                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   December 2, 2009 Session

   DOROTHY KING, R.N. and PATRICIA BATTLE, R.N., ET AL. v.
VIRGINIA BETTS, Commissioner of the Tennessee Department of Mental Health and
         Developmental Disabilities, in her individual capacity, ET AL.

                Direct Appeal from the Chancery Court for Davidson County
                      No. 06-943-I    Claudia Bonnyman, Chancellor



                   No. M2009-00117-COA-R3-CV - Filed December 18, 2009


This is a 42 U.S.C. § 1983 claim based on alleged retaliation in violation of the First Amendment.
Appellant claims that Appellees retaliated against her in her employment for speaking out against
a hospital policy. Appellees assert the defense of qualified immunity. Appellant appeals from the
trial court’s decision to grant summary judgment and judgment on the pleadings to the Appellees.
Finding that there are material issues of fact in dispute, we reverse the trial court’s grant of summary
judgment. Further, we find that Appellant has stated a claim upon which relief may be granted and,
therefore, reverse the trial court’s decision to grant Appellees’ motion for judgment on the pleadings.
Affirmed in part, reversed in part and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                             Reversed in Part and Remanded

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER, J., joined.

William J. Haynes, Nashville, TN, for the Appellant, Patricia Battle, R.N.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michael E. Moore, Solicitor General,
John W. Dalton, Senior Counsel, Nashville, Tennessee, for Appellees, Virginia Betts, Lynn
McDonald, Dr. Lindsey Douglas and Glynda Heinicke.

                                              OPINION


         Appellant, Patricia Battle (“Battle”), and co-Plaintiff, Dorothy King (“King”) are registered
nurses employed by the Middle Tennessee Mental Health Institute (“Institute”). In July 2003, the
Institute implemented a new policy requiring nurses to dispense medication from a “mini-pharmacy”
when a pharmacist was not on duty. Many of the nurses, including Battle and King, expressed
concern that this policy required them to act outside the scope of their nursing license. Battle and
King filed an administrative action with the Tennessee Department of Health in 2004, seeking an
order declaring that the policy violated the Tennessee Board of Nursing licensing requirements.
Subsequently, the parties entered into an agreed order stating that the policy did not violate the
licensing requirements. Nevertheless, Battle and King continued to have concerns and in 2005
contacted their State Representative about this issue. The State Representative contacted the office
of the Commissioner of the Tennessee Department of Mental Health to discuss the policy, expressing
concern that the policy was compromising patient care. Battle contends that she was subsequently
subjected to retaliatory employment action as the result of her resistance to the policy. Specifically,
Battle alleges that Gloria Heinike was hostile towards Battle when Battle requested that Heinike
attend to a patient. Moreover, Battle asserts that: (1) hostile comments were made on her
performance evaluation, (2) she was inappropriately targeted for termination, (3) she was denied a
security detail when she requested one to accompany her when supervising the violent patients,(4)she
was subjected to hostile and disparaging comments,(5)she was not notified that management was
making rounds as was standard practice, (6) she was wrongly issued a written reprimand that was
subsequently overruled, (7) she was not scheduled as a supervisor even though she is a supervisor,
and (8)that her office was relocated.

         Battle filed a complaint on April 17, 2006 against the Tennessee Department of Health and
the Tennessee Department of Mental Health and Developmental Disabilities, alleging, in pertinent
part, violations of 42 U.S.C. §1983.1 Battle filed an amended complaint on September 6, 2006,
replacing the original defendants and naming as defendants Virginia Betts, Commissioner of the
Tennessee Department of Mental Health and Developmental Disabilities, Lynn McDonald, Chief
Officer of Middle Tennessee Mental Health Institute, Dr. Lindsey Douglas, Grievance Review
Officer for Middle Tennessee Mental Health Institute, and Glynda Heinicke, Nursing Supervisor at
Middle Tennessee Mental Health Institute (collectively “Appellees”).2 Battle filed a second amended
complaint on February 23, 2007, with permission of the court, naming Appellees in their individual
capacity and seeking monetary damages. Battle alleged that Appellees violated her right to free
speech under the First Amendment by taking retaliatory action against both her and King, in response
to their criticism of the “mini-pharmacy” policy.

        Appellees filed an answer on March 15, 2007, in which they raised the defense of qualified
immunity. On October 29, 2007, Appellees filed an amended answer, also raising the defense of
qualified immunity. Appellees then filed a Motion for Summary Judgment and Statement of
Undisputed Facts on January 11, 2008. In their Motion for Summary Judgment, Appellees asserted
that there were no disputed material facts and that Battle could not establish that Appellees violated
42 U.S.C. § 1983. Battle filed a Memorandum in Opposition to Appellee’s Motion for Summary

        1
          King also joined in this action and subsequently appealed. However, her appeal was dismissed by order of
this Court on September 11, 2009. Accordingly, we do not address her appeal in this opinion.

