FOR PUBLICATION                              Dec 02 2014, 10:13 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

PATRICK F. O’LEARY                           PETER J. AGOSTINO
Goshen, Indiana                              Anderson Agostino & Keller P.C.
                                             South Bend, Indiana

                                             M. CATHERINE FANELLO
                                             Krieg DeVault LLP
                                             Mishawaka, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

BEVERLY S. STILLSON,                         )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )       No. 20A03-1406-CT-191
                                             )
ST. JOSEPH COUNTY                            )
HEALTH DEPARTMENT,                           )
                                             )
     Appellee-Defendant.                     )


                  APPEAL FROM THE ELKHART SUPERIOR COURT
                        The Honorable Evan S. Roberts, Judge
                           Cause No. 20D01-1303-CT-41



                                  December 2, 2014


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Beverly Stillson appeals the trial court’s grant of summary judgment in favor of

St. Joseph County Health Department (“SJHD”) on Stillson’s complaint alleging

retaliatory discharge. Stillson presents a single issue for our review, namely, whether

there are genuine issues of material fact that preclude summary judgment.

       We reverse and remand for further proceedings.

                      FACTS AND PROCEDURAL HISTORY

       In March 2011, SJHD re-opened a clinic to treat patients with sexually-transmitted

diseases (“the clinic”). Stillson and Courtney Dewart, both registered nurses employed

by SJHD, were chosen to staff the clinic. Dr. Thomas Felger, M.D., the Health Officer

for SJHD, worked at the clinic approximately sixteen hours per week. Dr. Felger was the

only physician working at the clinic. Stillson and Dewart reported to Barbara Baker,

R.N., the Director of Nursing for SJHD, and Baker reported to Dr. Felger. Other than on

one day in June 2011, Dr. Felger did not see patients at the clinic. Stillson and Dewart

saw patients and administered treatments based upon the 1998 Centers for Disease

Control (“CDC”) Guidelines for Treatment of Sexually Transmitted Diseases (“the 1998

Guidelines”). The 1998 Guidelines “provide[d] the protocols for the treatment of various

STD[s], including syphilis, in the St. Joseph County Health Department.” Appellee’s

App. at 4.

       In approximately June 2011, Stillson and Dewart became concerned that the

protocols for treating patients at the clinic required them to exceed the scope of practice

for a registered nurse. Stillson and Dewart shared those concerns with Baker and Dr.


                                            2
Felger. And on June 22, Stillson contacted the Indiana State Board of Nursing by email

as follows:

      I am asking for some clarification regarding “scope of practice” of a
      registered nurse working in an STD clinic in a local health department in
      the state of IN.

      When a client presents at our clinic with symptoms of Gonorrhea or
      Chlamydia, we have been urine testing them and if that test is positive,
      treating them per CDC protocol by RN. If a client presents at clinic stating
      that his sexual partner has had a positive lab test for GC or CT[1], we are
      asking for a copy of that laboratory report and if presented, that client will
      be treated per CDC protocol by RN.

      Question is—when client presents without support of positive partner lab,
      is it outside the scope of practice of RN to treat that person with antibiotics?
      There is no nurse practitioner or physician overseeing each client to make
      diagnosis.

      Do “Public Health” RN’s have different scope of practice?—Are RNs in
      Public Health setting able to diagnose disease and treat an STD on a
      client’s word of exposure or stated symptoms without oversight by NP or
      physician?

Appellant’s App. at 110.

      In response to Stillson’s email, Lori Grice, Assistant Director of the Indiana State

Board of Nursing, wrote to Stillson as follows:

             The Indiana State Board of Nursing nurse practice act does not
      define nursing scope of practice in terms of specific procedures. . . .

             The nurse cannot perform or delegate those duties that are
      specifically reserved for other licensed individuals, and that they [sic]
      maintain responsibility for the safe and appropriate performance of any
      nursing measure that they delegate. If a nurse does not feel comfortable
      delegating tasks permitted or required by their employer’s policy or
      practice, there is a decision to be made: document it, and do not allow
      yourself to be placed in a position where you are forced to practice



      1
          We discern from the context that “GC” stands for Gonorrhea and “CT” stands for Chlamydia.
                                                  3
        unsafely, because ultimately it is an individual’s license to practice that is at
        stake here.
Id.

