                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  January 6, 2010 Session

         SAUNDRA J. COUNCE, RN v. ASCENSION HEALTH ET AL.

                  Appeal from the Circuit Court for Davidson County
                  No. 06-C-2137     Hamilton V. Gayden, Jr., Judge




                 No. M2009-00741-COA-R3-CV - Filed March 8, 2010


The plaintiff, formerly an at-will employee of Baptist Hospital, filed this action asserting that
she was wrongfully terminated from her employment. She asserted twelve claims, inter alia,
retaliatory discharge, age and sex discrimination, sexual harassment, violation of wage and
hour laws, and violation of the Americans with Disabilities Act. The trial court summarily
dismissed all of the claims. We affirm.

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

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and R ICHARD H. D INKINS, JJ., joined.

Jeffery C. Grass, Plano, Texas, Pro Hac Vice, and Matthew Brothers, Nashville, Tennessee,
for the appellant, Saundra J. Counce.

Luther Wright, Jr., and Joycelyn A. Stevenson, Nashville, Tennessee for the appellees,
Ascension Health, Seton Corporation, Saint Thomas Health Services and Baptist Hospital.

                                          OPINION

       The plaintiff, Saundra Counce, a registered nurse, entered into a Registered Nurse
Premium Pay Agreement with Baptist Hospital on August 15, 2004 to work at the hospital
as a “Critical Care R.N.” on an as-needed basis in the “Flex Pool” Department. The Premium
Pay Agreement outlined the wages she would receive if and when she was called to work at
the hospital; the agreement did not guarantee any work would be available and the agreement
was not for a specific term.
        As a member of the critical care Flex Pool, Ms. Counce worked on an “as needed”
basis, meaning her work was not prescheduled nor was any work assured. Instead, she was
called to fill nursing staff shortages in the various hospital units as they occurred.

        Pursuant to the pay agreement, Ms. Counce was initially placed on “orientation,”
during which time she received a wage of $18.00 an hour, and her wage was increased to
$28.00 an hour after she completed orientation. Over the next several months Ms. Counce
received two performance evaluations, which were favorable in most respects, as she was
rated in the “quality performer” range; however, she was not evaluated in all categories as
her evaluation did not include areas in which she had not worked. Moreover, there were
notations in the evaluations indicating that other aspects of her performance were
“discussed,” in some instances “in-depth,” but the reports do not indicate what was
discussed.1

       On September 13, 2005, a year after she started working at Baptist Hospital, Esther
Hoover, the Clinical Nurse Manager, and Terri Graves, Manager of the Flex Pool, met with
Ms. Counce to inform her that she was being placed on probation for unsatisfactory work
performance. During the meeting Ms. Counce was given an Associate’s Conference Report,
which outlined the issues leading to her probation, and she was also given performance
objectives to improve her performance.2

       Two months later, on November 2, 2005, Ms. Counce was notified via letter that her
employment was terminated. The letter was signed by Ms. Hoover, the same person who
hired her for the position. Ms. Counce was informed that she could file an appeal to
challenge her termination, which she did on November 8, 2005. In her appeal, Ms. Counce
asserted that she had been discriminated against while employed at Baptist Hospital. This
was the first time Ms. Counce claimed to be the subject of any form of discrimination. Ms.
Counce’s appeal was reviewed by Susan Jones, the Associate Chief Nurse Officer. In a letter
dated November 15, 2005, Ms. Jones informed Ms. Counce that her termination was upheld
based on the finding that Ms. Counce had not demonstrated the necessary proficiency for safe
patient care.


        1
         We find the evaluation process by Baptist Hospital suspect and troubling. The evaluations of Ms.
Counce indicate that she was a quality performer, yet the hospital argues in this case that she was not and
that many of her deficiencies were not stated in the evaluation report. We also find it troubling that the
hospital contends that other areas of her performance were allegedly “discussed” by the evaluators with Ms.
Counce yet they are not revealed. Such a protocol is indicative of one being placed on super secret, double
probation. Such a practice greatly undermines the hospital’s argument that Ms. Counce was not a quality
performer.
        2
            The report was signed by Ms. Counce to acknowledge that she had received it.

