### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ju ly 11, 2 00 8 S es si on

IRE NE M C 

### CRAY v. THE VANDERBIL T UNIVERS IT Y D 

### / B 

### / A 

### VANDERBIL T UNIVERS IT Y MEDICAL CENT ER

Appeal f rom the Circ uit Court for Davidson County No. 06C-2134 Barbara Haynes, Judge

No. M2008- 00364-COA-R 3-CV - F iled Jun e 23, 2009

Plaintiff, a patient car e partne r former ly employ ed by a hospital, broug ht su i t aga i n s t the hospital afte r her termination, alleg ing violations of the Tenne ssee Handicap Ac t , the Americ ans with Disabilities Act, the Tenne ssee Human Rights Act, the Family and Medica l L eave A c t a n d reta liatory discharg e. The hospital filed a motion for summary judgme nt, which the trial court g rante d. Finding that the plaintiff did not cre ate a g enuine issue of materia l fac t on essential elements of her claim of
reta liatory

discharg e, we aff

irm the dec ision of the trial court.

Tenn. Ap p. P. 3 A ppeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R I C H A R D H. D I N K I N S , J
., delivere d the opinion of the court, in which F R A N K G. C L E M E N T , J R ., and AN D Y D. B E N N E T T , J J , joined.

J ames L . Har

ris, Nashville, Tenne ssee, f or the a ppellant, I rene McCray

.

Wil liam N. Ozier, Alonda W. M c Cu tc h e o n , a nd L eona Marx, Nashville, Tenne ssee, for the appellee
, Vande rbilt University , d/b/a Vande rbilt University Medica l Center.

OP INION

I r e n e M c Cr a

y w a s p r eviously employ ed by Vande rbilt University Medica l Ce n te r ( “ V U M C” )

as a patient car e partne r in the Dialy sis Unit; she was initially employ ed on October 18, 2004. Her mother, who resided in Michig an, beca me ill and on Dec ember 15, 2005, Ms. McCray reque sted and
was g rante d leave pursuant to the provisions of t he Family and Medical L eave Act (“ FML A”) , 29 U.S.C. § 2601. As part of the proce dure for g ranting her leave
, VUMC reque sted that Ms. McCray have her mother’s phy sician sign and complete a medical cer tification form and that she return the form to VUMC. M s

. McCray ’s last day of work was Dec ember 21 and her last schedule d day of medical lea

ve wa s J anuar

y 8, 2006.

On J anuar y 8, Ms. McCray lear

ned that her mother’s condition had worsene d. She attempted
to contac t her supervisor, Richard Phidd, but could not rea ch him; she left a messag e fo r h i m to return her call. Mr. Phidd returne d the call on J anuar y 9, and in the course of the conver sation,informed Ms. McCray that the medical cer tification form had not been rec eived by VUMC

. Ms. M cCray returne d to work at 5:30 a.m. on J anuar y 11, and on that date she sent another m ed i ca l

cer tification form to her mother’s phy sician. This form was completed and signe d by her mother’s phy sician and rec eived by VUMC on J anuar

y 20. Ms. Mc Cray ’s mother died on J anuar y 18, afte r which Ms. McCra

y was on medic al leave until J anuar y 26.

On Marc h 16, Mr. Phidd issued Ms. McCray a Final Perfor mance I mprovement Counseling (“F PI C”) form, advising that perf ormanc e defic iencies of hers on Dec ember 16, 19, 20 and 21, 2005, had compromised patient safe ty and requiring
, under penalty of further action, that she document the completion o f her tasks acc urate ly

. Ms. McCray filed a g rieva nce with VUMC’s Opportunity Deve lopment Center (“ ODC”) in r esponse to the F PI C; in t he g rieva nce, she asser

ted that she ha d been “har assed and disciplined for err oneous rea sons beca use I took FML A leave to visit my dy ing mother.” On April 6, Ms. Carol Eck, Depa rtment Hea d, sent Ms. McCray a letter advising her that Ms. Eck had i n v es t i gated the matter and deter mined that Ms. McCray had, in fac t falsely documen t ed t h e rec ords at issue; howeve r, Ms. Eck rec ommended that the FPI C be reduc ed to a Writt en Reminder, w hich would be in ef fec t for 90 day s.

