Latisia Upshaw v. Sunrise Community Of Tennessee, Inc.
E2016-01005-COA-R3-CV
| Tenn. Ct. App. | Aug 16, 2017Background
- Latisia Upshaw, an LPN employed by Sunrise, cared for client H.G., who had strict physician orders limiting "pleasure feedings" to 2 teaspoons of thin liquids and was at high risk of aspiration.
- Upshaw observed signs she believed indicated overfeeding (projectile vomiting of solid food, congestion, fever) and reported concerns internally multiple times and ultimately to the State DIDD after seeing repeated incidents and alleged employer inaction.
- Sunrise issued disciplinary warnings to Upshaw earlier in 2010 (photographing a client at a family member's request and allowing her nursing license to lapse); Sunrise later asserted cumulative discipline and late reporting justified termination.
- A DIDD investigation concluded it could not definitively determine overfeeding but cited Sunrise for late reporting; the investigator said evidence that Upshaw had repeatedly reported internally would have affected his conclusions.
- Discovery was contentious: Sunrise produced documents piecemeal over several years, late productions shortly before trial, and the trial court found Sunrise violated discovery rules though without finding counsel intentionally misleading.
- At jury trial the court directed a verdict for Sunrise on the statutory whistleblower claim but the jury found for Upshaw on the common-law retaliatory discharge claim, awarding compensatory and punitive damages; the trial court denied Sunrise's post-trial motions and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Upshaw qualified as a common-law whistleblower under Tennessee law | Upshaw reported suspected neglect internally (to supervisors) and to DIDD when internal channels failed; her reports furthered public policy and were a substantial factor in termination | Sunrise: no proof of overfeeding; Upshaw did not act in good faith and delayed reporting to the State (11 days), so she is not protected whistleblower | Court held there was sufficient evidence that Upshaw acted in good faith, reported to higher-ups, then to DIDD when internal channels failed, and was a whistleblower under the common law |
| Whether the trial court erred in denying Sunrise's motion for directed verdict/JNOV | Upshaw: testimony and surrounding evidence presented a jury question as to good-faith belief and causation | Sunrise: Upshaw offered only self-serving testimony; reasonable minds must find termination for legitimate, nonpretextual reasons (prior discipline, late reporting) | Court affirmed denial: evidence, when viewed in plaintiff's favor, permitted reasonable jurors to find retaliatory discharge |
| Whether the jury should have been allowed to consider punitive damages | Upshaw: Sunrise's conduct (concealing or withholding documents from DIDD and late discovery production, inconsistent positions) showed intentional/reckless conduct warranting punitive damages | Sunrise: punitive damages inappropriate absent clear and convincing proof of intentional, fraudulent, malicious, or reckless conduct | Court held there was material evidence from which the jury could find by clear and convincing evidence Sunrise acted intentionally/recklessly; punitive damages submission was proper |
Key Cases Cited
- Haynes v. Formac Stables, Inc., 463 S.W.3d 34 (Tenn. 2015) (defines whistleblower reporting to someone higher than the wrongdoer and when outside reporting is required)
- Clanton v. Cain–Sloan Co., 677 S.W.2d 441 (Tenn. 1984) (recognizes common-law retaliatory discharge cause of action)
- Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422 (Tenn. 2011) (elements of common-law retaliatory discharge claim)
- Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010) (public-purpose requirement and employer burden to show legitimate, nonpretextual reason)
- Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) (standard for proving punitive damages)