                                                    -2-
        Three days later, on November 18, 2005, Ms. Counce filed a “Disability Grievance”
in which she asserted that she was terminated for asking questions about screens and
pathways on the computer. The grievance was assigned to Martha Underwood, the Baptist
Hospital Section 504 Coordinator. On December 1, 2005, Ms. Underwood wrote Ms. Counce
stating that a complete description of the basis for the grievance (including her disability) and
any supporting documentation should be provided to the hospital. Ms. Counce replied in a
letter dated December 15, 2005 stating that she had difficulty reading a certain font used at
Baptist Hospital. On December 27, 2005, Ms. Underwood informed Ms. Counce that there
was no evidence that Ms. Counce had informed anyone in Baptist Hospital’s Human
Resources Department of a physical or mental limitation for which she needed an
accommodation and there was no evidence of disability discrimination. Ms. Underwood also
noted in the letter that Ms. Counce had not raised the issue of a disability in any of her
previous meetings concerning her performance with her supervisors.

        Ms. Counce then filed a Discrimination Charge with the Tennessee Human Rights
Commission. In her discrimination charge, filed on May 16, 2006, Ms. Counce alleged that
Baptist Hospital discriminated against her on the basis of sex, national origin, and age, and
that her termination was retaliation. She explained that the retaliation occurred because she
had reported a nurse supervisor who had “raised her voice impatiently and angrily in front
of the staff,” and for suggesting that another nurse needed a drug screen. This was the first
time either of these issues had been raised by Ms. Counce. Following a review of Ms.
Counce’s charge of discrimination, the investigator with the Human Rights Commission
issued a recommendation to dismiss the charge, and it was dismissed.

        This action against Baptist Hospital and its affiliates, Ascension Health, Seton
Corporation and St. Thomas Health Services, was filed pro se by Ms. Counce on August 15,
2006.3 In her complaint, she asserted claims of retaliatory discharge and wrongful
termination, negligent hiring, implied contract exception, good faith exception, public policy
exception, age discrimination, sexual harassment, victim of favoritism, violation of wage and
hour laws, racial discrimination, violations of the Americans with Disabilities Act, and libel.
On May 1, 2009, the defendants filed a Motion for Summary Judgment requesting that the
trial court dismiss all of the claims. A hearing was held on October 17, 2008, following
which the trial court summarily dismissed all of Ms. Counce’s claims. Ms. Counce filed a
Motion to Alter or Amend the judgment, which the trial court denied on March 13, 2009.
This appeal followed.



       3
       Baptist Hospital is one of five facilities within the Saint Thomas Health Network, which is a
member of Ascension Health.

                                                -3-
                                          A NALYSIS

        This appeal arises from the grant of summary judgment. Summary judgment is
appropriate when a party establishes that there is no genuine issue as to any material fact and
that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke,
113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be
resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when
genuine disputes regarding material facts exist. See Tenn. R. Civ. P. 56.04. The party seeking
summary judgment bears the burden of demonstrating that no genuine disputes of material
fact exist and that the party is entitled to judgment as a matter of law. Godfrey v. Ruiz, 90
S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary judgment, the moving party must
affirmatively negate an essential element of the nonmoving party’s claim or show that the
moving party cannot prove an essential element of the claim at trial. Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 83 (Tenn. 2008).

       Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth
Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). This court makes a
fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter
v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1977). We consider the evidence in the light most
favorable to the nonmoving party and resolve all inferences in that party’s favor. Stovall, 113
S.W.3d at 721; Godfrey, 90 S.W.3d at 695. When reviewing the evidence, we first determine
whether factual disputes exist. If a factual dispute exists, we then determine whether the fact
is material to the claim or defense upon which the summary judgment is predicated and
whether the disputed fact creates a genuine issue for trial. Byrd, 847 S.W.2d at 215.

        A party is entitled to summary judgment only if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . . 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. A properly supported motion for summary
judgment must show that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Staples v. CBL & Assocs., Inc., 15 S.W.3d
83, 88 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).
If the moving party makes a properly supported motion, then the nonmoving party is required
to establish the existence of the essential elements of the claim. McCarley, 960 S.W.2d at
588; Byrd, 847 S.W.2d at 215. If, however, the moving party does not properly support the
motion, then the nonmoving party’s burden to produce either supporting affidavits or
discovery is relieved and the motion must fail. McCarley, 960 S.W.2d at 588; Martin, 271
S.W.3d at 83.