On April 13, a

n e v a luation of Ms. McCray ’s work perf ormanc e was perf

ormed by Mr. Phidd. On April 17, Ms. McCray filed anothe r g rieva

nce, a lleg ing that she was discriminated ag ainst and
reta liated ag ainst and explaining:

Richard Phi dd, my supervisor, has known that I suffe r from AD/HD, and has knowing ly ag g rava ted my co ndition by emotionally abusing me and putting

unnece ssary restric tions on my behavior. Fur ther, he has reta liated ag ainst me for bring ing an FML

A g rieva nce with the ODC by g iving me a very wea k evalua tion and further abusing me emotionally

.

On May 8, Peter Martino, an ODC compliance repr es e n ta ti v e , in f o r me d Ms. McCray by letter that ODC had investiga ted the matter and deter mined that Mr. P h i d d h ad acted “inappr opriately ” towards her. The letter further advised that the issue “is being addre ssed in a manner consistent with Vande rbilt’s prac tices and policies” and that if she continued to “experienc e co n c e r n s o v e r r e ta li a

tion or discrimination” to conta ct him immediately

.

Ms. McCray rec eived a FPI C on J une 1, pointing out sever al are as of conce rn reg arding her perf ormanc e and setting out corr ective action to be taken. On J une 6, Ms. McCray filed a g rieva nce, alleg ing that she was the victim of disability discrimination and reta liation with ref ere nce to the J une 1 FPI C and explaining as f ollows:

Richard Phidd issued me a Final PI C for fa l s e re as o ns and for mistakes that wer e minor and have been made by other employ ees who did not rec eive discipline. I fee l that this was in reta liation to my rec ent g rieva nce filed ag ainst him with ODC or his misunderstanding of my

abilities as a per son with AD/HD.

On J uly 6, Mr. Martino sent Ms. McCray a letter advising her that ODC had investiga ted the
g rieva nce and there was “not sufficie nt evidenc e to find a violation o f t h e Un i v ersity ’s Equal

-2-Opportunity and Affir mat i v e Ac t ion policy

. . . [and] there is not sufficie nt evidenc e to find a violation of Vande rbilt’s anti-re taliation policy .”

On J uly 20, Ms. M cC ra y acc identally flooded a patient’s room with bleac h water while clea ning a bi-ca

rb machine. On J uly 25, Ms. McCray ’s employ ment was terminated based on continued perf

ormanc e issues within six months of rec eiving Final Perfor man ce I mprovement Counseling. 1

Shortly there afte r, Ms. McCray

filed suit ag ainst VUMC, alleg ing that she was terminated due to “unlawf

ul discriminati o n p re d i cate d on her ag e and/or her disability
, and in unlawful
reta liation for Plaintiff’s su cc es s fully having complained about her supervisor.” Ms. McCray claimed t h at VUMC ’s actions wer e in violation of the Tenne ssee Handica p Act (“TH A”)
, the Americ ans with Disabilities Act (“A DA”) and the Tenne ssee Human Rights Act (“TH RA”); VUMC filed a timely answe r. By ag ree d order
, the complaint was amende d to add a claim under the Family and Medic al L eave Act (“ FML A”) ; VUMC’s answe r wa s acc ording ly amende d.

Following discovery
, VUMC filed a motion for summary judgme n t , s u p p orted by a memorandum, statement of undisputed fac ts, excerpts an d exhibi ts from the depositions of Ms. McCray
, Mr. Phidd, Ms. Eck and Dan Majors, a nurse trainer
, and the aff idavits of Richard Phidd, Todd Griner and Vicki Richard. The motion asser ted that Ms. McCray ’s ADA claim was barr ed for failure t o ex h au st administrative reme dies; that she could not establish a prima facie case of ag e discri m i n at i o n o r reta liation; and that she could not prove that VUMC interfe red with her rig hts under the FML A.

