               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             September 14, 2016 Session

   LAURA LEE DEMASTUS V. UNIVERSITY HEALTH SYSTEM, INC.

                  Appeal from the Circuit Court for Knox County
                    No. 3-554-14   Deborah C. Stevens, Judge


              No. E2016-00375-COA-R3-CV-FILED –MARCH 2, 2017



Plaintiff Laura Lee Demastus brought this action against her former employer, University
Health System, Inc., doing business as the University of Tennessee Medical Center
(Employer). After Plaintiff had worked roughly three years as a nurse at the UT Medical
Center, Employer suspected that she was illegally diverting medications. When
Plaintiff’s supervisors confronted her with evidence of several suspicious transactions
recorded by the medication monitoring systems, Plaintiff denied doing anything wrong or
improper. She, however, could not explain the suspicious transactions. She was
terminated shortly thereafter. Plaintiff brought this action under the Tennessee
Disabilities Act (TDA), Tenn. Code Ann. § 8-50-103 et seq. (2016), alleging that she was
fired solely because Employer perceived her to have the disability of drug addiction.
Employer argued that it did not fire her because she was considered a drug addict, but
because it thought she was stealing medications. Following discovery, the trial court
granted summary judgment, holding that under the undisputed material facts, Plaintiff
could not establish that Employer’s proffered non-discriminatory reason was a pretext for
illegal discrimination. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Katherine A. Young, Knoxville, Tennessee, for appellant, Laura Lee Demastus.

Howard B. Jackson, Knoxville, Tennessee, for appellee, University Health System, Inc.
dba University of Tennessee Medical Center.

                                           1
                                       OPINION

                                             I.

       Plaintiff began working for Employer at the UT Medical Center in June 2010.
According to her employment record and supervisors’ testimony, she was an excellent
employee by some measures, and was a diligent worker and a caring and conscientious
caregiver. She had a tardiness problem at times, which, according to her, was caused by
her Attention Deficit Hyperactivity Disorder diagnosis. Plaintiff’s complaint alleges that
“[a]s a result of Plaintiff’s ADHD, she was often late for obligations. In early 2013,
Plaintiff was warned that her tardiness was unacceptable at [Employer’s] workplace and
she corrected her behavior.”

        Kimberly New worked for Employer as a compliance officer, monitoring
medication administration in an attempt to prevent employee diversion, which she
testified “has become a significant issue in hospitals.” In August 2013, New investigated
Plaintiff’s medication administration transactions.         Her affidavit describes her
investigation:

             If I became aware of medication administration transactions
             that raised concerns, I followed a typical investigative
             procedure. I obtained data on transactions from Omnicell
             reports, often for a period of 60 to 90 days. The Omnicell is a
             system that records when nurses remove medication. The
             Omnicell software records the identity of the nurse, the type
             of medication, the time it was removed, and the identity of the
             patient who was to receive the medication. I compared data
             from the Omnicell with information in patient charts, which is
             recorded electronically, to determine whether there were
             discrepancies or other troubling indications.

                                  *      *        *

             I found several concerning transactions in the review of
             [Plaintiff’s] medication administration transactions. Exhibit
             B to my affidavit . . . show[s] one example. In this instance,
             the Omnicell report shows a withdrawal of Oxycodone for
             patient GB at 22:28 on July 8, 2013. The patient chart does
             not record that dose of Oxycodone as having been



                                             2
                administered or wasted.1 I noted that this was a missing
                medication by writing an “m” with a circle around it next to
                the record of withdrawal on the Omnicell report.

                                    *      *       *

                After I analyzed the medication administration records for
                [Plaintiff], I contacted her manager, Laura Harper. Ms.
                Harper and I met with [Plaintiff] on August 28, 2013. I
                presented [Plaintiff] with records of several concerning
                transactions. She could not explain them.

