                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 8, 2010 Session

             GLADYS DAVIS v. NISSAN NORTH AMERICA, INC.

                Appeal from the Circuit Court for Rutherford County
                  No. 58431     Robert E. Corlew, III, Chancellor


                 No. M2009-02579-COA-R3-CV - Filed July 13, 2010




Gladys Davis (“Plaintiff”) filed this retaliatory discharge case against her former employer,
Nissan North America, Inc. (“Defendant”). Plaintiff claims Defendant retaliated against her
for filing several workers’ compensation claims. Prior to Plaintiff’s discharge, she
underwent a comprehensive medical examination and, based on this examination, two
physicians who are board certified in occupational and preventive medicine opined that there
was a high risk of re-injury should Plaintiff be returned to work. Relying on the medical
opinions of these two physicians, Defendant filed a motion for summary judgment. The Trial
Court concluded, among other things, that Defendant had negated an essential element of
Plaintiff’s claim and Defendant, therefore, was entitled to summary judgment as a matter of
law. Plaintiff appeals, and we affirm.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                      Circuit Court Affirmed; Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.


Sonya W. Henderson, Murfreesboro, Tennessee, for the Appellant, Gladys Davis.


Keith D. Frazier, Nashville, Tennessee, for the Appellee, Nissan North America, Inc.
                                               OPINION

                                              Background

               This lawsuit was filed initially in state court in May of 2006. Plaintiff’s
original complaint alleged a violation of the Tennessee Disability Act, Tenn. Code Ann. § 8-
50-103, as well as a claim for retaliatory discharge based upon her filing several workers’
compensation claims. Plaintiff later amended her complaint to assert a claim pursuant to the
federal Family Medical Leave Act, 29 U.S.C. § 2611. After removing the lawsuit to federal
court, Defendant filed a motion for summary judgment. In October of 2008, the United
States District Court for the Middle District of Tennessee entered a thorough memorandum
opinion dismissing Plaintiff’s FMLA claim with prejudice. As the federal court’s
memorandum opinion sets forth undisputed and important background and medical
information, we will quote heavily from that opinion 1 :

                        Nissan hired Davis as a production technician on
                September 8, 1991. Plaintiff described her job as production
                technician as “hard work,” “physically demanding,” “fast
                pace[d],” and repetitive in nature. Plaintiff was reassigned to
                the pre-final line where there are three to five jobs and each job
                is rated for its strenuousness. Each pod has the same range of
                high and low-rated jobs. A Nissan employee must be able to
                perform all jobs within a pod. Plaintiff’s job involved “some
                pretty heavy lifting” and use of “some pretty big guns,” with “a
                lot of overhead reaching and outstretching of her arms either “up
                or out.” 2

                        By May, 2005, Plaintiff was assigned a carpet job
                [which] involved picking up the whole piece of carpet, cutting
                it in half, fitting the carpet in the vehicle, and attaching it with
                push pins. The pieces of carpet weighed approximately 12
                pounds.



        1
         Defendant placed much emphasis on the federal court’s findings of fact when re-filing its motion
for summary judgment in state court. The federal court’s findings of fact essentially were restated in
Defendant’s statement of undisputed facts filed in support of its motion for summary judgment. Except as
discussed later, Plaintiff admitted to the pertinent undisputed facts.
        2
          While we are omitting the federal court’s citations to the record, we note that any quotations from
Plaintiff’s testimony come from her pre-trial deposition.

                                                    -2-
        In her first eleven years at Nissan, Plaintiff had several
injuries, including on May 12, 1992, January 13, 1995, April 10,
1995, October 18, 1995, November 5, 1996, March 3, 1998,
February 18, 1999, July 14, 2000, October 3, 2001, June 24,
2002, and August 15, 2002. . . . Plaintiff had five additional
work related injuries on April 13, 2003, March 11, 2004, April
1, 2004, November 3, 2004, and January 10, 2005. . . . Plaintiff
had four surgical procedures: on April 21, 2004 for her right
wrist, on May 2, 2005 for her left wrist, on September 30, 2005
for her right elbow, and on June 20, 2005 for her right shoulder.
. . . For these surgeries and various injuries, by November 28,
2005, Plaintiff had four work related leaves of absence totaling
320 days. . . .

        As to her specific injuries, on May 19, 1992, Plaintiff
complained of bilateral hand pain and numbness since May 12,
1992 due [to] “work[ing] on the engine line doing a lot of fine
hand movements such as assembling pistons.” Nissan assigned
Plaintiff restrictive work that avoided “heavy gripping or
twisting [and] no power tools right hand for six days.”

