The opinion
08/16/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 24, 2017 Session
LATISIA UPSHAW v. SUNRISE COMMUNITY OF TENNESSEE, INC.
Appeal from the Circuit Court for Knox County
No. 3-491-11 Deborah C. Stevens, Judge
___________________________________
No. E2016-01005-COA-R3-CV
___________________________________
This appeal concerns a claim of retaliatory discharge. After a trial before a jury,
judgment was entered against the defendant employer. The plaintiff was awarded
$225,000 in compensatory damages and $200,000 in punitive damages. The employer
appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which Charles D. Susano,
Jr., and Thomas R. Frierson, II, JJ., joined.
Tonya Kennedy Cammon, Chattanooga, Tennessee, for the appellant, Sunrise
Community of Tennessee, Inc.
J. Myers Morton, Knoxville, Tennessee, for the appellee, Latisia Upshaw.
OPINION
I. BACKGROUND
In Tennessee, services to persons with developmental disabilities are administered
by the Tennessee Department of Developmental Disabilities (“DIDD”). Sunrise
Community of Tennessee, Inc. (“Sunrise”) is an organization paid by the State to provide
medical care and services to serve such individuals for the duration of their lives. An
employee at Sunrise testified that
[s]upported living is the term that involves folks who live in
their own homes in the community. [Sunrise] provide[s]
staffing to them around the clock. The staff is there to help
them to learn skills to be as independent as they possible can
be but also to provide support to them for things that they
can’t do on their own. So the staff is there to help them with
personal hygiene, grooming, and dress. Preparing meals in
their home. They provide transportation for them to medical
appointments, go out in the community, to go visit with
family and friends, to go to church, to be involved in
community activities of their choosing.
The plaintiff in this case, Latisia Upshaw, began working for Sunrise as an office
worker in 2008. At some point, Upshaw began providing in-home Licensed Practical
Nurse (“LPN”) care to Sunrise’s client, H.G. Upshaw typically worked 16 hour shifts on
Saturday and Sunday.
H.G.’s many medical problems included gastroesophageal reflux disease
(“GERD”), a history of a gastrointestinal (“GI”) bleed, difficulty swallowing (dysphagia),
and chronic obstructive pulmonary disease (“COPD”). She was on continuous oxygen
and tube feedings. A hospice patient, H.G. was limited to occasional “pleasure feedings”
of 2 teaspoons of thin liquids with each meal. Because overfeeding of H.G. could lead to
the development of aspiration pneumonia, standing doctor’s orders provided that H.G.
was to be taken immediately for x-rays and lab work if she presented with symptoms of
that condition.
Throughout each shift, Sunrise’s nurses were required to document the activities
and medical events of patients. During an assessment, a nurse first checks the nurses’
notes, summary sheets, records and logs from previous shifts in order to understand the
patient’s condition. According to Upshaw, upon starting her shifts, she began noticing
that H.G. was exhibiting symptoms of lung congestion, wheezing, fever, and strong
smelling urine. She was also vomiting thick green and yellow phlegm. According to
Upshaw, these are signs of overfeeding. Additionally, Upshaw claimed to notice
discrepancies regarding feeding in the nursing records from the previous nursing shifts.
One summary sheet reflected H.G. being fed 2 tablespoons of pleasure foods instead of 2
teaspoons. According to Upshaw, on June 21, 2010, LPN Marie Ford documented at the
end of her shift that H.G. “did not eat . . . .”; however, the oncoming nurse wrote that
when she arrived for her shift, H.G. was seated at the dining room table eating food
prepared by the day nurse, i.e., Ford. Another feeding record denoted “5tp of potato
salad.” Upshaw also contends that she observed H.G. projectile vomiting chunks of non-
pureed food. Additionally, H.G. informed Upshaw that Ford was overfeeding her.
Upshaw recalled that H.G. would argue with her about wanting more food and would
sometimes say, “Marie gives me more.” Upshaw concluded that Ford was documenting
that she was providing H.G. with the proper amount of food, but she was actually giving
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her more.
According to Upshaw, she reported her thoughts regarding H.G.’s overfeeding in
writing with Sunrise, as the Sunrise Employee Handbook required nurses to report
suspected incidents of neglect to Sunrise in order that the employer could “conduct its
own investigation . . . .” Upshaw recalled that Sunrise’s nurses were specifically and
repeatedly instructed to report neglect internally up a chain of command. Thus,
according to Upshaw, she began at the end of 2009 and continued up until September
2010 to report H.G.’s overfeeding to a number of staff at Sunrise, including her
supervisor, her supervisor’s supervisor, incident management, and Sunrise’s compliance
officer. Upshaw claims that she even questioned a State employee about how she could
file a grievance to stop H.G.’s overfeeding. Instead of taking action, however, Upshaw’s
supervisor and director of nursing, Cathie Cardwell (“the DON”) told her that the nurse
involved, Ford, “was thinking with her heart . . . .”
