Almeida et al v. Bio-Medical Applications of Texas, Inc. et al

Filing 27

MEMORANDUM OPINION. Signed by Judge David Briones. (ar)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

GLORIA ALMEIDA and IRMA
QUI1ONEZ,
Plaintiffs,

I

iii

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§
§
§

v.

EP-16-CV-263-DB

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§

BlO-MEDICAL APPLICATIONS OF
TEXAS, INC.,
Defendant.

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§
§

MEMORANDUM OPINION
On this day, the Court considered Defendant Bio-Medical Applications of Texas,

Inc.'s ("Defendant") "Motion for Summary Judgment on all Claims and Brief in Support"
("Motion for Summary Judgment"), filed in the above-captioned case on June 6, 2017.

On June

26, 2017, Plaintiffs Gloria Almeida ("Plaintiff Almeida") and Irma Quiñonez ("Plaintiff
Quifionez ") (collectively, "Plaintiffs") filed their Response.
its Reply.

On June 30, 2017, Defendant filed

By a short order, on July 14, 2017, the Court granted Defendant's Motion for

Summary Judgment.

The Court indicated that it would later issue a memorandum opinion

explaining the ruling's basis.

This is the corresponding memorandum opinion.

BACKGROUND
This is an employment retaliation case.

Plaintiff Almeida and Plaintiff Quiflonez

are registered nurses who were employed by Defendant for more than two decades.

They claim

that Defendant terminated their employment after they reffised an assignment to train a patient to

perform home hemodialysis in New Mexico.

Plaintiffs claim that they did not have the

requisite experience to train the patient and that accepting the assignment would have

jeopardized the patient's safety.

Plaintiffs reported this information to Defendant, and

eventually Defendant terminated their employment.
Defendant hired Plaintiff Almeida in 1991 and Plaintiff Quinonez in 1996.

Def.'s Ex. B, ECF No. 18-3, at 6; Del's Ex. C, ECF No. 18-4, at 16; Pis.' Ex. A, ECF No. 24-2,
at 3; Pis.' Ex. B, ECF No. 24-3, at 10.

Their supervisor during the relevant time period was

Kimberly Pope ("Ms. Pope"), the Home Therapy Program Manager.
18-2, ¶ 6, at 2; Pis.' Resp. to Def.'s Mot. Summ. J. ("Pls.'

Resp."),1

Del's Ex. A, ECF No.
ECF No. 24, at 8.

Defendant offers different dialysis treatments to patients suffering from end stage
renal disease, including in-center dialysis and home therapies.
at 1.

Del's Ex. A, ECF No.

18-2, ¶ 2,

There are two types of treatment methods as well: hemodialysis and peritoneal dialysis.

Def's Ex.

A, ECF No. 18-2, ¶ 4, at 2; Pis.' Resp., ECF No. 24, at 3.

Plaintiffs primarily

worked with peritoneal dialysis patients, and, even if for a short period of time, were trained to
do in-center hemodialysis.

Def.'s Ex. B, ECF No. 18-3, at 17-18, 25, 76; Del's Ex. C, ECF

No. 18-4, at 13-14, 18-19, 20; Pls.' Resp., ECF No. 24, at 4, 6-7.

Hemodialysis requires a

machine to remove and cleanse a patient's blood, as the dialysis occurs via the patient's
bloodstream.

Del's Ex. A, ECF No.

18-2, ¶ 4, at 2; Pis.' Resp., ECF No. 24, at 3.

Peritoneal

dialysis occurs internally, as the dialysis occurs via the lining of the patient's abdomen.
Ex. A, ECF No. 18-2, ¶ 4, at 2; Pls.' Resp., ECF No. 24, at 3.

Del's

For home therapies, patients have

the option of receiving peritoneal dialysis or home hemodialysis, and are trained to treat

themselves independently.

Del's Ex. A, ECF No.

18-2, ¶ 5, at 2; Pis.' Resp., ECF No. 24, at 3.

A caregiver, usually a relative, is also trained so that he or she can help the patient with the home

therapy.

Del's Ex. A, ECF No.

18-2, ¶ 5, at 2; Pls.' Resp., ECF No. 24, at 3.

Plaintiffs failed to include several pages of Plaintiff Quinonez's deposition as exhibits to its Response. Therefore,
throughout this Opinion, the Court will cite the pages from Plaintiffs' Response to Defendant's Motion for Summary
Judgment that reference the depositions instead of specific pages from the depositions.
1

2

On February 23, 2016, Ms. Pope met with Plaintiffs to discuss home hemodialysis

training for a patient in Las Cruces, New Mexico.
Resp., ECF No. 24, at 8.