                                    *      *       *

                I met with Ms. Harper, and her supervisor, Jeanne Wohlford,
                on or about August 29, 2013, to discuss the investigation. I
                showed documents to Ms. Harper and Ms. Wohlford and
                explained the facts revealed in the investigation. Those facts
                pointed to the conclusion that [Plaintiff] had engaged in
                diversion of medication. I was not asked for my opinion
                regarding [Plaintiff’s] employment with the Hospital, nor did
                I offer an opinion on that subject.

(Numbering in original omitted; footnote added.) In addition to the missing oxycodone
noted above, New provided two other documented examples of concerning medication
transactions in her affidavit.

      Plaintiff testified as follows about the meeting on August 28, 2013:

                Q. Was there discussion of occasions when medication was
                documented as being removed from the Omnicell but then not
                charted as being given to the patient? Was that something
                that Ms. New mentioned?

                A. Yes, she did. She asked me if I could explain situations in
                which medications were removed but she could not find it in
                the charting where they had been administered, to which I
                responded, “If I removed the medication from the Omnimed
                or Omnicell, I either administered it to the patient or I

      1
          Not usable.
                                               3
             returned it to the Omnimed or Omnicell. If the charting
             doesn’t reflect that, I have no explanation as to why that is.
             I’m not an IT person. I’m a nurse, but all I can tell you is
             what I know to be the truth, which is if I removed it, I either
             gave it or returned it, period.”

             Q. Did Ms. New or Ms. Harper respond when you made that
             comment?

             A. They responded by continuing to go down the list of
             medications that Ms. New had compiled to see if I had an
             explanation for any of the discrepancies that she had come
             across.

             Q. Did Ms. New make mention of a discrepancy such as
             medication documented as being administered to a patient
             before it had been documented as being removed from the
             Omnicell?

             A. I believe that there was one instance, maybe more, of
             something of that. Sitting there, I was so in shock of what
             was being alluded to and what we were discussing, it was all
             very confusing for me, as far as how could it be that I
             administered medication that hadn’t been pulled from an
             Omnimed before? I mean, how do I even procure medication
             unless it’s through the Omnimed?

             I was in such shock and in such a twirl mentally about the
             whole scenario that I didn’t have the wherewithal to say, “I
             need to see charts, I need to see my notes, I need to see this,
             that and the other,” and so with the limited amount of
             information that I had there, I just went with the truth and
             said, “If it says I removed it, I removed it, and I gave it or I
             returned it. That’s all I can tell you.”

Plaintiff testified that she assured her supervisors she did not have a drug abuse problem.
She also consented to a drug screen. Before the results of the drug screen came back,
Employer terminated Plaintiff’s employment on August 30, 2013. The reason stated on
Employer’s supervisor separation evaluation form is “gross misconduct.”



                                            4
       Plaintiff filed this action on August 26, 2014. She alleged that although she does
not and has not ever had a drug addiction, Employer perceived her to have one, and fired
her solely for that reason. In its answer, Employer denied a discriminatory intent, stating:
“University Health did not regard Plaintiff as disabled. University Health regarded
Plaintiff as a person who had diverted prescription medication.”

       Employer moved for summary judgment. Following a hearing, the trial court
granted the motion, stating in pertinent part:

              [The TDA] requires the plaintiff to prove that [she was]
              terminated solely because of the disability. I think everybody
              this morning agreed that if the plaintiff had been terminated
              solely because of addiction she would have a disability claim.
              For purposes of reviewing this motion for summary
              judgment, the court has presumed plaintiff can make a prima
              facie case of disability.

              What the court has focused on is whether or not once the
              defendant has presented a business reason for the termination,
              whether or not the plaintiff can . . . meet [her] burden of proof
              in showing that the termination was pretextual.

                                   *      *       *

              I can't help but find that the basis for the termination was, in
              fact, drug diversion, that [Plaintiff] was given an opportunity
              as per standard protocol to explain the discrepancies. She
              chose to explain it by basically admitting that the records are
              what the records are.

