Harris-Anderson v. Quince Nursing and Rehabilitation Center, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

VANESSA HARRIS-ANDERSON, )

)

Plaintiff, )

)

v. ) No. 2:19-cv-02032

)

QUINCE NURSING AND )

REHABILITATION CENTER, LLC, )

)

Defendant. )

ORDER

Plaintiff Vanessa Harris-Anderson brings this action against

Defendant Quince Nursing and Rehabilitation Center, LLC (“Quince”)

for common law retaliatory discharge and retaliatory discharge in

violation of the Tennessee Public Protections Act (“TPPA”), Tenn.

Code Ann. § 50-1-304. (ECF No. 1.) Before the Court is Quince’s

Motion for Summary Judgment, filed on January 30, 2020. (ECF Nos.

27-28.) Harris-Anderson responded on March 9, 2020. (ECF No.

35.) Quince replied on March 23, 2020. (ECF No. 36.)

For the following reasons, Quince’s motion is GRANTED.

I. Background

Quince is a nursing home located in Memphis, Tennessee. (ECF

No. 35-2 ¶ 1.) Harris-Anderson served as Quince’s Director of

Food Services (Dietary Manager) from sometime in 2014 to August

2018. (Id. ¶ 2.) As Dietary Manager, Harris-Anderson ran the

dietary department and kitchen, served as the kitchen’s sole member

of management, and supervised 15-20 cooks, aids, and hostesses.

(Id. ¶ 4.) She was required to supervise food production,

including serving the correct food to patients, and to purchase

food and supplies. (Id. ¶ 9.)

To receive federal funding, Quince must comply with federal

regulations promulgated by the Center for Medicare and Medicaid

Services and with Tennessee regulatory standards for nursing

homes. (Id. ¶ 16.) The relevant federal and state regulations

include general requirements that Quince meet the nutritional

needs of residents in accordance with established national

guidelines and recognized dietary practices. (Id. ¶ 18.) Neither

the relevant federal nor the relevant state regulations state a

specific amount of protein each resident must receive per day or

meal. (ECF No. 27-12 ¶¶ 7-8.)

A third-party company develops Quince’s menus in accordance

with national dietary standards, and Quince incorporates those

standards into Quince’s Menu and Diet Guidelines Policy (“Menu

Guidelines”). (ECF No. 35-2 ¶ 20.) Quince’s Menu Guidelines list

“6 Ounces of Edible Protein” as part of the “Daily Menu

Requirements.” (ECF No. 28-3 at 2.) A menu is developed

seasonally in accordance with the Menu Guidelines for each meal,

and that menu is placed in a binder in the kitchen weekly. (ECF

No. 35-2 ¶ 22.) Each Friday, Harris-Anderson used those menus and

the recipes for each meal listed on the menu to calculate and order

the amount of food needed for the following week. (Id. ¶ 23.)

On Friday, August 3, 2018, Quince’s menu listed a chef’s salad

with turkey as the protein for the primary meal at dinner. (Id.

¶ 24.) Both Harris-Anderson and Assistant Dietary Manager Branden

Jewell worked Wednesday, August 1, 2018; Jewell did not work

Thursday, August 2, 2018, and Harris-Anderson did not work Friday,

August 3, 2018. (Id. ¶ 25.) The turkey for the August 3, 2018

dinner meal, if available, would have been frozen and placed in

the refrigerator to thaw on August 1, 2018. (Id. ¶ 26.) Harris-

Anderson did not check the refrigerator on Thursday, August 2,

2018 to confirm that the turkey was available and thawed for the

next day’s dinner meal service. (Id. ¶ 27.)

On the afternoon of Friday, August 3, 2018, Jewell contacted

Harris-Anderson and told her there was no turkey for the dinner

meal. (Id. ¶ 28.) Harris-Anderson told Jewell that frozen chicken

could be used as a substitute. (Id. ¶ 29.) Jewell approached

Laura James, Quince’s registered dietician, to inform her that

there was no turkey for the dinner meal and asked that she make a

menu change and substitute chicken for the turkey. (Id. ¶ 30.)

James confirmed that there was no turkey in the kitchen and updated

the menu to substitute chicken for turkey on the chef’s salad.

