### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Decem be r 2, 2 00 9 S es si on

DOROTH Y KING , R.N. an d PATRICI A BATTLE , R.N., E T A L 

### . v. VIRGI NIA BE TTS, Com m ission er of the Tennessee D epartm ent of Mental Health and

Deve lopme ntal Disabi lities, in h er individ ual capacity 

### , E T A L


### .

Direc t Appeal from the Chancer y Court for Davidson Cou nty No. 06-943-I C laud ia Bon nym an, Chan cellor

No. M2009- 00117-COA-R 3-CV - F iled Dece m ber 18, 2009

This is a 42 U.S.C. § 1983 claim based on alleg ed reta liation in violation of the First Amendment. Appellant claims that Appellee s retaliate d ag ainst her in her employ ment for speaking out ag ainst

a hospital policy

. Appellee s asser t the defe nse of qualified immunit y

. Appellant appea ls f rom the trial court’s decision to g rant summary judgme nt a nd judgme nt on the pleading s to the Appellee s. Finding that there are materia l issues of fac t in dispute, we reve rse the trial court’s g rant of summary judgme nt. Fur

ther, we find that Appellant has stated a claim upon which relief may be g rante d and, there fore
, reve rse the trial court’s decision to g rant Appellee s’ motion for judgme nt on the p le a d in g s. Affir med in part, re verse d in part and r emande d.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed in Par t, Reve rsed in Par t and Rem anded

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and D A V I D R. F A R M E R , J ., joined.

Wil liam J . Hay

nes, Na shville, TN, for the A ppellant, Patricia B attle, R.N.

Robert E. Cooper, J r., Attorney Gene ral and Reporter
, and Michae l E. Moore, S o l i cit or Gene ral, J ohn W. Dalton, Senior Counsel
, Na s hville, Tenne ssee, for Appellee s, Virg inia Be tts, L y nn McDona ld, Dr. L indsey

Doug las and Gly

nda He inicke.

OP INION

Appellant, Patricia Ba ttle (“B attle”)
, and co-Plaintiff, Dorothy King (“K ing” ) are reg istered nurses employ ed by the M iddle Tenne ssee Mental Hea lth I nstitut e (“ I nstitut e”) . I n J uly 2003, the I n s titute implemented a new policy requiring nurses to dispense medication from a “mini-pharma cy ” wh en a pharma cist was not on duty

. Many of the nurses, including Ba ttle and King, ex p re s s edconce rn that this policy require d them to act outside the sc ope of the ir nursing license. B attle and

King filed an administrative action with the Tennessee Depar tment of Health in 2004
, s ee k i ng an

o rd er d ecla

ring that the policy violated the Tenne ssee Boa rd of Nursing licensing require men t s

. Subsequently
, the parties enter ed into an ag ree d order stating that the policy di d n ot violate the l i ce n s i ng require ments. Neve rtheless, Ba ttle and King continued to have conce rns and in 2005
contac ted their State Represe ntative about this issue. The State Represe ntative contac ted the office of the Commi ssioner of the Tenne ssee Depa rt me n t o f M e n tal Hea lth to discuss the policy
, expressing

conce rn that the policy was compromising patient car e. Ba ttle contends that she was subsequently subjected to reta liatory employ ment action as the result of her resistanc e to the policy

. Specifica lly
, Ba ttle alleg es that Gloria Heinike was hostile towards Ba t t l e when Ba ttle reque sted that Heinike attend to a patient. Moreove r, Ba ttle asser t s that: (1) hostile comments wer e made on her perf ormanc e evalua tion, ( 2) she was inappropria tely targ eted for termination, (3) she was denied a

secur ity de ta il w h e n s h e r e q u e s te d o ne to acc ompany her when supervising the violent patients,(4)she was subjected t o hostile and dis para g in g co m m en t s,(5)she was not notified that manag ement was making rounds as was standard pra ctice, ( 6) she was wrong ly issued a written repr imand that was subsequently overr

uled, (7) she was not schedule d as a supervisor even though she is a supervisor, and (8) that her of

fice was re located.