Def.'s Ex. A, ECF No. 18-2, ¶ 9, at 4; Pis.'

Plaintiffs claim that no supervisor ever asked them to train a patient in

home hemodialysis before, they had no experience, and they did not know how to do so.
Resp., ECF No. 24, at 9.

Pls.'

They told Ms. Pope, among other things, that they did not have the

training or experience in home hemodialysis to train the patient in New Mexico and that they
would not participate in training the patient in New Mexico.
at 5;

Def's Ex. B, ECF No.

Def.'s Ex. A, ECF No. 18-2, ¶ 10,

18-3, at 47-49; Def.'s Ex. C, ECF No. 18-4, at 52-53; Pis.' Resp.,

ECF No. 24, at 9, 13.
Ms. Pope told Plaintiffs that during the first week an experienced nurse would be

available to start training the patient and Plaintiffs; after that, Plaintiffs would continue training
the patient and Ms. Pope would be available as much as possible, including via telephone,

throughout the entire time they were training the patient.

Def's Ex. A, ECF No. 18-2, ¶ 9, at 4;

Def.'s Ex. B, ECF No. 18-3, at 48, 53; Def.'s Ex. C, ECF No. 18-4, at 52, 54, 70-71.

But see

Pls.' Resp., ECF No. 24, at 10 (stating that Plaintiffs believed they were asked to train the patient
independently and without supervision because only sporadic help would be available after the
first week).2

Additionally, Plaintiffs would switch off during the first week of training in New

Mexico-while one was training in New Mexico, the other would be covering the El Paso
patients for both Plaintiffs.

Def. 's Ex. A, ECF No. 18-2, ¶ 9, at 4; Def. 's Ex. B, ECF No. 18-3,

at 47; Pls.' Resp., ECF No. 24, at 10.

Plaintiffs and Ms. Pope agree that Plaintiffs were not

qualified to independently train the patient in New Mexico.

Def's Ex. A, ECF No. 18-2, ¶

11,

at 5; Pis.' Resp., ECF No. 24, at 11-12 (citing Ms. Pope's deposition). At the end of the
their depositions, Plaintiffs admit that although subjectively they thought they would be training the patient in
New Mexico without supervision, they were told that for the rest of the training after the first week they would have
support over the phone. Def.'s Ex. B, ECF No. 18-3, at 85, 90; Def.'s Ex. C, ECF No. 18-4, at 116, 119, 155-56.
2

Tn

3

meeting, Plaintiffs stated they would not follow Ms. Pope's directive.

Def. 's Ex. A, ECF No.

18-2, ¶ 10, at 5; PIs.' Resp., ECF No. 24, at 9, 13.

On March 2, 2016, Ms. Pope issued Plaintiffs each a corrective action in the form

of a write-up. Def's Ex. A, ECF No. 18-2, ¶ 12, at 5-6; Def's Ex. A-3, ECF No. 18-2; Def.'s
Ex. A-4, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 17-18.

The write-ups included a summary

of the February 23, 2016, meeting Plaintiffs had with Ms. Pope. Def.'s Ex. A, ECF No. 18-2,
¶ 12, at 5-6; Def.'s Ex. A-3, ECF No. 18-2; Def's Ex. A-4, ECF No. 18-2; Def.'s Ex. C, ECF
No. 18-4, at 66-67; Pis.' Resp., ECF No. 24, at 17-18.

Additionally, it listed eleven tasks

Plaintiffs were expected to complete, including classroom training courses and patient training in
home hemodialysis to tentatively begin on April 11, 2016.

Def.'s Ex. A, ECF No. 18-2, ¶ 12, at

5-6; Def.'s Ex. A-3, ECF No. 18-2; Def.'s Ex. A-4, ECF No. 18-2; Pls.' Resp., ECF No. 24, at
17-18.

Plaintiffs prepared rebuttals to the write-ups, again stating their concerns about not

having sufficient home hemodialysis experience to train the patient in New Mexico.
A, ECF No. 18-2, ¶ 13, at 6;

Def's Ex. A-5, ECF No.

Def. 's Ex.

18-2; Def.'s Ex. A-6, ECF No. 18-2; PIs.'

Resp., ECF No. 24, at 19-20.
On March 17, 2016, Ms. Pope issued Plaintiffs each a second and final corrective
action in the form of a write-up because Plaintiffs had not completed or begun to complete the

tasks Ms. Pope assigned them during the first corrective action.

Def.'s Ex. A, ECF No. 18-2,

¶ 14, at 6-7; Def's Ex. A-7, ECF No. 18-2; Def.'s Ex. A-8, ECF No. 18-2.
Resp., ECF No. 24, at 23.