I n response to the motion, Ms. McCray filed a memorandum in o pposition to motion for
summary judgme nt and a reply to the statement of undisputed fac ts. I n her memorandum, Ms. M cCray conce ded that VUMC was entitled to summary dismiss al of the ag e and dis ab i l i t y discrimination c laims; she stated that “this is, pur ely and simply , an FML A case with a signific ant reta liatory

discharg e compone nt.” 2

The trial court g rante d VUMC’s motion for summary jud gm ent. I n addition to acknow ledg ing Ms. McCray ’s conce ssion that summary judgme nt was appropr iate as to the asser ted d i s ab i lity and age discrimination claims, the court held t hat M s. McCray failed to state a claim of
reta liation pursuant to the FML A in light of her acknow ledg ment that she was, in fac t, g rante d FML A leave

. Wit h respe ct to Ms. McCray ’s claim of common law reta liatory discharg e, the court held that Ms. McCray did not prese nt proof that she eng ag ed in a protec ted activity or show a causa l

connec tion betwee n her i n t er n al complaints and eventua l termination or to produce evidenc e showing that VUMC’s re asons for he r dischar g e we re pr etextual.

V U M C ’ s p r o g r e s s i v e d i s c i p l i n e p o l i c y p r o v i d e s t h a t a n e m p l o y e e m a y b e t e r m i n a t e d f o r a n y p e r f

o r m a n c e 1
i s s u e w i t h i n s i x m o n t h s o f b e i n g i s s u e d a F P I C

. M s

. M c C r a y w a s p l a c e d o n F P I C o n J u n e 1

.

M s

. M c C r a y r e i t e r a t e s t h i s c o n c e s s i o n i n h e r b r i e f o n a p p e a l

. 2

-3-Ms. McCray articula tes the issue bef

ore the court a s follows:

Did not the Circui t J u d ge err in resolving matters of witness cre dibilit y , motive, intent, and perc eption in a Rule 56 context, and t h ere by impermissibly invade the province of the jury ?

I. Stand ard of Review

This appea l is from a g rant of summary judgme nt. Summary judgme nt is appropr iate wher e

a party establishes that there is no g enuine issue as to any materia l fac t and that a judgme nt may be rende red as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v

. Clark
, 113 S.W .3d 715, 721 (Tenn. 2003). Moreove r, it is p ro p er i n virtually all civil case s that can be resolved on the basis of leg al issues alone, Byrd v. Hall
, 847 S.W .2d 208, 210; Pendleton v. Mills
, 73 S.W .3d 115, 121 (Tenn. Ct. App. 2001); howeve r, it is not appropr iate when g enuine disputes reg arding materia l fac ts ex i s t

. Tenn. R. Civ. P. 56.04. The party seeking a summary judgme nt bear s the burden of demonstrating that no g enuine disputes of materia l f act e x ist and that the party is e ntitled to judgme nt a s a matter of law. Godfrey v. Ruis , 90 S.W .3d 692, 695 (Tenn. 2002) . To be e ntitled to sum mary judgme nt, the moving party must aff irmatively neg ate an essential element of the non-moving party ’s claim or show that the moving party cannot prove an essential element of the claim at trial. Martin v. Norfolk Southern Railway Co., 271 S.W .3d 76, 83 (Tenn. 2008)

. Summary judgme nts do not enjoy a presumption of corr ectne ss on appea l. BellSouth Adve r. & Publ’g Co. v. Johnson
, 100 S.W .3d 202, 205 (Tenn. 2003). This court must m ak e a fre sh deter mina t ion that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown
, 955 S.W .2d 49, 50 -5 1 (Tenn. 1977). We consider the evidenc e in the light most favor able to the non-moving party and resolve all infere n ce s in that party ’s favor

. Stovall, 113 S.W .3d at 721; Godfrey, 90 S.W .3d at 695. When revie wing the evidenc e, we first deter mine whether fac tual disputes exis t. I f a fac tual dispute exis ts, we then deter mine whether the fac t is materia l to the claim or defense upon which the summary judgme nt is predic ated and wh ether the di sputed fac t cre ates

a g enuine issue for trial. Byrd, 847 S.W .2d at 214; Rutherford v. Polar Tank Trail er, Inc
., 978 S.W .2d 102, 104 (Tenn. Ct. App. 1998).

The summary judgme nt analy sis has been clar ified in two rec ent opinions by the Tenne ssee Supreme Court. See Martin
, 271 S.W .3d 76; Hannan v. Alltel Publ ’g C o

. , 2 7 0 S.W .3d 1 (Tenn. 2008). A party is entitled to summary judgme nt only if t h e "p l ea d i n g s, depositions, answe rs to interrog atories, and admissions on file, toge ther with the aff idavits

. . . show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law." Tenn. R. Civ. P. 56.04; accord Penley v. Honda M

otor Co. , 31 S.W .3d 181, 183 (Tenn. 2000) . A
proper ly supported motion for summary judgme nt m u s t show that there are no g enuine issues of materia l fac t and that the moving party is entitled to judgme nt as a matter of law. See Staples v. CBL & Assocs., Inc.
, 15 S.W .3d 83, 88 (Tenn. 2000); McCarley v. W

. Quality Food Serv.
, 960 S.W .2d 585, 588 (Tenn. 1998). I f the moving party makes a proper ly supported motion, then the nonmoving party is require d to produce evi d en ce o f specific fac ts establishing that g enuine issues of m ater ial fac t exis t. McCarley
, 960 S.W .2d at 588; Byrd
, 847 S.W .2d at 2 15. The nonmoving party may satisfy its burden of produc tion by :

-4-(1) pointing to evidenc e establishing materia l fac tual disputes that wer e over- looked

or ignor ed by t h e moving party ; (2) reha bilitating the evidenc e attacke d by the moving party ; (3) producing additional evidenc e estab l ishing the exis tence of a g enuine issue for trial; or (4) submitt ing an aff idavit explainin g the nece ssity for further discovery

pursuant to Tenn. R. Civ. P., Rul e 56.06.

McCarley
, 960 S.W .2d at 588; accord Byrd
, 847 S.W .2d at 215 n.6; Martin 271 S.W .3d at 83-84.

II. Discussion

A. FML A Claims as Pled in the Compl aint

29 U.S.C. § 2612(a) (1)( C) provides that an elig ible employ ee is entitled to a total of 12 work

wee ks of l eave during any 12 month period to “ca re for a spouse, o r a son, daug hter, or pare nt, of the employ ee, if

such spouse, son, daug hter or pa rent ha s a serious health condition.” Pursuant to 29 U.S.C. § 2614, an employ ee who takes medical leave is entitled to be restore d to the position held by the employ ee prior to taking the leave and the taking of such leave “shall not result in the loss of
any employ

ment benef

i t s ac cr u ed prior to the date on which the leave commence d.” 29 U.S.C. § 2614(a) (2). 29 U.S.C. § 2615 prohibits an employ er from interfe ring with the employ ee’ s exercise of rig hts under the FML A and, further
, prohibits the disc h arg e or other manner of discrimination
ag ainst “any individual for opposing a prac tice made unlawful by this subchapte r.” 29 U.S.C. § 2615 (a) (2).

I n Parag raph 10 of the amende d complaint, Ms. McCray alleg es as f

ollows:

10. Subs eq uent to the filing of the orig inal complaint in this case , and during the discovery proce ss, plaintiff has lear ned that she was entitled to cer tain rig hts and

reme dies g uara

nteed by the Family

and Medic al L eave Act, which is c odified at 29 USC 2 9-2601 et seq [si c]. Plaintiff aver s that those rig hts wer e violated by Vande rbilt in that Vande rbilt did not gra n t h er medical leave as provided by law. These violations could not have been d iscovere d by plaintiff absent the fac t of litigation.

I n support of its motion for s u mmary judgme nt VUMC filed, inter alia, a statement of undisputed material f

acts, whic h included the f ollowing:

12. On Dec ember 20, 2005, Plaintiff reque sted and was g rante d medical leave under the Family and Medica l L eave Act (“F ML A”) from Dec ember 26, 2005 until J anuar y 8, 2006 to car e for

her sick mother

. Ms. McCray

admitted the truth of this statement in her r esponse.

Ne i t her Ms. McCray ’s amende d complaint nor the materia l filed in her response to th e summary judgme nt m o t i on cre ates a g enuine issue of materia l fac t reg arding the alleg ations of
para g raph 10 of her amende d complaint. McCarley
, 960 S.W .2d at 588. By her own admission, Ms.

-5-McCray did, in fact, re ceive the bene fit of m edica l leave that she sought from VUMC pursuant to

the FML A. Consequently
, the trial court did not err in dismiss ing Ms. McCray ’s FML A claims, as pled.