                                               -4-
       To make this showing and shift the burden of production, a moving party may: 1)
affirmatively negate an essential element of the nonmoving party’s claim; or 2) show that the
nonmoving party cannot prove an essential element of the claim at trial. Martin, 271 S.W.3d
at 83; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd, 847 S.W.2d at 215
n.5. Whichever approach the moving party takes, both require more than assertions of the
nonmoving party’s lack of evidence. Martin, 271 S.W.3d at 83-84. In addition, the moving
party must present evidence that more than “raises doubts” about the ability of the
nonmoving party to prove its claim at trial. Id. at 84. The moving party must produce
evidence or refer to previously submitted evidence. Id.; accord Hannan, 270 S.W.3d at 5.
Thus, to negate an essential element of a claim, a moving party must refer to evidence that
tends to disprove an essential element of the claim made by the nonmoving party. Martin,
271 S.W.3d at 84.

        Baptist Hospital, as the moving party, had the burden to negate an essential element
of Ms. Counce’s claims or establish that she cannot prove an essential element of her claims
at trial. See Martin, 271 S.W.3d at 83 (citing Hannan, 270 S.W.3d at 5; McCarley, 960
S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.5).

                                  R ETALIATORY D ISCHARGE

       In her Complaint, Ms. Counce asserts a claim of retaliatory discharge, but she fails to
state whether her claim is brought pursuant to Tennessee’s Public Protection Act or the
common law. Recognizing that she was a pro se litigant at the time, we will afford some
deference to her; therefore, we infer that she presented claims of retaliatory discharge under
both the common law and Tennessee’s Public Protection Act, Tenn. Code Ann. § 50-1-304.

        Under Tennessee’s Public Protection Act, a plaintiff must establish: (1) her status as
an employee of the defendant employer; (2) her refusal to participate in, or remain silent
about, “illegal activities” as defined under the Act; (3) her termination; and (4) an exclusive
causal relationship between her refusal to participate in or remain silent about illegal
activities and her termination in order to sustain a cause of action. See McLeay v. Huddleston,
No. M2005-02118-COA-R3-CV, 2006 WL 2855164, at *5 (Tenn. Ct. App. Oct. 6, 2006)
(citing Tenn. Code Ann. § 50-1-304) (emphasis added).

        Tennessee’s common law claim for retaliatory discharge has similar elements
requiring the plaintiff to show: (1) that an employment-at-will relationship existed; (2) that
she was discharged; (3) that the reason for her discharge was that she 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; and (4) that
a substantial factor in the employer’s decision to discharge her was her exercise of protected

                                               -5-
rights or her compliance with clear public policy. Id. at *6 (citing Crews v. Buckman
Laboratories Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002)). The statutory cause of action and
the common law cause of action differ in that under the statute, the employee’s protected
activity must be the sole reason for the discharge, while under the common law cause of
action, the employee’s action must merely be a substantial factor in bringing about the
discharge.” Id. (citing Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002))
(emphasis added).

        Under the common law and the statute, Ms. Counce must demonstrate that she was
retaliated against for her “refusal to assist in the perpetuation of illegal activities or activities
which contravene a clear, certain, unambiguous public policy of this state as ‘evidenced by
an unambiguous constitutional, statutory or regulatory provision,’ whether such assistance
be by active participation or by silence.” See id. at *4 (quoting Guy, 79 S.W.3d at 535). Ms.
Counce’s retaliatory discharge claim is based on assertions that she was terminated by Baptist
Hospital for reporting the “disruptive behavior” of a nurse-supervisor, stating that she was
“being rude,” for recommending that another nurse be drug tested, and for not being part of
the crowd, so-to-speak.4 The activities which Ms. Counce contends were the basis for her
discharge fall far short of the legal standard.

        Reporting a nurse for what she considered “rude behavior” does not rise to the level
of “illegal activity.” Nor does a vague accusation that Ms. Counce believed another nurse
might need a drug test; especially when there is no basis to form such a belief and when Ms.