Def's Ex. A, ECF No.

See generally

Pls.'

These write-ups were similar to the ones issued on March 2, 2016.

18-2, ¶ 14, at 6-7;

No. 18-2; Pls.' Resp., ECF No. 24, at 23.

Def's Ex. A-7, ECF No.

18-2; Def.'s Ex. A-8, ECF

Defendant claims that by the time this corrective

action was issued, the patient who Plaintiffs would have worked with in New Mexico was no

longer available for training.
this fact in their Response.

Def. 's Ex. A, ECF No. 18-2, ¶ 15, at 7.

Plaintiffs do not dispute

Again, Plaintiffs prepared rebuttals to the final write-ups.

Ex. A, ECF No. 18-2, ¶ 15, at 6-7; Def.'s Ex. A-9, ECF No. 18-2; Def.'s Ex.

Def. 's

A-b, ECF No.

18-2; Pis.' Resp., ECF No. 24, at 24.

On April 7, 2016, Ms. Pope terminated Plaintiffs' employment because they

refused to complete the tasks she had assigned them in their write-ups.

Def.'s Ex. A, ECF No.

18-2, ¶ 16, at 8; Pis.' Resp., ECF No. 24, at 25-26; Pis.' Ex. A-24, ECF No. 24-2, at 55 (Plaintiff

Almeida termination document); Pis.' Ex. B-3, ECF No. 24-3, at 16 (Plaintiff Quifionez
termination document). Plaintiffs' employment was terminated within sixty days of their
February 23, 2016, meeting with Ms. Pope, where they reported that they did not believe they

had proper home hemodialysis experience to train the patient in New Mexico.

Defendant

claims it terminated Plaintiffs' employment due to their insubordination, while Plaintiffs claim

that it terminated their employment because they refused to participate in a training that would
have endangered a patient in New Mexico and would have violated applicable regulations.

Def.'s Ex. A, ECF No. 18-2, ¶ 16, at 8; PIs.' Resp., ECF No. 24, at 26.
On May 10, 2016, Plaintiffs filed this case in state court.

the case to this Court on June 30, 2016.

Defendant removed

Plaintiffs alleged one cause of action in their Original

Petition: retaliation under Texas Occupations Code Sections 301.352, 301.4025(b), and 301.413.

Pis.' Original Pet., ECF No. 1-4, ¶J 25-26, at 7.
STANDARD
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must

5

support the assertion by.. . citing to particular parts of materials in the record... ." Fed. R. Civ.
P. 56(c)(l).

"[T]he plain language of Rule 56[] mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that

party will bear the burden of proof at trial." Celotex Corp.

v.

Catrett, 477 U.S. 317, 322 (1986).

"Initially, the moving party bears the burden of demonstrating the absence of a
genuine issue of material fact." Cannata

v.

Catholic Diocese ofAustin, 700 F.3d 169, 172 (5th

Cir. 2012) (citing Celotex, 477 U.S. at 323). Where the burden

of proof lies with the nonmoving

party, the moving party may satisfy its initial burden by "showing'that is, pointing out to the
district

courtthat there is an absence of evidence to support the nonmoving party's case."

Celotex, 477 U.S. at 325. While the moving party "must demonstrate the absence of a genuine

issue of material fact, it does not need to negate the elements of the nonmovant's case." Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010).
A fact is "material" only if it would permit "a reasonable jury.

. .

[to] return a

verdict for the nonmoving party" and "might affect the outcome of the suit." Douglass v. United
Servs. Auto. Ass 'n, 65 F.3d 452, 458-59 (5th Cir. 1995), aff'd en banc, 79 F.3d 1415 (5th Cir.

1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986)).

"If the moving

party fails to meet its initial burden, the motion for summary judgment must be denied, regardless

of the nonmovant's response." Duffie, 600 F.3d at 371 (internal quotation marks omitted).
"When the moving party has met its Rule 56[] burden, the nonmoving party

cannot survive a summary judgment motion by resting on the mere allegations of its pleadings."
Id. The nonmovant "must identify specific evidence in the record and articulate [how] that

evidence supports that party's claim." Id. "This burden is not satisfied with 'some metaphysical

doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by

'only a "scintilla" of evidence." Id. (quoting Little v. LiquidAir Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)).

"In deciding a summary judgment motion, the court draws all reasonable

inferences in the light most favorable to the nonmoving party." Id. (citing Liberty Lobby, 477
U.S. at 255).