                                   *      *       *

              And in this case, clearly, while there may have been
              discussions about what caused the medicine diversion of ‒
              discrepancy, the fact is that the plaintiff was terminated for
              medication diversion, which was a violation of the drug-free
              workplace, not in the sense of the fact that she was using the
              medicine, but in the sense that she had medication that was
              not accounted for.

                                   *      *       *
                                              5
              [T]he motion for summary judgment is properly taken and
              should be granted on the basis that, as a matter of law, the
              plaintiff cannot establish that the reasons for termination were
              pretextual particularly as set out in [Plaintiff’s] deposition.
              No reasonable minds could differ on the factual conclusions.

Plaintiff timely filed a notice of appeal.

                                                 II.

      Our standard of review of a grant of summary judgment is as stated by the
Supreme Court:

              Summary judgment is appropriate when “the pleadings,
              depositions, answers to interrogatories, and admissions on
              file, together with the affidavits, if any, show that there is no
              genuine issue as to any material fact and that the moving
              party is entitled to a judgment as a matter of law.” Tenn. R.
              Civ. P. 56.04. We review a trial court’s ruling on a motion
              for summary judgment de novo, without a presumption of
              correctness.

                                    *        *         *

              [I]n Tennessee, as in the federal system, when the moving
              party does not bear the burden of proof at trial, the moving
              party may satisfy its burden of production either (1) by
              affirmatively negating an essential element of the nonmoving
              party’s claim or (2) by demonstrating that the nonmoving
              party’s evidence at the summary judgment stage is
              insufficient to establish the nonmoving party’s claim or
              defense. . . . The nonmoving party must demonstrate the
              existence of specific facts in the record which could lead a
              rational trier of fact to find in favor of the nonmoving party.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (emphasis in original).

       In making the determination of whether summary judgment was correctly granted,



                                                 6
             [w]e must view all of the evidence in the light most favorable
             to the nonmoving party and resolve all factual inferences in
             the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
             271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
             S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
             of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
             facts support only one conclusion, then the court’s summary
             judgment will be upheld because the moving party was
             entitled to judgment as a matter of law. See White v.
             Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
             Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745
at *2 (Tenn. Ct. App., filed Apr. 24, 2014).

                                            III.

       Plaintiff brought her employment discrimination action under the TDA, Tenn.
Code Ann. § 8-50-103 et seq. (2016). The TDA states that “[t]here shall be no
discrimination in the hiring, firing and other terms and conditions of employment . . .
against any applicant for employment based solely upon any physical, mental or visual
disability of the applicant, unless such disability to some degree prevents the applicant
from performing the duties required by the employment sought or impairs the
performance of the work involved.” Id. § 8-50-103(b). The analytical framework for
addressing such a claim is found at Tenn. Code Ann. § 4-21-311(e) (2015), which
provides:

             In any civil cause of action alleging a violation of this chapter
             or of § 8-50-103, the plaintiff shall have the burden of
             establishing a prima facie case of intentional discrimination
             or retaliation. If the plaintiff satisfies this burden, the burden
             shall then be on the defendant to produce evidence that one
             (1) or more legitimate, nondiscriminatory reasons existed for
             the challenged employment action. The burden on the
             defendant is one of production and not persuasion. If the
             defendant produces such evidence, the presumption of
             discrimination or retaliation raised by the plaintiff’s prima
             facie case is rebutted, and the burden shifts to the plaintiff to
             demonstrate that the reason given by the defendant was not
             the true reason for the challenged employment action and that
             the stated reason was a pretext for illegal discrimination or
                                             7
             retaliation. The foregoing allocations of burdens of proof
             shall apply at all stages of the proceedings, including motions
             for summary judgment. The plaintiff at all times retains the
             burden of persuading the trier of fact that the plaintiff has
             been the victim of intentional discrimination or retaliation.

      As we have observed, in order to establish a prima facie case,

             there are three elements to a claim for discrimination under
             the TDA; a claimant must show: “(1) that the individual was
             qualified for the position; (2) that the individual was disabled;
             and (3) that the individual suffered an adverse employment
             action because of that disability.” Barnes [v. Goodyear Tire
             & Rubber Co.], 48 S.W.3d [698], 705 [Tenn. 2000,
             abrogated on other grounds by Gossett v. Tractor Supply
             Co., 320 S.W.3d 777 (Tenn. 2010)]. The third element, or
             causation element, may be established by either direct or
             indirect evidence of discrimination. Id. at 710. The threshold
             issue, however, is whether the claimant is “disabled.”
             Barnes, 48 S.W.3d at 709–710; Cecil v. Gibson, 820 S.W.2d
             361, 365 (Tenn. Ct. App. 1991).

Bennett v. Nissan N. Amer., Inc., 315 S.W.3d 832, 841 (Tenn. Ct. App. 2009).

        Although the TDA does not expressly define “disability,” it “embodies the rights
and definitions of the THRA [Tennessee Human Rights Act],” id., and the THRA’s
definition of “disability” has been adopted and applied in TDA cases. Id.; Barnes, 48
S.W.3d at 706; McConnell v. Armed Servs. Mut. Benefit Ass’n, No. M2015-01184-
COA-R3-CV, 2016 WL 3575012, at *4 (Tenn. Ct. App., filed June 24, 2016); Jones v.
Sharp Elec. Corp., No. W2013-01817-COA-R3-CV, 2014 WL 806131, at *3 (Tenn. Ct.
App., filed Feb. 28, 2014) (“[T]he definition [of “disabled”] contained in the Tennessee
Human Rights Act (“THRA”) is applicable to TDA claims.”). The THRA provides:

             “Disability” means, with respect to a person:

             (i) A physical or mental impairment that substantially limits
             one (1) or more of such person’s major life activities;

             (ii) A record of having such an impairment; or

             (iii) Being regarded as having such an impairment;
                                            8
             (B) “Disability” does not include current, illegal use of, or
             addiction to, a controlled substance or controlled substance
             analogue[.]

Tenn. Code Ann. § 4-21-102(3)(A) (2015) (emphasis added).

       Plaintiff asserts in her affidavit: “I am not now, and have never been, a drug
abuser or addict.” Thus, she does not allege that she has a disability, but that Employer
regarded or perceived her as having one, and fired her solely for that reason. Such a
claim, if proven, would be actionable under the TDA. Tenn. Code Ann. § 4-21-
102(3)(A)(iii); Barnes, 48 S.W.3d at 707 (the TDA “prohibits an employer from
terminating an employee for a perceived disability or handicap”); Bennett, 315 S.W.3d at
846-47.

      Plaintiff points to testimony indicating that her supervisors had a concern that she
might be suffering from drug addiction. She stated in her deposition that at the August
28 meeting,

             A. [New] went on to say that it’s not uncommon for night
             nurses to have trouble sleeping. She sees it every day. She
             monitors medication, that’s her only job, and nurses that you
             would never think have a substance abuse problem ‒ there’s
             no telltale sign, but it would behoove me to tell them
             whatever medications I’m on, any sort of substance abuse
             problem I have so that they can help me to get the assistance
             that I need.

             Q. This is Ms. New talking?

             A. Yes. Yes.

             Q. How did you respond to her, or did you?

             A. Well, I understood what her job for the hospital was, and I
             understood her role in safety. I also knew that I was not
             someone who had a substance abuse problem, and so I didn’t
             want her to feel like I was not hearing her or being obstinate,
             but at the same time I wasn’t going to admit to something that
             I knew to be untrue. Then she went on to talk about my co-
             worker and friend who was terminated for drug diversion.

                                            9
            Q. Who was that?

            A. His name was [RH].

            Q. Mr. H[] was terminated for diversion; is that your
            understanding?

            A. That was my understanding. I’m not 100 percent sure.

                                 *      *        *

            Q. Did Ms. New make some comment to indicate a belief that
            you had been diverting medication?

            A. Only so much as to say that she ‒ if ‒ that I needed to tell
            them what medications I was taking so that she could get me
            the help I needed. I didn’t have a prescription for anything
            other than what I had told them. So if I had a substance abuse
            problem, I would have had to divert it. So it was sort of a
            roundabout way of getting there, but ‒ and then she
            proceeded to have the LabCorp drug screen me.

                                 *      *        *

            Q. Did you reference diverting medication by saying, “I
            wouldn’t divert medication because” ‒

            A. I’m not sure I ever used the word “divert,” because at that
            point I felt there was a larger issue at hand.

            Q. Which was?

            A. A concern about a substance abuse problem, and the
            mention of [RH] seemed to set up like a birds-of-a-feather
            situation.

       A second meeting took place on August 30, 2013. Plaintiff, her supervisor
Harper, and Employer’s associate director for human resources, Brenda Merhar, were
there. Plaintiff testified as follows about what happened at that meeting:

            Q. How did that meeting begin?
                                            10
              A. Ms. Harper told me that Ms. New had continued to
              investigate and that she had found even more discrepancies or
              medications that weren’t administered timely or couldn’t be
              accounted for, and she asked me if I had an explanation for
              the new findings.

              Q. How did you respond?

              A. I said that all I knew was that if I pulled medication, I
              either gave it or I returned it, and to try to explain why the
              computer charting or whatever didn’t reflect that, that was
              outside of my scope. I can’t ‒

              Q. How did Ms. Harper respond at that point?

              A. She said that they’ve come to the conclusion that I’m now
              going to be terminated for gross misconduct per the drug-free
              workplace policy, that I would no longer have access to
              insurance, paid time off, and that I would be reported to the
              State and to TnPAP.2

              Q. Do you remember your response?

              A. I ‒ all of the air sort of left the room, as far as I was
              concerned, and I said, “Well, what about my drug test? Have
              the results of my drug test come back yet?” And Ms. Merhar
              said, “We don’t need to wait for the results of your drug test
              and, further, you need to do exactly what TnPAP says if you
              want to keep your license and work again as a nurse when
              they call you.”

       Merhar testified as follows regarding the decision to have Plaintiff tested for drugs
and to refer her to TnPaP:

              Q. If somebody stole money or products, you said they didn’t
              do reasonable suspicion drug testing; correct?

              A. Yes.

2
       TnPaP is the Tennessee professional assistance program, described by Plaintiff as “the
healthcare practitioner drug rehabilitation program.”
                                             11
Q. But if they were suspected of stealing drugs, why would
you do reasonable suspicion testing?

A. Because they could be using the drugs or stealing the
drugs.

Q. In this particular case, some physical items are noted,
specifically if you see in the box marked Number 6, eyes, it
says, blood shot. Do you know why this would be something
of significance to note for the Reasonable Suspicion form?

A. It is just one of the signs that a supervisor or department
manager would look for if they thought the person was
abusing drugs.

                     *      *        *

Q. Who decides that an employee at the University Hospital
will be referred to TnPAP?

A. The department manager or supervisor.

Q. Do you have any input as to whether that referral is made
or not?

A. HR would be consulted.

Q. Do you recall being consulted in regard to [Plaintiff]?

A. Well, we report all drug related things to TnPAP.

Q. Why is that?

A. Because they’re the governing board for the nurses.

Q. When you say all drug related, what do you mean by all
drug related? What types of cases?

A. Terminations.

Q. Terminations. But how are they related to drugs?
                                12
              A. Either diversion or suspected use or positive drug test.

              Q. Why would diversion be reported to TnPAP?

              A. That’s just ‒ that’s part of our procedure.

              Q. Do you know why it’s part of your procedure?

              A. Because it was theft.

              Q. And my understanding of TnPAP’s purpose is to assist
              impaired professionals. Is that your understanding?