Ba ttle filed a complaint on April 17, 2006 ag ainst the Tenne ssee Depa rtment of Hea lth and the Tenne ssee Depa

rtment of Mental Hea lth and Deve lopmental Disabilities, alleg ing, in pertinent part, violations of 42 U.S.C. §1983. Ba ttle filed an amende d complaint on September 6, 2006, 1 repla cing the o ri gi n al defe ndants and naming as defe ndants Virg inia Be tts, Commi ssioner of the Tenne ssee Depar

tment o f M en tal Hea lth and Developmental Disabili ties, L y nn McDona ld, Chief Offic er of Middle Tenne ssee Mental Hea lth I nstitu te, Dr. L indsey Doug las, Grieva nce Review Offic er for Middle Tenne ssee Mental Hea lth I nstitut e, and Gly nda Heinicke
, Nursing Supervisor at Middle Tenne ssee Mental Hea lth I nstitut e (col le c ti v e ly “ A p p e ll e e s ” )

. B a

tt le f ile d a second amende d 2 complaint on Fe bruar

y 23, 2007, with permission of the court, naming Appellee s in their individual
capa city and seeking monetary damag es. Ba ttle alleg ed that Appell ee s v i o l at ed her rig ht to fre e speec h under the First Amendment by taking reta liatory action ag ainst both her and King
, in respons e to their criticism of the “ mini-pharmac y ” policy

. Appellee s filed an answe r on Marc h 15, 2007, in which they raised the defe nse of qualified i mmunity

. On October 29, 2007, Appellee s filed an amende d answe r, also raising the defe n s e o f qualified immunit y

. Appellee s then filed a Motion for Summary J udg ment and Statement of Undisputed Fa cts on J anuar y 11, 2008. I n their Motion for Summary J udg ment, Appellee s asser ted that there wer e no disputed materia l fac ts and that Ba ttle could not establish that Appellee s violated 42 U.S.C. § 1983. Ba ttle filed a Memorandum in Opposi t ion to Appellee ’s Motion for Summary

K i n g a l s o j o i n e d i n t h i s a c t i o n a n d s u b s e q u e n t l y a p p e a l e d

. H o w e v e r , h e r a p p e a l w a s d i s m i s s e d b y o r d e r o f 1

t h i s C o u r t o n S e p t e m b e r 1 1
, 2 0 0 9

. A c c o r d i n g l y , w e d o n o t a d d r e s s h e r a p p e a l i n t h i s o p i n i o n

.

W e n o t e t h a t D e f

e n d a n t D r

. L i n d s a y D o u g l a s i s n o t n a m e d i n B a t t l e ’ s b r i e f

. H o w e v e r , w e f

i n d t h i s t o b e a 2

t y p o g r a p h i c a l e r r o r a s D r

. D o u g l a s i s n a m e d o n t h e N o t i c e o f A p p e a l a n d t h r o u g h o u t A p p e l l e e s ’ b r i e f a n d t h e r e i s n o

s e p a r a t e o r d e r , i n t h e r e c o r d
, d i s m i s s i n g h e r f r o m t h e c a s e

.
-2-J udg ment , a re sponse to Appellee s’ Statement of Undisputed Fa cts, and a Counter Statement of

Undis p u t ed Fa cts. The trial court hear d arg uments on the Motion for Summary J udg ment on Fe bruar y 22, 2008, and enter ed an ag ree d order on Marc h 31, 2008, defe rring its ruling on the

m o t i o n , an d o rd ering the parties to file an additional memorandum of law on the i ssues of: 1) t he first amendment rig hts of public employ ees; 2) the application of Garce tti v. Ceballos , 547 U.S. 410 (2006), and Pickering v. Board of Educ. Of Townsh ip High School Dist. 205, Will City
, 391 U.S. 563 (1968); 3) the dispositi on of summary judgme nt motions in case s involving the first amendment rig hts of public employ ees; and 4) whether Appellee s are entitled to qualified immunit y

. Both parties submitt ed suppl emental briefs t o the t rial court. Appellee s also subseq u ently filed a Motion for J udg ment on the Pleading s based on the issue of qualified immunit y

. Ba ttle filed

a Motion to Strike, asking the court to strike the Appellee s’ Motion for J udg ment on the Pleading s as being unti mely filed and to strike t he portion of t he Appellees’ Suppl emental M em o ra n d u m in Support of their Motion for Summary J udg ment dealing with the statute of limitations.