        Dr. James K. Lanter, Plaintiff’s physician diagnosed
Plaintiff with “flexor tendonitis of both wrists with some
symptoms of carpal tunnel syndrome while using her hands at
work.” Dr. Lanter attributed Davis’ numbness “to using her
hands in a gripping fashion at work and placed Davis on
modified duty of “avoid[ing] power tools and repetitive
gripping.” . . . Dr. Lanter released Davis to full duty on June 15,
1992. . . . Upon her return, Nissan provided Plaintiff with an
Impacto glove with a thumb pad for her left hand to decrease
recurrence of her symptoms. . . . On December 22, 1992, Davis
began a workers’ compensation leave of absence until January
6, 1993. On January 13, 1995, Davis reported right palm [pain]
due to pushing and twisting cable brackets. . . .

        On April 10, 1995, Davis reported a left pectoral strain,
while she was leaning over in a vehicle performing the bumper
deck job. On September 14, 1995, Davis reported a right hand
strain caused by repetitively pushing pins into the fender liner.
Davis was told to “avoid repetitive use and pushing with [the]

                                -3-
extended fingers [of her right hand] for the rest of [the] day.”
On October 18, 1995, Davis reported a left shoulder strain
resulting from lifting and “pulling down [on] the trunk of the
cars,” but returned to full duty.

        On November 5, 1996, Davis reported a left hand strain
caused by “using a heavy air gun for a long period of time,” but
returned to duty. On March 3, 1998, Plaintiff reported
experiencing a foreign body in her right eye. On February 18,
1999, Plaintiff complained of suffering a right wrist contusion
(pinky injury). Dr. Tony Adams placed Plaintiff on temporary
restrictions, but later Plaintiff returned to work. . . .

        On July 14, 2000, Plaintiff reported a thoracic strain with
spasm resulting from “new job tools and [the] method of
performing [her] job.” Dr. Adams set lifting, stooping, bending,
and twisting restrictions for Plaintiff. On October 3, 2001,
Davis had a right wrist strain. Dr. Adams diagnosed as
“thumb/wrist tendonitis,” and placed Plaintiff on temporary
restrictions, which Nissan accommodated.

       On June 24, 2002, Davis suffered a left elbow sprain, but
returned to duty. On August 15, 2002, Plaintiff sustained a right
hand contusion, but returned to duty. On April 3, 2003, Plaintiff
had an injury to her right wrist from “rapid stringing usage,” and
Dr. Adams diagnosed Plaintiff with right hand tendonitis. Dr.
Adams also referred Plaintiff to Dr. David M. Schmidt of
Tennessee Orthopaedic Alliance and placed Plaintiff on
temporary restrictions that Nissan accommodated.

        On October 30,2003, Plaintiff reported to Nissan a
medical recurrence of her right hand pain and stated that “[my]
right hand has hurt the worst it has ever hurt over this past
weekend, and I need something done about it.” On November
3, 2003, Plaintiff was placed on temporary modified duty. Dr.
Adams set restrictions on Plaintiff's use of her right hand.
Plaintiff returned to work at Nissan on November 7, 2003, but
also complained of pain after the modified duty. On December
2, 2003, Dr. Schmidt examined Plaintiff's right thumb and



                                -4-
conducted a bone scan for her right wrist on December 8, 2003
as well as a CT scan on January 14, 2004.

        On January 9, 2004, Dr. Schmidt imposed temporary
restrictions on Plaintiff’s use of her right wrist. On January 20,
2004, Dr. Schmidt released Plaintiff to return to work full duty.
On February 2, 2004, Davis reported to Nissan’s medical clinic
complaining of “severe pain” in her right hand and stating “I
can't keep working like this.” On February 6, 2004, Dr. Schmidt
examined Plaintiff for wrist pain and restricted her use of her
wrist . . . .

        On February 24, 2004, Plaintiff reported to Nissan
medical with “severe pain” in her right hand and stated that “she
is using the left hand and right elbow more since she is guarding
the right hand and now these other areas right elbow and left
hand are hurting.” On February 26, 2004, Plaintiff returned to
Nissan’s medical clinic again complaining of “severe pain” in
her right hand. While “working on the line, Plaintiff felt a pop
in the right hand and totally lost strength in her right hand with
numbness and tingling.” Dr. Schmidt placed Plaintiff on a ten
day temporary restriction of “no power tools, no gripping and no
push pull over 5 pounds or lifting over 5 pounds with the right
hand.”

      Plaintiff then took workers’ compensation leave of
absence from February 27, 2004 through March 8, 2004. On
March 22,2004, Davis reported another injury to her right wrist
and Dr. Schmidt placed Plaintiff on temporary leave.

