Thatcher v. Oakbend Medical Center

Filing 66

ORDER GRANTING IN PART DENYING IN PART 53 MOTION for Judgment as a Matter of Law Judgment. Thatcher is hereby ORDERED to move for final judgment and provide the court with a proposed final judgment that does not include the punitive damages award within ten (10) days of the date of this order. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDDIE JAY THATCHER,
Plaintiff,
v.
OAKBEND MEDICAL CENTER and
HAROLD ALLEN, Individually and in his
Official Capacity,
Defendants.

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August 29, 2016
David J. Bradley, Clerk

CIVIL ACTION H-14-3551

ORDER
Pending before the court is a motion for judgment as a matter of law filed by defendant
OakBend Medical Center (“OakBend”). Dkt. 53. OakBend filed its motion pursuant to Federal Rule
of Civil Procedure 50. After considering the motion, response, testimony and arguments at trial, and
the applicable law, the court finds that OakBend’s motion should be GRANTED IN PART AND
DENIED IN PART.
I. BACKGROUND
Plaintiff Eddie Jay Thatcher’s claim against OakBend for retaliatory discharge was tried
before a jury on February 8–10, 2016. Dkts. 41, 43, 45. The evidence at trial centered around
whether Thatcher’s supervisor, Harold Allen, terminated Thatcher’s employment as a security guard
at OakBend because he exercised his right to free speech regarding a charge nurse who worked at
the hospital kicking a patient. At the conclusion of the presentation of evidence, OakBend moved
for judgment as a matter of law under Federal Rule of Civil Procedure on four issues: (1) whether
the evidence sufficiently demonstrated that Thatcher exercised speech that is a matter of public
concern; (2) whether the evidence supported causation; (3) whether Thatcher mitigated his damages;

and (4) whether Thatcher had presented sufficient evidence of malice to support an award of punitive
damages. Dkt. 63 (transcript of day 3). The court denied the motion for judgment as a matter of law
as to the first three issues and took the fourth under advisement. Id. The court specifically found
on the record that when Thatcher spoke about the kicking incident he was speaking as a private
citizen and his speech impacted a matter of public concern. Id. The jury was then charged. After
deliberating, it found that OakBend “terminate[d] the employment of [Thatcher] for engaging in
speech that motivated [OakBend’s] decision,” and it awarded $5,000.00 in damages for past lost
earnings, $1,500.00 for past pain and suffering, and $15,000.00 in punitive damages. Dkt. 50-1.
OakBend now moves for judgment as a matter of law, requesting that the court find that the
First Amendment does not protect speech that concerns a public employee’s complaint that a coworker has engaged in misconduct which does not relate to any official act or omission and, in fact,
involves conduct prohibited by the public employer. Dkt. 53. OakBend requests, in the alternative,
that the court hold that there was no evidence at trial that OakBend acted with malice or reckless
indifference to Thatcher’s First Amendment rights. Id. OakBend also asserts that even if there were
evidence that Thatcher’s supervisor acted with malice or reckless indifference, his actions cannot
be imputed to OakBend. Id.
Thatcher asserts that his speech was protected under the First Amendment because he spoke
on a matter of public concern and that there was legally sufficient evidence to support the jury’s
verdict and damages awards. Dkt. 65. Thatcher argues that OakBend waived two of its arguments
because it did not raise them in its motion for judgment as a matter of law at the conclusion of
evidence. Id. Specifically Thatcher contends OakBend waived (1) the argument regarding
Thatcher’s co-worker’s conduct not relating to an official act or omission; and (2) the argument that
the speech does not involve a matter of public concern because the misconduct at issue was
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prohibited by the employer. Id. Thatcher further contends that “official misconduct” may be
committed by a fellow employee and that, regardless, the misconduct in this case was misconduct
by an official—the charge nurse. Id. Alternatively, Thatcher argues that “official misconduct” is
not necessary to establish speech on a matter of public concern. Id.
As far as punitive damages, Thatcher contends that the evidence demonstrates that Thatcher’s
supervisor was informed of Thatcher’s speech to outside law enforcement and then acted with
reckless or callous indifference to Thatcher’s First Amendment right to freely speak about matters
of public concern when he terminated Thatcher’s employment. Id. Thatcher contends that liability
for punitive damages imputes to OakBend because Thatcher’s supervisor, Harold Allen, was a
managerial employee acting within the scope of his employment. Id.
II. LEGAL STANDARD
OakBend makes its request pursuant to Federal Rule of Civil Procedure 50. Under Rule
50(a), a “motion for judgment as a matter of law may be made at any time before the case is
submitted to the jury” and “must specify te judgment sought and the law and facts that entitle the
movant to the judgment.” Fed. R. Civ. P. 50(a)(2). The court may grant a party’s Rule 50(a) motion
if it finds that “a reasonable jury would not have a legally sufficient evidentiary basis to find for the
[non-moving] party on that issue.” Id. 50(a)(1). “[J]udgment as a matter of law should only be
granted if ‘the facts and inferences point so strongly and overwhelmingly in the movant’s favor that
reasonable jurors could not reach a contrary conclusion.’” Coffel v. Stryker Corp., 284 F.3d 625, 630
(5th Cir.2002) (quoting Flowers v. S. Reg’l Physician Servs., 247 F.3d 229, 235 (5th Cir. 2001)).
In reviewing a Rule 50 motion, the court should “‘review all of the evidence in the record, draw all
reasonable inferences in favor of the nonmoving party, and may not make credibility determinations

