                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0589n.06

                                          No. 19-5228                                FILED
                                                                               Dec 04, 2019
                                                                           DEBORAH S. HUNT, Clerk
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 DARLENE TURNER-MEADOWS,                                )
                                                        )
        Plaintiff-Appellant,                            )
                                                        )
                                                               ON APPEAL FROM THE
 v.                                                     )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE WESTERN
 GENERAL MOTORS, LLC,                                   )
                                                               DISTRICT OF TENNESSEE
                                                        )
        Defendant-Appellee.                             )



BEFORE:       ROGERS, STRANCH, and THAPAR, Circuit Judges.

       ROGERS, Circuit Judge. Darlene Turner-Meadows appeals the district court’s judgment

granting defendant General Motors’ motion for summary judgment. Turner-Meadows suffered a

shoulder injury while working at General Motors’ plant in Memphis, Tennessee. She applied for

and received workers’ compensation benefits. After missing more than a year of work, she

reapplied for workers’ compensation benefits and was terminated shortly thereafter. Turner-

Meadows sued General Motors for workers’ compensation retaliation under Tennessee law. The

district court granted summary judgment for General Motors, explaining that Turner-Meadows

had failed to argue that workers’ compensation benefits were a factor in causing her termination.

Absent such a causal connection, plaintiff could not establish a prima facie case of workers’

compensation retaliation.
No. 19-5228, Turner-Meadows v. General Motors, LLC


       Having carefully considered the record on appeal and the briefs of the parties, we are not

persuaded that the district court erred in granting summary judgment in favor of the defendant

employer. The plaintiff on appeal merely repeats the argument she made below that her injury

and work restrictions were the motivating factors behind General Motors’ decision to terminate

her, and makes no contention that workers’ compensation benefits were a factor in the employer’s

motivation to terminate her. Because the district court fully articulated the reasons why judgment

should be entered for General Motors, a detailed opinion by this court would be duplicative and

serve no useful purpose. Accordingly, we adopt the analysis and conclusions of the district court

and affirm on the basis of its February 27, 2019 opinion (included in the appendix below).




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                                           APPENDIX



                          IN THE UNITED STATES DISTRICT COURT
                         FOR THE WESTERN DISTRICT OF TENNESSEE
                                    WESTERN DIVISION


                                                  )
     DARLENE TURNER-MEADOWS,                      )
                                                  )
            Plaintiff,                            )
                                                  )        Case No. 2:17-cv-02907-JPM-cgc
     v.                                           )
                                                  )
                                                  )
     GENERAL MOTORS, LLC,                         )
                                                  )
            Defendant.                            )



                         ORDER GRANTING SUMMARY JUDGMENT



          Before the Court is Defendant General Motors, LLC (“General Motors”)’s Motion for

Summary Judgment filed November 29, 2018. (ECF No. 34.) General Motors seeks summary

judgment that Plaintiff cannot make out a prima facie case for retaliatory discharge. (Memo in

Support of Mot. for Summ. J., ECF No. 34-1 at PageID 95.) For the below reasons Defendant’s

Motion for Summary Judgment is GRANTED.


I.        BACKGROUND

      A. Undisputed Facts


          The facts below are undisputed based on Plaintiff’s Response to Defendant’s Statement

of Material Facts. (ECF No. 36-4.) Quoted language comes from the Defendant’s Statement

of Material Facts. (ECF No. 34-2.)
                                  Appendix to opinion of Rogers, J.
                         19-5228, Turner-Meadows v. General Motors, LLC


•   “Plaintiff, Darlene Turner-Meadows, at all times relevant to her Complaint, worked at the

    Memphis location of General Motors (‘GM’) as a Walk Picker. See Complaint, ¶3. The

    duties of this position involved walking the GM plant to pull auto parts from the shelves

    which were required to fulfill customer orders.” (Response, ECF No. 36-4 at ¶ 1.)

•   “Throughout her employment with GM, Plaintiff had various injuries and workers’

    compensation claims.” (Id. at ¶ 2.)