        On April 21, 2004, Dr. Schmidt performed surgery on
Plaintiff’s right hand and set Plaintiff’s temporary restrictions on
Plaintiff’s use of her right hand. Plaintiff then began a workers’
compensation leave of absence for 86 days until July 16, 2004.
Dr. Schmidt continued to see Plaintiff for follow-up visits on
May 25, 2004 and June 22, 2004. On August 4, 2004, Dr.
Schmidt noted Plaintiff [had] “wrist soreness and swelling” and
that “sometimes [she] can hardly turn the key in her car.” Dr.
Schmidt advised Plaintiff to continue wearing her wrist support
and was concerned about “[rleturning to repetitive use [that]

                                -5-
may cause continuation of symptoms.” Plaintiff notes that prior
to this visit, Nissan’s physician had [told] her to stop wearing
the wrist support.

        On September 17, 2004, Plaintiff left a voice mail
message with Nissan’s medical clinic that her “wrist is hurting
just as bad as it did before” and requested an earlier date for her
next doctor’s appointment. Dr. Schmidt examined Plaintiff on
September 29, 2004 and noted “she still has pain in her right
wrist which hurts when she does her regular job” and that this
pain “goes up to her elbow.” In response, Dr. Schmidt
explained that Davis “has arthritic changes in her wrist” that
causes the pain and that she had maximum recovery or
improvement.

       On November 3, 2004, Davis reported to Nissan medical
that with “the same movement over and over” in “lifting glass
[and] bending [and] twisting on wires,” she suffered a right
wrist strain. On November 9 and 16, 2004, Dr. McHugh
examined Plaintiff for her wrist pain and advised Plaintiff to
wear a splint while she slept and released her to return to work
on November 16, 2004. On March 15, 2004, Davis sustained an
injury to her left [hand]/wrist and on March 18, 2004, Dr.
Woodberry diagnosed Davis with a ganglion cyst on her left
hand and placed her on temporary restrictions. On March 22,
2004, Dr. Schmidt examined Plaintiff’s right wrist and set
temporary restrictions. On April 15, 2004, Dr. Woodberry
examined Plaintiff’s left wrist injury.

        On June 10, 2004, Dr. Woodberry continued Davis’
temporary restrictions for her left wrist and elbow. On July 15,
2004, Dr. Woodberry removed his restrictions on Davis’ left
wrist and Plaintiff returned to work on July 16, 2004. After
Davis’s return to work, Nissan assigned Plaintiff to a new work
group for Maxima trim. Plaintiff wore an elbow brace, but
reported to Nissan medical that her right elbow had “burning
and sticking pain.” In October, 2004 Davis underwent an MRI
for her right elbow. On November 30, 2004, Dr. Schmidt noted
that Davis “has failed conservative measures to date,” and
administered a cortisone shot, and imposed restrictions for ten

                                -6-
days. Davis returned to modified duty in December, 2004. On
January 5, 2005, Plaintiff complained to Dr. Schmidt that her
elbow pain had not completely resolved, but “settled . . . down.”
On January 10, 2005, Plaintiff reported a right shoulder strain
that she attributed to “lifting overhead or up and over moving.”

        On March 2, 2005, Davis informed Nissan medical that
“Dr. Schmidt gave me a cortisone shot in my elbow. It’s still
hurting.” On April 11, 2005, Dr. Blake Garside, Jr., from
workers’ compensation panel of physicians examined Davis
who reported that she had “approximately a three-month history
of pain in her right shoulder” which she attributed to “doing
repetitive work including overhead and outstretched lifting.”
Dr. Garside recommended “a short course of anti-
inflammatories” as treatment. This treatment was not successful
and Davis saw Dr. Garside on April 29, 2005, and reported that
her right shoulder pain was “worse than previously.” On March
17, 2005, Davis reported to Nissan medical that “I’ve got to
have surgery. I’ll do whatever it takes to get out of pain.” On
May 2, 2005, Dr. Woodberry performed surgery on Davis’ left
wrist and joint debridement and imposed restrictions on her
work. Plaintiff also began another workers’ compensation leave
that extended 30 months.

        On June 10, 2005, Plaintiff reported that her shoulder
pain “recurred to the level it was previously,” and elected to
have shoulder surgery that Dr. Garside performed on June 20,
2005. On June 30, 2005, Dr. Woodberry released his
restrictions for Davis’s use of her left hand, but due to Dr.
Garside’s shoulder restrictions, Plaintiff did not return to work,
and continued on her workers’ compensation leave.

        On August 25, 2005, Philip G. Coogan, M.D., of
Tennessee Orthopaedic Alliance Hand Care, examined
Plaintiff’s elbow, and noted that Davis “has had injections for
tennis elbow with transient benefit.” On September 16, 2005,
Dr. Garside placed temporary restrictions on Plaintiff until
October 3, 2005. On September 30, 2005, Dr. Coogan
performed surgery on Davis’ elbow and she remained on
restrictions. On October 28, 2005, Dr. Garside found Plaintiff

                               -7-
                  had reached maximum improvement on her right shoulder and
                  assigned her a 10% rating to her right upper extremity. On
                  November 9, 2005, Dr. Coogan placed right hand restrictions
                  that Davis could not use power tools nor occasional gripping
                  and twisting, and her push and pull was limited to up to five
                  pounds. Dr. Coogan noted Davis as having a 2% impairment,
                  Exhibit 73, but released Plaintiff to return to work with no
                  restrictions for her right hand effective November 23, 2005.