              A. Yes.

              Q: Why would theft require the assistance of a unit that’s
              designed to assist impaired professionals?

              A. It was our process that if anyone was terminated involving
              drugs that they would be reported to TnPAP, and then TnPAP
              could make their decisions.

       Plaintiff relies upon the following statement from her affidavit: “when I was in the
meeting with Kimberly New and Laura Harper on August 28, 2013, Laura Harper said to
me that she had always worried about me because I fit the profile of the kind of nurse
who would become addicted to drugs, because I was an over-achiever, conscientious,
hard-working and always striving to provide a high standard of care for her patients.”
Plaintiff proffered a copy of an email sent from New to Merhar on August 29, 2013,
which states in pertinent part:

              Laura Harper and I met last evening with [Plaintiff] to discuss
              several missing controlled substances as well as several
              medication handling issues. I informed [her] of the reason for
              the meeting and let her know that her drug transactions were
              quite concerning. . . . [Plaintiff] was cooperative but did not
              have an explanation for any of the missing medications,
              including a missing hydrocodone from the night before.
              Several times she stated she would never handle drugs in a
              certain way, but the evidence was there in front of her
              showing she did.

                                             13
             Specifically there were multiple doses of benzodiazepines and
             opioid tablets that [Plaintiff] removed from the drug cabinet
             but never documented administering to a patient. She
             admitted that she had a “bad habit” of pulling pain
             medications at the beginning of a shift when she knew her
             patient would be requesting them around the clock. She also
             admitted to carrying the medications around in her pockets. I
             informed her that both practices were a security issue and a
             violation of our drug handling policies.

                                 *      *        *

             I went through numerous transactions with [Plaintiff] and
             explained that we were doing so in order for her to understand
             the scope of the problem.

                          *      *      *

             I left after the drug screen and encouraged [Plaintiff] to
             confide in Laura Harper about what was going on. I told
             [Plaintiff] that I was not convinced that she wasn’t diverting
             as there were multiple unexplained transactions and a large
             amount of missing medication.

Attached to this email was the language drafted by New that was included in Employer’s
referral of Plaintiff to TNPaP, which reiterated the above and further stated,

             Prior to meeting with [Plaintiff], multiple controlled
             substance transactions were reviewed by Kim New, and
             additional undocumented doses were identified. . . . Kim New
             and Laura Harper reviewed these transactions together and it
             was agreed that diversion was likely. Laura Harper noted that
             [Plaintiff] had had a change in her behavior starting in the
             prior 6 months; a change that was significant enough to have
             caused her to ask Ms. New to review her transactions for
             possible diversion and to keep an eye on her transactions
             going forward. At that time a random review of the
             transactions by Ms. New failed to reveal anything suspicious,
             and it was noted that [Plaintiff] was not statistically
             significant for Class II and III controlled substances when
             compared to her peers. Laura Harper stated that [Plaintiff]
                                            14
              had lost a significant amount of weight in the past few months
              and was having financial issues resulting in impending
              garnishment of wages. [Plaintiff] was in advanced corrective
              action due to tardiness, and had actually been referred to EAP
              as a part of the corrective action process.

                                   *      *        *

              A drug screen was performed and then Kim New left after
              encouraging [Plaintiff] to confide in Laura Harper about what
              was going on. [Plaintiff] was informed by Kim that she was
              not convinced that she wasn’t diverting, as there were
              multiple unexplained transactions and a large amount of
              missing medication.

                                   *      *        *

              Based on all the evidence, it was determined that there was
              overwhelming evidence that diversion had occurred and that
              [Plaintiff] would be terminated. [Plaintiff] met with Ms.
              Harper and Brenda Merhar (from HR) on August 30, and was
              terminated for gross misconduct retroactive to August 28.

        Employer fired Plaintiff before her drug screen results came back. Plaintiff
applied for unemployment benefits. Linda Wheeler, who worked for Employer in human
resources, responded to the state’s request for Plaintiff’s separation information. Wheeler
testified by affidavit as follows regarding her response:

              When I received a questionnaire regarding [Plaintiff’s] claim
              for unemployment compensation benefits I looked in the
              electronically maintained file regarding [Plaintiff] and saw a
              document that indicated a positive drug screen, and a
              termination letter which stated that she had been terminated
              for gross misconduct in violation of the Drug Free Workplace
              Policy. On the basis of those documents, I believed that
              [Plaintiff] had been discharged because of the positive drug
              screen, and I submitted those documents along with
              questionnaire answers to the Tennessee Department of Labor
              and Workforce Development.

                                   *      *        *
                                              15
              I did not consult with Laura Harper or Brenda Merhar before
              submitting a response to the Tennessee Department of Labor
              and Workforce Development in response to [Plaintiff’s] claim
              for unemployment compensation benefits. I put the response
              together based solely on the documents that I saw in the file.

              I do not play a role in making discharge decisions. I was not
              consulted during the process that led to the discharge of
              [Plaintiff] from employment with the Hospital, and I have no
              personal knowledge of that decision-making process.

Plaintiff’s drug screen was in fact positive for amphetamines, but this was because she
had a valid prescription for, and was taking, medication for her ADHD. The test was
negative for any other controlled substance. Employer eventually sent a letter to the
Tennessee Department of Labor and Workforce Development explaining Wheeler’s
error:

              [W]e want to correct a statement given in connection with the
              request for separation information. The previously provided
              narrative attachment referred to a drug screen result as a
              reason for discharge. That statement was made in error. The
              Claimant was not discharged on the basis of a drug screen
              result.

              The UT Medical Center discharged the Claimant after an
              investigation led its Compliance Specialist to conclude that
              the Claimant had diverted medication. That is the sole reason
              for the discharge decision.

        In evaluating Plaintiff’s TDA claim for discriminatory discharge solely due to a
perceived disability under Tenn. Code Ann. § 4-21-102(3)(A)(iii), we must return to the
legislature’s definition of “disability,” which expressly “does not include current, illegal
use of, or addiction to, a controlled substance.” Id. 4-21-102(3)(B) (emphasis added).
The evidence suggests that Employer had a concern that Plaintiff might have been
addicted, which is a natural and reasonable concern regarding anyone suspected of
diverting medication. But even acknowledging that concern, the point is that Plaintiff
still would not have established that she met the statutory definition of having a
disability. If an employer perceives, rightly or wrongly, that an employee has a current
active addiction to a controlled substance, then it is not perceiving a “disability” under
the TDA. There is no evidence, nor did Plaintiff allege, that Employer considered her to
be a former, or presently recovering, drug addict. Consequently, Plaintiff was unable to
                                            16
establish a prima facie case, and we affirm the trial court’s summary judgment on this
ground.3 The United States District Court for the Middle District of Tennessee, applying
the TDA, has recently reached a similar conclusion. See Hannah v. United Parcel
Service, Inc., No. 3-14-1774, 2014 WL 5810214, at *1-2 (M.D. Tenn., filed Nov. 7,
2014).

       Alternatively, and additionally, we affirm on the trial court’s stated ground that
Plaintiff was unable to show that Employer’s stated reason for the discharge ‒ its
suspicion that she was diverting medications ‒ was pretextual. The burden-shifting
paradigm at Tenn. Code Ann. § 4-21-311(e) is the familiar McDonnell Douglas
framework applied to employment discrimination cases. See Barnes, 48 S.W.3d at 698;
Yount v. FedEx Express, No. W2015-00389-COA-R3-CV, 2016 WL 1056958, at *7
(Tenn. Ct. App., filed Mar. 17, 2016) (“in light of the Tennessee Supreme Court’s
decision in Rye to overrule Hannan, we conclude that the McDonnell Douglas
framework once again applies in Tennessee to analyze discrimination claims at the
summary judgment stage.”). In this case, there is no doubt that Employer provided a
legitimate, nondiscriminatory reason for firing Plaintiff ‒ its suspicion, supported by
evidence unchallenged by Plaintiff, that she was diverting medications. The burden
shifted back to Plaintiff to establish this reason was a pretext for illegal discrimination.
Regarding the pretext analysis, we have observed:

