Estate of Turner v. Town Pharmacy and Gifts, LLC, 011921 MSCA, 2019-CA-01614-COA

Docket Nº2019-CA-01614-COA
Opinion JudgeWILSON, P.J.
Party NameTHE ESTATE OF ROBYN TURNER APPELLANT v. TOWN PHARMACY AND GIFTS, LLC APPELLEE
AttorneyATTORNEYS FOR APPELLANT: MITCHELL PAUL HASENKAMPF KAREN ELIZABETH FUTCH ATTORNEY FOR APPELLEE: RUSSELL SCOTT MANNING
Judge PanelBEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ. BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE AND McCARTY, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. SMITH, J., NOT PARTICIPATING.
Case DateJanuary 19, 2021
CourtCourt of Appeals of Mississippi

THE ESTATE OF ROBYN TURNER APPELLANT

v.

TOWN PHARMACY AND GIFTS, LLC APPELLEE

No. 2019-CA-01614-COA

Court of Appeals of Mississippi

January 19, 2021

DATE OF JUDGMENT: 10/01/2019

HANCOCK COUNTY CIRCUIT COURT HON. LISA P. DODSON TRIAL JUDGE.

ATTORNEYS FOR APPELLANT: MITCHELL PAUL HASENKAMPF KAREN ELIZABETH FUTCH

ATTORNEY FOR APPELLEE: RUSSELL SCOTT MANNING

BEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ.

WILSON, P.J.

¶1. Under McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss. 1993), and its progeny, an employee may sue her employer for damages if she is fired for reporting a criminal act of her employer or a fellow employee to her employer or anyone else. Robyn Turner brought a McArn claim against her former employer, Town Pharmacy and Gifts LLC. Turner's employment as Town Pharmacy's pharmacist-in-charge ended after an argument with one of the pharmacy's owners. Town Pharmacy maintains that Turner resigned, but Turner alleges that she was fired because she reported that another pharmacist had illegally dispensed a controlled substance to a customer without a current prescription.

¶2. The circuit court granted summary judgment in favor of Town Pharmacy because (1) Turner failed to show that the conduct she reported was criminal, (2) Turner resigned and was not fired, and (3) even if Turner was fired, there is no evidence that her employment ended because she reported a criminal act. We affirm because Town Pharmacy was entitled to summary judgment on the first of these grounds.[1]

FACTS AND PROCEDURAL HISTORY

¶3. In early 2017, Tommy Turfitt and his mother Laurie were preparing to open a new pharmacy and gift store, Town Pharmacy and Gifts in Bay St. Louis. Tommy hired Robyn Turner to be Town Pharmacy's pharmacist-in-charge. Turner had worked with or for the Turfitts at one or more pharmacies in the past. Town Pharmacy opened in April 2017. From the beginning, Turner's relationships with her coworkers and the Turfitts were strained. Turner did not get along with Mindy Yarborough, a pharmacy technician. At one point, Turner told Yarborough that one of them was going to have to leave.

¶4. Turner also had a difficult relationship with the Turfitts. She did not like how they ran the pharmacy, and she thought they infringed on her authority as the pharmacist-in-charge. Turner wanted "full reign" over Yarborough and Jerry Segura, the relief pharmacist. But she testified that Laurie told her that Yarborough was "not going anywhere" and that Turner should "be an adult and deal with it." Turner felt that she could not speak frankly with the Turfitts, and she claims that Laurie criticized and insulted her. Turner testified that on her last day at work, Laurie yelled at her that "people hate[d] [her]" everywhere she worked and that "nobody like[d] [her]."

¶5. Turner admitted that her relationship with the Turfitts was "rocky," but she blamed the Turfitts. In May 2017, Tommy suggested that Turner should be thankful that he had hired her given the circumstances under which she had quit on him in the past. The next day, Turner sent Tommy a four-page handwritten letter in which she complained about Laurie's hostility toward her and the speed with which she had been required to set up the pharmacy. Turner concluded the letter by stating that she could easily find work at other pharmacies if she felt dissatisfied at Town Pharmacy. Several weeks later, Laurie sent Tommy a text message stating that Turner was "a very sick person" and "too negative." Laurie stated that she had "been praying for [Turner]" and had sympathy for her but that Turner was "not what [their] business need[ed]." Tommy agreed with Laurie, but he took no action regarding Turner's employment at that time.

¶6. Around August 2017, Turner's mother suffered a stroke, and Turner was absent from work to help care for her. Turner offered to resign if her absences were becoming a problem. However, the Turfitts were supportive of Turner. Tommy told her to take care of her mother and reassured her that her job was safe.