(Id. ¶ 31.) Cook Tracey Harris called Harris-Anderson at

approximately 6:00 p.m. that night and notified her that the chef’s

salad had been served without meat. (Id. ¶ 32.) Harris-Anderson

contacted Jewell, who said he had insufficient time to thaw the

chicken before the dinner meal was served. (Id. ¶ 33.)

Harris-Anderson did not report the incident with the chef’s

salad to Selena Knox-Binion, Quince’s executive director, over the

weekend because Harris-Anderson knew she “was going to hear about

it Monday morning” from Knox-Binion. (Id. ¶ 34.) Harris-Anderson

did not contact anyone from the Tennessee Department of Health

(“TDH”) or the local Ombudsman1 to report the chef’s salad

incident. (Id. ¶ 36.)

On Monday morning, the local Ombudsman visited Quince. (Id.

¶ 37.) When Shirley Crump, the director of nursing, learned the

Ombudsman was at Quince, she approached him while he was reviewing

a bulletin board. (Id. ¶ 38.) The Ombudsman informed Crump he

had received a complaint about the chef’s salad. (Id. ¶ 39.) One

of the residents had called the State of Tennessee and reported

the lack of meat. (ECF No. 35-3 at 71:7-12.)

1 An Ombudsman is a local person who serves as a liaison to resolve

problems between residents and long-term care facilities. (ECF No. 27-

2 ¶ 36 n.2) The TDH ensures compliance with federal and state regulations

through its survey and enforcement division made up of agents, known as

surveyors, who inspect facilities, investigate complaints made about

facilities, and issue deficiency citations if they find violations of

federal or state regulations. (Id.) The Ombudsman cannot cite

deficiencies or penalize facilities and instead reports concerns to the

TDH. (Id.)

The parties dispute the events that occurred during the

Ombudsman’s visit. At some point, Harris-Anderson spoke with the

Ombudsman about the chef’s salad incident. (See id. at 59:1-

60:1.) Harris-Anderson told the Ombudsman that she had received

a telephone call from one of her workers that there was no meat

for the chef’s salad. (Id. at 59:13-17.) Crump and Knox-Binion

testified that they had no knowledge of Harris-Anderson meeting or

speaking to the Ombudsman. (ECF No. 27-2 ¶ 45.) Harris-Anderson

testified that Knox-Binion called her to Knox-Binion’s office and

Harris-Anderson spoke with the Ombudsman there, in the presence of

Knox-Binion. (See ECF No. 35-3 at 59:1-60:1.) Harris-Anderson

testified that after the Ombudsman had left, Knox-Binion asked

Harris-Anderson if “she knew what she had done by speaking with

the ombudsman.” (Id. at 71:13-23.)

Following the Ombudsman’s visit, Harris-Anderson and Jewell

were suspended pending Quince’s internal investigation into the

chef’s salad incident. (See ECF Nos. 58-62.) After the internal

investigation, Knox-Binion determined that Harris-Anderson had

committed misconduct by failing to report the chef’s salad incident

to her and had failed to meet job requirements by not ordering the

appropriate supplies to ensure that turkey was available on August

3, 2018. (See ECF No. 70.) On August 14, 2018, Harris-Anderson

was terminated. (ECF No. 27-5 at 16.) Jewell was issued a final

written warning, but was not terminated. (ECF No. 27-2 ¶ 73.)

After the Ombudsman’s visit, the TDH sent a surveyor to

investigate the Chef’s Salad incident. (ECF No. 35-2 ¶ 75.) After

investigating, the surveyor concluded that Quince had not violated

any federal or state regulations. (Id. ¶¶ 80-81.)

In November 2018, Harris-Anderson brought a complaint for

retaliatory discharge in Tennessee state court. (ECF No. 1-1 at

2-7.) On January 10, 2019, Quince removed the case to this Court.

(ECF No. 1 at 1-5; No. 1-1 at 9.) On January 30, 2020, Quince

filed its Motion for Summary Judgment. (ECF Nos. 27-28.)

II. Jurisdiction and Choice of Law

The Court has diversity jurisdiction. 28 U.S.C. § 1332. The

amount in controversy exceeds $75,000. Harris-Anderson seeks

$100,000 in compensatory and $100,000 in punitive damages. (ECF

No. 1-1 at 6 ¶¶ (c) & (d).)