Davis v. Nissan North America, Inc., No. 3:06-1106, 2008 WL 4773116, at *1-5 (M.D. Tenn.
Oct. 27, 2008) (citations to the record omitted).

              After setting forth Plaintiff’s extensive history of work-related injuries and the
leave she received as a result of those injuries, the federal district court concluded that the
undisputed material facts demonstrated that Plaintiff had received all of the leave she was
entitled to under the Family Medical Leave Act and, therefore, Defendant was entitled to
summary judgment on that claim. The federal district court declined to continue to exercise
its supplemental jurisdiction over Plaintiff’s remaining state law claims, which were
dismissed without prejudice. Plaintiff then re-filed her state law retaliatory discharge claim
on February 3, 2009.3 According to the complaint:

                        Plaintiff . . . was employed by [Defendant] on or about
                  September 8th , 1991, and had worked there continuously until
                  her employment was terminated on or about March 31, 2006.

                         Around March 31, 2006, the day Plaintiffs employment
                  was terminated, her job title was “Technician” . . . .

                          Plaintiff’s employment record shows that she was a
                  reliable employee with little or no history of absenteeism, and
                  any absences were scheduled prior. Also, Plaintiff was fully
                  qualified for her job duties as she was able to perform them with
                  no accommodation. . . .

                         Plaintiff . . . sustained a work-related injury to her right
                  wrist on April 1, 2003, for which she was treated and released



       3
           Plaintiff did not re-file her claim based upon the Tennessee Disability Act, Tenn. Code Ann. § 8-50-
103.

                                                      -8-
              to full duty without restrictions on January 5, 2005. She was
              returned to work at Nissan full duty.

                     On March 11, 2004, Dr. Woodbury discovered a left
              dorsal wrist mass and ganglion cyst in her left hand, which she
              removed on May 2, 2005. She was then released to full duty
              without restrictions on June 30, 2005. She was not returned to
              work at Nissan for this injury.

                    Plaintiff sustained an injury to her right elbow on April
              1, 2004, for which she was treated and released to full duty
              without restrictions on November 9, 2005. . . .

                      Plaintiff sustained an injury to her right shoulder on
              January 10, 2005, for which she had surgery and was released
              on November 28, 2005. Plaintiff was released to return to work
              at full duty.

                      After treatment and release of her shoulder injury,
              Plaintiff . . . expected to return to work on November 23, 2005.
              However, before allowing [Plaintiff] to return to work to her
              normal job duties, Defendant . . . required [Plaintiff] to be
              evaluated by Dr. Renata Bluhm on January 23, 2006.

                      [Plaintiff] met with Nissan representatives Patti Dixon,
              Lisa Batten, and Glen Lewis, and Esis representative Carolyn
              Lawson who encouraged her to apply for long-term disability
              due to the letter from Dr. Renata Bluhm. The content of the
              letter they relied on states to Nissan Medical director Dr. Karen
              Oldham, “For her own safety concern, due to the recurrent
              significant injuries that she has already experienced, it would
              probably pose a risk for her to continue in this line of work.”

               After this meeting with various Nissan representatives, Plaintiff was offered
a voluntary severance package, which she refused. Plaintiff apparently sought disability
benefits, but that claim was denied. Plaintiff was placed on leave and her employment was
terminated on November 30, 2007 after all available leave had expired. In her complaint,
Plaintiff maintained that the assertion of her rights pursuant to the Tennessee Workers’
Compensation Act was the motivating factor in Defendant’s decision to discharge her from
active employment and was in retaliation for Plaintiff exercising her statutory rights.

                                             -9-
             Defendant has established a Comprehensive Medical Examination program
(“CME program”) in an attempt to avoid having employees continue to sustain injuries while
performing their job duties. With regard to Defendant’s CME program and how that
program was utilized in Plaintiff’s case, Plaintiff admitted to the following facts:

                        Nissan’s CME program was established in order to
                review whether employees who had sustained “multiple injuries
                and [had] multiple surgeries for multiple body parts,” and who
                had been cleared by their attending physician to return to work
                would be able to safely continue performing their production
                jobs at Nissan on a long-term basis.

                       Under Nissan’s CME program, the CME committee
                decides who will undergo a comprehensive medical examination
                by an independent physician.

                      Renata Bluhm, M.D., was chosen by Nissan to perform
                a comprehensive medical examination of employees. Dr. Bluhm
                is board-certified in internal, occupational, and preventive
                medicine.