¶7. On September 2, 2017, the Saturday before Labor Day, the pharmacy closed at 2 p.m., but the gift shop remained open. Around 3:30 p.m., a customer called and asked for Segura, but Laurie told the customer that Segura had left and that the pharmacy was closed for the day. Shortly thereafter, the customer arrived at the store and told Laurie that Segura was on his way to the pharmacy to fill a prescription for the customer. Segura arrived and took the customer to the pharmacy, and both the customer and Segura left soon after.

¶8. The pharmacy remained closed until Tuesday, September 5. When Turner arrived at work around 9:15 a.m. on Tuesday, she found a prescription for diazepam2 dated that day with a note to "take four tablets out" of the prescription. Turner thought the note was odd. She also thought it was unusual to have already received a prescription dated that morning. She asked Tommy what he knew about the prescription. Tommy did not know anything about it and told her to ask Segura about it. However, Turner chose not to talk to Segura. Turner's reasons for not talking to Segura remain unclear. In her deposition, she said that "one of the reasons" she decided not to talk to Segura was that she "did not have the authority to . . . fire" him.

¶9. Segura later told Tommy that the customer was an elderly woman suffering from alcohol withdrawals and that he dispensed diazepam to her pursuant to her doctor's instructions. Segura submitted to a deposition by written questions, see M.R.C.P. 31, but his answers provided no details about the incident.3 All that can be inferred is that Segura dispensed four pills to the woman on September 2 pursuant to an oral prescription from her doctor and that the pharmacy later received a written prescription from the doctor.

¶10. Turner alleges that she was concerned that Segura had dispensed pills without a prescription in violation of state and federal law. However, she did not express this concern to anyone. As stated above, she ignored Tommy's instruction to discuss the incident with Segura. In fact, she never discussed the incident with Segura. Between September 5 and September 19, Turner exchanged a number of friendly text messages with Segura and asked him to cover shifts for her at the pharmacy, but she never mentioned her alleged concern regarding the diazepam pills.

¶11. On September 19, Turner met with Tommy in Tommy's office. Turner had printed out and highlighted certain Board of Pharmacy regulations that she wanted to discuss with Tommy. It is not clear from Turner's testimony whether she ever specifically mentioned Segura or the September 2 incident during the meeting in Tommy's office. Tommy inferred that Turner was accusing him of violating the regulations by "circumventing" her authority as the pharmacist-in-charge. Tommy inferred that this was, "apparently, about" the September 2 incident. However, Tommy noted that two weeks earlier, he had told Turner to discuss the incident with Segura because he (i.e., Tommy) did not know anything about it. Yet Turner still had not discussed the incident with Segura.

¶12. Turner testified that her mention of "circumvention . . . was the trigger point for" Tommy and that the discussion "did not continue amicably" after she raised the issue. She testified that there were "some other issues as well, and . . . it all just blew up." She stated that the discussion quickly devolved into "an argument." Tommy "was angry," and she "was upset." Turner testified that Tommy insulted her and complained about things that she "had done or not done" and that their argument ultimately "had nothing to do with" the Board of Pharmacy regulations or the September 2 incident involving Segura.

¶13. Turner and Tommy have different recollections of how the argument ended. According to Turner, she said, "If y'all don't want me here, just let me know." Tommy responded, "I think that would be best," and then he said, "I didn't see that coming." According to Turner, she then stated, "Tommy, I did not make that statement because I want to leave, because I intend to leave, or I have plans to leave. I made that statement because if you all do not like me because I am enforcing things that have to be done, just let me know." According to Turner, nothing further was said, but she finished her shift and left the pharmacy on September 19 believing that she was still employed.

¶14. According to Tommy, Turner stated, "If you and your mother don't want me here then I quit." Tommy responded that Turner's resignation was acceptable. Turner then finished her shift and went home.

¶15. Turner was not at work the next two days. She had previously asked Segura to cover her shifts, and Segura had agreed. Turner returned to the pharmacy on September 22. According to Turner, when she arrived at the pharmacy, Tommy informed her that he had "accepted [her] resignation," that she could leave immediately or finish her shift, and that September 22 would be her last day.4 Turner then left the pharmacy.

¶16. On December 22, Turner filed suit against Town Pharmacy in the Hancock County Circuit Court, alleging wrongful termination. Turner alleged that Tommy fired her for reporting and refusing to participate in the illegal distribution of controlled substances to a customer without a current prescription. After discovery, Town Pharmacy moved for summary judgment. The circuit court granted Town Pharmacy's motion after concluding that (1) Turner failed to produce any evidence...

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