                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0374n.06

                                           No. 13-5942

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 May 20, 2014
JANET EPPERSON,                                          )
                                                                             DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
                                                                 ON APPEAL FROM THE
               v.                                        )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE WESTERN
RESOURCE HEALTHCARE OF AMERICA, INC.,                    )
                                                                 DISTRICT OF TENNESSEE
                                                         )
       Defendant-Appellee.                               )
                                                         )
                                                         )


BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

       GRIFFIN, Circuit Judge.

       In this diversity action, plaintiff Janet Epperson filed retaliatory discharge claims under

Tennessee’s whistleblower statute and common law against defendant Resource Healthcare of

America, Inc. claiming that defendant, her former employer, wrongfully terminated her for

refusing to participate in and refusing to remain silent about defendant’s alleged illegal activity.

The parties filed cross-motions for summary judgment; the district court granted defendant’s

motion and denied plaintiff’s motion. For the reasons that follow, we reverse the grant of

summary judgment to defendant, affirm the denial of summary judgment to plaintiff, and remand

the case for further proceedings.
No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


                                                 I.

       Defendant provides healthcare and living assistance for developmentally disabled

individuals. Plaintiff began work as a staff caregiver for defendant in August 2007. Her

responsibilities included, among other things, assisting developmentally disabled individuals

with daily living activities, transporting disabled individuals to field trips and other appointments

outside defendant’s facility, and performing housekeeping duties. Plaintiff is not a nurse.

       Jackie Newsom was a residential care patient who at pertinent times lived at one of

defendant’s facilities and shared a room and nursing care with one roommate. Newsom had

severe mental disabilities, including Down Syndrome and dementia, suffered from seizures,

could not speak, could not feed herself, could not walk, could not propel her wheelchair, was

bladder and bowel incontinent, could not swallow, and required a PEG feeding tube and other

medical interventions.

       Because Newsom was enrolled in the Home and Community Based Services Waiver for

the Mentally Retarded and the Developmentally Disabled, her nursing services can only be

ordered by her physician, physician assistant, or nurse practitioner. And because Newsom was

also enrolled in certain Department of Mental Retardation Services programs, she is required to

have an “Individual Support Plan” (ISP), which contains a description of all care to be provided.

Further, because Newsom lived at defendant’s facility, defendant created a one-page “Staffing

Plan” for Newsom—derived from her ISP—which outlines how many staff are needed to

provide the required care. Thus, Newsom’s care was governed by her doctor’s orders, her ISP,

and her Staffing Plan.

       Newsom’s Staffing Plan stated in relevant part:

       Ms. Newsom requires 1:2 staffing including an LPN 12 hours a day to insure
       proper health and safety. Additional staff may be provided on a needed basis for

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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


       as little as one hour or as large as 8 or more hours. She requires 1:2 staff for all
       daily activities of daily living and community living as well. In the event that her
       roommate is away from the home, then Jackie will be 1:1 and an LPN will make
       up that staffing ratio. Patient shares staff with her roommate.


       Her ISP further provides in pertinent part:

       Jackie has a PEG tube, which was inserted for continuous feeding and for
       medication. Jackie’s doctor has recommended 12-hour/day nursing care. . . .

       Ms. Newsom is approved for 24-hour nursing. She shares a nurse with her
       housemate who is also approved for 24-hour nursing. However, RHA only bills
       for 12 hours per day of nursing per person. Request to decrease nursing to 12
       hours per day. (approved)[.] . . .

       All of Jackie’s fluids, nutrition, and medications must be administered through
       Jackie’s PEG tube. Only Jackie’s nurse can do this.

       Lisa Jackson, a LPN (and also plaintiff’s mother) who works for defendant and has cared

for Newsom for several years, testified that “while I was working with Jackie she always had a

nurse with her.” Jackson testified that Newsom was approved for 24-hour nursing care and that

Newsom “shares her nurse with her roommate who is also approved for 24-hour nursing.”

Jackson explained that defendant bills each of them—Newsom and her roommate—for 12-hour

nursing, but that in practice each had 24-hour nursing care.

       In mid-December of 2011, Demetria Weaver, plaintiff’s supervisor, instructed plaintiff to

remove Newsom from the facility on Christmas Day and drive Newsom to her sister’s home

about an hour away from the facility so that Newsom could visit with her family for two hours,

and then drive Newsom back to the facility. Plaintiff, having worked with Newsom after being

trained on her ISP, initially agreed and assumed that a nurse would be accompanying them

during their four-hour visit away from defendant’s facility. However, plaintiff later learned that

she was to transport Newsom alone, without a nurse.