        2
          W e note that Defendant Dr. Lindsay Douglas is not named in Battle’s brief. However, we find this to be a
typographical error as Dr. Douglas is named on the Notice of Appeal and throughout Appellees’ brief and there is no
separate order, in the record, dismissing her from the case.

                                                       -2-
Judgment, a response to Appellees’ Statement of Undisputed Facts, and a Counter Statement of
Undisputed Facts. The trial court heard arguments on the Motion for Summary Judgment on
February 22, 2008, and entered an agreed order on March 31, 2008, deferring its ruling on the
motion, and ordering the parties to file an additional memorandum of law on the issues of: 1) the
first amendment rights of public employees; 2) the application of Garcetti v. Ceballos, 547 U.S. 410
(2006), and Pickering v. Board of Educ. Of Township High School Dist. 205, Will City, 391 U.S.
563 (1968); 3) the disposition of summary judgment motions in cases involving the first amendment
rights of public employees; and 4) whether Appellees are entitled to qualified immunity.

        Both parties submitted supplemental briefs to the trial court. Appellees also subsequently
filed a Motion for Judgment on the Pleadings based on the issue of qualified immunity. Battle filed
a Motion to Strike, asking the court to strike the Appellees’ Motion for Judgment on the Pleadings
as being untimely filed and to strike the portion of the Appellees’ Supplemental Memorandum in
Support of their Motion for Summary Judgment dealing with the statute of limitations.

        The trial court held a hearing on the Motion for Summary Judgment, the Motion for
Judgment on the Pleadings, and the Motion to Strike on July 15, 2008. Following arguments, the
trial court ruled from the bench. The trial court denied Battle’s Motion to Strike the Appellees’
Motion for Judgment on the Pleadings and granted the Motion to Strike the statute of limitations
defense raised in the Appellees’ supplemental brief. The trial court stated that it was dismissing the
lawsuit because the Appellees were immune. The trial court granted the “motion for summary
judgment on one ground and the motion for judgment on the pleadings as to qualified immunity.”
In discussing whether the speech was protected, the trial court stated that Battle’s speech was “not
made pursuant to [her] official duties necessarily, nor is it true that [Battle was] speaking as [a]
citizen[] on matters of public concern.” The trial court assumed that the speech was protected and
found that the government had an adequate justification for its conduct. The trial court found that
the conduct taken was to warn the nurses that, if they did not perform their duties under the new
policy, their jobs would be terminated. The trial court found that this was not “negative action
towards the plaintiffs’ employment.” The trial court also pointed out that there had been other “cold
shoulder treatment” of the plaintiffs, but found that any such conduct was justified and reasonable.
As to the issue of qualified immunity, the trial court found that qualified immunity applied as “the
right that was allegedly violated is not a clearly established right of which a reasonable person would
have known.” On November 2, 2008, the trial court entered an order, adopting its bench ruling “as
the ruling which dismisses the case.”

       Battle then filed a motion to alter or amend ,which the trial court subsequently denied. Battle
appeals raising the following issues:

1.     Whether the Chancery Court properly applied the summary judgment standard under Tenn.
       R. Civ. P. 56?

2.     Whether the Chancery Court properly granted summary judgment notwithstanding a final
       determination as to whether the speech at issue was protected under the First Amendment?


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3.      Whether the Chancery Court properly granted summary judgment on the ground that Nurse
        Battle did not suffer an adverse employment action sufficient to establish a First Amendment
        retaliation claim under 42 U.S.C. § 1983?

4.      Whether the Chancery Court erred in allowing Appellees to invoke the qualified immunity
        defense for the purpose of summary judgment in an untimely manner?

5.      Whether the Chancery Court properly granted summary judgment on the ground that the
        Appellees were each entitled to qualified immunity?

                                        Standard of Review:

       A trial court’s decision to grant a motion for summary judgment presents a question of law.
Our review is therefore de novo with no presumption of correctness afforded to the trial court’s
determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In evaluating the trial court’s
decision to grant summary judgment, we review the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. Mooney v.
Sneed, 30 S.W.3d 304, 305–06 (Tenn. 2000); Bryd v. Hall, 847 S.W.2d 208, 210–11 (Tenn. 1993).