The parties are completely diverse. Vanessa Harris-Anderson

is a citizen of Tennessee. (ECF No. 1-1 ¶ 1.) Quince is a

Tennessee limited liability company. (Id. ¶ 2.) For purposes of

diversity jurisdiction, limited liability companies have the

citizenship of each of their members. Americold Realty Tr. v.

Conagra Foods, Inc., 136 S. Ct. 1012, 1015 (2016) (citing Carden

v. Arkoma Associates, 494 U.S. 185, 195-96 (1990)); accord Delay

v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir.

2009). The members of Quince are D&N, LLC and DTD HC, LLC. (ECF

No. 1 ¶ 14.) D&N and DTD are New York limited liability companies.

(Id.) D&N’s members are Norbert A. Bennett, the Norbert A. Bennett

Children’s Trust, and the Norbert A. Bennett Grand-Children’s

Trust. (Id. ¶ 15.) Bennett is a citizen of New York. (Id.) The

citizenship of a traditional trust is that of its trustee. See

GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 38-

40 (3d Cir. 2018) (citations omitted); Tyson v. Lakeland Nursing

& Rehab. Ctr., LLC, No. 3:15-cv-571, 2015 WL 13650756, at *5 (S.D.

Miss. Dec. 11, 2015). The trustee of the Norbert A. Bennett

Children’s Trust and the Norbert A. Bennett Grand-Children’s Trust

is Ronald Bennett, who is also a citizen of New York. (ECF No. 1

¶ 15.) DTD’s members are Donald T. Denz and the Donald T. Denz

Irrevocable Trust. (Id. ¶ 16.) Denz is a citizen of New York.

(Id.) The trustee of the Donald T. Denz Irrevocable Trust is

Martin Clifford, who is also a citizen of New York. (Id.)

The Court has diversity jurisdiction because the parties are

completely diverse and the amount in controversy exceeds $75,000.

28 U.S.C. § 1332.

Federal courts sitting in diversity apply state law to issues

of substantive law and federal law to procedural issues. Gasperini

v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (citing

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938)). When there

is no dispute that a certain state’s substantive law applies, the

court need not conduct a choice-of-law analysis sua sponte. See

GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir.

1998). The parties assume in their respective briefs that

Tennessee substantive law governs Harris-Anderson’s claims. The

Court will apply Tennessee substantive law.

III. Standard of Review

Under Federal Rule of Civil Procedure 56(a), a court must

grant a party’s motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The moving party must show that the nonmoving party,

having had sufficient opportunity for discovery, lacks evidence to

support an essential element of her case. See Fed. R. Civ. P.

56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir.

2018).

When confronted with a properly supported motion for summary

judgment, the nonmoving party must set forth specific facts showing

that there is a genuine dispute for trial. See Fed. R. Civ. P.

56(c). “A ‘genuine’ dispute exists when the plaintiff presents

‘significant probative evidence’ ‘on which a reasonable jury could

return a verdict for her.’” EEOC v. Ford Motor Co., 782 F.3d 753,

760 (6th Cir. 2015) (en banc) (quoting Chappell v. City of

Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). The nonmoving party

must do more than simply “show that there is some metaphysical

doubt as to the material facts.” Lossia v. Flagstar Bancorp, Inc.,

895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy, and inexpensive determination of every

action[,] rather than a disfavored procedural shortcut.” FDIC v.

Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (quotation

marks and citations omitted).

IV. Analysis

Under the TPPA, it is unlawful to discharge an employee

“solely for refusing to participate in, or for refusing to remain

silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b);

see also Rhea v. W. Tenn. Violent Crime & Drug Task Force, No.

2:17-cv-02267, 2018 WL 7272062, at *6 (W.D. Tenn. Dec. 12, 2018).

“[I]llegal activities” are defined as “activities that are in

violation of the criminal or civil code of [Tennessee] or the

United States or any regulation intended to protect the public

health, safety or welfare.” Tenn. Code Ann. § 50-1-304(a)(3);

Weinert v. City of Sevierville, No. 201800479COAR3CV, 2019 WL

319892, at *5 (Tenn. Ct. App. Jan. 23, 2019).