The trial court held a hear ing o n t h e M o t i o n for Summary J udg ment, the Motion for J udg ment on the P leading s, and the Motion to Strike on J uly 15, 2008. Following arg uments, the trial court ruled from the bench. The trial court denied Ba ttle’s Mo t i o n t o Strike the Appellee s’ Motion for J udg ment on the Pleading s and g rante d the Motion t o S t ri k e t h e statute of limit ations defe nse raised in the Appellee s’ supplemental brief. The trial court stated that it was dismiss ing the lawsuit beca

use t h e Ap p el l ee s wer e immune. The trial court g rante d the “motion for summary judgme nt on one g round and the motion for judgme nt on the pl eading s as to qualified immunity .” I n discussing whether the speec h was protec ted, the trial court stated that Ba ttle’s speec h was “not made pursuan t t o [ her] officia l duties nece ssarily
, nor is it true that [Battle was] speaking as [a] citizen[ ] on matters of public conce rn.” The trial court assumed that the speec h was protec ted and found that the g overnme nt had an a dequate justification f or its c onduct. The trial court f ound that
t h e co n d u ct t aken was to war n the nurses that, if they did not perf orm their duties under the new policy
, their jobs wou l d b e t er m i nated. The trial court found that this was not “neg ative action towards the plaintiffs’ employ ment.” The trial court also pointed out that there had been other “cold shoulder trea tment” of the plaintiffs, but found that any such conduct was justified and rea sonable. As to the issue of qualified immunit y , the trial court found that qualified immunit y applied as “the rig ht that was alleg edly violated is not a clea rly established rig ht of which a rea sonable person would have known.” On November 2, 2008, the trial court enter ed an order
, adopting its bench ruling “as the ruling which dismisses the case .”

Ba ttle then filed a motion to alter or amend ,which the trial court subsequently denied. Ba ttle
appea ls raising the following issues:

1. Whether the Chance ry Court proper ly applied the summary judgme nt standard under Tenn. R. Civ. P . 56?

2. Whether the Ch an ce ry C ourt proper ly g rante d summary judgme nt notwithstanding a fina l deter mination as to whether the speec h at issue was protec ted under the First Amendment?

-3-3. Whether the Chance ry Court proper ly g rante d summary judgme nt on the g round that Nurse

Ba ttle did not suffe r an adver se employ ment action sufficie nt to establish a First Amendment
reta liation claim under 42 U.S.C. § 1983?

4. Whether the Chance ry Court err ed in a llowing Appellee s to invoke the qualified immunity defe nse for

the purpose of

summary judgme nt in an untimely manner ?

5. Whether the Chance ry Court proper ly g rante d summary ju d gm en t on the g round that the Appellee s were eac h entitled to qualified immunity ?

Stand ard of Review:

A trial court’s decision to g rant a motion for summary judgme nt prese nts a question of law. Our revie w is there fore de novo with no presumption of corr ectne ss af fo rd ed t o the trial court’s d et ermination. Bain v. Wells , 936 S.W .2d 618, 622 (Tenn. 1997). I n evalua ting the trial cou rt ’s decision to g rant summa ry judgme nt, we revie w the evidenc e in the light most favor able to the nonmoving party and draw all rea sonable infere nces in the nonmoving party ’s favor

. M o o n ey v

. Sneed
, 30 S.W .3d 304, 305–06 (Tenn. 2000); Bryd v. Hall

, 847 S.W .2d 208, 210–11 (Tenn. 1993).

When a motion for summary judgme nt is made, the moving party has the burden of showing that “ther e is no g enuine issue a s to any materia l fac t and the movi ng party is entitled to judgment

as a matter of law.” Tenn. R. Civ. P. 56.04. I f the moving party ’s motion is proper ly supported, “The burden of production then shifts to the nonmoving party to show that a g enuine issue of materia l fac t exis ts.” Hann an v. Allt

el Publ’g Co.
, 270 S.W .3d 1, 5 (Tenn. 2008) (citing Byrd
, 847 S. W

. 2 d at 215)

. I n order to shift the burden of production, “the moving party must either aff irmatively neg ate

an essential element of the nonmoving party ’s claim or establish an aff irmative defe nse.” Hann an , 270 S.W .3d at 5. Howeve r, “[i] t is not enoug h for the moving part y t o ch al l en ge the nonmoving party to ‘put up or shutup’ or even to cast doubt on a party ’s ability to prove an element at trial.” Id

. at 8. I nstead, the moving party has the more difficult task of d em o n s t ra t i ng “that the nonmoving party cannot e stablish an essential ele ment of the c laim at trial.” Id

. at 7.

