BRIEF OF THE APPELLEE

Transcription

1 E-Filed Document Feb :55: IA SCT Pages: 21 CASE NO IA SCT IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CALHOUN HEALTH SERVICES, APPELLANT v. MARTHA GLASPIE, APPELLEE (On appeal from the Circuit Court of Calhoun County, Mississippi, Civil Action No.: H) BRIEF OF THE APPELLEE ORAL ARGUMENT REQUESTED J. KEITH PEARSON (MSB # 9753) SARAH L. DICKEY (MSB # ) The Pearson Law Firm, PLLC 428 North Lamar Blvd, Suite 108 Oxford, MS Telephone: Facsimile: Attorneys for MARTHA GLASPIE

2 IN THE SUPREME COURT OF MISSISSIPPI No IA CALHOUN HEALTH SERVICES DEFENDANT/APPELLANT VS. MARTHA GLASPIE PLAINTIFF/APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Mississippi Supreme Court and/or the Judges of the Court of Appeals Court may evaluate possible disqualification or recusal: Calhoun Health Services Sarah L. Dickey Martha Glaspie Hon. Andrew K. Howorth Michael S. Hudson, Esq. Defendant and Appellant Attorney for Plaintiff/Appellee Plaintiff and Appellee Calhoun County Circuit Court Judge Attorney for Defendant/Appellant J. Keith Pearson Attorney for Plaintiff/Appellee Taylor Smith, Esq. Attorney for Defendant/Appellant SO CERTIFIED, this, the 17 th day of February, /s/ Sarah L. Dickey Attorney for Appellant i

3 TABLE OF CONTENTS Page Certificate of Interested Persons... Table of Contents... Table of Authorities... Request for Oral Argument... i ii iii v Statement of the Issues... 1 Statement of the Case... 2 Summary of the Argument... 4 ARGUMENT... 6 I. STANDARD OF REVIEW... 6 II. THE LOWER COURT PROPERLY DENIED DEFENDANT CHS'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S NEGLIGENCE, BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING, AND WRONGFUL DISCHARGE CLAIMS... 7 A. The discretionary-function exemption of the Mississippi Tort Claims Act is inapplicable to CHS, and CHS can and should be held liable to plaintiff for its negligent actions... 7 B. CHS wrongfully terminated Ms. Glaspie by discharging her on the basis of an unconfirmed 'positive' drug test C. CHS's actions in this matter constituted a breach of the duty of good faith and fair dealing, which is implied in every contract in Mississippi Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Mississippi Supreme Court Cases Page Brantley v. City of Horn Lake, No CA SCT (Miss., Dec. 4, 2014)... 8, 10 Brown v. Credit Ctr., Inc., 444 So.2d 358 (Miss.1983)... 6 Evan Johnson & Sons Const., Inc. v. State, 877 So.2d 360 (Miss. 2004)... 6, 7 Harris v. Mississippi Valley State Univ., 873 So.2d 970, 986 (Miss. 2004) Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss. 2013)... 8 Lyle v. Mladinich, 584 So. 2d 398 (Miss. 1991)... 6 Merchants and Planters Bank v. Williamson, 691 So.2d 398, 405 (Miss. 1997) McMillan v. Rodriguez, 823 So.2d 1173 (Miss. 2002)... 6 Pratt v. Gulfport-Biloxi Reg'l Airport Auth., 97 So.3d 68 (Miss. 2012)... 7, 8 Prime Rx, LLC v. McKendree, Inc., 917 So. 2d 791 (Miss. 2005)... 7 Smith v. Sanders, 485 So.2d 1051 (Miss.1986)... 6 Mississippi Court of Appeals Cases Adams v. Institute of Community Services, Inc, 727 So.2d 739 (Miss. Ct. App. 1998) Federal Cases Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543, 547 (5th Cir. 1994) Statutes Miss. Code Ann , et seq. (2012 )... 2 Miss. Code Ann (2012 )... 9 Miss. Code Ann , et seq.(2012)... 9, 11 Miss. Code Ann (2012)... 9, 11 Miss. Code Ann (2012)... 9 iii

5 Miss. Code Ann (2012)... 7 Miss. Code Ann (2012)... 7 Miss. Code Ann ( 2012)... 7 Regulations Miss. Admin. Code, Rule , 10 Rules of Civil Procedure M.R.C.P iv