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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


       Plaintiff called Teresa Henline, a registered nurse who was Newsom’s case manager, to

discuss her concerns about the assignment. Plaintiff told Henline that she was “not comfortable”

transporting Newsom without a nurse. Henline, who had at some point before this incident

reviewed Newsom’s doctor’s orders and ISP, told plaintiff that a nurse was not required because

of the short duration of the visit. Plaintiff then again spoke with Weaver, repeated her concern

that she was uncomfortable with transporting Newsom without a nurse, and stated that she was

not going to take Newsom without a nurse.

       On December 23, 2011, plaintiff met with Weaver and other defendant employees to

further discuss the situation. Weaver again explained the assignment, but plaintiff still refused.

Consequently, plaintiff was terminated during this meeting.

       Plaintiff thereafter filed the instant diversity suit against defendant, alleging that her

termination violated the Tennessee Public Protection Act (TPPA), Tenn. Code Ann. § 50-1-304,

and also constituted the common law tort of retaliatory discharge. The parties filed cross-

motions for summary judgment after substantial discovery.            The district court granted

defendant’s motion and denied plaintiff’s motion. Plaintiff timely appealed both the denial of

her motion and the grant of defendant’s motion.1

                                               II.

                                               A.

       We review de novo the district court’s grant of summary judgment. Geiger v. Tower

Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when, viewing the

       1
         Ordinarily, the denial of summary judgment is considered an interlocutory order and
thus not immediately appealable. Am. & Foreign Ins. Co., Inc. v. Sequatchie Concrete Servs.,
Inc., 441 F.3d 341, 344 (6th Cir. 2006). However, in this case, because “the appeal from a denial
of summary judgment is presented together with an appeal from a grant of summary judgment,
we have jurisdiction to review the appropriateness of the district court’s denial.” Thomas v.
United States, 166 F.3d 825, 828 (6th Cir. 1999).
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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Burley v. Gagacki, 729 F.3d 610, 618 (6th Cir. 2013). Additionally, in a case involving

cross-motions for summary judgment where the motion was granted to one party and denied to

the other on the purely legal ground that the other party’s motion was granted—such as the case

at bar—we conduct de novo review of both motions. Black v. Roadway Express, 297 F.3d 445,

448 (6th Cir. 2002).

                                                  B.

       In granting defendant’s motion for summary judgment, the district court held that

plaintiff failed to establish a prima facie case of retaliatory discharge under the TPPA or the

common law. We disagree.

       Tennessee recognizes both a statutory cause of action and a common law tort for

retaliatory discharge. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 531 (Tenn. 2002).

These claims arose from the “public policy that an employee should not be placed in the moral,

ethical and legal dilemma of being forced to choose between reporting or participating in illegal

activities and keeping his job[,]” Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 530 (Tenn.

Ct. App. 2006), and represent narrow exceptions to the “long adhered to [] common law

employment-at-will doctrine, which provides that an employment contract for an indefinite term

is terminable at the will of either the employer or the employee for any cause or for no cause[,]”

Guy, 79 S.W.3d at 534–35.

       A prima facie case under the TPPA has four elements:

       (1) the plaintiff was an employee of the defendant;

       (2) the plaintiff refused to participate in or remain silent about illegal activity;


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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


       (3) the defendant employer discharged or terminated the plaintiff’s employment;
       and

       (4) the defendant terminated the plaintiff’s employment solely for the plaintiff’s
       refusal to participate in or remain silent about the illegal activity.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011).

       The first three elements of a common law retaliatory discharge are functionally identical

to the elements of the statutory claim. Smith v. C.R. Bard, Inc., 730 F. Supp. 2d 783, 797 (M.D.

Tenn. 2010). The fourth element differs in that under the common law, a plaintiff must show

that her activity was a “substantial factor” in her discharge, rather than the sole reason. Webb,

346 S.W.3d at 437–38. Consequently, courts often analyze TPPA and common law retaliatory

claims together. Cf. Riddle v. First Tennessee Bank, Nat. Ass’n, 497 F. App’x 588, 597–98 (6th

Cir. 2012).