                        Dr. Bluhm’s role was to examine the employee and
                evaluate her medical condition “holistically” taking into account
                all of the medical issues that the employee may have had in the
                past and then to make a medical determination as to whether the
                employee can successfully return to work in the long term. . . .

                        In its review, the CME committee noted that [Plaintiff]
                “continues to experience upper extremity injuries including 7
                work related leaves of absence” which resulted in excess of 320
                leave of absence days. . . . The committee expressed the
                concern that should [Plaintiff] continue to work in production at
                full duty, this “may contribute to future new or exacerbation of
                past problems” and that “[h]er long term success [at Nissan] is
                a concern.”4 . . . Based upon [Plaintiff’s] past history and
                concern for her long term success at Nissan, the CME


        4
          Even though Plaintiff admitted to the CME committee’s findings and that the statements attributed
to the committee were made, etc., she repeatedly qualified her admission by noting that she had been returned
to work full duty with no restrictions by her treating physicians.

                                                    -10-
committee requested [Plaintiff] undergo a “holistic” medical
evaluation.

        On January 23, 2006, Dr. Bluhm conducted her
evaluation of [Plaintiff]. Bluhm reviewed [Plaintiff’s] medical
records and her job duties and performed a physical
examination. . . . During the examination, Dr. Bluhm performed
a number of tests. . . . [Plaintiff] informed Dr. Bluhm about the
surgeries she had undergone, and that she had not been working
since May, 2005. In that month, she had a ganglion cyst
removed from her left hand, which [Plaintiff] attributed to
“repetitive use of her hands.” Prior to surgery, [Plaintiff]
reported she had pain when putting any pressure on her left
hand. [Plaintiff] also reported to Dr. Bluhm that she had a slight
tear of the rotator cuff, which was caused by “a lot of lifting,
repetitive lifting, lifting overhead” of items weighing five to ten
pounds. . . . [Plaintiff] had additional problems with her elbow
“caused by the lifting up,” which was a “repetitive problem.”
[Plaintiff] had surgery for her right hand in 2004 because of
“wear” from “repetitive usage” and which required a “ligament”
repair.

        Dr. Bluhm noted that [Plaintiff’s] medical records
evidenced “a history of multiple injuries, requiring multiple
surgeries, which were attributable to the repetitive nature of the
activities” in which [Plaintiff] had been engaged at work. . . .
Dr. Bluhm found significant the fact that [Plaintiff] had “failed
conservative treatment for the injuries that eventually required
surgery.” Nissan also had allowed [Plaintiff] to work “in job-
modified situations,” but she continued to suffer reinjury. . . . In
assessing [Plaintiff’s] ability to return to work at Nissan, Dr.
Bluhm noted that “her work duties will include multiple
activities for all her body areas” and that [Plaintiff’s] current job
duties remain essentially ‘repetitive’ and these are the activities
that she relates have led to her present injuries which required
surgical treatment. . . . Dr. Bluhm determined that [Plaintiff]
would be considered in the “high” category in terms of certainty
of an adverse outcome and the “high” category in terms of the




                                -11-
                severity of the outcome.5 Dr. Bluhm wrote in her January 23,
                2006 report to Nissan’s on-site medical director, Karen Oldham,
                M.D., that “[c]onsidering that she has had multiple injuries, four
                of which required surgery for correction and resolution of
                ‘severe pain,’ her likelihood of re-injury is considerable.” . . .
                Dr. Bluhm advised Dr. Oldham that “[f]or her own safety
                concern” and “due to her recurrent significant injuries that she
                had already experienced,” it would pose “a risk for her to
                continue” her job at Nissan.

                        Nissan’s on-site medical director, Dr. Karen Oldham,
                M.D., is board certified in preventive medicine with a specialty
                in occupational and environmental medicine and has a master’s
                degree in business administration. . . . Dr. Oldham had the
                responsibility for making the recommendation as to whether an
                employee who had undergone a [CME] should return to
                work. . . . It was a “medical call” for Nissan’s medical director
                to make. . . . As Dr. Oldham explained, “[i]t is a professional
                judgment based on medical and statistical probabilities of what
                we know about people who undergo surgery, who have
                sustained previous injuries and whether or not they are at a low
                or a high risk. In [Plaintiff’s] case, Dr. Oldham made her
                evaluation and . . . [recommended] that [Plaintiff] should not
                return to work because she was at very high risk of future injury.
                Dr. Oldham met with [Plaintiff] on January 25, 2006 and
                discussed the results of Dr. Bluhm’s examination. Dr. Oldham
                informed [Plaintiff] that based upon Dr. Bluhm’s report and the
                fact that her pattern of multiple injuries from repetitive work
                puts [Plaintiff] at high risk of future injury, it would not be safe
                to return to her job at Nissan.