6 REQUEST FOR ORAL ARGUMENT Pursuant to Mississippi Rules of Appellate Procedure, Rule 34(b), Appellee hereby requests that this Honorable Court grant oral argument in this matter. Because there is room for development of the legal issues involved in this case, Appellee believes that oral argument is necessary to fully answer any questions the Court may have and to ensure sufficient discussion of the applicable law. v

7 STATEMENT OF THE ISSUES I. Whether the lower court properly denied Calhoun Health Services' Motion for Summary Judgment as to plaintiff's claims for negligence, breach of the duty of good faith and fair dealing, and wrongful termination? 1

8 STATEMENT OF THE CASE Plaintiff Martha Glaspie began working for Calhoun Health Services ("CHS"), a community hospital and nursing home facility in Calhoun City, Mississippi, in June of R., Vol. 1, p Ms. Glaspie sustained a workers' compensation injury to her back while attempting to physically move a patient with three of her co-employees on or about December 27, R., Vol. 1, p In compliance with the Drug-Free Workplace Act 1, CHS promulgated a drug-testing policy which required Ms. Glaspie submit to a "Postaccident/Incident Testing... immediately after a recordable job-related accident (requiring medical attention)." R., Vol. 2, p. 199, 201. CHS's employee drug testing policy also mandated that "A second drug/alcohol confirmation test will be made on every 'positive' test result. A Gas Chromatograph/Mass Spectrometry Confirmation test is to be made of the same sample originally provided by the employee or applicant." (emphasis in original). R., Vol. 2, p Ms. Glaspie provided a blood sample to CHS on December 28, 2011, after she was unable to void a sufficient urine sample. R., Vol. 1, p On January 5, 2011, Ms. Glaspie was called into a meeting with CHS employees Shelia Reemes, Jaunita James, and Cindy Capell, where she was advised that her drug test results had shown a positive result for cocaine. R., Vol. 1, p During the meeting, Ms. Glaspie stated: "[N]o way. It's been a mistake made somewhere because I don t do drugs, and I don't know why it is showing up on my test." R., Vol. 1, p In general, the Drug-Free Workplace Act qualifies public and private employers in compliance with the Act to receive a five-percent reduction in workers' compensation insurance premiums. Miss. Code Ann , et seq. 2

9 In violation of CHS's employee drug testing policy, no second drug test was performed to confirm Ms. Glaspie's allegedly positive test results, and the meeting with Ms. Glaspie was based upon the first and only test which had been performed on Ms. Glaspie's blood sample. R., Vol. 2, p The drug test results from the lab stated plainly on its face that: "The results above are considered presumptive, and should be used for medical purposes (i.e. treatment) only. Unconfirmed drug screens should not be used for nonmedical purposes (i.e. employment or legal related matters)." R., Vol. 2, p Ms. Glaspie was suspended from her work with CHS during the meeting with Reems, Capell, and James, and on January 11, 2011 Ms. Glaspie received a letter from CHS notifying her that her employment had been terminated solely due to the 'positive', unconfirmed drug test result. R., Vol. 1, p ; R., Vol. 2, p At her own expense, Ms. Glaspie submitted a blood sample to NMMC - Toxicology in Tupelo, Mississippi on January 11, 2011, which tested negative for cocaine and other illegal substances. R., Vol. 2, p Ms. Glaspie also submitted a hair follicle specimen on January 28, 2011 which was tested by Dr. Charles H. Moorefield and, again, yielded negative results for cocaine and other illicit substances. R., Vol. 2, p On April 30, 2012, Plaintiff filed her First Amended Complaint 2 against Calhoun Health Services, alleging causes of action for negligence, defamation of character, wrongful discharge, breach of the duty of good faith and fair dealing, and further that CHS's actions constituted a continuing tort. R., Vol. 1, p Calhoun Health Services filed a Motion for 2 Plaintiff's original Complaint was filed against North Mississippi Medical Center, Inc., which had a management contract with CHS, on January 3, Plaintiff's Complaint and First Amended Complaint further contained an allegation of tortious interference with contract against North Mississippi Medical Center, Inc. North Mississippi Medical Center, Inc. is no longer a defendant in this matter, as North Mississippi Medical Center, Inc. filed a Motion for Summary Judgment which was granted by the trial court on April 30,