Analysis I. First Am endm ent Clai m

The United States Supreme Court has “made clea r t hat publ ic employ ees do not surre nder all their First Amendment rig hts by rea son of their employ ment. Rather, the First Amendment protec ts a public employ ee’ s rig ht, in cer tain circ umstances, to speak as a citizen addre ssing matters of public conce rn.” Garce tti v. Ceballos
, 547 U.S. 410, 417 (2006)( see e.g ., United States v. Treasury Em

ployee s , 513 U.S. 454, 466 (1995); Ranki n v. McPherson, 483 U.S. 378, 384 (1987); Conn ick v. Myers, 461 U.S. 138, 1 4 7 (1 9 8 3 ); P i ckering v. Board of Educ. Of Townsh ip High School Dist

. 205, Will C

ity , 391 U.S. 563, 568 (1968)).

-4-A three part test exis ts for analy zing a public employ ee’ s claim of First Amendment
reta liation. H

a ynes v. City of Circleville, Ohio, et al., 474 F.3d 357, 362 (6 Cir. 2007)(c iting t h Taylor v. Keith
, 338 F.3d 639, 643 (6 Cir. 2003)). First, the publ ic employ ee must show that the t h
speec h at issue was protec ted. Id. Second, the public employ ee must show that he or she suffe red adver se employ

ment act ion such t hat “would chill an ordinary person in the ex erc ise of hi s or her First Amendment rig hts.” Id. Third, the public employ ee must show a causa l c onnection betwee n the spee ch and the conduct c omplained of. Id.

I n deter mining whether the speec h is protec ted, the trial court must first deter mine whether the e m p l o y ee s p o k e as a citizen on a matter of publ ic concern. Pickering
, 391 U.S. at 568. I f t he

answe r is y es, then the speec h may be protec ted. Garce tti
, 547 U.S. at 418 (citing Conn ick, 461 U.S at 147)). I f the a

nswer is no, then the employ ee has no First Amendment cause of action. Id. As clar ified by the Supreme Court in Garce tti
, when an employ ee speaks pursuant to his or her officia l duties, the speec h is not protec ted. Garce tti, 547 U.S. at 425. Neither the fac t tha t the speec h was mad e at the place of employ ment nor the fac t that the speec h conce rns the subject matter of the employ ee’ s employ

ment is disp o s i t i v e, as the speec h may still be entitled to First Amendment protec tion. I

d

. at 420-21. “Whether an employ ee’ s speec h addre sses a matter of public conce rn must be deter

mined by the content, form, and context of a g iven statement, as reve aled by the rec ord

as a whole.” Conn ick, 461 U.S. at 147-48. The court must make “an indep en d en t co n s t itutional judgme nt on the fac ts of the case .” Id. at n.10 (citing Jacobellis v. Ohio
, 378 U.S. 184, 190 (1964))

. I n examining the content of the speec h, the trial court is to consider what is the “point of the speec h,”

m ea n i n g what the s peake r i ntended to communicate and not what the speake r’s mot ivations wer e in making the statement. Taylor , 338 F.3d a t 645 (citations omitted). I f the trial court deter mines that the employ ee spoke as a citizen on a matter of public conce rn, the trial court must then consider whether the g overnme nt’s interest outweig hs the employ ee’ s interest in the speec h. Taylor
, 338 F.3d at 643 (c iting Pickering , 391 U.S. at 574). I n other wor ds, the court must determine “w hether the rele vant g overnme nt entity had an adequate justification for trea ting the employ ee differ ently from
any other membe r of the g ener al public.” Conn ick , 547 U.S. at 418 (citing Pickering , 391 U.S. at 568). “So long as employ ees are speaking as citizens about matters of public conce rn, they must fac e only those sp ee ch restric tions that are nece ssary for their employ ers to opera te eff iciently and eff ectively .” Garce tti
, 547 U.S. at 419. The deter mination that speec h is protec ted or not protec ted, is a q u es t i o n of l aw for t he court to decide

. Taylor
, 338 F.3d at 643 (citing Conn ick, 547 U.S. at 148). a. Protected Spe ech