               As noted previously, once this case was re-filed in state court, Defendant again
filed a motion for summary judgment claiming that the undisputed material facts
demonstrated that it was entitled to summary judgment as a matter of law. The Trial Court
agreed, concluding that Defendant had negated an essential element of Plaintiff’s claim and
that Plaintiff had failed to establish the requisite causal connection between her filing of
workers’ compensation claims and her termination from employment. Alternatively, the


        5
         Again, while Plaintiff disagrees with Dr. Bluhm’s conclusions, she admits that Dr. Bluhm did reach
these conclusions. The same can be said for the conclusions reached by Dr. Oldham.

                                                   -12-
Trial Court found that even if Plaintiff had established some sort of causal connection,
Defendant nevertheless established a neutral basis for terminating Plaintiff’s employment,
i.e., two physicians who are board certified in occupational medicine determined that
Plaintiff’s physical condition “was such that it was unsafe for her to return to her former
job.” Accordingly, the Trial Court granted Defendant’s motion for summary judgment.
Plaintiff appeals asserting that granting Defendant summary judgment was error.

                                         Discussion

              Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

                     The scope of review of a grant of summary judgment is
              well established. Because our inquiry involves a question of
              law, no presumption of correctness attaches to the judgment, and
              our task is to review the record to determine whether the
              requirements of Rule 56 of the Tennessee Rules of Civil
              Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
              50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
              S.W.2d 741, 744 (Tenn. 1991).

                        A summary judgment may be granted only when there is
              no genuine issue of material fact and the moving party is entitled
              to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
              Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
              summary judgment has the ultimate burden of persuasion “that
              there are no disputed, material facts creating a genuine issue for
              trial . . . and that he is entitled to judgment as a matter of law.”
              Id. at 215. If that motion is properly supported, the burden to
              establish a genuine issue of material fact shifts to the
              non-moving party. In order to shift the burden, the movant must
              either affirmatively negate an essential element of the
              nonmovant’s claim or demonstrate that the nonmoving party
              cannot establish an essential element of his case. Id. at 215 n.5;
              Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
              “[C]onclusory assertion[s]” are not sufficient to shift the burden
              to the non-moving party. Byrd, 847 S.W.2d at 215; see also
              Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
              state does not apply the federal standard for summary judgment.
              The standard established in McCarley v. West Quality Food

                                             -13-
              Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
              words of one authority, “a reasonable, predictable summary
              judgment jurisprudence for our state.” Judy M. Cornett, The
              Legacy of Byrd v. Hall: Gossiping About Summary Judgment
              in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

                     Courts must view the evidence and all reasonable
              inferences therefrom in the light most favorable to the
              non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
              (Tenn. 1997). A grant of summary judgment is appropriate only
              when the facts and the reasonable inferences from those facts
              would permit a reasonable person to reach only one conclusion.
              Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
              In making that assessment, this Court must discard all
              countervailing evidence. Byrd, 847 S.W.2d at 210-11.
              Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

               In Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993), the
Supreme Court set forth the various elements a former employee must prove in order to
establish a claim for retaliatory discharge based upon the filing of a workers’ compensation
claim. According to the Court:

              the 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.

                     The burden of proof rests, of course, upon the plaintiff to
              prove the elements of the cause of action, including a causal
              relationship between the claim for workers’ compensation
              benefits and the termination of employment. Proof of discharge
              without evidence of a causal relationship between the claim for
              benefits and the discharge does not present an issue for the jury.

                                             -14-
              However, proof of a causal link between the claim for benefits
              and the employee’s discharge imposes upon the employer the
              burden of showing a legitimate, non-pretextual reason for the
              employee’s discharge. As stated in 2A A. Larson, The Law of
              Workmen’s Compensation, § 68.36(d), pp. 188-191 (1990):

                              Once the employee has made a prima facie case of
                     retaliation, the burden devolves upon the employer of
                     proving a legitimate nonpretextual nonretaliatory reason
                     for the discharge.      The reason may involve the
                     employee’s own shortcomings, such as unexplained
                     tardiness, excessive absenteeism, lying as to previous
                     compensation claims, or physical inability to do the
                     job. . . .

                      In this case, the plaintiff presented no evidence that her
              assertion of a claim for workers’ compensation benefits was a
              factor in causing her discharge. . . . There is no evidence in the
              record of this case on which to submit the issue of causation to
              a trier of fact. Accordingly, the judgment for the employer is
              affirmed.

Anderson, 857 S.W.2d at 558-59.