10 Summary Judgment on August 15, 2013, seeking dismissal of all of Ms. Glaspie's claims. R., Vol. 1, p Following oral argument from the parties at a hearing on April 22, 2014 on Calhoun Health Service's Motion for Summary Judgment, the Calhoun County Circuit Court entered an Order Granting in Part and Denying in Part Defendant Calhoun Health Services' Motion for Summary Judgment. R., Vol. 3, p The trial court granted Calhoun Health Services' Motion as to Ms. Glaspie's defamation claim, and denied the Motion as to Ms. Glaspie's claims for negligence, wrongful termination, and breach of the duty of good faith and fair dealing. R., Vol. 3, p CHS then petitioned for interlocutory appeal of the circuit court's denial of CHS's Motion for Summary Judgment, which was granted by this Court on June 25, R., Vol. 3, p SUMMARY OF THE ARGUMENT CHS failed to perform a secondary drug test to confirm Ms. Glaspie's initial 'positive' test result, in violation of its own drug-testing policy and Mississippi law; Ms. Glaspie was terminated from CHS solely on the basis of this unconfirmed 'positive' test result, and subsequent drug testing performed at Ms. Glaspie's expense conclusively showed that Ms. Glaspie had not been using cocaine when CHS's initial, unconfirmed test was performed. Based on these undisputed facts, the trial court ruled that Ms. Glaspie had established genuine issues of material fact as to her negligence, wrongful termination, and breach of the duty of good faith and fair dealing claims, and that CHS is not entitled to judgment as a matter of law as to these claims. On appeal, CHS claims, not that it was not negligent in failing to perform a confirmation test after Ms. Glaspie's initial 'positive' test result, but rather that it is entitled 4

11 to protection from liability as to its negligent actions under the discretionary-function immunity provision of the Mississippi Tort Claims Act. This is not the case, however, as CHS's employee drug-testing was not the protected discretionary action of its employees, but was instead a ministerial function governed by rules and regulations regarding employee drug-testing promulgated by the Mississippi legislature and the State Board of Health. CHS further argues on appeal that the trial court erred in denying its Motion for Summary Judgment because Ms. Glaspie cannot state a claim for wrongful discharge, since she was an at-will employee of CHS. However, within the rules and regulations governing employee drug-testing, the Mississippi legislature has prohibited employers from terminating employees based upon a positive, unconfirmed drug-test result, which constitutes an exception to the traditional rule allowing termination of at-will employees for good reason, bad reason, or no reason at all. CHS finally argues that the trial court erred in denying its Motion for Summary Judgment because Ms. Glaspie cannot state a claim for breach of the duty of good faith and fair dealing because the covenant of good faith and fair dealing does not preclude CHS from terminating Ms. Glaspie for good reason, bad reason, or no reason at all. As the trial court correctly recognized, however, Ms. Glaspie's claims for breach of the duty of good faith and fair dealing stem from CHS's actions in failing to perform a secondary confirmatory drug test after Ms. Glaspie's initial 'positive' test result, not from her termination. The duty of good faith and fair dealing has been found to co-exist with the tenets of at-will employment, and CHS owed a duty of good faith and fair dealing to Ms. Glaspie in all instances that are 5

12 unaffected by the at-will employment doctrine, including CHS's failure to perform a secondary confirmation test after Ms. Glaspie's initial 'positive' drug test result. The arguments set forth by CHS which were unsuccessful at the trial court level are also without merit on appeal. Accordingly, this Court must affirm the trial court's rulings at issue, set out in the Order Granting in Part and Denying in Part Defendant Calhoun Health Services' Motion for Summary Judgment, so that this matter can be set for trial. ARGUMENT I. STANDARD OF REVIEW This Court reviews a lower court's grant or denial of summary judgment de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176 (Miss. 2002). Summary judgment should be entered by a trial judge only if the pleadings, depositions, answers to interrogatories and admissions on file... 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. Miss. R. Civ. P. 56. The Mississippi Supreme Court has consistently held that "[s]ummary judgments should be granted with great caution." Evan Johnson & Sons Const., Inc. v. State, 877 So.2d 360, 365 (Miss. 2004) (citing Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986)). Further, the Comment to Rule 56 provides that "the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried." Id. (quoting Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). To survive a motion for summary judgment, the non-moving party need only "establish a genuine issue of material fact by the means available under the rule [Miss. R. Civ. P. 56]." Lyle v. Mladinich, 584 So. 2d 398 (Miss. 1991). When determining whether a genuine issue of material fact exists, a court must review all admissions, answers to 6