Retaliation
Photographs and Purchases
According to Upshaw, after she reported H.G.’s overfeeding, Ford and others
began to retaliate against her. On May 12, 2010, four months prior to H.G.’s
hospitalizations, Sunrise gave Upshaw a “Disciplinary Warning Notice & Action Taken”
for two “violations” of company policy: “Photographing individual without written
consent & Purchasing gifts (clothes) for individual against company policy.”
The violations arose from H.G.’s request to have her hair colored. H.G.’s sister
(her conservator) and the DON each agreed to allow the coloring of H.G.’s hair. Once
H.G.’s makeover occurred, including make up and a new outfit,1 the sister arrived for a
party on February 17, 2010. The sister requested pictures of H.G. with the Sunrise staff.
Because Upshaw had taken some of the pictures at the request of the sister, she was cited
for violating corporate policy2 and received a formal write up for this incident on May 12,
2010.3
1
According to Upshaw, H.G. used her money to purchase the outfit.
2
Some Sunrise officials internally questioned whether it was appropriate to reprimand
Upshaw for photographing H.G. without consent because the sister had asked her to take the
pictures (“seems like they were giving her a hard time . . . why wouldn’t the DON use some
common sense in this regard?”). In fact, Sunrise’s Human Resources Director opined in an
email that these were inappropriate reasons for taking disciplinary actions or for terminating
Upshaw. Copies of the photographs were paid for by H.G.
3
According to Upshaw, H.G. enjoyed going out with her on Saturdays to shop. Upshaw
contends that other Sunrise workers began making sure that all H.G.’s money for the week was
spent before Upshaw’s Saturday shift so that H.G. would act out toward Upshaw when she could
not go shopping.
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License Renewal
Another write up was received when Upshaw allowed her nursing license to
lapse.4 Upshaw’s LPN license, which required renewal every two years on her birthday,
expired on April 30, 2010. Upshaw asserts that weeks prior to that date, on March 15,
2010, she had scheduled vacation time for the weekend of her birthday. While she was
off, a flood struck Nashville and she was unable to renew her license before her next shift
the following weekend. According to Upshaw, if the flood had not occurred, her license
would have been renewed within 24 hours before she had to return to work again.
However, after she was unable to quickly renew her license, Upshaw took two additional
vacation days until the renewed license was received. Sunrise notes that the lapse of the
nursing license, on its own, was grounds for immediate termination of Upshaw’s
employment.
Upshaw claims that Sunrise provided reminders for license renewals to
employees, but she was not provided with one. Indeed, Sunrise employee Ann Williams
admitted that she had “talked with several” nurses and they “indicated that . . . a reminder
notice [was sent] to them in the mail.” The trial court observed that Sunrise did not
dispute that the employer regularly placed notifications in the monthly newsletter of
renewal dates for licenses and certificates but claimed that there was no policy requiring
them to do so.
H.G.’s Hospitalization
On September 4, 2010, Upshaw assessed H.G. and determined that she was
exhibiting symptoms of crackling sounds in her lungs, wheezing, decreased oxygen
saturation, and vomiting. As directed by the standing orders, Upshaw took H.G. to
outpatient services to have x-rays and lab work completed. According to Upshaw, she
advised her supervisor at that time that H.G. was being overfed and that she was taking
the client for tests. As they were leaving outpatient services, H.G. began projectile
vomiting large chunks of food from her mouth and her nose. In response, Upshaw took
H.G. immediately to the emergency room, where she was admitted to the hospital with
pneumonia. Upshaw informed the emergency room doctor that, in her opinion, H.G. had
been overfed non-pureed food.
Prior to Upshaw’s next nursing shift the following Saturday, H.G. had been
released from the hospital back to the nursing care of Sunrise. During Upshaw’s shift, on
4
The “Disciplinary Warning” of record denotes as follows: “Reminded multiple times by
Supervisor & Director of Professional Development prior to expiration. Expired on 4/30/10.
Result of expiration caused other staff to cover 32 hrs. resulting in overtime and hardship on
other staff.” Upshaw contends that she was not “[r]eminded multiple times.”
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September 11, 2010, H.G. again projectile vomited chunks of food and was admitted to
the hospital with double aspiration pneumonia. Upshaw told the same emergency room
doctor that the same person was continuing to overfeed H.G. and that nothing was being
done by the employer to stop it. When H.G. was again released from the hospital back to
the same nurse Upshaw believed was engaging in the overfeeding, Upshaw called the
State hotline to report Sunrise’s failure to stop the alleged neglect. According to Upshaw,
a little over a month later, on October 21, 2010, Sunrise informed her that she was being
fired because she had lied to the emergency room doctor about the overfeeding.
DIDD Investigator
A DIDD investigator investigated Upshaw’s complaint of neglect, requiring
Sunrise to provide documents reflecting H.G.’s medical care. The DIDD investigator’s
file consisted of 281 pages. The first 12 pages of the file are the investigator’s final
report, issued on September 29, 2010. The report describes the investigation and
summarizes all the evidence upon which the investigator relied in making his decision
about whether H.G. was neglected. The DIDD investigator found that he could not
determine definitively that H.G. was being overfed; thus, he could not conclude that there
had been neglect. A physician where H.G. was treated informed the investigator that
there was no medical way to determine for certain if anyone had overfed H.G. because
she could easily aspirate on the fluid that she was receiving through the G Tube. The
investigator’s report did cite Sunrise for late reporting because the alleged problem was
“discovered by agency staff on 09-04-10 and not reported to agency management or
Regional Investigators until 09-15-10.” Sunrise attributed the “late reporting” to
Upshaw. Sunrise’s Williams later testified at trial that “the final thing that caused the
decision to terminate Ms. Upshaw was the late reporting to the State. But that was taken
into consideration when reviewing her personnel file, the cumulative disciplinary actions
that she had on file.” Upshaw claims that reasons given by Williams became the
justification for discharging her after and in retaliation for her reporting the overfeeding
to the State.
The DIDD investigator related that the DON believed an entry concerning H.G.
had been altered and that she had requested Upshaw to meet with her to discuss the
matter. The DON informed the State as follows:
“Please be advised that, in review of the nursing
documentation, it is noted that a nurses entry was possibly
altered on the Service Summary dated 9/3/10 (See attached).
It appears that ‘2 tsp’ was changed to a ‘5 tsp.’ In review of
the narrative summary it is documented as 2 tsp. Even though
this was not Ms. Ford’s entry, it was altered during the time
that she normally works. She happened to be filling in that
day and left at 3 p.m. I was prepared to address the above
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concerns with Ms. Upshaw and had left her voice mails to
return my call prior to her complaint with the State hotline.
Please note, Ms. Upshaw has had two disciplinary warnings
this year. One was for letting her license expire after multiple
reminders from the DON to renew and the other for breaking
company policy. This issue will be her 3rd disciplinary notice
under my supervision and will result in termination. Prior to
my employment with Sunrise, Ms. Upshaw also received a
disciplinary notice f[ro]m the previous Director of Nursing for
‘rudeness, belittling staff and self gratification . . . .’”
According to Sunrise, after being asked to report to the DON’s office, Upshaw called the
State DIDD investigator branch to file her complaint in order to claim whistleblower
status. Sunrise asserts that when Upshaw realized that she was in trouble, she went to the
State with “baseless accusations.” The investigator testified that the alleged alteration
made him “feel that note was unreliable.” He understood that the DON was accusing
Upshaw of altering the medical record of H.G. in an attempt to implicate Ford in
wrongdoing and that she would be terminated because she already had two prior
disciplinary actions.
According to Upshaw, during the State’s investigation, Sunrise’s purpose and
desire was to wrongfully misrepresent the facts to DIDD by accusing Upshaw of
falsifying a medical record and shifting blame to her for the late reporting of the alleged
neglect. Sunrise led the State to believe that she had only reported the abuse and neglect
for the first time when she called the hotline. To the contrary, Upshaw argues that she
did timely report to “agency management,” i.e., Sunrise, but Sunrise did not provide the
documents to the state DIDD investigator and instead destroyed, removed, or withheld
them. Upshaw contends that Sunrise did not share with the DIDD investigator the fact
that Upshaw had been reporting about H.G.’s overfeeding because that would have
revealed Sunrise’s prior awareness of the issue. She argues that had the DIDD
investigator known that she had previously reported the overfeeding to Sunrise “agency
management,” the investigator’s conclusions would have been different. The investigator
testified as follows:
Q. Would it have made a difference in your investigation if
there were records . . . that you found or were provided to you
that Ms. Upshaw was telling Sunrise repeatedly that [H.G.]
was being overfed?
A. Yes, I think so.
Upshaw filed her complaint for retaliatory discharge pursuant to both the common
law and the statutory provision, Tennessee Code Annotated section 50-1-304, on
September 23, 2011. She alleged that Sunrise fired her in retaliation for filing a report of
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alleged abuse or neglect of a Sunrise client to DIDD investigators.
In its answer to Upshaw’s complaint, filed on October 20, 2011, Sunrise denied
the allegations but included the following admission: “14. Sunrise admits that plaintiff
made an allegation of overfeeding and feeding outside the guidelines of client orders to
Cathie Cardwell, plaintiff’s supervisor . . . .” However in Sunrise’s amended answer,
filed on October 14, 2015, the company denied that Upshaw made allegations of
overfeeding and feeding outside the guidelines of client orders to Cardwell. In paragraph
18 of Sunrise’s October 2011 answer, it admitted that Upshaw filed an internal complaint
of H.G.’s overfeeding. However, in paragraph 18 of the October 2015 amended answer,
Sunrise denied that Upshaw made an internal complaint of H.G.’s overfeeding. In
paragraph 19 of both Sunrise’s answer and amended answer, it admitted that Upshaw
received disciplinary write-ups after Upshaw’s internal complaints were made. In
paragraph 21 of Sunrise’s initial answer, it admitted that Upshaw made a complaint of
H.G.’s overfeeding to Williams, the DON’s supervisor, who referred Upshaw to Michelle
Pitts, who was Williams’ supervisor. In Sunrise’s October 2015 amended answer, it
denied that Upshaw made a complaint to Williams about her allegations of overfeeding.
Sunrise also raised as defenses in the later answer that Upshaw was an at-will employee
who had several prior disciplinary actions and was slated to be fired prior to her report of
alleged abuse or neglect of H.G.
Discovery
During discovery, Upshaw requested specific records in which she personally
documented the overfeeding of H.G. In April/May 2013, Sunrise produced 572 pages of
documents. A year later, around May 28, 2014, Sunrise’s attorney represented, among
other things, “There are no documents in my client’s possession which have not been
produced. . . .” In March 2015, however, Sunrise represented that more records had been
located, and, on April 13, 2015, the employer produced 864 new documents. Upon
Upshaw filing a motion to compel discovery two days later, Sunrise produced 1,218 new
documents the following week. On April 24, 2015, Sunrise responded to Upshaw’s
second production request and repeatedly stated that it had produced all responsive
documents in its possession. On July 17, 2015, the trial court heard argument on the
pending discovery motions, at which time Sunrise’s attorneys informed the court that
specific documents could not be found or were destroyed. However, within 29 days after
the hearing, on August 14, 2015, Sunrise emailed supplemental responses and produced
more than 5,000 new pages of documents. At that time, Sunrise repeated that “all
relevant documents in Sunrise’s possession, custody or control are attached or have
already been produced. . . .” On August 25, 2015, a 30.02(6) Sunrise representative
testified that no records or documents had been lost or destroyed.
The case was tried before a jury from October 12, 2015, to October 15, 2015.
During the trial, Sunrise argued that Upshaw put on no evidence of misconduct outside of
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her own self-serving testimony that she had reported the alleged overfeeding internally or
that she was retaliated against for reporting. According to Sunrise, Upshaw could not
produce any documentation that confirmed her version of the events because no such
documents exist. Sunrise claimed that Upshaw never demonstrated specific gaps in the
record. Upshaw responded that Sunrise had removed records, altered records, and that
records were missing. She contended that Sunrise had failed to produce nurses’ notes
and summary sheets that revealed Upshaw was reporting the overfeeding of H.G. because
those records would have been unfavorable to the employer.
Final judgment was entered against Sunrise on October 26, 2015. On October 15,
2015, the trial court granted a directed verdict in favor of Sunrise with regard to the
statutory claim.5 On the common law retaliatory discharge claim, the jury concluded that
a preponderance of evidence supported the conclusion that Sunrise wrongfully discharged
Upshaw and that the report of neglect was “a substantial factor in her discharge.” The
jury awarded Upshaw $150,000 in back pay, $65,000 in emotional distress, $10,000 in
embarrassment/humiliation, and $200,000 in punitive damages. The total award was
$425,000.
Post-trial, Sunrise asserted that the verdict of the jury revealed an improper motive
to punish Sunrise for the allegations of discovery abuse. Sunrise argued that Upshaw
“successfully confused the issues and guided the jury away from examination of the
allegations presented for investigation to allegations made by [Upshaw] after her
termination by Sunrise. Rather than presenting admissible evidence, Upshaw instead
made allegations that Sunrise was hiding documents, destroyed records, or altered
records. The trial court observed in October 2015: “I can’t look at this in any other way
but to say that your folks [at Sunrise], for whatever reason, didn’t do the job that the
Rules of Civil Procedure require them to do in searching for the documents.” In a post-
trial order, the court observed that the
trail of document production in this case was extremely
problematic. For example, the Defendant testified that it
produced all of the records the state asked for, but could not
identify what documents had been made available to the
state. Defendant argued that it kept no record of documents
produced to the state and that the only source of knowing
5
The question presented by a Rule 50 motion for a directed verdict is whether the plaintiff
has presented sufficient evidence to create an issue of fact for the jury to decide. Spann v.
Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999). For this court to review the sufficiency of
the evidence on appeal, a motion for a directed verdict must have been made at the conclusion of
all the proof and renewed in a post judgment motion following the jury’s verdict. Steele v.
Columbia/HCA Health Care Corp., W2001-01692-COA-R3-CV, 2002 WL 1000181 at *3
(Tenn. Ct. App. May 13, 2002).
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what had been produced to the state would be to obtain a
copy of the state file. The Plaintiff asserted that numerous
documents were not properly produced during discovery.
Defendant provided no record of documents produced from
which the court could evaluate what had been produced. On
May 6, 2015, the Plaintiff filed a supplemental motion to
compel discovery based upon a Request for Production
initially filed in July of 2012. The motion to compel was
heard at a lengthy hearing on July 17, 2015. At that hearing,
the Defendant repeatedly stated that it had produced all the
documents that it had but that there were some documents
that were lost or destroyed as a result of a flood in a storage
facility and some destroyed as part of a normal document
retention policy. However, none of the Defendant’s
discovery responses addressed the status of documents that
were not produced. Instead, the Defendant chose to attempt
to limit the production response and ignored the question as
to any lost or destroyed documents. . . .
On August 14, less than eight weeks before the scheduled
trial, the Defendant sent the Plaintiff more than 5000 pages
of electronic documents and 3000 pages of paper documents.
On October 1, 2015, the Plaintiff filed a Request for
Discovery sanctions . . . . As late as October 6, the parties
were still engaged in a dispute as to a review of documents.
The litigation in this matter had been pending for more than
four years and many of the discovery responses at issue were
outstanding for more than three years. This court found no
evidence that counsel for the Defendant intentionally misled
the Plaintiff or this court. Rather this court found that the
Defendant violated Rule 26.07 of the Tennessee Rules of
Civil Procedure. . . . The Defendant could not have made a
serious effort to find the documents. A representation was
made to the court that the person who had originally
provided information to counsel was deceased and that the
new person, found the documents immediately after learning
the court’s ruling. While it was appropriate for the
Defendant to produce the documents, the production was not
timely, and the original production could not have been
based on a “reasonable inquiry.” . . . Ms. Ann Williams was
produced as a Rule 32.06 witness on this issue and testified
that the Defendant has a ten (10) year document retention
policy. When asked if any documents in this case were
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destroyed by water and she testified that she was unaware of
any records being destroyed. It was inconceivable to the
court that for three years, the Defendant was unable to
determine the location of the requested documents assuming,
as required, a reasonable inquiry was made.
Sunrise timely filed a motion for judgment notwithstanding the verdict, pursuant
to Rule 50.02 of the Tennessee Rules of Civil Procedure, or for a new trial. In its order
denying the motion, the trial court found that there was “ample evidence” for the jury to
assess the credibility of the defendant’s witnesses and to “conclude that the alleged prior
incidents of disciplinary action were inappropriate and perhaps, in response to
[Upshaw’s] complaints of overfeeding.” The court observed that the jury “heard the
evidence of the timeline of the reports, the nature of the reports, and the alleged reasons
asserted by the Defendant for the termination of the Plaintiff.” The court noted that the
jury “could have judged the ‘severity’ of the offense as described by the Defendant at
trial versus the actions of the Defendant, at the time,” such as in “giving the Plaintiff paid
vacation days and allowing her an opportunity to renew her license after the state offices
reopened after the flooding.” The trial court commented that the jury “could also have
believed that the disciplinary action for taking a picture of a client at the request of the
client’s sister on the sister’s phone was retaliatory, particularly in light of the internal
documentation questioning the supervisor’s wisdom in issuing the disciplinary action.”
The trial court observed that it was clearly relevant to the jury that the Plaintiff asserted
making four claims about overfeeding to the Defendant and the Defendant denied
knowledge of those complaints.6 The court determined that there was evidence from
which the jury could conclude that Upshaw had a good faith belief that someone was
disregarding medical orders as to restrictions on feeding that could be characterized as
abuse or neglect—a violation of public policy—and that the reasons given by Sunrise for
discharging Upshaw were pretextual and not the true reason she was fired. Accordingly,
after reviewing all the evidence in the light most favorable to Upshaw, the trial court
found that material credible evidence supports the verdict and that reasonable minds
could differ as to the conclusions to be drawn from the evidence. Sunrise has timely
appealed the judgment.
II. ISSUES
The issues raised on appeal are stated as follows:
1. Whether, as a matter of law, the trial court erred in finding
Upshaw was a “whistleblower,” as that term has been defined
6
Upshaw represented that she made four complaints of overfeeding to Sunrise. The
employer produced one complaint in 2013. On August 28, 2015, six weeks before trial, Sunrise
produced the other three reports.
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by the Tennessee Supreme Court, in the case Haynes v.
Formac Stables, Inc., 463 S.W.3d 34 (Tenn. 2015).
2. Whether, as a matter of law, the trial court erred in
denying Sunrise’s motion for directed verdict and/or motion
for judgment notwithstanding the verdict.
3. Whether the trial court erred in allowing the jury to
consider the issue of punitive damages.
III. STANDARD OF REVIEW
This case was heard before a jury. Findings of fact by a jury in a civil action
where the jury’s verdict has been approved by the trial judge may be set aside only if
there is no material evidence to support the verdict. Whaley v. Perkins, 197 S.W.3d 665
(Tenn. 2006). In reviewing a judgment based upon a jury verdict, an appellate court is
not at liberty to weigh the evidence or to decide where the preponderance lies. In
determining whether there is material evidence to support the verdict, the appellate court
shall (1) take the strongest legitimate view of all the evidence in favor of the verdict, (2)
assume the truth of all that tends to support it, (3) allow all reasonable inferences to
sustain the verdict, and (4) discard all to the contrary. Akers v. Prime Succession of
Tennessee, Inc., 387 S.W.3d 495 (Tenn. 2012). The credibility of witnesses is the
province of the jury, not appellate courts. Goree v. United Parcel Service, Inc., 490
S.W.3d 413, 443 (Tenn. Ct. App. 2015).
An appeal from the denial of a directed verdict involves a question of law
concerning whether the evidence is sufficient to create an issue for the jury to decide.
Brown v. Christian Bros. Univ., 428 S.W.3d 38, 49 (Tenn. Ct. App. 2013). Directed
verdicts under Rule 50.01 of the Tennessee Rules of Civil Procedure and judgments
notwithstanding the verdict under Rule 50.02 of the Tennessee Rules of Civil Procedure
are reviewed using the same standard of review. Holmes v. Wilson, 551 S.W.2d 682, 685
(Tenn. 1977). They are appropriate only when reasonable minds cannot differ as to the
conclusion to be drawn from the evidence. Alexander v. Armentrout, 24 S.W.3d 267, 271
(Tenn. 2000). A case should not be taken away from the jury, even when the facts are
undisputed, if reasonable persons could draw different conclusions from the facts. See
Gulf, M. & O. R. Co. v. Underwood, 187 S.W.2d 777, 779 (Tenn. 1945). The evidence is
reviewed in the light most favorable to the motion’s opponent, giving the motion’s
opponent the benefit of all reasonable inferences, and disregarding all evidence contrary
to that party’s position. Alexander, 24 S.W.3d at 271.
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IV. DISCUSSION
A.
A common law cause of action for retaliatory discharge was first recognized by
the Tennessee Supreme Court in Clanton v. Cain – Sloan Co., 677 S.W.2d 441, 442
(Tenn. 1984). To establish a retaliatory discharge claim under the common law, Upshaw
had the burden of proving the following four elements:
(1) she was an at-will employee of Sunrise;
(2) the defendant employer discharged or terminated
Upshaw’s employment;
(3) the reason for the discharge was that Upshaw attempted to
exercise a statutory or constitutional right, or for any other
reason which violates a clear public policy evidenced by an
unambiguous constitutional, statutory, or regulatory
provision; and
(4) A substantial factor in Sunrise’s decision to discharge
Upshaw was her exercise of protected rights or compliance
with clear public policy.7
Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 437-38 (Tenn. 2011).
To prevail in a common law whistleblower action, a plaintiff must demonstrate that his or
her exercise of protected rights or report of illegal activity served a public purpose rather
than a private one and was a substantial factor in the employer’s decision to discharge the
employee. Gossett v. Tractor Supply Co., 320 S.W.3d 777, 788 (Tenn. 2010); Guy v.
Mut. of Omaha Ins. Co., 79 S.W.3d 528, 535, 538 n. 4 (Tenn. 2002). Such proof imposes
upon the employer the burden of showing a legitimate, non-pretextual reason for the
employee’s discharge.” Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
1993). No dispute exists that Sunrise and Upshaw had an employment-at-will
relationship and that Sunrise terminated Upshaw’s employment.
An employee asserting a whistleblower claim may report illegal activity internally
but must report to someone other than the person responsible for the activity. See
Coleman v. Humane Soc’y of Memphis, No. W2012-02687-COA-R9-CV, 2014 WL
587010, at *24-26 (Tenn. Ct. App. Feb. 14, 2014). “So long as employees’ actions are
7
The primary difference in the statutory version is that it requires an employee to show
that his or her activity was the sole reason for the discharge, whereas the common law form
requires an employee to show that his or her activity was a substantial factor in the termination.
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not merely private or proprietary, but instead seek to further the public good, the decision
to expose illegal or unsafe practices should be encouraged.” Guy, 79 S.W.3d at 537 n. 4
(quoting Wagner v. City of Globe, 722 P. 2d 250, 257 (Ariz. 1986)).
Sunrise asserts that Upshaw was not a whistleblower because, first, there was no
proof of overfeeding and, second, Upshaw did not act in good faith when she filed a false
report. According to Sunrise, making baseless accusations is not a protected activity.
Sunrise argues that making baseless accusations is not a protected activity under
Tennessee law. Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). Sunrise claims
that Upshaw made the report to the state in order to attain “whistleblower” status and that
such false reporting would exclude a “good faith” belief. Sunrise additionally contends
that even if Upshaw had a good faith belief that the employer had engaged in improper or
illicit activity, she did not effectively “blow the whistle” or meet the reporting
requirement. According to Sunrise, Upshaw failed to “blow the whistle” in an effective
way that would immediately stop what she termed illegal activity. In Formac Stables, the
Court stated that “whistleblower status requires ‘reporting [illicit activity] to someone
higher than the wrongdoer either inside the company, if available, or outside the
company, when internal channels are unavailing.” 463 S.W.3d at 39. By Upshaw’s own
admission, she knew that the internal reporting had been ineffective. When the “internal
channels” were unavailing, and Sunrise had done nothing to stop the “illicit activity,” by
this point, Formac Stables required Upshaw to immediately report to an outside
authority, the State DIDD. Sunrise notes that Upshaw did not report the neglect timely,
instead waiting eleven days. This failure to timely report to the State, according to
Sunrise, removes Upshaw from protected status as a “whistleblower” and makes her
simply an employee-at-will, subject to discharge. Sunrise asserts that if H.G. was being
overfed and was really in danger, then Upshaw’s report eleven days after the fact did
nothing to further any public policy. According to Sunrise, an employee has no cause of
action as a whistleblower unless the employee shows that the reporting furthered some
clear public interest. Id.