        On June 24, Baker and Dr. Felger prepared the following “Conference Record”

regarding an incident that day:

        On June 24, 2011, Dr. Felger was in the STD clinic to observe clinic
        operations and see clients as necessary.[2] Dr. Felger was present during a
        client interview. The client stated his partner had told him he had an STD
        possibly Chlamydia but there was no lab report of the partner named to
        confirm the client exposure.

               Clinic practice has been to treat partners when a positive lab of the
        diagnosed partner lab can be obtained. In the absence of a lab report testing
        of the partner presenting is done and treatment initiated upon confirmation
        of the STD diagnosis.

               Dr. Felger decided as the attending physician to treat this client
        based on his statement of exposure. Beverly Stillson felt that this was
        outside the realm of our established clinical practice and was uncomfortable
        giving the ordered medication and declined to administer. The director of
        Nursing intervened and requested the client be tested and have specimen
        sent to the lab for testing and gave the ordered oral medication to the
        patient prior to the client leaving the clinic.

               Clinical practice in the STD clinic follows the CDC 2010 guidelines
        for the treatment of STD[s]. However, the attending physician always can
        use their [sic] clinical judgment in decisions how to best treat each
        individual client.

               There may be times when differences in opinion as to optimal
        treatment or policy seem to be in conflict. Open discussion is critical but
        the overriding factor is the determination of the physician as to the
        medication order and treatment for a client.

               It is essential that if a physician order for a medication is given it be
        administered unless there is the potential for significant harm to the client.
        This was not the concern in this case. The order could have been written as
        a verbal order on the chart or Dr. Felger could have been asked to write an
        order for the medication.
        2
           The undisputed designated evidence shows that this was the only day during Stillson’s tenure at
the clinic when Dr. Felger saw patients face to face.
                                                    4
               Registered Nurses work under the direction of the attending
       physician. Communication and positive working relationships are critical
       as part of a core health care team.

               The incident reflects a breakdown in communication and clear
       understanding of STD policies that can be seen as policy rather than
       guidelines for decision making. Beverly is also new in her role in the STD
       clinic and is working in a clinic that has not been fully operational until the
       past three months.

               I do not anticipate any further concerns in the working relationship
       with our Health Officer. A positive outcome of the meeting is the
       recognition of the need to meet on a regular basis with the Health Officer
       and STD nursing staff to address clinic operations and concerns that affect
       client care and overall clinic operations.

Id. at 111 (emphases added). In addition to the written reprimand, Dr. Felger told

Stillson, “I don’t want to hear any more about your nursing license.” Id. at 108.

       In July 2011, after the Indiana State Department of Health “recogni[zed]” the 2010

CDC Guidelines for Treatment of Sexually Transmitted Diseases, the clinic revised some

of its policies regarding the protocols for treating STDs. Appellee’s App. at 4. Effective

July 11, 2011, SJHD’s policy provided in relevant part that diagnoses of gonorrhea and

chlamydia would be made “[b]ased on a positive [urine test] or positive lab from other

health care provider[.]” Id. at 10, 11. Further, a patient presenting with “documentation

of positive partner lab or patient stated history of exposure” would be treated for

gonorrhea or chlamydia. Id. But the diagnosis of syphilis required a “clinical decision

and laboratory diagnosis” by the attending physician “prior to the administration of

Penicillin.” Id. at 15 (emphasis added).

       On July 19, Dewart contacted a former nursing professor by email and wrote the

following:
                                             5
Currently, I am working part-time in the STD clinic. At present, a fellow
RN and myself have been operating under a policy signed by a health
officer, that says that STD clinic staff shall use the CDC Treatment
Guidelines to treat patients (based upon a positive lab result). Regarding
treatment of partners, a policy outlines that partners can be treated with
proof of a positive partner lab. This practice of presumptive treatment of
contacts of someone diagnosed with an STD is endorsed by the CDC in the
most current 2010 Treatment Guidelines.

Last week, however, we were blindsided by a new policy, with wording
related to presumptive treatment that I can find no evidence that the CDC
supports, and that I feel far exceeds the scope of practice of an RN. The
new policy says to treat “with documentation of positive partner lab or
PATIENT STATED HISTORY OF EXPOSURE.” This last part is what
has me concerned: a client can walk in, state that they think they have been
exposed to a specific STD, but with no lab, no partner lab, and prior to any
testing, the RN is expected to provide treatment.