B. Reta liation Cl aims

W e ag ree with the trial court that Ms. McCray did not specific ally plead a violatio n o f 2 9 U.S.C. § 2615 in her amended co mplaint. Her response to the motion, likewise, fails to make a specific claim that her termination violated the statute. Howeve r, the alleg ations of para g raph 10 of the amende d complaint, specifi ca l l y t he words “Va nderbilt did not g rant her medical leave as provi d ed b y l aw , ” could be broadly construed to make an alleg ation that her termination was in
reta liation for taking FML A leave or the manner in which h er re q u es t (and g rant) of leave was handled. Be cause , as more fully discussed below, the fac tual and leg al elements of both a claim of
reta liation under the FML A and a cla im of common law retaliation are substantially the s ame, we will discuss the retaliation claims tog ether

.

The F M L A ’ s p r o h ib it io n a g a in s t d is c r im in a ti o n a g a inst an employ ee who has exercised rig hts under the FML A includes “conside ration of an employ ee’ s use of FML A leave as a neg ative fac tor in an employ

ment action.” Stallings v. Hussman Corp., 447 F.3d 1041, 1051 (8 Cir., 2006) (citing t h Darby v. Branch, 287 F.3d 673 (8 Cir., 2002)). A claim of reta liation under the FML A is analy zed t h under the burden- shifting proce dure set forth in McD onnell -Douglas v. Gree n , 411 U.S. 792 (1973), wher ein upon the plaintiff’ s showing of a prima facie case of reta liation, the burden to a rticulate a leg itimate, non-re taliatory rea son for the employ ee’ s trea tment falls upon the employ er. When the employ er satisfies its burden, the burden then shifts to the employ ee to demonstrate that the rea son profe rre d by the employ er is not the true rea son for the trea tment. Th i s ca n b e s hown either by showing that the proferre d rea son is unworthy of cr ed en ce o r t hat a prohibited rea son more li kely than not mo t i v at ed the employ er. See Texas Dep’ t. Of Comm. Affairs v. Burdine, 450 U.S. 248 (1981).

The common law cause of action for reta liatory discharg e develope d as an exception to the at-will employ

ment doctrine and restric ts the rig ht of an employ er to terminate an employ ee “whe n the employ ee is terminated in contra vention of well-de fined and established public policy .” Guy v. Mutual of Omaha Ins. Co.
, 79 S.W .3d 528, 535 (Tenn. 2002) ( citing Chism v. Mi d -S o u t h Milling Co., 762 S.W .2d 552, 555 (Tenn. 1998)). The elements of such a reta liatory discharg e claim are (1)

an at -w ill employ

ment rela tionship; (2) the discharg e of the employ ee; (3) that the employ ee was discharg ed for attempting to exercise a constitutional or statutory rig ht or for a rea son that violates a clear public policy ; and (4) that the employ ee’ s action wa s a substantial fac tor in the dec ision to discharg e the e mploy ee. Colli ns v. AmSouth Bank , 241 S.W .3d 879, 884 (Tenn. Ct. App. 2007).

W i t h rega

rd the common law reta liatory discharg e claim, Ms. McCray arg ues that fil i n g g rieva nces is “def

initionally and by statute” a protec ted activity

. Howeve r, she fails to identify any such “def

inition” or statute by which the filing of a g rieva nce under VUMC’s per sonnel administration policies is a protec ted activity or the public policy implications attendant to the filing of such g rieva

nce. As noted by the trial court “an internal g rieva nce proce dure is not an activity that

-6-is protec ted by a statutory or constitutional rig ht, or any reg ulatory provision.” The statute cited by 3 Ms. McCray in this reg ard, Tenn. Code Ann. § 4-20-301( 1) [si c], is not applicable to her common 4 law reta liation claim inasmuch as that statute is part of the Tenne ssee Human Rights Act (“TH RA”), Tenn. Code Ann. § 4-21- 101 et seq., and is only applicable to alleg ed violations of that Act; Ms. 5 McCray ’s alleg ations of violation of the THRA wer e dismiss ed by the trial court, an action to which she ag ree d and does not contest. The t ri al court’s holding that Ms. McCray “fa iled to offe r any evidenc e that she eng ag ed in p r o te c te d activity ,” such as to invoke the reta liatory discharg e exception to the employ

ment-at-w ill doctrine is fully supported by

the re cord.