        When a motion for summary judgment is made, the moving party has the burden of showing
that “there is no genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. If the moving party’s motion is properly supported, “The
burden of production then shifts to the nonmoving party to show that a genuine issue of material fact
exists.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008) (citing Byrd, 847 S.W.2d at
215). In order to shift the burden of production, “the moving party must either affirmatively negate
an essential element of the nonmoving party’s claim or establish an affirmative defense.” Hannan,
270 S.W.3d at 5. However, “[i]t is not enough for the moving party to challenge the nonmoving
party to ‘put up or shutup’ or even to cast doubt on a party’s ability to prove an element at trial.” Id.
at 8. Instead, the moving party has the more difficult task of demonstrating “that the nonmoving
party cannot establish an essential element of the claim at trial.” Id. at 7.

                                               Analysis
                                     I. First Amendment Claim

        The United States Supreme Court has “made clear that public employees do not surrender
all their First Amendment rights by reason of their employment. Rather, the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters
of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)(see e.g., United States v.
Treasury Employees, 513 U.S. 454, 466 (1995); Rankin v. McPherson, 483 U.S. 378, 384 (1987);
Connick v. Myers, 461 U.S. 138, 147 (1983); Pickering v. Board of Educ. Of Township High
School Dist. 205, Will City, 391 U.S. 563, 568 (1968)).



                                                  -4-
         A three part test exists for analyzing a public employee’s claim of First Amendment
retaliation. Haynes v. City of Circleville, Ohio, et al., 474 F.3d 357, 362 (6th Cir. 2007)(citing
Taylor v. Keith, 338 F.3d 639, 643 (6th Cir. 2003)). First, the public employee must show that the
speech at issue was protected. Id. Second, the public employee must show that he or she suffered
adverse employment action such that “would chill an ordinary person in the exercise of his or her
First Amendment rights.” Id. Third, the public employee must show a causal connection between
the speech and the conduct complained of. Id.

        In determining whether the speech is protected, the trial court must first determine whether
the employee spoke as a citizen on a matter of public concern. Pickering, 391 U.S. at 568. If the
answer is yes, then the speech may be protected. Garcetti, 547 U.S. at 418 (citing Connick, 461 U.S
at 147)). If the answer is no, then the employee has no First Amendment cause of action. Id. As
clarified by the Supreme Court in Garcetti, when an employee speaks pursuant to his or her official
duties, the speech is not protected. Garcetti, 547 U.S. at 425. Neither the fact that the speech was
made at the place of employment nor the fact that the speech concerns the subject matter of the
employee’s employment is dispositive, as the speech may still be entitled to First Amendment
protection. Id. at 420-21. “Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a given statement, as revealed by the record
as a whole.” Connick, 461 U.S. at 147-48. The court must make “an independent constitutional
judgment on the facts of the case.” Id. at n.10 (citing Jacobellis v. Ohio, 378 U.S. 184, 190 (1964)).
In examining the content of the speech, the trial court is to consider what is the “point of the speech,”
meaning what the speaker intended to communicate and not what the speaker’s motivations were
in making the statement. Taylor, 338 F.3d at 645 (citations omitted). If the trial court determines
that the employee spoke as a citizen on a matter of public concern, the trial court must then consider
whether the government’s interest outweighs the employee’s interest in the speech. Taylor, 338 F.3d
at 643 (citing Pickering, 391 U.S. at 574). In other words, the court must determine “whether the
relevant government entity had an adequate justification for treating the employee differently from
any other member of the general public.” Connick, 547 U.S. at 418 (citing Pickering, 391 U.S. at
568). “So long as employees are speaking as citizens about matters of public concern, they must face
only those speech restrictions that are necessary for their employers to operate efficiently and
effectively.” Garcetti, 547 U.S. at 419. The determination that speech is protected or not protected,
is a question of law for the court to decide. Taylor, 338 F.3d at 643 (citing Connick, 547 U.S. at
148).
                                         a. Protected Speech

         Battle first contends that the trial court erred by granting summary judgment without first
deciding whether or not the speech was protected. In granting the motion for summary judgment,
the trial court stated that it could not determine whether the speech was protected, but assumed for
the purpose of summary judgment that it was protected. Battle submits that the trial court must
decide whether the speech was protected before it may rule on the Motion for Summary Judgment.
In making a First Amendment retaliation claim, Battle must establish three separate elements:
protected speech, adverse employment action, and a causal connection between the speech and the
action taken. Haynes 474 F.3d at 362. If Battle fails to establish any one of these three elements,


                                                  -5-
her claim will fail. Because Battle must prove all three elements, summary judgment would be
appropriate if the trial court correctly determined that Battle could not prove any one of the three
elements. The trial court determined that Battle could not prove the second element, adverse
employment action. Therefore, the trial court did not err by granting summary judgment without
first determining whether the speech was protected. However, the issue of whether summary
judgment was appropriately granted is not fully answered by this finding.

                                         b. Adverse Employment Action

         In order to establish her claim, Battle must prove that she was subject to adverse employment
action. In other words, Battle must prove that she was subject to action by her employer that “would
chill an ordinary person in the exercise of his or her First Amendment rights.” Haynes, 474 F.3d
at 362. The trial court found that the action taken by the Appellees was a warning to the nurses that,
if they did not perform their required duties, their jobs would be terminated. The trial court held that
this did not amount to “negative action towards the plaintiffs’ employment.” The trial court also
found that there had been “cold shoulder treatment,” but that any such conduct was justified and
reasonable.

         After reviewing the record, however, we find that there are material issues of fact regarding
the issue of adverse employment action, making summary judgment inappropriate at this time.
Appellees stated in their Statement of Undisputed Facts, Paragraph Eighteen, “Plaintiff Battle states
Commissioner Betts retaliated against her by writing her a letter of commendation.” In her response,
Battle denied this statement of fact, and stated that the Appellees either “overlook or ignore the
complete testimony of Nurse Battle, which itemizes the methods in which Defendant Betts retaliated
against her.” It appears to this Court, that there is a factual dispute about the alleged conduct
constituting the retaliatory action. Without knowing exactly what the alleged retaliatory action is,
it is impossible for the trial court to determine as a matter of law, whether there was any adverse
employment action.3 Consequently, we find that summary judgment is inappropriate on the basis
that Battle did not suffer any adverse employment action.

                                             II. Qualified Immunity

        Our analysis does not end with the First Amendment claim, as the Appellees may still be
entitled to summary judgment on the basis of qualified immunity. First, we address Battle’s
contention that the trial court abused its discretion in allowing the Appellees to assert the defense


         3
          The trial court explicitly stated that it was not making a ruling as to whether the speech was protected or not
protected, but only assuming it was protected for purposes of summary judgment. Accordingly, we only review the
finding that no adverse employment action occurred. W e do not review the facts, disputed or undisputed, on the issue
of whether the speech was protected. The trial court made a finding as to the reasonableness of the action taken. The
determination that conduct is reasonable or justified is an element to determining whether the speech is protected.
Connick, 547 U.S. at 418. Any determination that the conduct was reasonable or justified for the purposes of
determining whether the speech was protected would also be premature as there are factual disputes as to what action
was taken.

                                                          -6-
of qualified immunity. Battle submits that the Appellees only raised this defense in their response
to her reply in opposition to the Motion for Summary Judgment, and that she suffered “prejudice in
the form of additional briefing and delay” when the trial court allowed the Appellees to address this
issue in supplemental pleadings. Battle fails, however, to note that Appellees raised this defense in
both their original answer and in their amended answer. Additionally, when ordering supplemental
briefs, qualified immunity was only one of the four issues which the trial court ordered both parties
to address. We cannot find that the trial court abused its discretion in allowing Appellees to assert
qualified immunity.

         “Government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). The qualified immunity privilege entitles a party to “immunity from suit
rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). There is a
“‘tripartite’ procedure for evaluating claims of qualified immunity.” Moldowan v. City of Warren,
578 F.3d 351, 375 (6th Cir. 2009)(quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999).

               “First, [the court] must determine whether a constitutional violation
               occurred; second, [the court] must determine whether the right that
               was violated was a clearly established right of which a reasonable
               person would have known; finally, [the court] determine[s] whether
               the plaintiff has alleged sufficient facts, and supported the allegations
               by sufficient evidence, to indicate that what the official allegedly did
               was objectively unreasonable in light of the clearly established
               constitutional rights.”

Williams, 186 F.3d at 691 (citing Dickerson v. McClellan, 101 F.3d 1151,1157-58 (6th Cir. 1996)).
The United State Supreme Court in Pearson v. Callahan, --- U.S. ---, 129 S.Ct. 808, 172 L.Ed.2d
565 (2009), recently clarified that a court considering the issue of qualified immunity is free to
consider these three questions in whatever order is appropriate considering the case before it.
Pearson, 129 S.Ct. at 818. Once the defense is properly raised, the burden is on the Plaintiff to show
that the defendants are not entitled to qualified immunity. Moldowan, 578 F.3d at 375.