ANALYSIS
Defendant argues that summary judgment is appropriate because New Mexico
law applies and Plaintiffs brought their claims under Texas law, and there is no evidence that

unlawful motives played a role in Plaintiffs' termination of employment.
ECF No. 18, at 21-22, 28-29.

Mexico laws and regulations.

Def.'s Mot. Summ. J.,

Plaintiffs respond that they are bound by Texas and New

Pls.' Resp., ECF No. 24, at 35-37.

They also argue that there

are fact issues as to whether their termination of employment was because of their refusal to

follow the directives in their corrective actions or their objection to training the patient in New
Mexico.

Id. at 46-48.

The Court agrees with Defendant that summary judgment is

appropriate in this case for the reasons that follow.
I.

New Mexico Law Applies

Defendant's first argument in its Motion for Summary Judgment is that New
Mexico, and not Texas, laws and regulations apply in this case because Plaintiffs' safety and

training claims concerned a patient in New Mexico.
22.

Def's Mot. Summ. J., ECF No.

18, at 21-

Plaintiffs respond that although the patient training would have taken place in New

Mexico, Plaintiffs are still subject to the licensing board and regulations of their home state:

Defendant also argues that the training program did not violate Texas or Centers for Medicare and Medicaid
Services ("CMS") regulations, Plaintiffs were not asked to violate board rules, and Plaintiffs were not exposed to
substantial risk of harm. Def.'s Mot. Summ. J., ECF No. 18, at 22-28. The Court will not address these arguments
because it can resolve Defendant's Motion for Summary Judgment on the narrower grounds listed above.

7

Texas.

Pis.' Resp., ECF No. 24, at 35.

Plaintiffs argue that they are subject to the laws and

regulations of New Mexico and Texas. Id. at 36.

Plaintiffs and Ms. Pope testified that nurses

are still subject to Texas regulations when they practice outside the state.

Pls.' Resp., ECF No.

24, at 36-37.

Texas and New Mexico are members of the Nurse Licensure Compact ("NLC")
This is an agreement whereby party states recognize nursing licenses from other party states.

Texas and New Mexico are both party states.

The Texas Occupations Code states that "[a]

nurse practicing in a party state must comply with the state practice laws of the state in which the

patient is located at the time care is provided." Tex. 0cc. Code § 304.001 (emphasis added).
It further defines "state practice laws" as "a party state's laws and regulations that govern the

practice of nursing, define the scope of nursing practice, and create the methods and grounds for
imposing discipline."

Id. (emphasis

added).4

Plaintiffs bring a retaliation claim against Defendant for reporting or refusing to

engage in practices that they reasonably believed would expose a patient in New Mexico to
substantial risk of harm or would constitute grounds for reporting them to the Texas Board of
Nursing.

Pls.' Original Pet., ECF No. 1-4, ¶ 25, at 7.

Plaintiffs assert that Texas requires

nurses to have a minimum of six months of experience in home hemodialysis before instructing

patients. Id. ¶ 14, at 5.

They argue that they did not have the requisite experience and that

eventually Defendant terminated their employment as a result of refusing to train the patient in

New Mexico. Id. ¶J 17-23, at 5-7.

Based on this information, Plaintiffs' claim centers on a

training that would have taken place in New Mexico with a patient located in New Mexico.
New Mexico has almost identical language. See N.M. Stat. § 61-3-24.1 ("A nurse practicing in a party state must
comply with the state practice laws of the state in which the patient is located at the time care is rendered."); see also
Id. (defining "state practice laws" as "an individual party state's laws and regulations that govern the practice of
nursing, define the scope of nursing practice and create the methods and grounds for imposing discipline.").

Under the NLC, Plaintiffs, although licensed in their home state of Texas, had to ensure that they

were in compliance with the home hemodialysis state practice laws of New Mexico because the
patient was located in New Mexico.

See N.M. Stat.

§

61-3-24.1 ("A nurse practicing in a party

state must comply with the state practice laws of the state in which the patient is located at the
time care is rendered.") (emphasis added).

Any concerns Plaintiffs had regarding their relevant

experience in home hemodialysis to train the patient, therefore, must be in accordance with New

Mexiconot Texaslaw.
In one Texas licensing hearing, the respondent held a nursing license in Maryland,
but under the NLC, she was able to practice nursing in Texas as well. Multistate Licensure

Privilege Privilege Granted to Shalin Sabol, SOAH Docket No. XXX-XX-XXX, 2006 WL
2007517, at *1 (Jan. 12, 2006) [hereinafter Sabol]. The Texas State Board of Nurse Examiners

("Board") alleged that the respondent used two types of drugs while employed and requested that
her privilege to practice nursing in Texas should be revoked. Id. at *2. It filed formal charges
against the respondent in Texas. Id. The State Office of Administrative Hearings ("SOAH")

concluded that the Board had jurisdiction over this matter under Articles 3(b) and 5(c) of the NLC,
which state that a party state may revoke licensing privileges under the party state's applicable

*3 The SOAH
laws, affecting the nurse's ability to practice in that particular party state. Id. at
also concluded that the respondent violated sections of the Texas Health and Safety Code and that

the Board should revoke her multistate nursing license. Id.