Also with respe ct to the common law reta liation claim, the trial court held that, even if Ms. McCray had established a prima facie case of reta liation, she had “not produce d evidenc e sufficie nt to raise an infere nce that VUMC’s proff ere d rea sons for discharg ing her lack cre dibilit y , or that the decision wa s likely

motivated by

a discriminatory

or re taliatory

rea son.”

I n para g raphs 7 a

nd 8 of her

amende d complaint, Ms. McCray states:

7.

. . .The Direc tor of Vande rbilt’s Dialy sis Unit, Plaintiff’s supervisor, informed her that since she had not ma de a formal r equest for FML A leave
, she had to r eturn the following day or her empl oy ment would be terminated. Plaintiff there afte r complained to Vande rbilt manag ement, and her complaints wer e ultimately vindicated.

8. Vande rbilt dischar ged Plaintiff eff ective J uly 25, 2006. Vande rbilt’s stated

rea sons for Plaintiff’s discharg e - perf ormanc e problems, attendanc e problems, and difficulties opera ting dialy sis equipment - wer e and are wholly prete x tual. The true

rea sons for Vanderb i lt’s discharg e of Plaintiff wer e unlawful discrimination predic ated on her ag e and/or her disability
, and in unlawful reta liation for Plaintiff’s

succe ssfully

having complained a

bout her super

visor, as af

oresa id.

Mr. Phidd’s deposition, filed in support of VUMC’s motion for summary judgme nt, attests that the termination of Ms. McCra y ’s employ

ment was due to a dec line in her pe rfor mance over a period of time and her ref usal o f help to improve her perf ormanc e. As well, in his aff idavit, Mr. Phidd attests to t he following :

“ [ T ] h e T e n n e s s e e S u p r e m e C o u r t h a s r e c o g n i z e d a n a r r o w e x c e p t i o n t o e m p l o y m e n t

- a t

- w i l l d o c t r i n e

. . . 3

p r e v e n t s a n e m p l o y e r f r o m t e r m i n a t i n g t h e e m p l o y m e n t o f a n e m p l o y e e w h e n d o i n g s o v i o l a t e s a c l e a r l y e s t a b l i s h e d
p u b l i c p o l i c y w h i c h w i l l u s u a l l y b e e v i d e n c e d b y a n u n a m b i g u o u s c o n s t i t u t i o n a l

, s t a t u t o r y o r r e g u l a t o r

y p r o v i s i o n

. ” C o l l i n s , 2 4 1 S

. W

. 3 d a t 8 8 4

. ( E m p h a s i s a d d e d )

.

T h e c o r r e c t s t a t u t e i s T e n n

. C o d e A n n

. § 4

- 2 1

- 3 0 1 ( 1 )

. 4

T e n n

. C o d e A n n

. § 4

- 2 1

- 3 0 1 ( 1 ) p r o v i d e s t h a t i t i s a d i s c r i m i n a t o r y a c t t o : 5

R e t a l i a t e o r d i s c r i m i n a t e i n a n y m a n n e r a g a i n s t a p e r s o n b e c a u s e s u c h p e r s o n h a s o p p o s e d a p r a c t i c e d e c l a r e d d i s c r i m i n a t o r y b y t h i s c h a p t e r o r b e c a u s e s u c h p e r s o n h a s m a d e a c h a r g e , f i l e d a c o m p l a i n t , t e s t i f i e d
, a s s i s t e d
, o r p a r t i c i p a t e d i n a n y m a n n e r i n a n y i n v e s t i g a t i o n , p r o c e e d i n g o r h e a r i n g u n d e r t h i s

c h a p t e r

. ( E m p h a s i s a d d e d )

.
-7-6. On Marc h 16, 2006, I issued Ms. McCray a Final Perfor mance I m p ro v ement Counseling (“F PI C”) for falsely documenting that she had disinfected a dialy sis machine on four differ ent occa sions, when in fac t, that machine was broken and
p l ac ed in storag e. I also issued a FPI C to Scott Plemons, a PCP [patient ca re partne r], for eng ag ing in the same conduct as Ms. Mc Cray

. I decide d to issue both Ms. McCray

and Mr. Plemons, a F PI C instead of a w ritten PI C, beca use I believed their conduc t compromised patient saf ety

.