In my opinion, this falls outside of an RN’s scope of practice, even if the
Health Officer (an MD) signs off on the policy for this reason: in order to
warrant treatment, there must be a diagnosis. Even if it is only the
diagnosis or positive lab of a partner, the CDC endorses treating in that
situation. But in this case, where is the diagnosis? Who is diagnosing or
validating the said disease? The patient can’t self-diagnose, so it would
seem that it would be the RN that would have to make the specific
diagnosis (based off of patient’s word) in order to provide a specific
treatment.

I was so uncomfortable with this new policy, as was a fellow RN that
works in the STD clinic with me. We approached management and
explained that in these rare instances, we would be happy to treat if the
Health Officer would give a verbal order to treat. He has so far refused to
do this. So, myself and fellow RN simply refused to accept the new policy
with this wording on presumptive treatment, and requested that we be
moved into two available “Public Health Nurse” positions that would
relieve us of STD clinic duties. In essence, we were told that this may not
be possible, and that we may have to be let go if we refuse to follow the
policy as written.

Whew! A bit of a bad situation, but, as I told my boss: even though I
absolutely love my job, if I feel like something falls outside of my scope of
practice as a Registered Nurse, I will not do it, even if that means losing my
job.


                                      6
Id. at 60 (emphases added).

      Thereafter, Stillson and Dewart contacted Queenie Evans, the Human Resources

Director for SJHD, regarding their concerns about the new protocols. And on July 26,

Evans wrote the following email to Stillson and Dewart:

      Last evening I had the opportunity to discuss your issue with attorney Peter
      Agostino. After he reviewed the policy and the CDC regulations he
      advised me that the doctor followed the regulations and the policy being
      signed by Dr. Felger makes it a standing order. Peter also stated that
      waiting to treat a possible infected individual could cause more problems
      down the line. As that person in the interim could go out and infect more
      people while he waits for the test results. It is better to be safe than sorry.
      So the doctor’s policy is a legal document and he is not asking you to
      perform duties outside of your scope of practice.

      Also per your policy manual you have the right to have a witness present
      during a meeting or reprimand.

      It is now time to move past this issue and move forward. I know this has
      been a distracting issue but hopefully I have been able to put your minds at
      ease.

      Have a wonderful week.

Appellee’s App. at 111-12 (emphasis added). In response, Stillson wrote the following

email to Evans:

      Thank you so much, Queenie.

      Really appreciate your and Mr. Agostino’s time in this matter. Would it be
      possible to obtain this explanation in writing signed by Mr. Agostino for
      Courtney and my personnel and personal file? I think we will be able to
      proceed now with good care of our clients in STD clinic.

      Also, will these policies be signed by legal counsel?          Just trying to
      understand the legal workings!!

      Again, thank you!!



                                            7
Id. at 111.   In response to Stillson’s email, on August 3, Agostino prepared a

memorandum addressing the following issue: “Whether treatment by registered nurses in

accordance with the 2010 CDC Sexually Transmitted Diseases Treatment Guidelines . . .

of Chlamydia, Gonorrhea, Trichomoniasis, and Syphilis without a formal lab test being

performed is a violation of the Indiana Code and/or Indiana Administrative Code.”

Appellee’s App. at 113. The memorandum provided as follows:

      We were provided with the St. Joseph County Health Department Policy
      and Procedure relative to the treatment of recommendations for Chlamydia,
      Gonorrhea, and Syphilis which went into effect on 07/07/11, as well as a
      revised policy and procedure which was drafted by the nurses who are
      charged with carrying out the policies and procedures. The changes that the
      nurses made require that testing for the diseases to be treated be performed
      prior to the treatment of the diseases. The nurses’ concern likely stems
      from 848 IAC 2-2-1 through 2-2-3, as well as Indiana Code [Section] 25-
      23-1-1.1, as a nurse is not authorized to engage in the diagnosis of a disease
      and thereafter treat the disease without the intervention of a physician with
      an unlimited license to practice medicine or orthopedic osteopathic
      medicine, a licensed dentist, a licensed chiropractor, a licensed optometrist
      or a licensed podiatrist.

