IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-01614-COA
THE ESTATE OF ROBYN TURNER APPELLANT
v.
TOWN PHARMACY AND GIFTS, LLC APPELLEE
DATE OF JUDGMENT: 10/01/2019 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MITCHELL PAUL HASENKAMPF KAREN ELIZABETH FUTCH ATTORNEY FOR APPELLEE: RUSSELL SCOTT MANNING NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE DISPOSITION: AFFIRMED - 01/19/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ.
WILSON, P.J., FOR THE COURT:
¶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
1 Because we affirm based on the first ground, it is unnecessary to address the remaining grounds for the circuit court’s decision.
2 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
3 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
2 Diazepam is a schedule IV controlled substance. 21 C.F.R. § 1308.14(b)(17); Miss. Code Ann. § 41-29-119(b)(16) (Rev. 2018). 3 Segura retired sometime after Turner’s employment at Town Pharmacy ended. According to Turner’s attorney, Segura “dodged service” of a subpoena and said “he was leaving town and . . . would fight it.” Segura agreed to a deposition by written questions. Segura did not dispute that he opened the pharmacy and served the customer. In response to the question whether he denied dispensing four diazepam pills to the customer “without [the customer] having a current prescription,” Segura stated, “Any and all actions I took were under the orders of the physician. I was in communication with the doctor.” Segura stated that the “Hippocratic Oath” prevented him from “go[ing] into detail” about the medicine he dispensed to the customer.
4 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
5 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
4 Tommy says that he told Turner she could work for two more weeks.
6 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 that Segura engaged in criminal conduct;5 (2)
Turner resigned and was not fired; and (3) even if “there was some misunderstanding about
[Turner] resigning, there is no proof that her employment ended” because she reported an
allegedly criminal act. Turner filed a notice of appeal.
ANALYSIS
¶17. We review the grant or denial of a motion for summary judgment motion de novo,
viewing the evidence in the light most favorable to the non-moving party. Ill. Cent. R.R. Co.
v. Jackson, 179 So. 3d 1037, 1044 (¶16) (Miss. 2015). “[Summary] judgment . . . shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, 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.”
M.R.C.P. 56(c). The non-moving party “may not rest upon the mere allegations or denials
5 Turner argues that the circuit court erred by addressing this issue because Town Pharmacy raised the issue in its rebuttal memorandum in support of its motion for summary judgment. However, the circuit court allowed Turner to file a sur-rebuttal and supplement the record to address the issue. Because the circuit court granted Turner an opportunity to respond, we conclude that Turner did not suffer any “unfair prejudice” and that the circuit court did not err by addressing the issue. See Thornton v. Big M Transp. Co., 146 So. 3d 393, 398 (¶¶19-20) (Miss. Ct. App. 2014) (holding that defendant’s failure to comply with Rule 4.03 of the Uniform Rules of Circuit and County Court Practice (subsequently renumbered as Rule 4.02) did not require reversal where the plaintiff had an opportunity to respond to the motion and did not suffer any “unfair prejudice”).
7 of his [or her] pleadings, but, by affidavits or as otherwise provided by [Rule 56], must set
forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Thus,
pursuant to Rule 56, “the court must grant summary judgment unless—as to each material
issue of disputed fact raised by the moving party—the record demonstrates at least the
minimum quantum of evidence sufficient to justify a determination in favor of the
non-moving party by a reasonable juror.” Glover ex rel. Glover v. Jackson State Univ., 968
So. 2d 1267, 1274 (¶19) (Miss. 2007) (footnotes omitted).