Ba ttle first contends that the trial court err ed by g rant i n g s u m m ar y judgme nt without first deciding whether

or not the spee ch wa s protecte d. I n g ranting the motion for summary judgme nt, the trial court stated that it could not deter mine whether the speec h was protec ted, but assumed for the purpose of summ ar y j u d gm en t that it was protec ted. Ba ttle submits that the trial court must decide whether the speec h was protec ted befor e it may rule on the Motion for Summary J udg ment. I n making a First Amendment reta liation claim, Ba ttle must establish three separ ate elements: protec ted speec h, adver se employ ment action, and a causa l connec tion betwee n the speec h and the action taken. Haynes 474 F.3d a t 362. I f B attle fa ils to establish any one of the se three elements,

-5-h er claim will fail. Be cause Ba ttle must prove all three elements, summary judgme nt wo u l d b e

appropr iate i f t h e t ri al court corr ectly deter mined that Ba

ttle could not prove any one of the three elements. The trial court deter mined that Ba ttle could not p ro v e t he second element, adver se employ ment action. There fore
, the t ri al court did not err by g ranting summary judgme nt without first deter mining whether the speec h was protec ted. Howeve r, the issue of whether summary judgme nt was appr opriately g rante d is not fully

answe red by

this finding.

b. Adve rse Employm ent Action

I n order to establish her claim, Ba ttle must prove that she was subject to adver se employ ment action. I n other words, Ba ttle must prove that she was subject to action by her employ er that “would chill an ordina

ry person in the e x erc ise of his or her First Amendme nt rig hts.” Haynes, 474 F.3d
at 362. The trial court found that the action taken by the Appellee s was a war ning to the nurses that, if they did not perf

orm their require d duties, their jobs would be terminated. The trial court held that this di d n o t am o u nt to “neg ative action towards the plaintiffs’ employ ment.” The trial court also found that there had been “cold shoulder trea tment,” but that any such conduct was justified and

rea sonable.

After revie wing the rec ord, howeve r, we find that there are materia l issues of fac t reg arding the issue of adver se employ ment action, m ak i n g s u m m ary judgme nt inappropria te at this time. Appellee s stated in their Statement of Undisputed Fa cts, Parag raph Eig hteen, “Plaintiff Ba ttle states Commi ssioner Be tts reta liated ag ainst her by writing her a letter of commendation.” I n her response , Ba ttle denied this statement of fac t, and stated that the Appellee s ei t h er “o v er l ook or ignor e the complete testimony of Nurse Ba ttle, which itemiz es the methods in which Def endant Be tts reta liated
ag ainst her. ” I t appea

rs to this Court, that there is a fac tual dispute about the alleg ed conduct constituting the re taliatory action. Without knowing exactly what the alleg ed reta liatory action is, it is i m p o ssible for the trial court to deter mine as a matter of law, whether there was any adver se employ ment action. Consequently
, we find that summary judgme nt is inappropria te on the basis

3 that Ba ttle did not suffer a ny adver se employ

ment action.

II. Qualified Im m uni ty

Our analy sis does not end with the First Amendment cl ai m , as t he Appellees m ay still be

en t i t l ed t o summary judgme nt on the basis of qualified immunit y

. First, we addre ss Ba ttle ’s contention t hat t he trial court abused i ts discretio n i n allowing the Appellees to asser t the defense

T h e t r i a l c o u r t e x p l i c i t l y s t a t e d t h a t i t w a s n o t m a k i n g a r u l i n g a s t o w h e t h e r t h e s p e e c h w a s p r o t e c t e d o r n o t 3

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

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

. W e d o n o t r e v i e w t h e f a c t s , d i s p u t e d o r u n d i s p u t e d
, o n t h e i s s u e

o f w h e t h e r t h e s p e e c h w a s p r o t e c t e d

. T h e t r i a l c o u r t m a d e a f i n d i n g a s t o t h e r e a s o n a b l e n e s s o f t h e a c t i o n t a k e n

. T h e d e t e r m i n a t i o n t h a t c o n d u c t i s r e a s o n a b l e o r j u s t i f i e d i s a n e l e m e n t t o d e t e r m i n i n g w h e t h e r t h e s p e e c h i s p r o t e c t e d

. C o n n i c k
, 5 4 7 U

. S

. a t 4 1 8

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

w a s t a k e n

.
-6-of qualified immunit y

. Ba ttle submits that the Appellee s only raised this de fense in the ir response

to her reply in opposition to the Motion for Summary J udg ment, and that she suffe red “pre judice in the form of additional briefing and delay ” when the trial court allowed the Appellee s to addre ss this issue in supplemental pleading s. Ba ttle fails, howeve r, to note that Appellee s raised this defe nse in both their orig inal answe r and in their amende d answe r. Additionally
, when order ing supplemental briefs, qualified immunit y was only one of the four issues which the trial court order ed both parties
to addre ss. We cannot find that the trial court abused its discr etion in allowing Appellee s to asser t qualified immunity

.