             Pursuant to Indiana Code [Section] 25-23-1-1.1 (b)(5), nurses are
      charged with “executing regimens delegated by a physician. . . .” Due to
      the fact that the policies and procedures at issue were put in place by and
      signed by a physician these policies and procedures can be considered a
      standing order to be executed by nurses. Since nurses are responsible to
      “formulate a nursing diagnosis based on accessible, communicable, and
      recorded data which is collected in a systematic and continuous manner,”
      and assess patients in a systematic and organized manner pursuant to 848
      IAC 2-2-1, nurses are authorized to assess a patient and carry out a
      physician order if the patient meets the physician’s criteria to be treated. In
      this instance, the policy and procedure put into place by the St. Joseph
      County Health Department gives specific directions on what the nurses
      must look for prior to treating the diseases mentioned above when
      performing their nursing diagnoses.          Thus, any treatment of the
      aforementioned diseases by the nurses pursuant to the policies and
      procedures would be akin to a nurse in a hospital setting administering a
      drug to an in-patient based on a nursing diagnosis pursuant to a standing
      order to administer the drug.
                                            8
               In our professional opinion, nurses performing the duties as directed
        by the Medical Director of St. Joseph County Health Department is not a
        violation of the nursing laws and regulations.

Id. at 113-14 (emphases added).

        On August 17, Stillson saw a syphilis patient, and Stillson contacted Baker and

requested that Dr. Felger “stage” the disease.                “Staging” is a determination, by a

physician, of whether a patient’s syphilis is primary or secondary, which, in turn, dictates

what treatment should be administered.3 Appellant’s App. at 37-38. Baker refused to

contact Dr. Felger on Stillson’s behalf and instructed Stillson to administer a single shot

of penicillin “on the assumption that the patient’s syphilis was ‘primary’ and not

‘latent.’”   Id. at 108 (emphasis added).             Stillson refused to administer the shot of

penicillin “without a medical diagnosis.” Id. Stillson asked that Dr. Felger “participate

in the assessment [of the patient] by telephone.” Id. Again, Baker refused Stillson’s

request.

        Thereafter, Baker

        determined that Stillson’s employment with [SJHD] was in jeopardy due to
        her unprofessional behavior [on August 17]. . . . Her behavior continued to
        deteriorate subsequent to this discussion. Termination was considered but,
        instead, as a condition of employment, Stillson was mandated to participate
        in the Employee Assistance Program.

Id. at 89. And on August 30, 2011, Baker gave Stillson an “eight month review of her

performance[,]” which was deemed

        unsatisfactory because [Stillson] had difficulty dealing with peers and
        management, excessive absences, lack of respect for others with different

        3
           Treatment of primary and secondary syphilis, or syphilis that has been “latent less than one
year,” consists of a single dose of Penicillin. Appellee’s App. at 15. Treatment of “late latent syphilis or
latent syphilis of unknown duration or greater than one year” consists of three doses of Penicillin at one
week intervals. Id.
                                                     9
         perspectives, her negative tone and body language at various times,
         inability to follow chain of command, inability to properly address peers
         and leadership when addressing concerns, and failure to follow policies
         related to patient care.

Id. But, in a quarterly report prepared for the Indiana State Nurses Assistance Program

(“ISNAP”) on January 6, 2012, Baker stated that Stillson was “working well [with]

clients and peers[; was] professional in interactions with managers and medical director[;

and was] open to others’ ideas or suggestions.” Appellant’s App. at 116.

         On approximately March 2, 2012, Stillson “attacked [a fellow nurse’s] work habits

in front of several other fellow employees.”4 Appellee’s App. at 89. That incident was

reported to Baker. And on March 9, when Baker discussed with Stillson “her overuse of

flex time[,]” Stillson “became loud, aggressive and somewhat threatening.”                          Id.