The elements of a retaliatory discharge claim under the TPPA

are: “(1) the plaintiff was an employee of the defendant; (2) the

plaintiff refused to participate in or remain silent about illegal

activity; (3) the defendant employer discharged or terminated the

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

plaintiff’s employment solely for the plaintiff’s refusal to

participate in or remain silent about the illegal activity.”

Weinert, 2019 WL 319892, at *5 (citing Webb v. Nashville Area

Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011); Sykes

v. Chattanooga Hous. Auth., 343 S.W.3d 18, 27 (Tenn. 2011); and

Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015)). The

second element –- plaintiff’s refusal to remain silent about an

illegal activity –- requires a plaintiff to “identify a specific

statutory or regulatory provision that was implicated by h[er]

employer’s conduct,” and show that her “whistleblowing activity

‘serve[d] a public purpose [that] should be protected.’”

Konvalinka v. Fuller, No. E201700493COAR3CV, 2019 WL 2323831, at

*5 (Tenn. Ct. App. May 31, 2019) (citing Guy v. Mut. of Omaha Ins.

Co., 79 S.W.3d 528, 537 n.4 (Tenn. 2002)). “[A]n employee cannot

meet [the second element] simply by claiming that [s]he believed

h[er] employer’s actions were ‘wrong’ or against ‘public policy.’”

Richmond v. Vanguard Healthcare Servs., LLC, No.

M201402461COAR3CV, 2016 WL 373279, at *6 (Tenn. Ct. App. Jan. 29,

2016).

At summary judgment, retaliatory discharge claims proceed

using a burden-shifting framework:

(1) First, the plaintiff has the burden of establishing a

prima facie case of retaliatory discharge by a

preponderance of the evidence;

(2) If the plaintiff establishes a prima facie case for

retaliatory discharge, the defendant must produce

evidence of one or more legitimate, non-retaliatory

reasons for the discharge. This is a burden of

production, not persuasion;

(3) If the defendant produces evidence of a non-retaliatory

reason for the discharge, the plaintiff’s prima facie

case is rebutted, and the burden shifts to the plaintiff

to demonstrate that the reason given by the defendant

was only pretext for unlawful retaliation.

Sweat v. City of McMinnville, No. M201701141COAR3CV, 2018 WL

1448740, at *3 (Tenn. Ct. App. Mar. 23, 2018) (citing Tenn. Code

Ann. § 50-1-304(f)); see also Williams, 465 S.W.3d at 111 n.15.

Establishing a prima facie case is a “formidable burden,” Clark v.

Hoops, LP, 709 F. Supp. 2d 657, 670 (W.D. Tenn. 2010) (citing Hill

v. Perrigo of Tennessee, No. M2000-02452-COA-R3CV, 2001 WL 694479,

at *5 (Tenn. Ct. App. June 21, 2001)), and requires meeting a

“stringent standard,” Williams, 465 S.W.3d at 110.

The first and third elements are not in dispute. (ECF No.

27-1 at 4.) Quince argues, inter alia, that Harris-Anderson cannot

succeed on the second element because she cannot “identify a

specific statute or regulation” that Quince violated, and that she

alleges only a general violation of public policy. (See id. at 5-

8.) Quince alternatively argues, inter alia, that Harris-Anderson

cannot establish the fourth element of her claim because her

conversation with the Ombudsman was not the sole reason for her

termination. (Id. at 9-13.) Quince’s first argument is

sufficient. Harris-Anderson cannot establish a prima facie case

because she fails to cite a specific statutory or regulatory

provision that Quince violated.

To establish a prima facie case of retaliatory discharge,

Harris-Anderson must prove that she refused to participate in or

remain silent about illegal activity. That requires

“identify[ing] a specific statutory or regulatory provision that

was implicated by [the] employer’s conduct.” Konvalinka, 2019 WL

2323831, at *5.

Harris-Anderson identifies no law or regulation. She asserts

that she had a “real” and “reasonable” belief that regulations

governing the facility had been violated. (ECF No. 35-1 at 14-

16.) She testified that she did not think serving the salad

without meat was illegal. (ECF No. 35-3 at 60:12-14.) She

testified she “believe[d] something was going to happen” because

the facility did not serve meat on the salad. (Id. at 60:2-5.)