•   “GM’s practice is for injured employees to first visit the on-site nurse in the Plant Medical

    department. The nurse will then examine the employee and, if the employee requires further

    medical attention, the nurse will refer the employee to a panel of physicians.” (Id. at ¶ 3.)

•   “Once the employee is examined by a panel physician, the employee is expected to return

    to Plant Medical with a medical certification which indicates the employee’s work status

    and what physical restrictions, if any, the employee has.” (Id. at ¶ 4.)

•   “GM has a program titled ‘ADAPT’ through which employees with physical restrictions

    meet with the Personnel Director and Benefits Director to review work restrictions

    recommended by the employee’s physician and to determine whether work is available for

    the employee which meets those restrictions.” (Id. at ¶ 6.)

•   “If the ADAPT review determines that no work is available for the employee which meets

    her restrictions, the employee is placed on leave.” (Id. at ¶ 7.)

•   “As part of the leave process, Plant Medical will send Sedgwick, GM’s third-party benefits

    administrator, notification that GM is unable to provide the employee with work within her

    restrictions through a ‘NJAWR’ form (No Job Available Within Restrictions).” (Id. at ¶ 8.)

•   “When she suffered the injury, Plaintiff went to Plant Medical and met with on-site nurse

    Pamela Elder, R.N. (formerly Pamela Ewing).” (Id. at ¶ 14.)


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                                    Appendix to opinion of Rogers, J.
                               19-5228, Turner Meadows v. General Motors


•   “Elder assessed Turner-Meadows’ injury on March 3, 2016 and referred her to panel

    physician Dr. Christopher Pokabla with Memphis Orthopedic Group.” (Id. at ¶ 15.)

•   “Turner-Meadows saw Dr. Pokabla and returned the next day on March 4, 2016 with a

    medical certification which placed her on a work restriction of no overhead work and no

    lifting greater than five pounds.” (Id. at ¶ 16.)

•   “Turner-Meadows went through the ADAPT process that same day while she was at the

    plant and it was determined that no work was available that met those restrictions.” (Id. at

    ¶ 17.)

•   “Turner-Meadows was therefore placed on a medical leave and instructed to contact

    Sedgwick, GM’s benefits provider, to begin her benefits payments.” (Id. at ¶ 18.)

•   “Nurse Elder submitted a NJAWR form to Sedgwick to notify the provider that GM did not

    have work available that fit Turner-Meadows’ restrictions.” (Id. at ¶ 20.)

•   After Turner-Meadows’ surgery “the off-work restrictions were reported to the plant

    medical directly from the doctor’s office.” (Id. at ¶ 22 (quoting Pl.’s Response to Def.’s

    Undisputed Facts, ECF No. 36-4).)

•   “Turner Meadows returned to Dr. Pokabla on May 25, 2017 for a post-operative assessment

    and received a medical certification that allowed her to return to work on May 30, 2017,

    this time with a ten-pound lifting restriction and no overhead work.” (Id. at ¶ 24.)

•   “On June 7, 2017, Nurse Elder emailed [GM Personnel Director Rochelle Jackson] to

    inform her that Turner-Meadows had not attempted to clear for work in weeks, and that she

    had not received notice of a return to work date from Turner-Meadows since her shoulder

    surgery.” (Id. at ¶ 29.)




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                                   Appendix to opinion of Rogers, J.
                              19-5228, Turner Meadows v. General Motors


•     “Prior to her March 2016 injury, Plaintiff had other injuries which resulted in her receipt of

      workers’ compensation benefits and an extended leave of absence.” (Id. at ¶ 31.)

      B. Procedural Background


         The Notice of Removal was filed on December 15, 2017. (ECF No. 1.) General Motors

filed its answer on December 21, 2017. (ECF No. 8.) General Motors’ Motion for Summary

Judgment was filed on November 29, 2018. (ECF No. 34.) Plaintiff responded on December

28, 2018. (ECF No. 36.) Defendant replied on January 11, 2019. (ECF No. 37.)


II.      LEGAL STANDARD

         A. Summary Judgment


         A party is entitled to 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). “A fact is ‘material’ for purposes of summary judgment if proof of that fact

would establish or refute an essential element of the cause of action or defense.” Bruederle v.

Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012).