13 interrogatories, depositions, affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant. Prime Rx, LLC v. McKendree, Inc., 917 So. 2d 791, 794 (Miss. 2005). When there is doubt as to whether a genuine issue of material fact exists, "the non-moving party should be given the benefit of that doubt, and the motion should be denied." Evan Johnson & Sons Const., Inc. v. State, 877 So.2d 360, 362 (Miss. 2004). II. THE LOWER COURT PROPERLY DENIED DEFENDANT CHS'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S NEGLIGENCE, BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING, AND WRONGFUL DISCHARGE CLAIMS. A. The discretionary-function exemption of the Mississippi Tort Claims Act is inapplicable to CHS, and CHS can and should be held liable to plaintiff for its negligent actions. Actions against community hospitals such as CHS are governed by the provisions of the Mississippi Tort Claims Act ("MTCA"). See Miss. Code Ann The MTCA waives immunity for governmental entities as to certain tort claims arising out of the torts of governmental entities and their employees. See Miss. Code Ann (1). The MTCA provides for an exception to its waiver of immunity, however, stating that government entities are not liable for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused." Miss. Code Ann (a)(d) (2012). CHS unsuccessfully argued to the trial court in this matter that Ms. Glaspie's claims against it were precluded by discretionary-function immunity, using the two-pronged public policy test utilized in Pratt v. Gulfport-Biloxi Reg'l Airport Auth. to determine whether CHS's actions were subject to discretionary-function immunity. Appellant CHS further relied heavily upon the two-pronged public policy test utilized in Pratt v. Gulfport-Biloxi Reg'l Airport Auth., to support its argument on appeal that 7

14 the trial court erred in ruling that this matter is not subject to discretionary-function immunity. 97 So.3d 68, 71 (Miss. 2012). When determining whether a governmental entity's conduct falls under the protective umbrella of discretionary-function immunity, however, this Court no longer employs the two-pronged public policy test. See Brantley v. City of Horn Lake, No CA SCT (Miss., Dec. 4, 2014); and Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss. 2013). In Brantley, this Court clarified that to properly determine the applicability of discretionary-function immunity: The Court first must consider the broadest function involved in order to make a baseline determination of whether the overarching function is discretionary or ministerial. The Court then must examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, nothwithstanding that it may have been performed within the scope of a broader discretionary function. Brantley, 2012-CA SCT, at 26 (Miss., Dec. 4, 2014). In the present matter, the broadest function involved is the operation of a community hospital, and the choice to operate said community hospital was a discretionary decision made by Calhoun County and Calhoun City pursuant to Miss. Code Ann Consequently, the overarching function at issue is, of course, a discretionary function. The Court's inquiry does not end with that baseline determination, however, as the Court must further examine the narrower duties associated with the activity at issue in this case, CHS's drug testing of its employees, to determine whether the activity was rendered ministerial through a statute, regulation, or other binding directive. Brantley, at 26. In this matter, as successfully argued by Plaintiff/Appellee Glaspie before the trial court, CHS's employee drug testing was rendered ministerial through binding directives, rules, and regulations which removed the element of discretion from the actions of CHS's employees. 8

15 CHS promulgated a set of regulations entitled "General Supervisory Guidelines on the Drug Testing and Search of Employees," for use in drug-testing its employees, through which CHS would "comply with the drug-free workplace act." R. Vol. 2, p By creating its drug-testing policy in compliance with the Drug-Free Workplace Act, CHS became bound by the statutes and regulations regarding the drug and alcohol testing of employees promulgated by both the Mississippi legislature and the State Board of Health. 3 Specifically, the State Board of Health's Rule , mandates that "[a]ny initial drug or alcohol test yielding a positive result shall be followed by an appropriate confirmation test." See Miss. Admin. Code, Rule Miss. Code Ann (13) further states that "an employer may not discharge... an employee on the basis of a positive test result that has not been verified by a confirmatory test." In compliance with the rules and regulations imposed by the Drug-Free Workplace Act, CHS's drug-testing policy contained a requirement for confirmation testing: "A second drug/alcohol confirmation test will be made on every 'positive' test result." R. Vol. 2, p However, CHS failed to perform a confirmation test on Ms. Glaspie's 'positive' test result, in violation of its own drug-testing regulations, and the rules and regulations imposed by the Drug-Free Workplace Act, which forms the basis of Ms. Glaspie's negligence claim against CHS. It must be emphasized that CHS does not dispute the fact that no confirmation test was performed on Ms. Glaspie's 'positive' initial drug test result, but 3 The Drug-Free Workplace Act specifies that a drug-free workplace program "must comply with the substance abuse testing procedures as provided in Sections through , Mississippi Code of 1972, if testing is initiated by the employer." Miss. Code Ann (b). Miss. Code Ann , in turn, mandates that the State Board of Health must promulgate rules concerning "methods of analysis and procedures to ensure reliable drug and alcohol testing results, including standards for initial tests and confirmatory tests." 9