In another hearing, the respondent held a nursing license in Virginia, but under the
NLC, she was able to practice nursing in Texas as well.

Multistate Compact Privilege

Associated with of Va. Registered Nurse License No. 0001136823 Issued to Mary Golden
Gravatt, SOAH Docket No. XXX-XX-XXXX, 2009 WL 3140023, at *1 (Sept. 25, 2009)

[hereinafter Gravatt].

The Texas Board of Nursing ("Board") alleged that the respondent

misappropriated narcotics and that her conduct would likely defraud the hospital.

Id. at *3

The SOAH concluded that a person who is not licensed in Texas must still comply with the state

practice laws of Texas if she is practicing nursing there at the timein accordance with the

NLC. Id. at * 17.

Otherwise, she is subject to disciplinary action in Texas.

Id.

The SOAH

also concluded that because the Board has the authority to revoke the multistate licensing

privilege of a nurse practicing in Texas, the Board should revoke the respondent's multistate
nursing license for violating Texas laws.

Id.

Plaintiffs, like the respondents in Sabol and Gravatt, would have been subject to

discipline in New Mexico, even though they were licensed in Texas, if their home hemodialysis
training and experience were not in compliance with New Mexico law.

See Sabol, 2006 WL

2007517, at *1 (finding that a Maryland nurse was subject to Texas law); Gravatt, 2009 WL
3140023, at *1 (finding that a Virginia nurse was subject to Texas law); N.M. Stat.
Tex. 0cc. Code

§

§

61-3-24.1;

304.001 ("A nurse practicing in a party state must comply with the state

practice laws of the state in which the patient is located at the time care is provided.").

The

Court finds that Plaintiffs' retaliation claim based on Texas law is unfounded.

IL

Plaintiffs Fail to Establish But-For Causation
Even if Plaintiffs could bring their Texas retaliation claim against Defendant, they

have failed to establish but-for causation.

Defendant argues that the reason Plaintiffs were

terminated from their employment is not because they refused to train the patient in New
Mexico,5

but rather because they refused to follow directives outlined in their corrective actions.

Def.'s Ex. A, ECF No. 18-2, ¶ 16, at 8.

Plaintiffs argue that there is a fact issue as to whether

Refusing to train the patient in New Mexico forms the basis of Plaintiffs' "protected activity" claim. Pis.' Original
Pet., ECF No. 1-4, ¶IT 17, 21, at 5-6; Pls.' Resp, ECF No. 24, at 1, 47-48.

10

they were tenninated from their employment because they refused to follow Ms. Pope's
directives or because they objected to train the patient in New Mexico.

Pis.' Resp., ECF No.

24, at 48.

Plaintiffs bring their retaliation claim against Defendant under three sections of

the Texas Occupations Code.

Section 301 .352(a)(1), which protects a nurse's refusal to engage

in unlawful conduct, states that "[a] person may not suspend, terminate, or otherwise discipline,

discriminate against, or retaliate against.. . a nurse who refuses to engage in an act or omission
as provided by Subsection (a-i)."6

Tex. 0cc. Code § 301.352(a)(i).

Section 301.4025(b)

states that
A nurse may report to the nurse's employer . . . any situation that the nurse has
reasonable cause to believe exposes a patient to substantial risk of harm as a result
of a failure to provide patient care that conforms to minimum standards of
acceptable and prevailing professional practice or to statutory, regulatory, or
accreditation standards.
Id.

§

301.4025(b).

Section 301.413(b), which protects a nurse's report to a supervisor of certain

conduct, states that "[a] person may not.
faith under this subchapter."

. .

retaliate against a person who: (1) reports in good

Id. § 301.413(b).

If a plaintiff is terminated from her employment within sixty days of making a
report, there is a rebuttable presumption that the employer defendant retaliated against the
plaintiff. Id.

§

301.413(e).

If the defendant rebuts the presumption, the plaintiff must show

evidence of causation despite the defendant's rebuttal.
Estates-Whitney, Inc.

v.

See generally Town Hall

Winters, 220 S.W.3d 71, 81 (Tex.