        In considering whether a constitutional violation has occurred, the court must consider
whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194
(2001)(abrogated on other grounds by Pearson, 129 S. Ct. 808). In determining whether the right
violated was “clearly established,” the inquiry “must be undertaken in light of the specific context
of the case, not as a broad general proposition.” Moldowan, 578 F.3d at 375 (citing Saucier, 533
U.S. at 201). Thus, “the contours of the right must be sufficiently clear that a reasonable official
would understand what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). This is not to say that courts must have agreed on a precise standard. Saucier, 533 U.S. at
201.


                                                 -7-
         The trial court determined that the right allegedly violated was not clearly established. Thus,
the trial court determined that, in the context of this case, it was not clearly established that Battle
had a constitutional right to take the action she took regarding the “mini-pharmacy” policy. While
the issue of qualified immunity is a question of law, Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir.
1991), it often involves first answering questions of fact. Moldowan, 578 F.3d at 371; see also
Johnson v. Jones, 515 U.S. 304, 313 (1995). Summary judgment is inappropriate when there are
“factual disputes on which the issue of immunity turns such that it cannot be determined before trial
whether the [officials] did acts which violate clearly established rights.” Hall, 932 F.2d at 1154.

        To determine whether a right is clearly established, the trial court must examine the specific
context of the case. Maldowan, 578 F.3d at 375. As stated by the trial court, it could not determine
whether Battle was speaking pursuant to her official duties, or as a private citizen. Additionally,
Battle contends that she was speaking due to her concerns about the welfare of the patients at the
state mental hospital. The Appellees contend, however, that she was speaking as a disgruntled
employee, upset about her job duties. These disputes present two starkly different contexts in which
to determine whether Battle had a clearly protected constitutional right to speak out against the
“mini-pharmacy” policy. Further, qualified immunity would not apply if the Appellees’ conduct was
unreasonable “in light of the clearly established constitutional rights.” Williams, 186 F.3d at 691.
Any determination for the purpose of summary judgment that Appellees’ actions were reasonable
would be premature as factual disputes remain concerning what the conduct was. Because of these
disputes, summary judgment on the issue of qualified immunity was inappropriate.

        Finally, it appears from the Battle’s brief that she also contends that the trial court erred in
allowing Appellees to submit a Motion for Judgment on the Pleadings after the deadline for
dispositive motions under the Scheduling Order had passed. “Matters pertaining to scheduling
orders are within the sound discretion of the trial court.” Waters v. Cook, No. M2007-01867-COA-
RM-CV, 2008 WL 4072104 (Tenn. Ct. App. 2008). We cannot find that the trial court abused its
discretion in allowing Appellees to submit a Motion for Judgment on the Pleadings. However, we
do find that the trial court erred in granting the Appellee’s Motion for Judgment on the Pleadings.4
A motion for judgment on the pleadings is in effect a motion to dismiss for failure to state a claim
upon which relief can be granted. Weldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998).
In considering a motion for judgment on the pleadings, the trial court must accept as true “all well-
pleaded facts and all reasonable inferences drawn therefrom” alleged by the plaintiff. Cherokee
Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004)(quoting McClenahan
v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991)). This determination is a question of law and is
reviewed de novo, with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000). Upon review of the record, accepting all well-pleaded facts and reasonable inferences
drawn therefrom as true, we cannot say that Battle has failed to state a claim upon which relief may
be granted. Consequently, we reverse the trial court’s decision to grant Appellees’ Motion for
Judgment on the Pleadings.


         4
          Tenn. R. App. P. 13(b) allows this Court to consider issues not presented for review in the interest of fairness
and justice. Aaron v. Aaron, 909 S.W .2d 408, 412 (Tenn. Ct. App. 1995).

                                                           -8-
                                           Conclusion

         In sum, we find that the trial court did not err in considering the Motion for Summary
Judgment before determining whether the speech was protected, in allowing the Appellees to assert
the defense of qualified immunity in their Motion for Summary Judgment, or in considering
Appellees’ Motion for Judgment on the Pleadings. However, because there are material issues of
fact in dispute, we find that the trial court erred in granting summary judgment. Accordingly, we
reverse the trial court’s decision to grant summary judgment to the Appellees. Further, we find that
the trial court erred in granting Appellees’ Motion for Judgment on the pleadings and reverse that
decision as well. We remand for further proceedings consistent with this opinion. Costs of this
appeal are taxed one-half to the Appellant, Patricia Battle, and her surety, and one-half to the
Appellees, Virginia Betts, Lynn McDonald, Lindsey Douglas, and Glynda Heinicke for which
execution may issue if necessary.



                                                      ___________________________________
                                                      J. STEVEN STAFFORD, J.




                                                -9-