       Regarding the second element, a plaintiff must sufficiently identify the illegal conduct or

(attempted illegal conduct) that she refused to participate in or remain silent about. The TPPA

defines “illegal activities” as “activities that are in violation of the criminal or civil code of this

state or the United States or any regulation intended to protect the public health, safety or

welfare.” Tenn. Code Ann. § 50-1-304(a)(3). And the common law similarly protects an

employee from being terminated if the reason for that termination “was that the employee

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[.]” Webb, 346 S.W.3d at 438 (internal quotation marks omitted). Under either claim,

“the ‘illegal activity’ or violation by the employer must implicate important public policy

concerns[,]” Williams v. Greater Chattanooga Pub. Television Corp., 349 S.W.3d 501, 515

(Tenn. Ct. App. 2011).


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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


       Tennessee courts have held that “the TPPA’s protection extends to employees who have

reasonable cause to believe a law, regulation, or rule has been violated or will be violated.” Id.

(citing Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997)).2 As the district court in this case

recognized, if there is any doubt regarding whether a defendant’s actions were illegal or whether

a plaintiff’s belief in the alleged illegality was reasonable, summary judgment is inappropriate.

Id. at 515–16.

       If a prima facie case is established under either theory of liability, the burden shifts to the

defendant to come forward with a legitimate, non-retaliatory reason for the discharge. Escher v.

BWXT Y-12, LLC, 627 F.3d 1020, 1031–32 (6th Cir. 2010).               If the defendant advances a

legitimate, non-retaliatory reason, the burden shifts back to the plaintiff to prove that the

explanation is pretextual. Id.

       In this case, we conclude that plaintiff has established a prima facie case of retaliatory

discharge under both the TPPA and the common law. Plaintiff argues that it was reasonable for

her to believe that Newsom required 24-hour nursing care and that denying Newsom that care

would violate the law.3 More specifically, plaintiff maintains that because Newsom’s Staffing

Plan—which was derived from her ISP—ordered 24-hour nursing care, and because defendant



       2
         It is not entirely clear whether the “reasonable cause to believe” theory of liability is
available under the common law. However, at oral argument, defendant had no objection to
plaintiff’s position that the theory is viable under the common law in addition to the TPPA.
       3
         Defendant argues that plaintiff has waived any “reasonable cause to believe” claim
because it was not included in her complaint and was instead raised for the first time in response
to defendant’s motion for summary judgment after discovery closed. We agree with plaintiff
that a “reasonable cause to believe” claim is not a categorically distinct type of retaliatory
discharge claim that must be pled and proven separate from a TPPA or common law claim but
rather a type of proof that she can offer to establish the second element of her prima facie case.
See Mason, 942 S.W.2d at 472. Accordingly, plaintiff may proceed under a “reasonable cause to
believe” theory of liability.
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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


instructed her to remove Newsom from its facility for four hours without a nurse, that order

violated Newsom’s Staffing Plan, which in turn violated the law.

       Plaintiff has supported her prima facie case with enough evidence to withstand summary

judgment. First, it is undisputed that the first and third elements are established because

defendant employed plaintiff and defendant terminated plaintiff’s employment during the

December 23, 2011, meeting.

       Second, plaintiff has established the second element by offering proof that Newsom

required 24-hour nursing care and that denying Newsom that care would violate the law.

Plaintiff argues that Newsom required 24 hours of nursing care based on (1) her personal

observations that Newsom actually had 24 hours of nursing care; (2) Newsom’s ISP, which

stated that she was “approved” for 24 hours of nursing care; (3) the Staffing Plan, which the

district court found could be reasonably construed as requiring 24-hour nursing care;

(4) Newsom’s doctor orders, which stated that Newsom “could benefit” from 24-hour nursing

care; and (5) testimony of numerous defendant employees who overwhelmingly confirmed that

Newsom actually received 24 hours of nursing care.

       Regarding which law plaintiff reasonably believed was violated, she testified that she

refused to participate in or remain silent about “an illegal act against [Newsom’s] staffing plan.”

Asked what law, rule, or regulation was violated if plaintiff had transported Newsom without a

nurse, plaintiff answered: “It would have violated one.” In her brief, plaintiff explains in further

detail that Newsom’s legal right to 24-hour nursing care arises from her ISP, a plan-of-care

document required for Medicaid funding under 42 U.S.C. § 1396r(b)(2) and Tenn. Code Ann.

§ 71-5-101, et seq. Defendant admitted that an ISP is required in order to receive federal funding

and conceded at oral argument that adherence to the ISP is required under the law. Further, it is


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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


undisputed that Newsom’s Staffing Plan is the document that defendant created for non-nursing

staff caregivers, like plaintiff, which sets forth the meaning of Newsom’s ISP and “outlines how

many staff are needed to provide care to a client.” Thus, a failure to comply with Newsom’s ISP

or Staffing Plan would constitute a violation of law.