AppWaco 2007, no pet.) (stating that

Section (a-i) states that "[a] nurse may refuse to engage in an act or omission relating to patient care that would
constitute grounds for reporting the nurse to the board under Subchapter I, that constitutes a minor incident, or that
violates this chapter or a board rule if the nurse notifies the person at the time of the refusal that the reason for refusing
is that the act or omission: (1) constitutes grounds for reporting the nurse to the board; or (2) is a violation of this
chapter or a rule of the board." Tex. 0cc. Code § 30i.352(a-i).
6

11

in a nursing home retaliation case, "[o]nce an employer submits evidence that it would have

taken adverse action in the absence of the report, the rebuttable presumption disappears and the

plaintiff must submit evidence of causation."); Faulkner v. Dep 't of State Health Servs., No.
3:07-CV-2074-D, 2009 WL 722983, at *5 (N.D. Tex. Mar. 19, 2009) ("The statutory

presumption [in a Texas Whistleblower Act retaliation case] is rebutted and becomes a nullity
once a defendant produces sufficient evidence to support a fmding that it did not take the adverse
personnel action because of the employee's report.") (internal quotation marks omitted).

If the

plaintiff fails to show evidence of causation after the defendant's rebuttal, the court will grant the
defendant's motion for summary judgment.

See generally Tex. Div. -Tranter, Inc.

v.

Carrozza,

876 S.W.2d 312, 314 (Tex. 1994) (per curiam) (holding that summary judgment was appropriate

in a workers' compensation retaliation case where the plaintiff failed to produce direct or

circumstantial evidence to call into question the defendant's explanation for terminating the

plaintiff's employment).
Although not explicitly stated in these sections, to establish a retaliation claim
under the Texas Occupations Code, a plaintiff must show that her "protected behavior was the
cause of the employer's decision to
1'.

.

. .

terminate [her] employment.

. .

Brownsville-Valley Reg'l Med. Ctr., Inc., 421 S.W.3d 263, 271 (Tex.

2013, no pet.) (citing Tex. Dep 't of Human Servs.

of the State of Tex.

v.

when it did."

Castillo

App.Corpus Christi
Hinds, 904 S.W.2d 629,

636 (Tex. 1995) (concluding that the but-for causation standard applies in whistleblower and

similar cases)); see Winters, 220 S.W.3d at 81 (applying the "but-for" causation standard used in

whistleblower and similar cases to a nursing home retaliation case after finding that the

retaliation cause of action there, under Section 242.133 of the Texas Health and Safety Code, had
almost identical language to the retaliation cause of action under Section 161.134, or retaliation

12

for hospital employees); cf Castillo, 421 S.W.3d at 271 (equating the causation standard of

Sections 301.4025, 301.352, and 301.413 with Section 161.134 of the Texas Health and Safety

Code); Finney

v.

VHS San Antonio Partners, LLC, No. 5:14-CV-00840-XR, 2015 WL 4637696, at

*4 (W.D. Tex. Aug. 3, 2015) (analogizing the same sections).

"[Ejvidence that an adverse employment action was preceded by a superior's
negative attitude toward an employee's report of illegal conduct is not enough, standing alone, to
show a causal connection between the [adverse employment action and the reporting of the

illegal conduct.]
2000).

There must be more."

City ofFort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.

Furthermore, a plaintiff's subjective belief of retaliation, without more, will not support

a claim against the defendant.

Faulkner, 2009 WL 722983, at *5 (analogizing a case under the

Texas Whistleblower Act); see also Douglass

v.

United Sen's. Auto. Ass 'n, 79 F.3d 1415, 1430

(5th Cir. 1996) (en banc) ("[A]n employee's subjective belief that he suffered an adverse
employment action as a result of discrimination, without more, is not enough to survive a

summary judgment motion, in the face of proof showing an adequate nondiscriminatory
reason."), superseded by statute on other grounds, 28 U.S.C.

§

636(b)(1).

This means that a plaintiff must show that her employment was terminated

because she reported to her employer behavior she believed to be unlawful.

Like in other

whistleblower cases, when there is no direct evidence, a plaintiff can use circumstantial evidence
to show the causal connection.

Zimlich, 29 S.W.3d at 69.

Examples of circumstantial

evidence include the following: knowledge of the report, a negative attitude towards the report,
failure to adhere to company policies regarding the employment decision, different treatment of

other similarly situated employees, and evidence that the reason the employee was terminated
from her employment was false.

Id.

13

Here, Plaintiffs made a report to their supervisor, Ms. Pope, on February 23,
2016, stating that they would not follow her directive to train the patient in New Mexico because

they did not have the requisite experience in home hemodialysis and doing so would be a
violation of Texas law.