“[M]anagement has the right to terminate an employee over management and
policy decisions, so long as the employer does not violate any clearly established public
policy in doing so.” Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988).
Whistleblowing claims are not triggered “by simple disputes or arguments between
employees and their supervisors regarding work place procedures” Collins v. AmSouth
Bank, 241 S.W.3d 879, 885 (Tenn. Ct. App. 2007). Sunrise asserts that Upshaw was not
terminated for making the report to the state DIDD. Rather, she was terminated for
failing to report in a timely manner and because of her previous disciplinary warnings.
Sunrise argues that when there have been actual violations of rules, an at-will employee
may be terminated. See Williams v. Burns, 465 S.W.3d 96, 117 n. 24 (Tenn. 2015)
(quoting Fleming v. Correctional Healthcare Solutions, Inc., 751 A. 2d 1035, 1040 (N.J.
2000)). Sunrise asserts that waiting eleven days before reporting alleged abuse or neglect
to an outside authority is unreasonable and a violation of the Sunrise Code of Conduct
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and public policy.
Upshaw represented that she made four complaints of overfeeding to Sunrise.
According to Upshaw, the evidence of overfeeding (i.e., neglect) included, among other
things, that she observed large chunks of food in H.G.’s vomit and that H.G. told her that
Ford was overfeeding her. As noted by the trial court, in this case, Upshaw reported to
her supervisor that a nurse from a prior shift was overfeeding H.G. The second time it
occurred, when Upshaw did not believe that action was properly being taken, she
reported to the supervisor’s supervisor and a regional director. The third time the
overfeeding occurred, she reported her concerns internally and to the state. The trial
court determined that there was sufficient evidence to find that Upshaw reported to
someone higher up in the company and not the actual wrongdoer, and she ultimately
reported to the State when the internal channels were unsuccessful. The jury had the
opportunity to evaluate the evidence both as to the manner of communication and the
timeliness and rendered a verdict in favor of Upshaw.
Upshaw notes that Sunrise incompletely referenced opinions from physicians and
the DIDD investigator’s findings to claim that H.G. was not being overfed. She observes
that the physicians actually opined that there was medically no way to determine
definitively whether H.G. was being overfed and that is what the DIDD investigator
concluded. That being said, Upshaw asserts that her claims of overfeeding were never
medically refuted. The jury apparently found that Upshaw had a good faith belief that
Sunrise had neglected H.G.
The trial court concluded:
[T]here was sufficient evidence in the record, including the
Plaintiff’s testimony of her observations of projectile
vomiting of solid food from which the jury could conclude
that the Plaintiff believed that someone was violating the
standing orders of a physician regarding pleasure feeding.
Plaintiff testified that on Saturday, September 4, she did an
assessment of the H.G. and found that H.G. was not doing
well. The client was taken to the hospital and the Plaintiff
testified that she reported her observations to the on-call
supervisor. She also testified that she reported her concerns
to the emergency room doctor. The jury heard the evidence
of the timeline of the reports, the nature of the report and the
alleged reasons asserted by the Defendant for the termination
of the Plaintiff including the cumulative effect of multiple
write-ups to the state. The Defendant asserts that the report to
the state was not a substantial factor in the termination but
rather the late reporting and prior disciplinary actions that
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resulted in the termination. There is sufficient evidence
within the record from which the jury could conclude that the
report by Upshaw furthered a clear public policy of reporting
overfeeding of a client in direct violation of medical order
and that the report was timely and the Defendant’s reasons for
termination were not valid.
We hold that the evidence in the record as a whole preponderates in favor of a
finding that Upshaw was a whistleblower pursuant to the common law definition.
B.
Sunrise argues that the trial court erred in not granting its motion for a directed
verdict and/or motion notwithstanding the verdict. When an employer moves for a
directed verdict, the employee has had the opportunity to present his or her case in full.
Gossett, 320 S.W.3d at 786. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977)
requires the trial court to take the strongest legitimate view of the evidence in favor of the
plaintiff and to discard all the countervailing evidence. A judgment notwithstanding the
verdict is appropriate only when reasonable minds cannot differ as to the conclusions to
be drawn from the evidence. Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365,
370 (Tenn. 2006). If material evidence is in dispute or doubt exists as to the conclusions
to be drawn, a motion for a judgment notwithstanding the verdict is properly denied. Id.