Accordingly, on March 9, Baker met with Paige Smith, the Assistant Director of Nursing,

and Nick Molchan, the Administrator for SJHD, to discuss Stillson’s “most recent

behavior.” Id. Baker, Smith, and Molchan decided to talk to Dr. Felger about whether to

terminate Stillson’s employment. And, after a meeting, Dr. Felger agreed that SJHD

should terminate Stillson’s employment. Accordingly, in a written notice of termination

dated March 12 and given to Stillson that day, Baker and Dr. Felger stated the following:

         Concerns exist about Beverly’s attitude toward peers and management is
         [sic] becoming increasingly hostile and aggressive.

         She has a complete book of human resource policies and this is not the first
         time discussions have been held with Beverly about flex time accruals. She
         has an excessive need for wanting written documentation on every work
         flow process instead of using critical nursing judgment.



         4
             Stillson accused the coworker of spending too much time on personal phone calls during work
hours.
                                                    10
        There have been four other conference records with Beverly in the past
        year. She was also mandated to go through the Employee Assistance
        Program as a condition of continued employment in August 2011.

        Continued employment at the health department is not in the best interest of
        Beverly or the department. Termination is effective immediately.

Id. at 108 (emphasis added).

        On September 11, 2013, Stillson filed an amended complaint5 alleging that

        [SJHD] fired [Stillson] in retaliation for her refusal to exceed her scope of
        practice; for her refusal to violate nursing regulations; for notifying in
        writing [SJHD] and the [Indiana State Board of Nursing] [sic]; and for her
        refusal to commit a crime or unprofessional conduct for which she was
        subject to possible criminal prosecution or professional discipline up to and
        including the revocation or suspension of her RN license.

Appellant’s App. at 15. SJHD filed its answer and, on February 21, 2014, SJHD moved

for summary judgment. The trial court granted SJHD’s summary judgment motion

following a hearing. This appeal ensued.

                                DISCUSSION AND DECISION

        Our supreme court recently reaffirmed our standard of review in summary

judgment appeals:

        We review summary judgment de novo, applying the same standard as the
        trial court: “Drawing all reasonable inferences in favor of . . . the non-
        moving parties, summary judgment is appropriate ‘if the designated
        evidentiary matter shows that there is no genuine issue as to any material
        fact and that the moving party is entitled to judgment as a matter of law.’”
        Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).
        “A fact is ‘material’ if its resolution would affect the outcome of the case,
        and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’
        differing accounts of the truth, or if the undisputed material facts support
        conflicting reasonable inferences.” Id. (internal citations omitted).



        5
          Neither the briefs nor the record on appeal indicates when Stillson filed her original complaint
or why it was amended.
                                                   11
             The initial burden is on the summary-judgment movant to
      “demonstrate[] the absence of any genuine issue of fact as to a
      determinative issue,” at which point the burden shifts to the non-movant to
      “come forward with contrary evidence” showing an issue for the trier of
      fact. Id. at 761-62 (internal quotation marks and substitution omitted).
      And “[a]lthough the non-moving party has the burden on appeal of
      persuading us that the grant of summary judgment was erroneous, we
      carefully assess the trial court’s decision to ensure that he was not
      improperly denied his day in court.” McSwane v. Bloomington Hosp. &
      Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation
      marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to Hughley).

      We emphasize that summary judgment is a “high bar” for the moving party to

clear in Indiana. Id. at 1004. “In particular, while federal practice permits the moving

party to merely show that the party carrying the burden of proof [at trial] lacks evidence

on a necessary element, we impose a more onerous burden: to affirmatively ‘negate an

opponent’s claim.’” Id. at 1003 (quoting Jarboe v. Landmark Comm. Newspapers of

Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). Further:

      Summary judgment is a desirable tool to allow the trial court to dispose of
      cases where only legal issues exist. But it is also a “blunt . . . instrument”
      by which the non-prevailing party is prevented from having his day in
      court. We have therefore cautioned that summary judgment is not a
      summary trial and the Court of Appeals has often rightly observed that it is
      not appropriate merely because the non-movant appears unlikely to prevail
      at trial. In essence, Indiana consciously errs on the side of letting marginal
      cases proceed to trial on the merits, rather than risk short-circuiting
      meritorious claims.

Id. at 1003-04 (citations and some quotations omitted; omission original to Hughley).

      Stillson contends that SJHD fired her in retaliation for her refusal to engage in the

unlicensed practice of medicine and her refusal to violate Board of Nursing regulations.