She testified she thought not serving meat was against the dietary

regulation of “not having the proper protein that [the residents]

needed.” (Id. at 60:15-20.) Harris-Anderson argues that, “the

fact that [she] did not state a specific regulation does not remove

the fact that there were, in fact, regulations that required that

meals served to the residents of [Quince] [contain] a certain

amount of protein.” (ECF No. 35-1 at 16.)

The “dietary regulation” to which Harris-Anderson refers is

Quince’s internal Menu Guidelines that list “6 Ounces of Edible

Protein” as part of the “Daily Menu Requirements.” (ECF No. 28-3

at 2.) Quince’s internal dietary guidelines are not an applicable

“regulation” protected by the TPPA because they are not a

regulation or law of the State of Tennessee or the United States.2

See Tenn. Code Ann. § 50-1-304(a)(3).

Harris-Anderson argues that “the TPPA’s ‘protection extends

to employees who have reasonable cause to believe a law,

regulation, or rule has been violated or will be violated, and in

good faith report it.’” Gore v. Chardonnay Dialysis, Inc., No.

3:11-cv-00808, 2012 WL 3552882, at *8 (M.D. Tenn. Aug. 16, 2012)

(quoting Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997)); (ECF

No. 35-1 at 13-15). That is true. A plaintiff need not prove

that a law or regulation was violated to succeed on the second

element. See Mason, 942 S.W.2d at 472. But a specific law or

regulation must still be identified. Konvalinka, 2019 WL 2323831,

at *5 (citing Gossett v. Tractor Supply Co., 320 S.W.3d 777, 788-

89 (Tenn. 2010); and Mason, 942 S.W.2d at 472)).

2 Federal and state regulations require that Quince meet the nutritional

needs of residents in accordance with established national guidelines

and recognized dietary practices, but do not state a specific amount of

protein each resident must receive per day or meal. (ECD No. 27-2 ¶¶ 18-

19.) Harris-Anderson does not cite those federal or state regulations

or argue that her claim arises from violation of those regulations.

Harris-Anderson’s general statements that she thought Quince

had violated some dietary regulations are insufficient. See Clark

v. Hoops, 709 F. Supp. 2d 657, 670-71 (W.D. Tenn. 2010) (granting

summary judgment where plaintiff alleged he was terminated for

“reporting building and safety code violations to the Shelby County

building inspector” but failed to identify a specific statute or

regulatory provision); Sanders v. Henry Cty., No.

W200801832COAR3CV, 2009 WL 1065916, at *11 (Tenn. Ct. App. Apr.

21, 2009) (“Plaintiff did not establish this essential element of

his statutory retaliatory discharge claim simply by stating his

belief that [defendant’s] actions were wrong.”).

Harris-Anderson’s failure to identify a specific law or

regulation is fatal to her prima facie case. See Tidwell v.

Holston Methodist Fed. Credit Union, No. E201901111COAR3CV, 2020

WL 3481537, at *3 (Tenn. Ct. App. June 25, 2020) (TPPA claim

“fail[ed] as [a] matter of law” because plaintiff’s allegations in

support of her claim “fail[ed] to identify any sections of the

Tennessee or United States Code or any regulations intended to

protect the public health, safety, or welfare”) (citation

omitted). Harris-Anderson’s TPPA claim fails as a matter of law.

In her brief, Harris-Anderson argues that she brings a common

law retaliatory discharge claim as well as a TPPA retaliatory

discharge claim. (See ECF No. 35-1 at 10-11.) Her common law

retaliatory discharge claim fails because the 2014 amendments to

the relevant section of the TPPA expressly abrogated common law

retaliatory discharge claims for refusing to remain silent about

illegal activities. Tenn. Code Ann. § 50-1-304(g); Williams, 465

S.W.3d at 110 n.11.

Quince’s Motion for Summary Judgment is GRANTED.

V. Conclusion

For the foregoing reasons, Quince’s Motion for Summary

Judgment is GRANTED.

So ordered this 5th day of August, 2020.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE