Oakbend Med. Ctr. v. Simons

OAKBEND MEDICAL CENTER, Appellant v. DAWN SIMONS, Appellee

No. 01-19-00044-CV

Court of Appeals of Texas, First District

September 2, 2021

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 14-DCV-216064

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

MEMORANDUM OPINION ^[1]

Veronica Rivas-Molloy, Justice

Appellant OakBend Medical Center ("OakBend") appeals the judgment rendered on a jury verdict in favor of appellee Dawn Simons ("Simons") on her claims brought under the Texas Whistleblower Act.^[2] In four issues, OakBend contends Simons presented insufficient evidence to (1) satisfy (a) the objective and subjective prongs of the "good faith" standard for her first complaint and (b) the objective prong for her second complaint, (2) demonstrate OakBend knew about her second complaint to the Occupational Safety and Health Administration ("OSHA") before it suspended her and terminated her employment, (3) support the jury's award of emotional distress damages, and (4) support the jury's award of lost wages and benefits. We affirm.

Background

A. Factual History

OakBend a municipal hospital authority, hired Simons to work as a staff nurse in its emergency room on June 27, 2011. At the time of her hire, Simons received orientation materials covering, among other things, the hospital's safety policies and the reporting of safety and security issues. OakBend promoted Simons to emergency room charge nurse approximately six months later.

In 2012, a patient attacked Simons at work, punching her in the jaw and breast. An emergency medical services crew and other hospital nurses came to her aid and eventually subdued the patient. A police report was filed, and the patient received a five-year sentence for assaulting medical personnel.

In December 2013, Simons learned of a "sentinel event" (the technical term for an unexpected death at the hospital) that occurred during the night shift involving one of her patients.^[3] The on-duty security officer assigned to watch the patient asked a nurse to watch the patient while the officer unlocked the main hospital doors.^[4]When the nurse left the patient unattended to respond to an emergency involving an infant, the patient left the hospital and was hit by a train.

On December 12, 2013, Simons filed a complaint with OSHA ("first complaint") stating that "nurses and staff are threatened and physically attacked by patients. There is not adequate security to protect employees." Simons believed that several of the security officers, one of whom she described as being in poor health and another as too old, were physically incapable of providing security to patients and staff. She testified that when she made her complaint, she felt that "we needed help" because the hospital was in an area with "a ton of drug use" and some patients "are difficult to deal with." Simons testified OakBend had only one security officer on duty for its four facilities, including its two main facilities which are about fifteen minutes away from one another, and that the on-duty officer may not be present at the location where he was needed. Following an investigation, OSHA determined that it could not substantiate Simons' complaint.

After Simons filed her complaint, her supervisor, Rhonda Abbe, told her that some members of the administration felt she was insubordinate and wanted her removed. At the time, Simons had received no negative counseling.

In a letter dated April 9, 2014, OakBend advised Simons that it would not reimburse her tuition for seeking a nurse practitioner license. Noting its current policy that "[t]he course must be of direct value to the department in which the employees' current position is held," OakBend stated that it "does not employ the position 'Advanced Registered Nurse Practitioner.'" Simons testified OakBend previously had reimbursed her tuition even though her prior tuition reimbursement application advised OakBend she was taking courses to attain a nurse practitioner license. Simons further testified that she worked alongside nurse practitioners in the emergency room at OakBend. On cross-examination, Simons admitted she did not have any personal knowledge over whether OakBend employed nurse practitioners.

On April 16, 2014, Simons filed a second complaint with OSHA ("second complaint"). She claimed that OakBend had denied her tuition reimbursement in retaliation for her having filed her first complaint with OSHA about OakBend's inadequate security. A few days later, on April 23, 2014, Frank Arch ("Arch"), an investigator with the Texas Department of State Health Services ("DSHS"), arrived at OakBend to investigate an allegation that Simons had kicked a patient on April 4, 2014.