In particular, on appeal, Stillson suggests that SJHD had asked her to stage syphilis, and


                                            12
she alleges that “[i]t would be a crime for a registered nurse to engage in this conduct.”

Appellant’s Br. at 15. SJHD maintains that the trial court properly granted its summary

judgment motion because the designated evidence shows that it fired Stillson for non-

retaliatory reasons.

       In Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261-62 (Ind. Ct. App. 2002),

this court set out the applicable law as follows:

               In general, an employment contract of indefinite duration is
       presumptively terminable at the will of either party. Pepkowski v. Life of
       Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989). However, in Frampton v.
       Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), our supreme
       court created an exception to the employment-at-will doctrine when an
       employee was discharged for filing a worker’s compensation claim. The
       Frampton court stated that when an employee is discharged solely for
       exercising a statutorily conferred right, an exception to the general rule is
       recognized, and a cause of action exists in the employee as a result of the
       retaliatory discharge. Id. at 253, 297 N.E.2d at 428. We have
       acknowledged that:

              one of the reasons for the Frampton rule is to prevent the
              employer from terminating the employment of one employee
              in a manner which sends a message to other employees that
              they will lose their job if they exercise . . . [a statutorily
              conferred right]. . . . The discharge of an employee merely
              for suggesting she might . . . [exercise a statutorily conferred
              right] has an even stronger deleterious effect.

       Samm v. Great Dane Trailers, 715 N.E.2d 420, 426 (Ind. Ct. App. 1999),
       abrogated on other grounds by Martin v. State, 774 N.E.2d 43 (2002)
       (internal quotations omitted).

               The question of retaliatory motive for a discharge is a question for
       the trier of fact. Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct.
       App. 1999). “Where causation or retaliation is at issue, summary judgment
       is only appropriate ‘when the evidence is such that no reasonable trier of
       fact could conclude that a discharge was caused by a prohibited
       retaliation.’” Markley Enter., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct.
       App. 1999) (quoting Hamann v. Gates Chevrolet Inc., 910 F.2d 1417, 1420
       (7th Cir. 1990), reh’g denied ). . . . In cases of wrongful termination based
                                             13
      upon allegations of discrimination, the employee can prove pretext [at trial]
      by showing that: (1) the employer’s stated reason has no basis in fact; (2)
      although based on fact, the stated reason was not the actual reason for
      discharge; or (3) the stated reason was insufficient to warrant the discharge.
      Dale, 709 N.E.2d at 369 (citing Motley v. Tractor Supply Co., 32 F. Supp.
      2d 1026 (S.D. Ind. 1998)).

(Emphases added). And in McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d

390, 392 (Ind. 1988), our supreme court extended the Frampton rule and held that an

employee cannot be discharged solely for refusing to breach a statutorily imposed duty.

      Here, Stillson contends that SJHD fired her for refusing to breach a statutorily

imposed duty, that is, practicing within the scope of her license as a nurse as set out in

Indiana statutes and the Indiana Administrative Code. In its summary judgment motion,

SJHD designated as evidence Dr. Felger’s affidavit stating that SJHD never asked

Stillson to stage syphilis or “do anything unlawful.” Appellee’s App. at 5. SJHD also

designated as evidence the March 12, 2012, notice of termination showing that it had

valid, non-retaliatory reasons for terminating Stillson’s employment.        Thus, SJHD

affirmatively negated Stillson’s claim of retaliatory discharge. The burden then shifted to

Stillson to designate evidence to make a prima facie showing that SJHD had asked her to

exceed the scope of her practice as a nurse in violation of Indiana statutes or the IAC.

And Stillson had to designate evidence to establish a question of fact regarding SJHD’s

motive for her discharge.

      According to 848 IAC 2-2-2: “The registered nurse shall . . . [f]unction within the

legal boundaries of nursing practice based on the knowledge of statutes and rules

governing nursing.” And 848 IAC 2-2-3 provides in relevant part:



                                            14
       Nursing behaviors (acts, knowledge, and practices) failing to meet the
       minimal standards of acceptable and prevailing nursing practice, which
       could jeopardize the health, safety, and welfare of the public, shall
       constitute unprofessional conduct. These behaviors shall include, but are
       not limited to, the following:

       (1) Using unsafe judgment, technical skills, or inappropriate interpersonal
       behaviors in providing nursing care.