              A plaintiff may establish pretext in one of three ways: by
              showing “(1) that the proffered reasons had no basis in fact,
              (2) that the proffered reasons did not actually motivate [the
              employee’s] discharge, or (3) that they were insufficient to
              motivate discharge.” Manzer v. Diamond Shamrock Chems.
              Co., 29 F.3d 1078, 1084 (6th Cir.1994) (quoting McNabola v.
              Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir.1993))
              (emphasis in Manzer).

              An employer’s proffered reason for termination of an
              employee has no basis in fact if “the employer’s proffered
              non-discriminatory reasons for [the employee’s] demotion or
              discharge are factually false.”       Anderson v. Baxter
              Healthcare Corp., 13 F.3d 1120, 1123–24 (7th Cir.1994); see
              also Manzer, 29 F.3d at 1084 (citing Baxter Healthcare).
       3
          The trial court did not grant summary judgment on this basis, probably because
Employer rather broadly conceded that it was not arguing Plaintiff failed to establish a
“disability” under the statute. Nonetheless, it is well established that we “may affirm the
judgment on grounds different from those relied upon by the lower courts when the lower courts
have reached the correct result.” In re Estate of Trigg, 368 S.W.3d 483, 502 n.63 (Tenn. 2012).
                                              17
              The question is not whether the employer’s decision was
              sound, but whether the employer’s asserted reason for the
              adverse employment decision is pretextual. In re Lewis, 845
              F.2d 624, 633 (6th Cir. 1988). The reasonableness of an
              employer’s decision may be considered, but only so far as it
              “illuminates the employer’s motivations.” Id. “The more
              questionable the employer’s reason, the easier it will be for
              the jury to expose it as pretext.” Id. Thus, on summary
              judgment, a non-moving plaintiff must “produce evidence
              from which a rational factfinder could infer that the company
              lied about its proffered reasons for [the employee’s]
              dismissal.” Baxter Healthcare, 13 F.3d at 1124 (internal
              quotations omitted).

              In attempting to show that a defendant’s proffered reason did
              not actually motivate discharge, a plaintiff may either (1)
              produce evidence that the adverse employment decision was
              more likely motivated by discrimination, or (2) show that the
              employer’s explanation is not credible. Kline v. Tennessee
              Valley Auth., 128 F.3d 337, 342–43 (6th Cir.1997).

              To show that a defendant’s proffered reason is insufficient to
              motivate discharge, a plaintiff must produce “evidence that
              other employees, particularly employees not in the protected
              class, were not fired even though they engaged in
              substantially identical conduct to that which the employer
              contends motivated its discharge of the plaintiff.” Manzer,
              29 F.3d at 1084.

Versa v. Policy Studies, Inc., 45 S.W.3d 575, 581 (Tenn. Ct. App. 2000) (italics and
brackets in original).

       In the instant case, the evidence is undisputed that, when Employer confronted
Plaintiff with evidence supporting its suspicion that she had diverted medications,
including data from its electronic medication monitoring systems, she provided no
explanation. Even examining the proof in the light most favorable to Plaintiff, there is no
evidence in the record that would reasonably support a conclusion that Employer’s stated
reason was pretextual and that its real, sole reason for firing Plaintiff was discriminatory.
We therefore affirm the trial court’s summary judgment in favor of Employer.



                                             18
                                         IV.

       The trial court’s judgment is affirmed. Costs on appeal are assessed to the
appellant, Laura Lee Demastus, and the case is remanded for collection of costs below.



                                               _______________________________
                                               CHARLES D. SUSANO, JR., JUDGE




                                          19