         “In considering a motion for summary judgment, [a] court construes all reasonable

inferences in favor of the nonmoving party.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir.

2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

“The moving party bears the initial burden of demonstrating the absence of any genuine issue

of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the moving party satisfies its initial burden,

the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of



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                                 Appendix to opinion of Rogers, J.
                            19-5228, Turner Meadows v. General Motors

material fact.” Mosholder, 679 F.3d at 448-49; see also Fed. R. Civ. P. 56(e); Matsushita, 475

U.S. at 587.


       To “show that a fact is, or is not, genuinely disputed,” both parties must “cit[e] to

particular parts of materials in the record,” which show “that the materials cited do not establish

the absence or presence of a genuine dispute” or “that an adverse party cannot produce

admissible evidence to support the fact.” Bruederle, 687 F.3d at 776 (alterations in original)

(quoting Fed. R. Civ. P. 56(c)(1)); see also Mosholder, 679 F.3d at 448 (“To support its motion,

the moving party may show ‘that there is an absence of evidence to support the nonmoving

party’s case.’”) (quoting Celotex, 477 U.S. at 325). “Credibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.” Martinez, 703 F.3d at 914 (alteration in original) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).


       The decisive “question is whether ‘the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.’” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015)

(quoting Liberty Lobby, 477 U.S. at 251-52). Summary judgment “‘shall be entered’ against

the nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that

there is a genuine issue for trial.’” Rachells v. Cingular Wireless Employee Services, LLC, No.

1:08CV02815, 2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012) (quoting Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 884 (1990)). “[A] mere ‘scintilla’ of evidence in support of the

non-moving party’s position is insufficient to defeat summary judgment; rather, the non-moving

party must present evidence upon which a reasonable jury could find in her favor.” Tingle v.

Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477 U.S. at 251).

                                                5
                                  Appendix to opinion of Rogers, J.
                            19-5228, Turner Meadows v. General Motors


“The court need consider only the cited materials, but it may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3). “[T]he district court has no ‘duty to search the entire record

to establish that it is bereft of a genuine issue of material fact.’” Pharos Capital Partners, L.P.

v. Deloitte & Touche, 535 F. App’x 522, 523 (6th Cir. 2013) (per curiam) (quoting Tucker v.

Tennessee, 539 F.3d 526, 531 (6th Cir. 2008), abrogation recognized by Anderson v. City of

Blue Ash, 798 F.3d 338 (6th Cir. 2015)).


       B. Retaliatory Discharge


       Tennessee recognizes a cause of action for retaliatory discharge following an employee's

claim for workers' compensation. See e.g., Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444

(Tenn. 1984). “[T]he following elements are found to establish a cause of action for discharge

in retaliation for asserting a workers' compensation claim: (1) The plaintiff was an employee of

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

workers' compensation benefits; (3) the defendant terminated the plaintiff's employment; and

(4) the claim for workers' compensation benefits was a substantial factor in the employer's

motivation to terminate the employee's employment.” Anderson v. Standard Register Co., 857

S.W.2d 555, 558 (Tenn. 1993).


       In order to meet the substantial factor requirement, a plaintiff must show either direct or

“compelling circumstantial evidence” of a causal connection between the workers’

compensation claim and the termination, not just the fact that the latter followed the former.

Frizzell v. Mohawk Indus., No. M2004-01598-COA-R3-CV, 2006 Tenn. App. LEXIS 321, at

*10 (Tenn. Ct. App. May 15, 2006) (citing Thomason v. Better-Bilt Aluminum Prods., Inc., 831

S.W.2d 291, 293 (Tenn. Ct. App. 1992)). As courts have emphasized the cause of action for


                                                 6
                                 Appendix to opinion of Rogers, J.
                            19-5228, Turner Meadows v. General Motors

retaliatory discharge is “a narrow exception to the employment at will doctrine” and the

evidence of causation must be compelling. Abraham v. Cumberland-Swan, Inc., No. 01A01-

9201-CH-00032, 1992 Tenn. App. LEXIS 739, at *9, *16 (Tenn. Ct. App. Aug. 28, 1992). As

such, courts have consistently held that temporal proximity between the claim and the

termination is not by itself sufficient. Id.; Conatser v. Clarksville Coca-Cola Bottling Co., 920

S.W.2d 646, 648 (Tenn. 1995) (holding that the fact that plaintiff was fired three weeks after

receiving workers' compensation was not sufficient evidence of a causal relationship).