              In a factually similar case, a former employee of Nissan filed suit after he was
not returned to work following a CME evaluation by Dr. Bluhm. Bennett v. Nissan North
America, Inc., No. M2008-01019-COA-R3-CV, 2009 WL 837726 (Tenn. Ct. App. Mar. 27,
2009), perm. app. denied Nov. 23, 2009. While factually very similar to the present case,
Bennett involved a claim pursuant to the Tennessee Disability Act, Tenn. Code Ann. § 8-50-
103 (the “TDA”), as opposed to a claim for retaliatory discharge for filing a workers’
compensation claim. In any event, the relevant facts in Bennett showed that:

                      Mr. Bennett’s CME was conducted by Dr. Renata Bluhm,
              the medical director of OccuPatient. Dr. Bluhm reviewed Mr.
              Bennett’s medical records and the job requirements in the trim
              and chassis department where Mr. Bennett most recently
              worked. She obtained a medical history from Mr. Bennett and
              conducted a physical examination, observing that Mr. Bennett
              had several well-healed scars on his neck, right shoulder, right
              wrist, and left palm, but that he had “good range of motion in his

                                             -15-
              back, neck and shoulders with good strength throughout.” Dr.
              Bluhm’s CME concluded, however, that “the activities that have
              led to [Mr. Bennett’s] injuries will continue if he were to return
              to work.” She concluded that “[f]or his own safety concern, due
              to his recurrent significant injuries, it would probably pose a risk
              for him to continue in this line of work. It would probably not
              be safe for him to resume these duties.” Dr. Karen Oldham, the
              director of Whole Health, Nissan’s on-site medical provider,
              reviewed Dr. Bluhm’s report and determined that Mr. Bennett
              should not return to work as a Nissan production technician.

                                           *    * *

                      On December 8, 2005, Mr. Bennett sent a certified letter
              to Nissan to the attention of Mr. Glen Lewis, Nissan human
              resources section manager, requesting that Nissan allow him to
              return to work. In the letter, Mr. Bennett stated that his treating
              physician, Dr. Moran, had released him to full duty without
              restrictions and that he felt that he was able to return to work.
              Mr. Bennett sent another letter stating essentially the same thing
              to the attention of Ms. Linda Eustice, a human resources
              specialist for Nissan, on January 7, 2006. On January 11, 2006,
              Dr. Oldham responded to Mr. Bennett on behalf of Nissan by
              letter stating that “repetitive work in heavy industry is not an
              appropriate job for you. Every time we fix one of your injuries
              and you are released without restrictions, you develop another
              injury.” Dr. Oldham's letter informed Mr. Bennett that Nissan
              could not allow him to return to work because he could not
              safely continue to perform his job duties.

Id., at *2, 4. In affirming the grant of summary judgment to Nissan, this Court stated, among
other things, that:

                     Dr. Bluhm, who conducted the holistic evaluation of Mr.
              Bennett, determined that he had experienced “significant and
              recurrent injuries” that required surgery and that, “despite
              surgical repair, he has had recurrent injury requiring a second
              surgery of the neck and recurrent pain of the right shoulder.”
              See 29 C.F.R. § 1630.2(r)(1), (2). Dr. Bluhm concluded that if
              Mr. Bennett were to return to his job as a production technician,

                                               -16-
“his injuries will continue.” See 29 C.F.R. § 1630.2(r)(3). Dr.
Bluhm wrote in her report to Nissan’s on-site medical director,
Dr. Oldham, that “[f]or his own safety concern” and “due to his
recurrent significant injuries,” it would pose “a risk for him to
continue” his job at Nissan. See 29 C.F.R. § 1630.2(r)(2), (3).
Based on Dr. Bluhm’s evaluation and the fact that Mr. Bennett
had sustained numerous injuries as a result of performing the job
of production technician, Dr. Oldham determined that it would
not be safe for Mr. Bennett to return to his job at Nissan and she
notified Nissan management that he should not be allowed to
return to his job duties as production technician. In response to
Mr. Bennett’s December 2008, letter requesting permission to
return to work, Dr. Oldham wrote to Mr. Bennett that “repetitive
work in heavy industry is not an appropriate job for you,” and
that “every time we fix one of your injuries and you are released
without restrictions, you develop another injury.” We find
Nissan presented sufficient evidence to negate an essential
element of Mr. Bennett’s TDA claim - that Mr. Bennett was
“qualified” for the position of production technician at Nissan
- because Nissan determined through an individualized
assessment based on reasonable medical advice that he
presented a direct threat to his own safety if he continued
working in the position.

                            *    *     *

[A]ssuming arguendo that the medical opinions of Dr. Moran
and Dr. Landsberg differed from that of Dr. Bluhm, divergent
medical opinions do not create disputes of fact where Mr.
Bennett’s argument is that Nissan should have followed the
recommendation of one doctor over another. The Seventh
Circuit addressed this issue directly in Knapp v. Northwestern
University, 101 F.3d 473 (7th Cir. 1996), cert. denied, 520 U.S.
1274, 117 S.Ct. 2454, 138 L.Ed.2d 212 (1997), when it held that
it was not the court’s place to decide which of divergent medical
opinions should be the final medical decision; rather that the
court should “ensure that the exclusion or disqualification of an
individual was individualized, reasonably made, and based upon
competent medical evidence” and that so long as these factors
exist, “it will be the rare case . . . where a court may substitute

                                -17-
              its judgment for that of the [Defendant’s] physicians.” 101 F.3d
              at 485.