       Third, plaintiff has established the fourth element because her proofs allow a reasonable

jury to conclude that the sole or a substantial reason for her termination was her refusal to

participate in or remain silent about the above described illegal activity. It is apparent that

defendant terminated plaintiff’s employment during the December 23, 2011, meeting only after

she repeatedly refused to transport Newsom without a nurse.

       Against plaintiff’s evidence, defendant argues that she could not have held a reasonable

belief that Newsom required 24 hours of nursing care by criticizing plaintiff’s interpretations of

Newsom’s doctor’s orders, ISP, and Staffing Plan, and attempting to establish inconsistencies

between plaintiff’s deposition testimony and the text of Newsom’s plan-of-care documents.

Defendant posits an alternative interpretation of those documents:        Newsom only required

12 hours of nursing care; and, therefore, a nurse did not have to accompany plaintiff and

Newsom during their short trip. The district court agreed, holding that

       any belief [plaintiff] possessed that the staffing plan created a requirement that
       Newsom be accompanied by a nurse when out of her home was not a reasonable
       one. [S]he could not have reasonably relied on the ISP or the physician’s orders
       in believing Newsom’s removal from the home required a nurse because neither
       said so. Nor could she have reasonably relied on the staffing plan to the extent it
       was inconsistent with the ISP and doctor’s orders because she knew that, in the
       event the staffing plan was inconsistent therewith, the ISP and physician’s orders
       governed.

       The court’s acceptance of defendant’s interpretation of the record is reversible error

because it did not view the facts in the light most favorable to plaintiff. The district court

erroneously disregarded plaintiff’s evidence and failed to draw all justifiable inferences in her

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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


favor when determining whether plaintiff could have reasonably believed that the ISP or Staffing

Plan required that a nurse be present when non-nursing staff like plaintiff were to be alone with

Newsom while away from defendant’s facility. See Bobo v. United Parcel Serv., Inc., 665 F.3d

741, 748 (6th Cir. 2012) (“We consider the evidence presented in the light most favorable to [the

nonmoving party] and we draw all justifiable inferences in his favor.”). In our view, the record

contains genuine issues of material fact on whether Newsom required around-the-clock nursing

care and whether plaintiff reasonably believed that denying Newsom a nurse for four hours on

Christmas Day would have violated the law. Given the existence of these genuine disputes, the

evidence is not so one-sided that defendant should prevail as a matter of law. Id. Accordingly,

summary judgment in defendant’s favor was improper.4

                                                  C.

       As for plaintiff’s motion for summary judgment, the record does not compel us to hold

that a reasonable jury could find only in plaintiff’s favor. See Calderone v. United States,

799 F.2d 254, 259 (6th Cir. 1986) (“[W]here the moving party has the burden—the plaintiff on a

claim for relief or the defendant on an affirmative defense—his showing must be sufficient for

the court to hold that no reasonable trier of fact could find other than for the moving party.”

(internal quotation marks, citation, and emphasis omitted)). Although plaintiff persuasively

marshals the facts to show that it was reasonable for her to conclude that Newsom required 24-

hour nursing care and that denial of that care would have violated the law, her evidence is not

“so powerful that no reasonable jury would be free to disbelieve it.” Arnett v. Myers, 281 F.3d

552, 561 (6th Cir. 2002) (internal quotation marks and citation omitted). Indeed, a rational

       4
         Because the district court did not reach the second or third steps of the burden-shifting
analysis, and because the parties did not squarely argue the points in their appellate briefs, we
decline to address those issues in the first instance and leave it to the district court to address the
matter on remand.
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No. 13-5942, Epperson v. Resource Healthcare of America, Inc.


factfinder could agree with defendant’s alternative interpretation of the record that Newsom had

no legal right to 24 hours of nursing per day under her ISP or Staffing Plan, no law would have

been violated if plaintiff had transported Newsom without a nurse for four hours, and plaintiff’s

alleged belief otherwise was not reasonable. As the Supreme Court has observed, “[s]ummary

judgment in favor of the party with the burden of persuasion . . . is inappropriate when the

evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v.

Cromartie, 526 U.S. 541, 553 (1999). Such is the case here because Newsom’s ISP and Staffing

Plan are open to several interpretations regarding whether she required 24-hour nursing care.

Accordingly, plaintiff is not entitled to summary judgment.

                                               III.

       For these reasons, we reverse the grant of summary judgment to defendant, affirm the

denial of summary judgment to plaintiff, and remand the case to the district court for further

proceedings consistent with this opinion.




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