***

10. The l o w score s Ms. McCray rec eived in her evalua tion wer e ref lective of her deter iorating work perf

ormanc e. Specifica lly
, Ms. McCray rec eived a rating of “1" in the Key Func tions cate g ories of “Perf orms selec t ed proce dures and trea tments” and “Maintains patient/family safe ty ,” making her overa ll key function score a 2.6. Her false documentation of rec ords in Dec ember was the basis for her low score s in these c ateg ories on her

evalua tion.

***

12. On J une 1, 2006, I issued Ms. McCray a FP I C b as ed on the varia bility of her work perf

ormanc e, the distractions s h e cre ated by discussing persona l matters at work with staff, fre quently being absent or tardy to wo rk
, an d h er lack of focus. There are sever al incidents that serve d as the basis for this discipline. For example,

o n M ay 1 8, 2006, Ms. McCray turned over one of the hemo-dialy sis machines causing major damag e to the machine. She also overf lowed the sink attache d to the bi-ca rb mix er on two se para te occ asions causing water to spill out into the Unit.

13. The third incident of Ms

. McCray overf lowing the bi-ca

rb m ix er sink occurre d

on J uly 20, 2006. Ms. McCray failed to chec k whether the overf low valve was in the

on position prior to filli ng the sink up with water and she left t he si nk unattended. T his incident of flooding was Ms. McCray ’s third within a three month period o f time.

14. At the time of the J uly 20 incident, Ms. McCray was o n FP I C

. Va n d erbilt’s t h
prog ressive discipline policy provides that an employ ee may be terminated for any perf ormanc e issues within six months of being issued a FPI C. Ba sed on the J uly 20 t h incident and Ms. McCray ’s continued perf ormanc e issues, her employ ment was terminated e ffe ctive Jul y

25, 2006.

Mr. Phidd’s depo s i t i o n and his aff idavit neg ate Ms. McCray ’s contention that she was terminated in “unlawf

ul reta liati o n for Plaintiff’s succe ssfully having complained about her supervisor,” as specific ally alleg ed in para g raph 8 of her amende d complaint; likewise, they would
neg ate a proper ly pled claim of reta liation in violation of 29 U.S.C. § 2615. The neg ation of these essential ele ments of her

reta liation claims require d Ms. McCray to produce “evide nce of

specific

-8-fac ts establishing that g enuine issues of materia l fac t exis t” as to th e elements of the claims.

McCarley

v. W . Quality Food Serv ., 960 S.W .2d 585, 588 (Tenn. 1998)

.

The trial court found that Ms. McCray had “not prese nted proof or infere nces from proof to show a causa l connec tion betwee n her i n t er n al complaints and her termination.” As noted previously
, Mr. Phidd’s aff idavit ref ere nces sever al perf

ormanc e problems leading to Ms. McCray ’s termination and that her termination was in acc ordanc e with VUMC’s prog ressive discipline policy

. I n addition, the proof shows that another one of Ms. McCray ’s co-w orker s, Scott Plemons, was issued an FPI C f

or the same perf

ormanc e-r elated rea son as Ms. Mc Cray

. These fac ts, w hich, with
respe ct to an FML A claim, show a leg itima t e, n o n -d iscriminatory rea son for her termination and which, with respe ct t o a common law retaliation claim, s how t hat t he fili ng of t he griev ances was not the rea son for he r termination, stand unre butted in this record.

Ms. McCray has no t car

ried her burden, as non-moving party , of producing
, “evide nce of specific fac ts establishing that g enuine issues of materia l fa ct exis t” with reg ards to her claims of
reta liation by VUMC. McCarley

, 960 S.W .2d at 588; Byrd, 847 S.W .2d at 215. The trial court did not err in g ranting summary judgme nt.

III. Conclusi on

For the fore g oing rea sons, t h e judgme nt of the trial court g ranting summary judgme nt to VUMC is affirme d.

Costs of this appea l are assessed to appellant, I rene McCray
, for which execution may issue, if nec essar

y

.

___________________________________ RI CHARD H. DI

NKI NS, J UDGE

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