                                          *    *     *

                     In response to Nissan’s evidence that it reasonably relied
              on the individualized medical assessment of Dr. Bluhm in
              determining that Mr. Bennett would be a direct threat to his own
              safety by continuing in his job as a production technician, Mr.
              Bennett offered nothing more than speculation that Dr. Bluhm
              was a “hired gun” for Nissan and raised no genuine issue of
              material fact as to whether Nissan acted reasonably in relying on
              its own doctors’ medical advice.

                     Having affirmatively negated an essential element of Mr.
              Bennett’s TDA claim by showing that Mr. Bennett was not
              “qualified” for the position from which he was removed because
              he would present a direct threat to his own safety by continuing
              to work in that position, Nissan is entitled to summary judgment.
              Because Nissan is entitled to summary judgment based on the
              second element of the TDA claim, we need not reach the third
              element of a TDA claim-whether a prohibited motivation was
              the sole reason the adverse employment action.

Bennett, 2009 WL 837726, at *20, 21.

               We acknowledge that Bennett is not directly on point because that case
involved a TDA claim and the Court relied, in part, upon federal law applying the Americans
with Disabilities Act. Nevertheless, there are important similarities. For example, a TDA
claim involves a very similar burden-shifting analysis that also is present in a workers’
compensation retaliatory discharge case. In addition, in both cases the same employer was
relying upon the medical opinions of Drs. Bluhm and Oldham to defeat a claim by a former
employee surrounding the reason for the employee’s termination. Even though Bennett is
not directly on point, we conclude that much of the rationale applied in Bennett applies
equally to the claim at issue in the present case.

                In response to the motion for summary judgment, Plaintiff relied on the fact
that she had been released by her treating physician to return to work with no restrictions.
Plaintiff also relied on the affidavit of Dr. David Gaw, who opined that based on his medical
evaluation of Plaintiff, she was not at risk for harm if she returned to work at Nissan. Dr.

                                              -18-
Gaw examined the Plaintiff on July 16, 2008, over two years after Plaintiff claims her
employment was terminated. The Trial Court concluded that even though Dr. Gaw was a
competent witness, he was not board certified in occupational medicine. “Even so, his
subsequent opinion in contradiction to that of the two physicians presented by the Defendant
does not justify a finding that the reason of the company was pretextual.”

              We agree with the Trial Court that Plaintiff being released to return to work
with no restrictions, coupled with the affidavit of Dr. Gaw generated two years after
Plaintiff’s employment was terminated, are insufficient to create a disputed issue of material
fact regarding whether Defendant’s stated reason for terminating Plaintiff was pretextual.
Nissan was fully justified in relying on the professional medical opinions of two physicians
who are board certified in occupational and preventive medicine. See Bennett, 2009 WL
837726, at * 21 (“[D]ivergent medical opinions do not create disputes of fact where Mr.
Bennett’s argument is that Nissan should have followed the recommendation of one doctor
over another.”).

               We further agree with the Trial Court’s judgment that Nissan affirmatively
negated one of the essential elements of Plaintiff’s claim, i.e., that “the claim for workers’
compensation benefits was a substantial factor in the employer’s motivation to terminate the
employee’s employment.” Anderson, 857 S.W.2d at 558. There is no evidence in the record
that Plaintiff’s filing of workers’ compensation claims played any role whatsoever in the
decision not to return her to work. The prohibition against retaliating against employees who
file workers’ compensation claims does not guarantee an employee the right to return to work
when such return poses a high risk of re-injury. Stated another way, the prohibition against
retaliation does not guarantee employees the right to return to work and to continue re-
injuring themselves until they are so disabled that they are permanently and totally disabled
and can never work again.

               The undisputed material facts establish that Nissan did not return Plaintiff to
work because of the high likelihood of re-injury. This in no way is retaliatory based upon
Plaintiff’s having filed workers’ compensation claims. It also constitutes a “legitimate
nonpretextual nonretaliatory reason for the discharge.” See Anderson, 857 S.W.2d at 559.
The Trial Court’s award of summary judgment to Defendant is affirmed. Any remaining
issues are pretermitted.




                                             -19-
                                       Conclusion

               The judgment of the Trial Court is affirmed and this cause is remanded to the
Rutherford County Circuit Court solely for collection of the costs below. Costs on appeal
are taxed to the Appellant, Gladys Davis, and her surety, for which execution may issue, if
necessary.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                            -20-