“Government officia ls perf orming discretionar

y functions g ener ally are shielded from liability for civil damag es insofar as their conduct does not violate clearly established st atutory or constitutional rig hts of which a rea sonable person would have known.” Harlow v. Fitzgerald
, 457 U.S. 800, 818 (1982). The qualified immunit y privi l ege enti tles a party to “immunity from suit rathe r than a mere defe nse to liability .” Mitchell v. Forsyth
, 472 U.S. 511, 526 (1985). There is a “‘tripa rtite’ proce dure for evalua ting claims of qualified immunit y .” Moldowan v. City of Warren, 578 F.3d 351, 375 ( 6 Cir. 2009)(quoting Willi am s v. Mehra , 186 F.3d 685, 691 ( 6 Cir. 1999). t h t h

“F irst, [the court] must dete rmine whether a constitutional violation

occur red; sec ond, [t he cour

t] must determine whe ther the right that

was violated was a clea

rly established rig ht o f wh i ch a rea sonable
person would have known; finally
, [t he court] deter mine[s] whether the plaintiff has alleg ed sufficie nt fac ts, and supported the alleg ations by sufficie nt evidenc e, to indicate that what the officia l alleg edly did

was objectively unrea sonable in light of the clea rly established constitutional rights.”

Willi am s, 186 F.3d at 691 (citing Dickerson v. McClellan, 101 F.3d 1151,1157-58 (6 Cir. 1996)). t h The United State Supreme Court in Pearson v. Callah an , --- U.S.

--- , 129 S.Ct

. 808, 172 L .Ed.2d 565 (2009), rec ently clar ified that a court considering the issue of qualified immunit y is fr ee to consider thes e t h re e questions in whateve r order is appropr iate considering the case befor e it. Pearson
, 129 S.Ct

. at 818. Once the defe nse is proper ly raised, the burden is on the Plaintiff to show that the def

endants a re not e ntitled to qualified immuni ty

. Moldowan , 578 F.3d a t 375.

I n considering whether a constitutional violation has occ u rred, the court must consider whether “[ t ] ak en i n the light most favor able to the party asser ting the injury
, do the fac ts alleg ed show the office r’s conduct violated a constitutional righ t ? ” S a ucier v. Katz
, 533 U.S. 194 (2001)( abrog ated on other g rounds by Pearson, 129 S. Ct. 808). I n deter mining whether

the rig ht violated was “ clea

rly established,” the inquiry “must be underta ken in lig ht of the spec ific conte x t of t he case, not as a b ro ad gen er al proposit ion.” Moldowan
, 578 F.3d at 375 (citing Saucier
, 533 U.S. at 201). Thus, “the contours of t h e ri gh t m u s t be sufficie ntly clea r that a rea sonable officia l would understand what he is doing violates that rig ht.” Anderson v. Creighton
, 483 U.S. 635, 640 (1987). This is not to say that courts must have ag ree d on a prec ise standard. Saucier, 533 U.S. at 201.

-7-The trial court deter mined that the rig ht alleg edly violated was not clea rly established. Thus, the trial court deter

mined that, in the context of this case, it was not cle arly established that B attle had a constitutional rig ht to take the action she took reg arding the “mini-pharma cy ” policy

. Whil e the issue of qualified immunit y is a question of law, Hall v. Shi pley
, 932 F.2d 1147, 1150 (6 Cir. t h 1991), it often involves first answe rin g q u es t ions of fac t. Moldowan
, 578 F.3d at 371; see also Johns on v

. Jones , 515 U.S. 304, 313 (1995). Summary judgme nt is inappropria te when there are “fa ctual disputes on which the issue of immunit y turns such that it cannot be deter mined befor e trial whether the [officials] did acts which violate cle arly established rig hts.” Hall , 932 F.2d a t 1154.