The trial court found as follows:
The jury was able to hear and observe the testimony of
numerous witnesses on the issue of whether Plaintiff had a
good faith belief of overfeeding. She testified that on
numerous occasions she personally observed projectile
vomiting of the client of solid food which would be in direct
violation of medical orders. She testified that she reported
overfeeding to her supervisors on several occasions and
documented the overfeeding specifically in a nursing note of
September 4, 2010 after the hospitalization of the client. The
Defendant argues that the Plaintiff wrongfully accused Nurse
Ford of the overfeeding on September 3 and then created
“self-serving” notes. The jury had the opportunity to hear all
of the evidence from the Plaintiff and the proof of the
Defendant which included numerous supervisors and the
testimony of the state investigator. There were
inconsistencies in the testimony of the defense witnesses and
the jury was in a position to judge the credibility of the
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witnesses. There was evidence from which the jury would
conclude that the Plaintiff had a good faith belief that
someone was disregarding medical orders as to restrictions on
feeding that could be characterized as abuse or neglect.
In another portion of an order, the trial court observed:
Defendant asserts that the Plaintiff put on no independent
evidence of overfeeding other than the testimony of the
Plaintiff. However, the jury had the opportunity to see and
hear the testimony of the Plaintiff and clearly deemed her
testimony to be credible as to her observations of projectile
vomiting and the discomfort caused to the client. The
Defendant did not dispute that the Plaintiff’s standing medical
orders limited her to 2 teaspoons of pureed food and did not
provide any explanation of Plaintiff’s observation of
projectile vomiting of solid food. Defendant describes these
statements as self-serving but in fact, the jury was charged
with the obligation of evaluating the credibility of the
Plaintiff’s testimony and clearly found the testimony to be
credible. . . .
Taking “the strongest legitimate view” of the evidence in favor of Upshaw,
“allowing all reasonable inferences” in her favor, and “discarding all countervailing
evidence,” we find that the trial court properly denied the motion. In the instant case,
there is no question but that the issues presented a jury question. Because reasonable
minds could differ as to whether Sunrise retaliatory discharged Upshaw, we find that this
question was properly decided by the jury and it is not our purview to reconsider that
determination. We, therefore, affirm the trial court’s decision denying Sunrise’s motion
for judgment notwithstanding the verdict.
C. Punitive Damages
Sunrise argues that the trial court erred in ruling that the issue of punitive damages
should be presented to the jury.
Punitive damages are intended to “punish a defendant, to deter him from
committing acts of a similar nature, and to make a public example of him.” Huckeby v.
Spangler, 563 S.W.2d 555, 558-59 (Tenn. 1978). To qualify for punitive damages,
Upshaw was required to show the jury clear and convincing evidence that Sunrise acted
either intentionally, fraudulently, maliciously, or recklessly. Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 (Tenn. 1992). Further, “a plaintiff must prove the defendant’s
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intentional, fraudulent, malicious, or reckless conduct by clear and convincing evidence.”
Id. “Clear and convincing evidence” refers to “evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” Id.
at 901 n. 3. Punitive damage awards are reserved for cases involving serious and
egregious wrongs. Goff v. Elmo Greer & Sons Constr. Co., 297 S.W.3d 175 (Tenn.
2009).
The jury had evidence before it that Upshaw had personally reported the
overfeeding of H.G. to everyone at Sunrise in writing and orally. When Upshaw’s
supervisor told Upshaw that Ford “thinks with her heart” and did nothing to address
Upshaw’s claims, Upshaw followed Sunrise’s chain of command to complain. Sunrise
disregarded Upshaw’s written and oral reports. Further, the employer’s later failure to
produce the documents until very late in discovery was relevant evidence “from which
the jury could conclude that the defendant’s conduct was egregious.” Likewise,
consideration of Sunrise’s efforts to conceal Upshaw’s internal reporting of H.G.’s
overfeeding from the DIDD investigator and during discovery in these proceedings is
consistent with the purposes of punitive damages. Metcalfe v. Waters, 970 S.W.2d 448,
452 (Tenn. 1998).
The jury further saw the inconsistencies in Sunrise’s story. Sunrise admitted the
reporting in paragraph 14 of its answer, then denied the reporting in paragraph 14 of its
amended answer. Sunrise admitted Upshaw’s internal complaint was filed in paragraph
18 of its answer, then denied Upshaw’s internal complaint was filed in paragraph 18 of its
amended answer. Sunrise admitted Upshaw received a disciplinary write-up after she
made internal complaints of overfeeding in paragraph 19 of its answer, then denied the
same in paragraph 19 of its amended answer. Sunrise admitted that Upshaw made a
complaint to Ann Williams about overfeeding in paragraph 21 of its answer, then denied
the same in paragraph 21 of its amended answer. Viewing the circumstances as a whole,
we find the record contains material evidence supporting the jury’s finding by clear and
convincing evidence that Sunrise acted intentionally and that punitive damages were
proper.
V. CONCLUSION
We affirm the verdict of the jury and the judgment of the trial court in all respects.
The cause is remanded to the trial court for further proceedings. Costs of the appeal are
assessed to Sunrise Community of Tennessee.
_________________________________
JOHN W. MCCLARTY, JUDGE
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