16 rather argues that it is entitled to discretionary-function immunity for its negligent actions. Under Mississippi law, however, this is simply not the case. The City and County of Calhoun elected to operate and maintain the community hospital, CHS, and further to promulgate its drug-testing policy in compliance "with the drug-free workplace act", 4 and consequently, the governmental entity became "subject to several ministerial statues and regulations which remove the municipality's discretion from many functions and duties and render such functions and duties ministerial." Brantley, at 34. CHS argues that its failure to perform the mandatory confirmation test of Ms. Glaspie's 'positive' drug test result should be protected as a discretionary "day-to-day employment decision"; however, the regulations imposed by the State Board of Health and Mississippi legislature remove CHS's discretion in the performance of employee-drug testing, as evidenced by the strict parameters of CHS's own employee drug-testing policy. The Court in Brantley aptly analogized the discretion exercised by a governmental entity in a matter such as this to a parent exercising discretion in whether to bear a child, stating that, "once that child is born, there are certain nondelegable and mandatory duties that a parent must perform." Brantley, at n. 5. Ensuring the performance of a secondary confirmatory drug test on Ms. Glaspie's 'positive' initial test result was CHS's mandatory duty. CHS admittedly failed to comply with its own directive, with the plain wording of the laboratory test results on Ms. Glaspie's 'positive' test results, and most importantly with the mandatory language of the State Board of Health's Rule in failing to perform a confirmation test in this matter. CHS is not entitled to discretionary-function immunity for 4 R., Vol. 2, p

17 its admitted failure to perform this ministerial duty, and the learned trial court judge correctly held that plaintiff's negligence claim should proceed to trial. B. CHS wrongfully terminated Ms. Glaspie by discharging her on the basis of an unconfirmed 'positive' drug test. In Mississippi, an employee employed for an indefinite term such as Ms. Glaspie may be terminated for "good reason, bad reason, or no reason at all, excepting only reasons independently declared impermissible." Harris v. Mississippi Valley State Univ., 873 So.2d 970, 986 (Miss. 2004). As discussed above, CHS elected to institute a drug-free workplace program in accordance with the requirements of the Drug-Free Workplace Act, which in turn requires compliance with the mandates of the Mississippi legislature and State Board of Health regarding drug testing of employees. Specifically the Drug-Free Workplace Act requires "compliance with the substance abuse testing procedures as provided in Sections through ," and in Miss. Code Ann (13), the Mississippi legislature stated that "an employer may not discharge... an employee on the basis of a positive [drug] test result that has not been verified by a confirmatory test." The evidence of record shows that Ms. Glaspie was terminated solely as a result of her 'positive' drug test result, which CHS admits was not confirmed through subsequent testing, as required by law. R. Vol. 2, p Though CHS had the option of terminating Ms. Glaspie for good reason, bad reason, or no reason at all, the actual reason for Ms. Glaspie's termination proffered by CHS constitutes a reason which the Mississippi legislature has independently declared to be impermissible in Miss. Code Ann (13). As such, CHS's summary termination of Ms. Glaspie without performing a secondary confirmatory test constitutes wrongful termination under Mississippi law. CHS's actions are particularly 11