¶18. “Mississippi adheres to the employment at will doctrine, which states absent an
employment contract expressly providing to the contrary, an employee may be discharged
at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons
independently declared legally impermissible.” Harris v. Miss. Valley State Univ., 873
So. 2d 970, 986 (¶46) (Miss. 2004) (quotation marks omitted). However, our Supreme Court
has recognized “a narrow public policy exception to the employment at will doctrine”: an
employee may sue her employer in tort for damages if she is fired for (1) refusing to
participate in an illegal act or (2) reporting illegal acts of her employer to her employer or
anyone else. McArn, 626 So. 2d at 607.6
¶19. McArn’s exception for whistleblowers is subject to important limitations. It “only
appl[ies] where the activity complained of is actually illegal.” Obene v. Jackson State Univ.,
6 More recently, the Supreme Court has held that an employee may sue for wrongful discharge if he is fired for storing a firearm inside a locked vehicle at work. Swindol v. Aurora Flight Scis. Corp., 194 So. 3d 847, 854 (¶20) (Miss. 2016). The Court’s holding was based on a statute that specifically forbids an employer from maintaining a rule or policy that prohibits employees from storing a firearm inside a locked vehicle. Id. at 853-54 (¶¶18- 20) (citing Miss. Code Ann. § 45-9-55 (Rev. 2015)).
8 233 So. 3d 872, 876 (¶13) (Miss. Ct. App. 2017), cert. denied, 233 So. 3d 820 (Miss. 2018).
Therefore, “[a] plaintiff’s subjective belief that the acts reported were illegal does not satisfy
McArn.” Gray v. Town of Terry, 196 So. 3d 211, 218 (¶23) (Miss. Ct. App. 2016) (quoting
McGrath v. Empire Inv. Holdings, No. 1:11-CV-209-A-S, 2013 WL 85205, at *4 (N.D. Miss.
Jan. 7, 2013)). In addition, the exception only applies if “the acts complained of warrant the
imposition of criminal penalties, as opposed to mere civil penalties.” Roop v. S. Pharms.
Corp., 188 So. 3d 1179, 1185 (¶17) (Miss. 2016) (emphasis added) (quoting Hammons v.
Fleetwood Homes of Miss. Inc., 907 So. 2d 357, 360 (¶11) (Miss. Ct. App. 2004)). Thus, in
response to a motion for summary judgment, the plaintiff “must state with specificity the
allegedly illegal conduct, point to evidence of record to support his allegations, and describe
how that conduct violated a criminal statute.” White v. Cockrell, 190 So. 3d 878, 883 (¶16)
(Miss. Ct. App. 2015).
¶20. Turner alleges that Segura violated federal law by dispensing a schedule IV controlled
substance. See 21 U.S.C. § 841. However, it is lawful for a licensed pharmacist such as
Segura to dispense a schedule IV controlled substance such as diazepam pursuant to a valid
written or oral prescription from a doctor.7 A pharmacist may dispense such a medicine “(i)
upon a written prescription of a practitioner licensed by law to administer such drug, or (ii)
upon an oral prescription of such practitioner which is reduced promptly to writing and filed
by the pharmacist, or (iii) by refilling any such written or oral prescription if such refilling
7 See 21 U.S.C. § 829(b) (providing that a pharmacist may only dispense a schedule IV controlled substance pursuant to “a written or oral prescription in conformity with section 503(b) of [the Federal Food, Drug, and Cosmetic] Act,” 21 U.S.C. § 353(b)).
9 is authorized by the prescriber either in the original prescription or by oral order which is
reduced promptly to writing and filed by the pharmacist.” 21 U.S.C. § 353(b); see also Miss.
Code Ann. § 41-29-137(b) (stating that a Schedule IV controlled substance “shall not be
dispensed without a written or oral valid prescription of a practitioner”).
¶21. In this case, Turner presented little evidence of what occurred on September 2. The
evidence in the record tends to show that Segura dispensed four diazepam pills to a customer
on September 2 based on an oral prescription from the customer’s doctor. The evidence also
shows that the prescription was reduced to writing, as Turner testified that there was a written
prescription for the customer when the pharmacy reopened on September 5. As the circuit
court noted during the summary judgment hearing, Turner was unable to establish any other
facts about the incident. Turner’s lack of evidence is due in part to her own failure to discuss
the incident with Segura. As discussed above, it is undisputed that Tommy instructed Turner,
as the pharmacist-in-charge, to discuss the issue with Segura. However, Turner made a
deliberate decision not to discuss the issue with Segura, even though she continued to talk
to him about other matters, including asking him to cover shifts for her. In addition, Turner
failed to subpoena Segura for an oral deposition. Nor did she depose or obtain an affidavit
from the prescribing doctor or the customer. As a result, the only evidence in the record
tends to show that Segura dispensed four pills pursuant to an oral prescription and that the
prescription was subsequently reduced to writing.