       4
         In the Charge of Discrimination Ms. Counce filed with the Tennessee Human Rights Commission,
she stated:

       On August 5, 2005, a new nurse supervisor was rude to me by cutting me off when I was
       asking her important questions about the particular ICU I had been assigned. She raised her
       voice impatiently and angrily in front of the staff. I reported her behavior to the Flexpool
       supervisor, who reported it to the Supervisor of ICU. They apologized for the supervisor and
       stated that it would not happen again. Everything was wonderful until I reported rude and
       unkind behavior of a supervisor. On September 7, 2005, in MICU, we were short of nurses
       because of Hurricane Katrina. The patient load was enough but Diane Cooper was causing
       unnecessary diversion of my attention to the necessary work, she focused on me and my
       every move. I noticed she was hyperactive and agitated. On September 19, 2005, I was
       called in for counseling. Ms. Hoover had audited my charts and found deficiencies as far
       back as April 2005. I was placed in reorientation. When asked where I would like to go for
       reorientation, I said SICU or NICU, Ms. Hoover placed me back in MICU. I suggested Ms.
       Hoo[v]er get a drug screen on Ms. Cooper. On November 3, 2005 I was terminated.

                                                   -6-
Counce failed to make a proper or timely report as required by Hospital policy.5 These
activities do not rise to the level of a “protected activity” under the common law or under the
Public Protection Act.

       Had Ms. Counce engaged in a protected activity, which she did not, she would still
have to demonstrate under her common law claim that reporting such activity was a
“substantial factor” in bringing about her discharge, and that it was the “sole factor” of her
discharge under the Public Protection Act.6 See McLeay, 2006 WL 2855164, at *5-6. There
is no evidence in this record to establish either, and there is no evidence in the record to
indicate that Baptist Hospital’s termination of Ms. Counce was based on a reason other than
her inadequate work performance.

       Baptist Hospital has successfully demonstrated that Ms. Counce will be unable to
prove an essential element of her common law retaliatory discharge claim and her statutory
claim under the Public Protection Act. Therefore, the trial court’s summary dismissal of these
claims is affirmed.

                        IMPLIED AND G OOD F AITH C ONTRACT E XCEPTIONS

        Ms. Counce claims that Baptist Hospital breached an implied contract and that there
was a violation of the “good faith exception,” because she was “deprived of the right to make
a living in her chosen profession” for which she is entitled to damages for lost wages. We
find no basis in fact to support these claims. Moreover, the agreement between Ms. Counce
and Baptist Hospital, titled “Registered Nurse Premium Pay Agreement,” was just that, a
“pay agreement” that outlined the wages she would receive if and when she was called to


        5
         In her appellate brief, Ms. Counce contends that she reported a nurse for “verbal abuse” and
reported witnessing a nurse taking prescription medication into a closet, yet there are simply no facts to
support these allegations in the record; none. As for the alleged incident in which she claims to have reported
a nurse-supervisor for suspected drug use, this occurred after she was told she was on probation.
        6
          A plaintiff must demonstrate a causal link between her termination and the alleged protected activity
to sustain a claim under any theory of retaliatory discharge. See Austin v. Shelby County Gov’t, 3 S.W.3d
474, 480-81 (Tenn. Ct. App. 1999) (citing Mason v. Seaton, 942 S.W.2d 470, 473 (Tenn. 1997) (addressing
a claim under the Tennessee Public Protection Act)). “A plaintiff may meet this requirement by presenting
direct evidence of a causal link, such as where the employer was acting pursuant to an established policy or
where the employer admitted the reason for the termination, or by presenting compelling circumstantial
evidence.” Id. (citing Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn. App.
1992)). It is not sufficient, however, to merely show that “the plaintiff’s participation in protected activity
was followed by a discharge from employment, even where the proximity in time between the two events
is very short.” Id. (citing Mason, 942 S.W.2d at 473; Conatser v. Clarksville Coca-Cola Bottling Co., 920
S.W.2d 646, 648 (Tenn. 1995)).

                                                     -7-
work as part of the “Flex Pool.” The pay agreement did not guarantee any work to Ms.
Counce and it did not assure her that work would be available. To the contrary, the pay
agreement expressly provided: “Work availability is not guaranteed.” Thus, Ms. Counce has
no claim for not being called to work at Baptist Hospital and the trial court acted
appropriately to summarily dismiss this claim.

                                     N EGLIGENT H IRING

       Ms. Counce contends that Baptist Hospital is liable for the negligent hiring of Esther
Hoover, who, ironically, is the person who hired Ms. Counce. A claim of negligent hiring
requires that the plaintiff set forth the following elements: (1) evidence of unfitness for the
particular job; (2) evidence that the applicant for employment, if hired, would pose an
unreasonable risk to others; and (3) evidence that the prospective employee knew or should
have known that the historical criminality of the applicant would likely be repetitive. Gates
v. McQuiddy Office Products, No. 02A01- 9410-CV-00240, 1995 WL 650128, at *2 (Tenn.
Ct. App. Nov. 2, 1995) (perm. app. denied April 8, 1996).