       While not alone sufficient, “temporal proximity plus other circumstantial evidence of

causation” can support a prima facie case for retaliation. Craig v. Porter Cable/Delta, No. 1:05-

1018-T-An, 2006 U.S. Dist. LEXIS 21790, at *25 (W.D. Tenn. Apr. 17, 2006). In Newcomb

v. Kohler Co., the court set forth a variety of factors that, together with temporal proximity,

could present sufficient circumstantial evidence of causation, including “the expression of a

negative attitude by the employer toward an employee's injury, the employer's failure to adhere

to established company policy, discriminatory treatment when compared to similarly situated

employees, [or] sudden and marked changes in an employee's performance evaluations after a

workers' compensation claim.” 222 S.W.3d 368, 391 (Tenn. Ct. App. 2006) (citing Flint Constr.

Co. v. Hall, 904 So. 2d 236, 248 (Ala. 2004)).


III.   ANALYSIS


       General Motors argues that “Plaintiff is unable to establish the fourth element of the

prima facie case.” (Mot. for Summ. J., E CF No. 34-1 at PageID 95.) General Motors argues

that Turner-Meadows’ “termination was entirely based upon her failure to present her May 2017

medical certification to GM’s Plant Medical department so that an ADAPT review could be



                                                 7
                                 Appendix to opinion of Rogers, J.
                            19-5228, Turner Meadows v. General Motors

conducted as to her new medical restrictions once she was released to return to work on May

30, 2017.” (Id. at PageID 97.)


       Plaintiff argues that Turner-Meadows “can demonstrate that her work injury and

restrictions were a substantial factor in her being terminated from GM.” (Response, E CF No.

36-1 at PageID 294.) Even if her work injury and restrictions were a substantial factor in her

being terminated, that does not establish that “the claim for workers' compensation benefits was

a substantial factor.” Anderson, 857 S.W.2d at 558. Plaintiff claims that “a question of fact

exists as to whether or not Mrs. Turner-Meadows was terminated based on her continued need

for restrictions as opposed to her failure to return to work.” (Response, ECF No. 36-1 at PageID

295.) If that question of fact were resolved as Plaintiff argues it should be, it would not address

the fourth requirement specific to workers’ compensation benefits. Anderson, 857 S.W.2d at

558. Plaintiff offers no evidence to suggest that Turner-Meadows’ workers’ compensation

activity was considered when she was terminated.


       A claim for workers’ compensation retaliation requires evidence of a retaliatory motive

based upon Plaintiff’s receipt of workers’ compensation benefits, not of an employer’s

unwillingness to accommodate physical restrictions.        See Anderson, 857 S.W.2d at 558.

Plaintiff has offered no evidence to suggest that Jackson, who terminated Plaintiff, had a

retaliatory intent or that she had any issue with Plaintiff’s receipt of workers’ compensation

benefits. Plaintiff does not address any of the Newcomb factors to show causation through

temporal proximity. As a matter a law, no reasonable jury could rely on the evidence Plaintiff

cites in its response and conclude that the fourth factor was met.




                                                8
                                Appendix to opinion of Rogers, J.
                           19-5228, Turner Meadows v. General Motors


       Because Plaintiffs’ claims cannot survive summary judgment based on the fourth factor,

the Court does not need to analyze whether Plaintiff identified evidence to show General

Motors’ stated reason for termination was pretextual.


IV.    CONCLUSION


       Plaintiff has not directed the Court to evidence that, if believed, would allow a jury to

find Plaintiff met the fourth factor of retaliatory discharge based on workers’ compensation

benefits. Defendant’s Motion for Summary Judgment is, therefore, GRANTED.



       IT IS SO ORDERED, this 27th day of February, 2019.

                                                          /s/ Jon P. McCalla
                                                        JON P. McCALLA
                                                        UNITED STATES DISTRICT JUDGE




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