Simons learned that Eddie Jay Thatcher ("Thatcher"), a security officer at OakBend, had filed a complaint reporting he witnessed Simons kick a patient. The patient, who tested positive for several drugs, was asleep on a stretcher when Simons came into the room to wake him so that a psychiatric assessment nurse could evaluate him. According to Thatcher, Simons said, "I'm going to make him as uncomfortable as possible" and kicked the patient in the foot. Simons told Arch that she did not kick the patient but had only tapped his foot, and that he woke up screaming and cursing at her.

On April 23, 2014, as a result of his investigation, Arch advised OakBend that it had an "immediate jeopardy" situation, ^[5] further instructing OakBend to submit a plan to address how it intended to remove the threat. Later that same day, OakBend suspended Simons pending further investigation of the incident.

On May 27, 2014, OakBend notified Simons that a nursing peer review committee proceeding was scheduled for June 17, 2014, to review the April 4 incident. Simons did not participate or appear at the proceeding. Instead, she filed suit against OakBend on July 10, 2014, asserting a cause of action under the Texas Whistleblower Act.

On August 20, 2014, OakBend terminated Simons' employment. And on August 21, 2015, the United States Department of Labor advised Simons in writing that it had concluded its investigation of her second complaint finding no reasonable cause to believe OakBend had retaliated against her by denying her tuition reimbursement and ultimately terminating her employment.

B. Trial Proceedings

Trial began on May 1, 2018. After both sides rested, the trial court submitted the charge to the jury. The jury answered the questions on liability and damages in relevant part as follows:^[6]

QUESTION NO. 1

Was Dawn Simons['] December 2013 report to the Occupational Safety and Health Administration ("OSHA") that OakBend had inadequate security made in good faith and a cause of OakBend denying her request for tuition reimbursement?

The report was a cause of the tuition reimbursement denial if it would not have occurred when it did but for the report's being made. Dawn Simons does not have to prove the report was the sole cause of the tuition reimbursement being denied.

"Good faith" means that (1) Dawn Simons believed that the conduct reported was a violation of the law and (2) her belief was reasonable in light of her training and experience. "Good faith" does not require that the allegations in the report need to be true.

Answer: Yes or No: Yes

QUESTION NO. 2

What sum of money, if paid now in cash, would fairly and reasonably compensate Dawn Simons for her damages, if any, that resulted from such conduct? ....

a. Loss of tuition reimbursement. Answer: $5, 000.00 b. Compensatory damages in the past, which include [emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-economic losses].

Answer: $16, 000.00

QUESTION NO. 3

Were the reports by Dawn Simons to OSHA that OakBend had inadequate security or that OakBend retaliated by revoking her tuition reimbursement made in good faith and a cause of OakBend suspending or terminating her employment?

The report was a cause of the suspension or termination if it would not have occurred when it did but for the report's being made. Dawn Simons does not have to prove the report was the sole cause of her suspension or her termination.

"Good faith" means that (1) Dawn Simons believed that the conduct reported was a violation of the law and (2) her belief was reasonable in light of her training and experience. "Good faith" does not require that the allegations in the report need to be true.

Answer: Yes or No: Yes

QUESTION NO. 4

What sum of money, if paid now in cash, would fairly and reasonably compensate Dawn Simons for her damages, if any, that resulted from such conduct? ....

a. Lost wages during the period of suspension or termination. Answer: $26, 000.00 b. Lost employee benefits other than loss of earnings.

"Benefits" include [sick-leave pay, vacation pay, profit-sharing benefits, stock options, pension fund benefits, housing or transportation subsidies, bonuses, monetary losses incurred as a result of loss of health, life, dental, or similar coverage].

Answer: $8, 000.00

OakBend filed a motion for judgment notwithstanding the verdict. The trial court denied the motion and entered a final judgment in favor of Simons.^[7] This appeal followed.

Discussion

In its first issue, OakBend contends Simons is not protected by the Texas Whistleblower Act because she presented no evidence that she acted in good faith in filing either of her complaints with OSHA. In its second issue, OakBend argues Simons offered no evidence that OakBend knew about her second complaint when it suspended Simons' employment and thus her second complaint cannot satisfy the causal connection necessary for her retaliation claim. In its third and fourth issues, OakBend asserts Simons failed to...