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or weigh the evidence.’” Id. (quoting Ellis v. Weasler Eng’g Inc., 258 F.3d 326, 337 (5th Cir.
2001)).
Under Rule 50(b), if a party moves for judgment under Rule 50(a) and the court does not
grant the motion, the party may “file a renewed motion for judgment as a matter of law.” Fed. R.
Civ. P. 50(b). The court may either allow judgment on the verdict, order a new trial, or direct entry
of judgment as a matter of law. Id. A “motion for judgment as a matter of law . . . in an action tried
by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” (internal
quotations omitted). Coffel, 284 F.3d at 630. “If a party fails to move for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence,
that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to
challenge the sufficiency of the evidence on that issue on appeal.” Flowers, 247 F.3d at 238.
III. ANALYSIS
The court will first address Thatcher’s contention that OakBend waived its arguments (1) that
the nurse’s kicking a patient does not relate to an official act and omission; and (2) that the speech
does not address a public concern because the nurse’s conduct was prohibited by the public
employer. It will then consider OakBend’s arguments, to the extent they have not been waived,
regarding the sufficiency of the evidence for liability and punitive damages.
A.

Waiver
Thatcher contends that OakBend has waived its right to assert the argument that the nurse’s

conduct in kicking a patient does not relate to an “official act or omission.” Dkt. 5 at 3. However,
in asserting its motion for judgment at the conclusion of the evidence, OakBend’s counsel stated:
Here, we don’t have official misconduct involved at all. All we have
is a – the accusation of a nurse kicking a patient. The nurse is not an
official of the hospital. She’s just an employee. And so, I don’t see
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how this rises to the level of a whistle-blowing at all in a public
context. We just have an internal issue of how an employee is to be
disciplined by her employer.
Dkt. 63 at 6:2–9. Thatcher states that the argument about an “official act or omission” is distinct
from “official misconduct,” but he does not explain why they are different. See Dkt. 65 at 3 & n.3.
The court believes OakBend sufficiently moved for judgment as a matter of law under Rule 50(a)
on the argument that the kicking is not an official act and that it did not constitute official
misconduct because OakBend’s counsel asserted that he did not believe Thatcher had sufficient
evidence to show that he exercised speech that is a matter of public concern. Whether the nurse’s
conduct is official misconduct or relates to an official act or omission is part of the public concern
analysis. See Brawner v. City of Richardson, Tex., 855 F.2d 187, 191–92 (5th Cir. 1988) (“The
disclosure of misbehavior by public officials is a matter of public interest and therefore deserves
constitutional protection.”). Accordingly, this argument was not waived.
Thatcher also contends that OakBend waived its right to argue that the speech does not
involve a matter of public concern because kicking a patient is conduct prohibited by OakBend.
Dkt. 65 at 3. The court has reviewed the transcript and finds that OakBend did not raise this issue
when making its motion.1 Accordingly, to the extent OakBend relies on this argument to now assert
that the content, form, or context of the report does not rise to a public concern, that argument has
been waived.
B.

Public Concern
OakBend seeks a ruling that the First Amendment does not protect speech that concerns a

public employee’s complaint that a co-worker has engaged in misconduct which does not relate to

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The court notes that OakBend did not file a reply brief or address the waiver argument in

any way.
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any official act or omission and, in fact, involves conduct prohibited by the public employer.
Thatcher argues that he spoke on a matter of public concern and that there was legally sufficient
evidence to support the jury’s verdict. Alternatively, Thatcher asserts that official misconduct is not
necessary to establish speech on a matter of public concern. The court has already found that
OakBend waived its argument relating to the conduct being prohibited by OakBend. It will address
whether speech by a fellow employee about a charge nurse in a public hospital kicking a patient is
a matter of public concern without considering OakBend’s position on the propriety of the nurse
kicking the patient.
It is impermissible, under the First Amendment, for the state to “condition public
employment on a basis that infringes the employee’s constitutionally protected interest in freedom
of speech” as it relates to public concerns. Connick v. Myers, 461 U.S. 138, 142–46, 103 S. Ct. 1684
(1983) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304 (1957)). However, when
“employee expression cannot be fairly considered as relating to any matter of political, social, or
other concern to the community, government officials should enjoy wide latitude in managing their
offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Id. at 146.
“Whether an employee’s speech addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the whole record.” Id. at 147–48.
When considering content, form, and context, courts must keep in mind that the First Amendment
does not protect speech, even if it “is of great social importance,” if “it was made pursuant to the
worker’s official duties.” Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007)
(citing Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006)). Whether speech on an issue is
a matter of public concern is a question of law. Modica v. Taylor, 465 F.3d 174, 180 (5th Cir. 2006).