       The record reveals that Ms. Counce merely contends that “agents” of Baptist Hospital
were “untrained” in the Associate’s Handbook, and she provided no evidence of any alleged
criminality on the part of Ms. Hoover or any other “agent” of Baptist Hospital. The
allegations of Ms. Counce do not state or support a claim of negligent hiring. Thus, the trial
court properly granted summary dismissal on this claim.

                            A MERICANS WITH D ISABILITIES A CT

        Ms. Counce asserted a claim under the Americans with Disabilities Act. An ADA
claim requires a showing that: (1) Ms. Counce was an individual with a disability; (2) she
was “otherwise qualified” to perform the job requirements, with or without reasonable
accommodation; and (3) she was discharged or suffered an adverse employment action solely
by reason of her disability. See Pruett v. Wal-Mart Stores, Inc., No. 02A01-9610-CH-00266,
1997 WL 729260, at *10 (Tenn. Ct. App. Nov. 25, 1997) (perm. app. denied May 26, 1998)
(citing Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996)).

       Ms. Counce states that she has a reading disability; however, Ms. Counce admits that
she was never diagnosed with a disability and that she never received any treatment for the
alleged disability. Her claim of a disability is based on what an unidentified person told her
in high school, in 1968. It is also significant that Ms. Counce admits she never informed
Baptist Hospital of this alleged disability and that Baptist Hospital had no way of knowing
about this disability in order to accommodate her.



                                              -8-
       Based upon these facts, Ms. Counce cannot establish that she is an individual with a
disability, or that she was discharged by reason of her disability. See Pruett, 1997 WL
729260, at *10. Accordingly, summary dismissal of this claim was appropriate.

                                   A GE D ISCRIMINATION

       Ms. Counce, who is over 50 years of age, asserted that she was discriminated against
based on her age because younger nurses were offered the Vanderbilt critical care class but
she was not, because Ms. Hoover did not offer Ms. Counce a position in an area other than
the five intensive care units, and because Ms. Hoover did not offer Ms. Counce the
opportunity to resign without fault.

       An age discrimination claim requires a plaintiff to establish: “(1) she was at least 40
years of age at the time of the alleged discrimination (“a member of a protected class”); (2)
she was subjected to adverse employment action; (3) she was qualified for the position; and
(4) she was replaced by a younger person.” Simpson v. Midland-Ross Corp., 823 F2d 937,
940 (6th Cir. 1987). If the plaintiff proves a prima facie case, the burden then shifts to the
employer to “articulate some legitimate non-discriminatory reason for the employee’s
discharge.” Moore v. Nashville Elec. Power Bd., 72 S.W.3d 643, 652 (Tenn. Ct. App. 2001)
(citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329-30 (6th Cir. 1994)). If the
employer meets this burden, then the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the reason proffered by the employer was not its true
reason, but merely a pretext for discrimination. Id.

        While Ms. Counce’s age places her within the protected class and an adverse
employment action was taken, Baptist Hospital established that Ms. Counce will be unable
to demonstrate that she was disadvantaged in favor of a younger person. Nowhere in the
record does it appear that younger nurses were given positions in other areas over Ms.
Counce or that younger nurses were given the opportunity to resign without fault.
Additionally, Ms. Counce did not know the names or ages of any nurses that were allowed
to take the Vanderbilt class, while she was not. If Ms. Counce had established a prima facie
case, which she has not, Baptist Hospital articulated a non-discriminatory reason for Ms.
Counce’s termination and there is nothing to demonstrate that this was pretextual. Therefore,
the trial court’s summary dismissal of this claim is affirmed.

                                       O THER C LAIMS

       Ms. Counce also set forth claims for sexual harassment, libel, violation of wage and




                                             -9-
hour laws, racial discrimination, and “favoritism.”7 We have conducted a thorough analysis
of each of these claims and find that there are no genuine issues of material facts in regards
to these claims. For judicial economy, we have chosen to not address these claims in depth
in this opinion; nevertheless, the trial court’s decision to summarily dismiss each of the
remaining claims was correct.

                                            I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the Appellant, Saundra Counce.




                                                               ______________________________
                                                               FRANK G. CLEMENT, JR., JUDGE




       7
           A claim of favoritism is not actionable under Tennessee law.

                                                    -10-
