his recurrent significant injuries, it would probably pose a risk

for him to continue in this line of work. It would probably not

be safe for him to resume these duties.” Dr. Karen Oldham, the

director of Whole Health, Nissan’s on-site medical provider,

reviewed Dr. Bluhm’s report and determined that Mr. Bennett

should not return to work as a Nissan production technician.

* * *

On December 8, 2005, Mr. Bennett sent a certified letter

to Nissan to the attention of Mr. Glen Lewis, Nissan human

resources section manager, requesting that Nissan allow him to

return to work. In the letter, Mr. Bennett stated that his treating

physician, Dr. Moran, had released him to full duty without

restrictions and that he felt that he was able to return to work.

Mr. Bennett sent another letter stating essentially the same thing

to the attention of Ms. Linda Eustice, a human resources

specialist for Nissan, on January 7, 2006. On January 11, 2006,

Dr. Oldham responded to Mr. Bennett on behalf of Nissan by

letter stating that “repetitive work in heavy industry is not an

appropriate job for you. Every time we fix one of your injuries

and you are released without restrictions, you develop another

injury.” Dr. Oldham's letter informed Mr. Bennett that Nissan

could not allow him to return to work because he could not

safely continue to perform his job duties.

Id., at *2, 4. In affirming the grant of summary judgment to Nissan, this Court stated, among

other things, that:

Dr. Bluhm, who conducted the holistic evaluation of Mr.

Bennett, determined that he had experienced “significant and

recurrent injuries” that required surgery and that, “despite

surgical repair, he has had recurrent injury requiring a second

surgery of the neck and recurrent pain of the right shoulder.”

See 29 C.F.R. § 1630.2(r)(1), (2). Dr. Bluhm concluded that if

Mr. Bennett were to return to his job as a production technician,

-16-
“his injuries will continue.” See 29 C.F.R. § 1630.2(r)(3). Dr.

Bluhm wrote in her report to Nissan’s on-site medical director,

Dr. Oldham, that “[f]or his own safety concern” and “due to his

recurrent significant injuries,” it would pose “a risk for him to

continue” his job at Nissan. See 29 C.F.R. § 1630.2(r)(2), (3).

Based on Dr. Bluhm’s evaluation and the fact that Mr. Bennett

had sustained numerous injuries as a result of performing the job

of production technician, Dr. Oldham determined that it would

not be safe for Mr. Bennett to return to his job at Nissan and she

notified Nissan management that he should not be allowed to

return to his job duties as production technician. In response to

Mr. Bennett’s December 2008, letter requesting permission to

return to work, Dr. Oldham wrote to Mr. Bennett that “repetitive

work in heavy industry is not an appropriate job for you,” and

that “every time we fix one of your injuries and you are released

without restrictions, you develop another injury.” We find

Nissan presented sufficient evidence to negate an essential

element of Mr. Bennett’s TDA claim - that Mr. Bennett was

“qualified” for the position of production technician at Nissan

- because Nissan determined through an individualized

assessment based on reasonable medical advice that he

presented a direct threat to his own safety if he continued

working in the position.

* * *

[A]ssuming arguendo that the medical opinions of Dr. Moran

and Dr. Landsberg differed from that of Dr. Bluhm, divergent

medical opinions do not create disputes of fact where Mr.

Bennett’s argument is that Nissan should have followed the

recommendation of one doctor over another. The Seventh

Circuit addressed this issue directly in Knapp v. Northwestern

University, 101 F.3d 473 (7th Cir. 1996), cert. denied, 520 U.S.

1274, 117 S.Ct. 2454, 138 L.Ed.2d 212 (1997), when it held that

it was not the court’s place to decide which of divergent medical

opinions should be the final medical decision; rather that the

court should “ensure that the exclusion or disqualification of an

individual wasindividualized, reasonably made, and based upon

competent medical evidence” and that so long as these factors

exist, “it will be the rare case . . . where a court may substitute

-17-
its judgment for that of the [Defendant’s] physicians.” 101 F.3d

at 485.

* * *

In response to Nissan’s evidence that it reasonably relied

on the individualized medical assessment of Dr. Bluhm in

determining that Mr. Bennett would be a direct threat to his own

safety by continuing in his job as a production technician, Mr.