       (2) Performing any nursing technique or procedure for which the nurse is
       unprepared by education or experience. . . .

Further, Indiana Code Section 25-22.5-8-1 provides in relevant part that it is unlawful for

any person to practice medicine in this state without holding a license or permit to do so.

And Indiana Code Section 25-22.5-8-2 provides in relevant part that a person who

knowingly or intentionally violates this article by unlawfully practicing medicine

commits a Class C felony. The undisputed designated evidence establishes that only a

licensed physician can make a medical diagnosis.           And the undisputed designated

evidence shows that only a licensed physician can stage syphilis, and once staged, the

protocols direct the treatment.

       In opposition to summary judgment, Stillson designated as evidence her affidavit,

which provides in relevant part as follows:

       8.     On August 17, 2011, a Syphilis patient visited the clinic. I contacted
       [Director of Nursing] Baker to involve Dr. Felger in staging the disease.
       Ms. Baker refused to involve him. She instructed me to administer a single
       shot of penicillin on the assumption that the patient’s Syphilis was
       “primary” and not “latent.” I refused to do so, without a medical diagnosis.

               I even suggested that Dr. Felger participate in the assessment by
       telephone. Verbal orders are commonly given by physicians, for obvious
       reasons. The nurse makes a notation on the patient’s charge documenting
       the date, time, and specifics of the physician’s order. Later, the physician
       pulls the patient’s chart and signs his or her initials beside the nurse’s chart
       notation. Ms. Baker refused my request for Dr. Felger’s verbal order. This
                                              15
       incident led to the issuance of a disciplinary write up that is attached as
       Exhibit 4. The handwritten notations on the document are mine. They
       refer to my request that Dr. Felger make the diagnosis and issue a verbal
       order, which Ms. Baker refused.

Id. at 108 (emphases added). Exhibit 4 to Stillson’s affidavit provides as follows:

       Concern: Communication and Interaction with Director of Nursing and
       Assistant Director of Nursing

       On Wednesday August 17, 2011[,] the director of Nursing spoke with STD
       nursing staff regarding a client who needed medical treatment the following
       day. The treatment recommendation was through conversations with the
       Indiana State Department of Health, the Health officer and the Director of
       Nursing.

               Beverly did not feel treatment should occur without a direct written
       order from the physician and a clear definition of the diagnosis. When I
       tried to explain to her the diagnosis at this time was going to be treated as a
       primary case pending further determination she remained convinced that
       what was being told to her was not sufficient to treat.

              She became increasingly vocal and I told her she was wrong in her
       view. She became even more upset and left the clinic area but apparently
       stopped at the Assistant Director of Nursing’s office to voice her anger and
       used inappropriate language to the ADON. This incident reflects
       unacceptable behavior and lack of respect for management. Clinical
       practice in the STD clinic follows the CDC 2010 guidelines for the
       treatment of how to best treat each individual client.

              There may be times when differences in opinion as to optimal
       treatment or policy seem to be in conflict. Open discussion is critical but
       the overriding factor is the determination of case management is not made
       by nursing staff.

              Registered Nurses work under the direction of the Health Officer.
       Communication and positive working relationships are critical as part of a
       core health care team.

             The incident reflects a breakdown in communication and clear
       understanding of STD policies.

             This is the second incident in two months with unacceptable
       behavior.
                                             16
              Beverly’s continued employment in the health department is in
       serious jeopardy. At this time her continued employment will be based on
       a referral and mandatory participation in the Employee Assistance Program
       effective immediately.

             Re-evaluation of her employment status will be made upon
       completion of the EAP program.

Id. at 114 (emphases added).

       We hold that Stillson designated sufficient evidence to establish a genuine issue of

material fact whether SJHD had asked her to exceed the scope of her practice as a nurse

in treating patients at the clinic.   The undisputed designated evidence shows that a

physician must stage a patient’s syphilis before Penicillin is administered. And Stillson’s

designated evidence shows that she objected to administering Penicillin to a syphilis

patient without a diagnosis having first been made by Dr. Felger, which would have

exceeded the scope of her practice as a registered nurse.