18 egregious given that two separate additional drug tests performed at Ms. Glaspie's expense indisputably show that Ms. Glaspie had not used cocaine, and that CHS's unconfirmed test must have been in error. The trial court therefore correctly found that CHS is not entitled to summary judgment as to Ms. Glaspie's claim for wrongful termination, and the lower court's ruling must be affirmed. C. CHS's actions in this matter constituted a breach of the duty of good faith and fair dealing, which is implied in every contract in Mississippi. It is undisputed that Mississippi follows the common law rule that a contract of employment may be terminated at the will of either party. Adams v. Institute of Community Services, Inc., 727 So.2d 739, 742 (Miss. Ct. App. 1998). It is further undisputed that in Mississippi, every contract contains an implied covenant of good faith and fair dealing. Id., at 743 (citing Merchants and Planters Bank v. Williamson, 691 So.2d 398, 405 (Miss. 1997)). The Mississippi Supreme Court and federal courts have held countless times that breach of the duty of good faith and fair dealing does not give rise to a cause of action for wrongful discharge in Mississippi. See, e.g., Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543, 547 (5th Cir. 1994). However, under Mississippi law, the covenant of good faith and fair dealing can and does coexist with employment-at-will. Adams, at 743. Prior to termination, an employer and employee indisputably owe one another a duty of good faith and fair dealing, which was breached in this matter by CHS prior to Ms. Glaspie's termination. The trial court correctly recognized that Ms. Glaspie's cause of action for breach of the duty of good faith and fair dealing stems not from her termination, but from CHS's actions in failing to perform the mandatory confirmatory drug test after Ms. Glaspie's 12

19 original sample registered a positive result, in violation of CHS's own written drug-testing policy and the rules and regulations of the Drug-Free Workplace Act. The claim of breach of the duty of good faith and fair dealing does not depend on Ms. Glaspie being fired. Regardless of whether CHS fired Ms. Glaspie following the bungled drug test, the company had an obligation to comply with the implied contractual covenant in its dealings with Ms. Glaspie prior to her termination. While, with regard to this specific cause of action only, plaintiff may be precluded from recovering damages stemming from the actual discharge, plaintiff would not be precluded from recovering other damages stemming from the pre-termination conduct of the defendant. It must be emphasized that CHS does not dispute that its action in failing to perform the mandatory confirmatory drug test after Ms. Glaspie's 'positive' initial drug test result would constitute breach of the duty of good faith and fair dealing; CHS simply argues that the covenant of good faith and fair dealing is inapplicable in this matter. Under Mississippi law, however, the covenant of good faith and fair dealing governs CHS's actions prior to its termination of Ms. Glaspie, and the trial court correctly ruled that Ms. Glaspie's claim for breach of the duty of good faith and fair dealing should proceed to trial. CONCLUSION CHS does not dispute the following facts: 1) that CHS failed to perform a confirmatory drug test after Ms. Glaspie's initial 'positive' test result, in violation of its own drug-testing policy and Mississippi law; 2) that Ms. Glaspie was terminated from CHS solely on the basis of this unconfirmed 'positive' test result; and 3) that subsequent drug testing performed at Ms. Glaspie's expense conclusively showed that Ms. Glaspie had not been using cocaine when CHS's initial test was performed. The trial court correctly found that 13

20 discretionary-function immunity is inapplicable in this matter, and that Ms. Glaspie has shown genuine issues of material fact such that she could proceed to trial with her causes of action for negligence, wrongful termination, and breach of the duty of good faith and fair dealing against CHS. Ms. Glaspie respectfully requests that this Court affirm the rulings at issue, set out in the Calhoun County Circuit Court's Order Granting in Part and Denying in Part Defendant Calhoun Health Services' Motion for Summary Judgment. This, the 17th day of February, Respectfully submitted, MARTHA GLASPIE J. KEITH PEARSON (MSB # 9753) SARAH L. DICKEY (MSB #104354) The Pearson Law Firm, PLLC 428 North Lamar Blvd, Suite 108 Oxford, MS Telephone: Facsimile: Attorney for MARTHA GLASPIE BY: _/s/ _Sarah L. Dickey OF COUNSEL 14

21 CERTIFICATE OF SERVICE I do hereby certify that I have this day served via electronic means, a true and correct copy of the above and foregoing Brief of Appellee upon the following: Michael S. Hudson, Esq. Taylor B. Smith, Esq. The Kullman Firm P.O. Box 827 Columbus, MS msh@kullmanlaw.com tbs@kullmanlaw.com Counsel for Defendant/Appellant and a copy has been forwarded via U.S. mail, postage prepaid to the following: Hon. Andrew K. Howorth Calhoun County Circuit Court Judge 1 Courthouse Square, Suite 201 Oxford, MS This, the 17th day of February, _/s/ Sarah L. Dickey Sarah L. Dickey 15