To deter mine whether a rig ht is clea rly established, the trial court must examine the specific
context of the case

. Maldowan
, 578 F.3d at 375. As stated by the trial court, it could not deter mine whether Ba ttle was speaking pursuant to her officia l duties, or as a private citizen. Additi o n all y , Ba ttle contends that she was speaking due to her conce rns about t he welfa re of the patients at the
state ment al h o s p i tal. The Appellee s contend, howeve r, that she was speaking as a disgr untled employ ee, upset about her job duties. These disputes prese nt two starkly differ ent contexts in which
to deter mine whether Ba ttle had a clea rly protec ted consti t u t i onal rig ht to speak out ag ainst the “mini-pharma cy ” policy

. Fur ther, qualified immu

n it y would not apply if the Appellee s’ conduct was

unrea sonable “in light of the clea rly established constitutional rig hts.” Willi am s , 186 F.3d at 691. Any deter mination for the purpose of summary judgme nt that Appellees’ actions were reasona ble would be prema ture as fac tual disputes rema in conce rning what the conduct was. Be cause of these disputes, summary

judgme nt on the issue of qualified immunity was inappr opriate.

Finally , it appear s from the Battle’s br ief that she a lso contends that the trial c ourt err ed in allowing Appellee s to submit a Motion for J udg ment on the Pleading s afte r the deadline for dispositi ve motions under the Schedu l i n g Orde r had passed. “Matter s perta ining to scheduling order s are within the sound discretion of the trial court.” Waters v. Cook
, No. M2007-01867-COARM-CV, 2008 WL 4072104 (Tenn. Ct. App. 2008). We c annot find that the t rial cour t abused its discretion in allowing Appellee s to submit a Motion for J udg ment on the Pleading s. Howeve r, we do find that the trial court err ed in g ranting the Appellee ’s Motion for J udg ment on the Pleading s. 4 A motion for judg ment on the pleading s is in eff ect a motion to dismiss for f ailure to state a

claim
upon which relief can be g rante d. Weldron v. Delff s , 988 S.W .2d 182, 184 (Tenn. Ct. App. 1998). I n considering a motion for judgme nt on the pleading s, the trial court must acc ept as true “all wellpleade d fac ts and all rea sonable infere nces draw n there from” alleg ed by the plaintiff. Cherokee Coun try Clu b, Inc. v

. City of Knoxvill e , 152 S.W .3d 466, 470 (Tenn. 2004)(quoting McClenahan

v. Coo l ey , 8 0 6 S .W.2d 767, 769 (Tenn. 1991)). This deter mination is a question of law and is

re v i ew ed de novo , with no presumption of corr ectne ss. Bowden v. Ward
, 27 S.W .3d 913, 9 1 6 (Tenn. 2000). Upon revie w of the rec ord, acc epting all well-plea ded fac ts and rea sonable infere nces draw n there from as true, we cannot say that Ba ttle has failed to state a claim upon which relief may be g rante d. Consequently
, we reve rse the trial court’s decision to g rant Appellee s’ Motion for J udg ment on the Pleading s.

T e n n

. R

. A p p

. P

. 1 3 ( b ) a l l o w s t h i s C o u r t t o c o n s i d e r i s s u e s n o t p r e s e n t e d f o r r e v i e w i n t h e i n t e r e s t o f f a i r n e s s 4

a n d j u s t i c e

. A a r o n v . A a r o n , 9 0 9 S

. W

. 2 d 4 0 8
, 4 1 2 ( T e n n

. C t

. A p p

. 1 9 9 5 )

.
-8-Conclusion

I n sum, we find that the trial court did not err in considering the M o t i o n for Summary J udg ment befor e deter

mining whether the speec h was protec ted, in allowing the Appellee s to asser t the defe nse of qualified immunit y in their Motion for Summary J udg ment, or i n co nsidering Appellee s’ M otion for J udg ment on the Pleading s. Howeve r, because there are material iss ues of fac t in dispute, we find that the t rial cou rt er re d in g ranting summary judgme nt. Acc ording ly
, we

reve rse the trial court’s decision to g rant summary judgme nt to the Appellee s. Fur ther, we find that the trial cour

t erre d in g ranting Appellee s’ M otion for J udg ment on the pleading s and re verse that decision as well. We rema nd fo r fu rt h er proce eding s consistent with this opinion. Costs of this
appea l are taxed one-ha lf to the Appellant, Patricia Ba ttle, and her surety , and one-ha lf to the Appellee s, Virg inia Be tts, L y nn McDona ld, L i n d s ey Doug las, and Gly nda Heinicke for which execution may

issue if nec essar

y

.

___________________________________

J . STEVEN STAFF ORD, J

.

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