Oakbend Med. Ctr. v. Simons

OAKBEND MEDICAL CENTER, Appellant v. DAWN SIMONS, Appellee

NO. 01-19-00044-CV

Court of Appeals For The First District of Texas

August 4, 2020

On Appeal from the 240th District Court Fort Bend County, Texas

Trial Court Case No. 14-DCV-216064

MEMORANDUM OPINION

Appellant, OakBend Medical Center, appeals the judgment rendered on a jury verdict in favor of appellee, Dawn Simons, on her claims brought under the Texas Whistleblower Act.¹ In four issues, OakBend contends that Simons presented insufficient evidence to (1) satisfy the objective and subjective prongs of the "good faith" standard under the Act; (2) demonstrate that 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 damages for lost wages and benefits. We reverse.

Background

A. Factual History

OakBend, a municipal hospital authority, hired Simons as a staff nurse in its emergency room on June 27, 2011. At the time of her hire, Simons received orientation materials which covered, 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, punching her in the jaw and breast. 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 involvingone of her patients.² The security officer on duty who was assigned to watch the patient asked a nurse to watch him while the officer unlocked the main hospital doors.³ 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 ("first complaint") with OSHA, which stated 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 of the patients "are difficult to deal with." Following an investigation, OSHA determined that it could not substantiate Simons's complaint.

After Simons filed her complaint, her supervisor, Rhonda Abbe, told her that some members of the administration felt that she was insubordinate and wanted her to be removed. At the time, Simons had not received any 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 that OakBend had previously reimbursed her tuition despite the fact that her initial tuition reimbursement application advised OakBend that 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 that she did not have any personal knowledge as to whether OakBend employed nurse practitioners.

On April 16, 2014, Simons filed a complaint ("second complaint") with OSHA, stating that OakBend denied her tuition reimbursement in retaliation for her having filed her first complaint about OakBend's inadequate security.

On April 23, 2014, Frank 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, a security officer at OakBend, had filed a complaint reporting that 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 apsychiatric 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.

As a result of his investigation, Arch advised OakBend that it had an "immediate jeopardy" situation⁴ and must 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 appear at the proceeding. On August 24, 2014, OakBend terminated Simons's employment.

By letter dated August 21, 2015, the United States Department of Labor advised Simons that it had concluded its investigation of her second complaint and found no reasonable cause to believe that OakBend retaliated against her by denying her tuition reimbursement and ultimately terminating her employment.

B. Trial Proceedings

On July 10, 2014, Simons filed suit against OakBend asserting a cause of action under the Texas Whistleblower's Act. Trial began on May 1, 2018.

After both sides rested, the trial court submitted the charge to the jury, which included the following questions on liability:

QUESTION NO. 1

Was Dawn Simons['s] 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.

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.

The jury answered "yes" to both questions,⁵ and it awarded Simons $5,000 for loss of tuition reimbursement, $16,000 in compensatory damages, $26,000 in lost wages, and $8,000 in lost benefits.⁶ OakBend filed a motion for judgment notwithstanding the verdict; the trial court denied the motion on December 3, 2018. The trial court entered a final judgment in favor of Simons on December 27, 2018. This appeal followed.

Discussion

In its first issue, OakBend contends that Simons is not protected by the Texas Whistleblower Act because she failed to present any evidence that she acted in good faith in filing either of her complaints with OSHA. In its second issue, OakBend argues that Simons failed to offer any evidence that OakBend knew about her second complaint when it suspended Simons's employment and, therefore, her second complaint cannot form the basis of her retaliation claim. In its third and fourth issues, OakBend asserts that Simons failed to present evidence to support the jury's award of emotional distress damages, lost wages, and benefits.

A. Standard of Review

In conducting a legal sufficiency review, we view the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We must credit evidence favorable to the verdict if reasonable jurors could, disregard contrary evidence unless reasonable jurors could not, and reverse the jury's determination only if the evidence presented at trial would not enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We may sustain a legal sufficiency, or no-evidence, point if the record reveals one of the following: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). If more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr., 70 S.W.3d at 782. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83.

B. Texas Whistleblower Act

The Texas Whistleblower Act provides that "[a] state or local governmental entity may not suspend or...