¶22. Turner argues that Segura illegally dispensed diazepam on September 2 because the
doctor’s oral prescription was not “reduced promptly to writing,” as required by law. 21
10 U.S.C. § 353(b).8 However, as the circuit court noted, the pharmacy received a written
prescription by the time it opened the next business day. Turner has provided no authority
that supports her claim that this was not sufficiently prompt—or that a delay until the next
business day would support criminal charges against Segura.
¶23. Turner does argue that a federal regulation, 21 C.F.R. § 1306.05, “defines promptly.”
However, this contention is inaccurate. The regulation simply states that a doctor’s
prescription “shall be dated as of, and signed on, the day when issued.” Id. The regulation
is “designed to ensure that the doctor examines the patient before delivering the prescription
and to ensure that there is a legitimate medical reason for delivering the prescription.”
United States v. Joseph, 709 F.3d 1082, 1090-91 (11th Cir. 2013). It does not address or
define the statutory term “promptly” or address the manner of recording of an oral
8 Turner also argues that the diazepam was “misbranded while held for sale” because the prescription was not “reduced promptly to writing.” 21 U.S.C. § 353(b); see United States v. Arlen, 947 F.2d 139, 141 n.2 (5th Cir. 1991) (“Any prescription drug that is dispensed without a prescription is deemed ‘misbranded’ as a matter of law.”). Federal law prohibits “the doing of any . . . act with respect to[] a . . . drug . . . if such act is done while such [drug] is held for sale . . . after shipment in interstate commerce and results in such [drug] being . . . misbranded.” 21 U.S.C. § 331(k); see also 21 U.S.C. § 333(a) (providing criminal penalties for violations of section 331). Turner’s “misbranding” argument fails for the same reasons as the argument discussed in the text. Finally, on appeal, Turner alleges that Town Pharmacy violated 21 U.S.C. § 842(a)(5) by failing to keep certain records. See 21 U.S.C. § 842(c)(2)(A) (providing for criminal penalties if an indictment specifically alleges and the trier of fact specifically finds “that the violation was committed knowingly”). However, Turner failed to raise this issue or mention this statutory provision in the circuit court. Therefore, the issue is waived. See, e.g., Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So. 2d 1227, 1228 (Miss. 1988) (“A trial judge cannot be put in error on a matter which was never presented to him for decision.”); Adams v. Bd. of Supervisors of Union Cnty., 177 Miss. 403, 170 So. 684, 685 (1936) (“It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.”).
11 prescription. A different regulation tracks the statute by providing that an oral prescription
shall be “promptly reduced to writing.” 21 C.F.R. § 1306.21. Like the statute, that
regulation does not define the term “promptly.”
¶24. As the circuit court noted, Turner provided little evidence regarding the alleged
criminal act that forms the basis for her McArn claim. Viewed in the light most favorable
to Turner, the evidence suggests that Segura dispensed medicine pursuant to an oral
prescription from a physician and that the prescription was reduced to writing by the next
business day. Turner has provided no evidence or authority that a delay of such duration is
a crime. In short, Turner failed to “state with specificity the allegedly illegal conduct, point
to evidence of record to support his allegations, and describe how that conduct violated a
criminal statute.” White, 190 So. 3d at 883 (¶16). Accordingly, the circuit court properly
granted summary judgment in favor of Town Pharmacy.
CONCLUSION
¶25. Town Pharmacy was entitled to summary judgment because Turner failed to produce
sufficient evidence for a reasonable juror to find that a crime was committed. Because
Turner’s claim fails for this threshold reason, it is unnecessary to address the additional
grounds on which the circuit court granted summary judgment.
¶26. AFFIRMED.
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.