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The question here is whether Thatcher’s speech relating to a nurse kicking a patient at a
public hospital is an issue of public concern. OakBend contends that speech relating to a public
concern is grouped into two categories: (1) speech involving one’s political opinions; and (2) speech
calculated to disclose misconduct on the part of governmental officials in the scope of their official
duties. Dkt. 53 at 3. OakBend asserts that a topic may be of general interest to the public but not
rise to the level of a being a public concern for First Amendment purposes. Id. Thatcher contends
that “official misconduct” is not necessary to establish speech on a matter of public concern and that,
even if it were, official misconduct is not limited to a “public figure” or “top management” and may
be committed by fellow employees. Dkt. 65. He contends, in the alternative, that the evidence at
trial established that the charge nurse who kicked the patient was in charge of other nurses, that she
was acting in her capacity as a charge nurse, and that her conduct is therefore official misconduct
that rises to the level of a public concern. Id.
Thatcher relies in part on Frazier v. King, 873 F.2d 820, 826 (5th Cir. 1989). In Frazier, the
plaintiff was a registered nurse working in an infirmary at a prison. 873 F.2d at 822. She reported
violations of nursing practices by her colleagues to her supervisor. Id. Her supervisor did not
correct the problem, and she went up the ladder with her reports, to no avail. Id. Eventually, she
reported her concerns to the State Board of Nursing. Id. After an investigation revealed the plaintiff
had made copies of patient records without permission, her employment was terminated. Id. at 823.
The plaintiff sued various prison officials, asserting that the termination violated her First
Amendment rights, among other claims. Id. at 822. The district court determined that the
defendants violated the plaintiff’s right of free speech. Id. at 827. On appeal, the defendants
conceded that the “‘quality of nursing care given to any group of people, including inmates, is a

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matter of public concern,’” and the Fifth Circuit agreed and held that the district court correctly
determined that the defendants violated the plaintiff’s right of free speech. Id. at 825.
While there are distinctions between this case and Frazier, including that the Frazier plaintiff
reported her colleagues’ misconduct to individuals who, after some time, did not remedy the
situation, clearly in Frazier, like in this case, the public concern was primarily about the nurses not
appropriately caring for patients. The Fifth Circuit did not discuss the public concern as a systemic
problem or a problem with management. Its focus was on the fact the public would be concerned
if nursing care is sub-par. Thus, to the extent that OakBend argues that the charge nurse’s conduct
was not “official conduct” or she wasn’t a high enough ranking official for her actions to be of public
concern, the Frazier opinion demonstrates otherwise.
Another Fifth Circuit case that the court finds instructive in this situation is Wilson v.
University of Texas Health Center, 973 F.2d 1263 (5th Cir. 1992). In Wilson, the plaintiff was a
member of the University of Texas Health Center (“UTHC”) police force, and her employment was
terminated after she complained about sexual harassment of her and other female officers by fellow
officers. 873 F.2d at 1266. The Fifth Circuit held that the content of the plaintiff’s speech, which
included “reports of sexual harassment perpetrated on her and other women at UTHC,” was “of great
public concern.” Here, the court finds that the content of the speech at issue is likewise of “great
public concern.”
OakBend’s motion, to the extent it seeks a ruling that Thatcher was not speaking on a matter
of public concern, is DENIED.
C.

Punitive Damages
OakBend contends that there is legally insufficient evidence to support an award of punitive

damages. Dkt. 53 at 8. “[A] jury may be permitted to assess punitive damages in an action under
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§ 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade,
461 U.S. 30, 56, 103 S. Ct. 1625 (1983). The terms “malice” and “reckless indifference” “pertain
to the employer’s knowledge that it may be acting in violation of federal law.” Kolstad v. Am.
Dental Ass’n, 527 U.S. 526, 535, 119 S. Ct. 2118 (1999) (applying the Smith holding in the context
of a § 1981a case); see also Worldwide Network Servs., LLC v. Dyncorp Int’l, LLC, 365 F. App’x
432, 445, 2010 WL 489477 (4th Cir. Feb. 12, 2010). Here, while there was sufficient evidence for
the jury to determine that Thatcher’s supervisor made the decision to terminate Thatcher’s
employment because of the speech at issue, the court finds that there was insufficient evidence of
evil motive or reckless or callous indifference to Thatcher’s freedom of speech to support an award
of punitive damages. Accordingly, OakBend’s motion, as it relates to the punitive damage award,
is GRANTED.
III. CONCLUSION
OakBend’s motion for judgment as a matter of law is GRANTED IN PART AND DENIED
IN PART. It is GRANTED with regard to the jury’s award of punitive damages. The court SETS
ASIDE the jury’s award of punitive damages. The motion is otherwise DENIED.
Thatcher is hereby ORDERED to move for final judgment and provide the court with a
proposed final judgment that does not include the punitive damages award within ten (10) days of
the date of this order.
Signed at Houston, Texas on August 29, 2016.

___________________________________
Gray H. Miller
United States District Judge
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