       Thus, we turn to the issue of whether Stillson has designated evidence to establish

a question of fact regarding SJHD’s motive for her discharge.          In support of her

contention on appeal, Stillson cites to Markley, where the plaintiff brought a claim

alleging that he was terminated from his employment in retaliation for his filing a

worker’s compensation claim. The employer moved for summary judgment alleging that

it had terminated Markley’s employment because he had “made derogatory comments

about the Company to a coworker in violation of Company rules.” 716 N.E.2d at 562.

The trial court denied the employer’s summary judgment motion in relevant part, and we

affirmed on appeal. We held that

       the mere fact that the Company has directed us to designated evidence in
       which it has articulated a reason for Grover’s discharge which appears “at
                                            17
       first blush” to be independent of the worker’s compensation claim does not
       establish, as a matter of law, that the Company lacked retaliatory intent
       when it discharged Grover. See Dale v. J.G. Bowers, Inc., 709 N.E.2d 366,
       370 (Ind. Ct. App. 1999). Additional evidence designated by the Company
       indicates that the Company had disciplined Grover on a prior occasion for
       allegedly attempting to file a false claim for worker’s compensation
       benefits. An internal Company memo discloses an extremely hostile
       attitude against Grover for having attempted to file the previous claim and
       stated that Grover’s employment would be terminated immediately in the
       event of “any repeat violations.” Record at 78. Viewing that evidence in
       the light most favorable to Grover, a reasonable finder of fact could infer
       that the Company’s stated reason for discharge is merely a pretext. These
       facts are sufficient to raise a genuine issue of material fact as to whether the
       Company’s true motive for terminating Grover’s employment was his filing
       of the worker’s compensation claim. As we noted earlier, the question of
       retaliatory motive is a question properly for the trier of fact. See Frampton,
       297 N.E.2d at 428. The Company is not entitled to summary judgment on
       this issue.

Id. at 566 (emphases added).

       Stillson argues that the designated evidence in Markley is analogous to that here.

In particular, on August 18, 2011, Baker and Dr. Felger prepared and signed a

“Conference Record” to memorialize the incident that occurred on August 17 between

Stillson and Baker regarding Stillson’s refusal to treat a syphilis patient without Dr.

Felger’s involvement in making a diagnosis. Appellant’s App. at 114. That Conference

Record states Stillson’s “continued employment in the health department is in serious

jeopardy.” Id. Stillson cites that document as proof that SJHD had previously threatened

her with termination for insisting that Dr. Felger stage a syphilis patient rather than

administering the treatment without a diagnosis, as instructed.

       Viewing all of the evidence in the light most favorable to Stillson, a reasonable

factfinder could infer that SJHD’s true motive in terminating her employment was her

refusal to exceed the scope of her nursing practice. In June 2011, after Stillson refused to
                                             18
treat a patient without a diagnosis, she was reprimanded, and Dr. Felger told her, “I don’t

want to hear any more about your nursing license.” Appellant’s App. at 108. In August

2011, Stillson asked Baker to contact Dr. Felger about staging a patient’s syphilis, but

that request was refused, and Stillson was reprimanded. Baker considered terminating

Stillson at that point. In January 2012, Baker gave Stillson a positive work performance

review, stating that Stillson was working well with clients and peers and was professional

in her interactions with managers and the medical director. Then in March 2012, after

Stillson questioned the work ethic of a coworker in front of other coworkers, and after

Baker reprimanded Stillson for abusing flex time, SJHD terminated Stillson’s

employment. And one of the stated reasons for her termination was her “excessive need”

for documentation, which included her requests for verbal orders to treat patients. Id. at

117.

       The facts are sufficient to raise a genuine issue of material fact as to whether

SJHD’s true motive for terminating Stillson’s employment was her refusal to treat

patients without diagnoses being made or to otherwise exceed the scope of her nursing

license. As we noted earlier, the question of retaliatory motive is a question properly for

the trier of fact. See Frampton, 297 N.E.2d at 428. And, again, summary judgment is not

a summary trial and it is not appropriate merely because the non-movant might appear

unlikely to prevail at trial. Hughley, 15 N.E.3d at 1003-04. The trial court erred when it

granted SJHD’s summary judgment motion.

       Reversed and remanded for further proceedings.

BAILEY, J., and PYLE, J., concur.


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