Bennett offered nothing more than speculation that Dr. Bluhm

was a “hired gun” for Nissan and raised no genuine issue of

material fact as to whether Nissan acted reasonably in relying on

its own doctors’ medical advice.

Having affirmatively negated an essential element of Mr.

Bennett’s TDA claim by showing that Mr. Bennett was not

“qualified” for the position from which he was removed because

he would present a direct threat to his own safety by continuing

to work in that position, Nissan is entitled to summary judgment.

Because Nissan is entitled to summary judgment based on the

second element of the TDA claim, we need not reach the third

element of a TDA claim-whether a prohibited motivation was

the sole reason the adverse employment action.

Bennett, 2009 WL 837726, at *20, 21.

We acknowledge that Bennett is not directly on point because that case

involved a TDA claim and the Court relied, in part, upon federal law applying the Americans

with Disabilities Act. Nevertheless, there are important similarities. For example, a TDA

claim involves a very similar burden-shifting analysis that also is present in a workers’

compensation retaliatory discharge case. In addition, in both cases the same employer was

relying upon the medical opinions of Drs. Bluhm and Oldham to defeat a claim by a former

employee surrounding the reason for the employee’s termination. Even though Bennett is

not directly on point, we conclude that much of the rationale applied in Bennett applies

equally to the claim at issue in the present case.

In response to the motion for summary judgment, Plaintiff relied on the fact

that she had been released by her treating physician to return to work with no restrictions.

Plaintiff also relied on the affidavit of Dr. David Gaw, who opined that based on his medical

evaluation of Plaintiff, she was not at risk for harm if she returned to work at Nissan. Dr.

-18-
Gaw examined the Plaintiff on July 16, 2008, over two years after Plaintiff claims her

employment was terminated. The Trial Court concluded that even though Dr. Gaw was a

competent witness, he was not board certified in occupational medicine. “Even so, his

subsequent opinion in contradiction to that of the two physicians presented by the Defendant

does not justify a finding that the reason of the company was pretextual.”

We agree with the Trial Court that Plaintiff being released to return to work

with no restrictions, coupled with the affidavit of Dr. Gaw generated two years after

Plaintiff’s employment was terminated, are insufficient to create a disputed issue of material

fact regarding whether Defendant’s stated reason for terminating Plaintiff was pretextual.

Nissan was fully justified in relying on the professional medical opinions of two physicians

who are board certified in occupational and preventive medicine. See Bennett, 2009 WL

837726, at * 21 (“[D]ivergent medical opinions do not create disputes of fact where Mr.

Bennett’s argument is that Nissan should have followed the recommendation of one doctor

over another.”).

We further agree with the Trial Court’s judgment that Nissan affirmatively

negated one of the essential elements of Plaintiff’s claim, i.e., that “the claim for workers’

compensation benefits was a substantial factor in the employer’s motivation to terminate the

employee’s employment.” Anderson, 857 S.W.2d at 558. There is no evidence in the record

that Plaintiff’s filing of workers’ compensation claims played any role whatsoever in the

decision not to return her to work. The prohibition against retaliating against employees who

file workers’ compensation claims does not guarantee an employee the right to return to work

when such return poses a high risk of re-injury. Stated another way, the prohibition against

retaliation does not guarantee employees the right to return to work and to continue reinjuring themselves until they are so disabled that they are permanently and totally disabled

and can never work again.

The undisputed material facts establish that Nissan did not return Plaintiff to

work because of the high likelihood of re-injury. This in no way is retaliatory based upon

Plaintiff’s having filed workers’ compensation claims. It also constitutes a “legitimate

nonpretextual nonretaliatory reason for the discharge.” See Anderson, 857 S.W.2d at 559.

The Trial Court’s award of summary judgment to Defendant is affirmed. Any remaining

issues are pretermitted.

-19-
Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the

Rutherford County Circuit Court solely for collection of the costs below. Costs on appeal

are taxed to the Appellant, Gladys Davis, and her surety, for which execution may issue, if

necessary.

_________________________________

D. MICHAEL SWINEY, JUDGE

-20-