Def.'s Ex. A, ECF No. 18-2, ¶ 10, at 5; Def's Ex. B, ECF No. 18-3, at

47-49; Def.'s Ex. C, ECF No. 18-4, at 52-53; PIs.' Resp., ECF No. 24, at 9, 13.

Therefore,

Plaintiffs are protected from being retaliated against under Sections 301 .352(a)(1), 301.4025(b),
and 301.413(b)

of the Texas Occupations Code, for refusing to engage in conduct they

reasonably believed to be unlawful and reporting this conduct in good faith.7
§

301.352(a)(1), 301.4025(b), 301.413(b).

Tex. 0cc. Code

Plaintiffs then received two corrective actions, the

first one for refusing to train the patient in New Mexico during the February 23, 2016, meeting,
and the second one for refusing to complete or begin completing the tasks they were assigned in

the first corrective action.
ECF No. 18-2;

Def.'s Ex. A, ECF No. 18-2, ¶J 12, 14, at 5-7; Def's Exs. A-3, A-7,

Def's Exs. A-4, A-8, ECF No.

18-2.

See generally

Pis.' Resp.,

ECF No. 24, at

17-18, 23.
According to Defendant, Plaintiffs were terminated on April 7, 2016, for refusing
to complete or begin completing the tasks they were assigned during the second corrective

action.

Def.'s Ex. A, ECF No. 18-2, ¶ 16, at 8; Pis.' Ex. A-24, ECF No. 24-2, at 55 (Plaintiff

Almeida termination document); Pis.' Ex. B-3, ECF No. 24-3, at 16 (Plaintiff Quifionez
termination document).

However, Plaintiffs claim they were really terminated from their

Defendant argues that what Ms. Pope asked Plaintiffs to dotrain a patient in home hemodialysis in New
Mexicowas in fact lawful, so Plaintiffs were not reporting any unlawful conduct or a violation of law. Def. 's Mot.
Summ. J., ECF No. 18, at 22-25. However, it is not necessary for Plaintiffs to prove that the conduct they reported
was in fact unlawful, just that they, in good faith, reasonably believed it to be unlawful and reported it. Cf El Paso
Healthcare Sys., Ltdv. Murphy, 518 S.W.3d 412, 419 (Tex. 2017) ("[W]e conclude that [Section 161.135J does not
require the plaintiff to prove that the reported conduct in fact violated the law, but instead permits the plaintiff to sue
*4 (analogizing
for retaliation ifthe plaintiff reported a violation of law in good faith."); Finney, 2015 WL 4637696, at
Sections 301.4025, 301.352, and 301.413 of the Texas Occupations Code with Section 161.134 of the Texas Health
and Safety Code.

14

employment for refusing to follow Ms. Pope's directive in February.

Pls.' Resp., ECF No. 24,

Plaintiffs were terminated from their employment within sixty days of making their

at 26.

report, so there is a rebuttable presumption that Defendant retaliated against them.
Code

§

Tex. 0cc.

301.413(e).
Defendant has rebutted the presumption in two ways: it has provided evidence

showing (1) that Plaintiffs' employment was terminated for insubordination and refusing to
complete the tasks assigned during their corrective actions, and (2) that the patient in New
Mexico in need of home hemodialysis training was no longer available by the time Defendant
issued Plaintiffs the second corrective action.

Defendant provided Ms. Pope's declaration,

where she states that "Plaintiffs continued to refuse to attend the required classes outlined in their

fmal warnings, and it was apparent that they were not going to follow the training directives."

Def.'s Ex. A, ECF No. 18-2, ¶ 16, at 8; see

also Pls.'

Ex. A-24, ECF No. 24-2, at 55 (Plaintiff

Almeida termination document); Pls.' Ex. B-3, ECF No. 24-3, at 16 (Plaintiff Quiñonez
termination document);

Faulkner,

2009 WL 722983, at *4 (holding that the defendant's

testimony in his affidavit supported a finding that the plaintiff was terminated from his
employmentfor reasons other than his whistleblowing activity). By submitting rebuttals,
Plaintiffs showed their unwillingness to complete the tasks they were assigned.

Pis.' Resp.,

ECF No. 24, at 19-20, 24.

Defendant also provided Ms. Pope's declaration for the claim that by the time
Plaintiffs received their final corrective action before termination, the New Mexico patient was
no longer available for training.

Def.'s Reply to Pis.' Resp ("Def.'s Reply"), ECF No. 25, at 6

(citing Ms. Pope's declaration).

Therefore, Defendant argues, Plaintiffs' alleged concerns

regarding this patient did not motivate its decision to terminate Plaintiffs and, as a result, there

15

was no protected activity or no evidence that this supposed protected activity was the but-for

cause of their termination.

Id. at 9.

Plaintiffs failed to rebut this statement.

Because Defendant has rebutted the presumption, the burden is on Plaintiffs to
show evidence of causation.

Cf Winters, 220 S.W.2d at 81 (applying this burden in a nursing

*5 (applying this burden in a Texas
home retaliation case); Faulkner, 2009 WL 722983, at

Whistleblower Act retaliation case).

There is no direct evidence that Defendant terminated

Plaintiffs' employment because of their report, so Plaintiffs must show circumstantial evidence

of causation. See Zimlich, 29 S.W.3d at 69 (allowing a plaintiff to use circumstantial evidence
when there is no direct evidence).

Two of the examples of circumstantial evidence listed in

Zimlich seem to apply here: knowledge of the report and a negative attitude towards the report.
Id.

Defendant knew of Plaintiffs' report because they reported to Ms. Pope, their direct

supervisor.

Def.'s Ex. A, ECF No. 18-2, ¶ 10, at 5; Def.'s Ex. B, ECF No. 18-3, at 47-49;

Def.'s Ex. C, ECF No. 18-4, at 52-53; Pls.' Resp., ECF No. 24, at 9, 13.
that "{i]nstead of addressing [their] valid concerns.
stating that there may be corrective action."

. .

Plaintiffs also claim

[Ms.] Pope concluded the meeting by

Pls.' Resp., ECF No. 24, at

12.

Arguably, this

could be enough evidence, along with the temporal proximity between the report and Plaintiffs'

termination, to create a fact issue that would require the Court to deny Defendant's Motion for

Summary Judgment.

See generally Zimlich, 29 S.W.3d at 69 (explaining that there must be

more than just a supervisor's negative attitude of an employee's report of unlawful conduct to
show a causal connection).
However, it is Defendant's second piece of evidence, the unavailability of the

New Mexico patient, which prevents a reasonable jury from fmding a causal link between
Plaintiffs' reporting of "protected activity" and their termination.

16

Refusing to train the patient

in New Mexico formed the basis of Plaintiffs' "protected activity" claim.
ECF No. 1-4, ¶J 17, 21, at 5-6; Pis.' Resp, ECF No. 24, at 1, 47-48.

Pis.' Original Pet.,

When the patient was no

longer available, Plaintiffs were not exempt from completing the home hemodialysis training.
Plaintiffs refl.ised to complete any of the tasks that were required of them from the first and
second corrective actions, even though most of the tasks simply asked them to complete training,

and only one of them could reasonably be construed as Defendant asking Plaintiffs to train the

patient in New Mexico.

See Def.'s Exhs. A-3, A-4, ECF No. 18-2 ("10) [Registered Nurse]

will conduct [home hemo dialysis] training tentatively scheduled to start April 11, 2016.").

In

fact, the second corrective action differs from the first one in that it no longer stated that there
would be a tentative patient to train beginning on April 11, 2016.

Compare Def.'s Exhs. A-3,

A-4, ECF No. 18-2 ("10) [Registered Nurse] will conduct [home hemodialysis] training

tentatively scheduled to start April 11, 2016."), with Def's Exhs. A-7, A-8, ECF. No. 18-2 ("9)

Attend and actively participate in [home hemodialysis] trainings as scheduled in the Southern
New MexicoTexas Area.")
Defendant, in its Reply, raised this issue, essential to Plaintiffs' claim, and
Plaintiffs failed to rebut it.

See Faulkner, 2009 WL 722983, at *4

11.5

("[B]ecause defendants

have pointed to the absence of evidence that supports the cause of action, [the plaintiff] must

adduce evidence that would permit a reasonable jury to find in his favor on the essential element

of causation."). Despite the New Mexico patient's absence, Plaintiffs still refused to complete
any of the tasks required of them, even though the one "protected activity", which formed the

basis of their claim, was now removed from the equation.

Plaintiffs' employment in April.

This is why Defendant terminated

The evidence is insufficient to raise a genuine material issue

of fact, as it is clear from Defendant's evidence that Plaintiffs were terminated from their

17

employment for insubordination and not because they made a report.

See Def.'s Ex. A, ECF

No. 18-2, ¶ 16, at 8; see Faulkner, 2009 WL 722983, at 4-5 (finding that the defendant's
affidavit was sufficient to rebut the presumption and that the plaintiff failed to provide evidence

of a causal link); Douglass, 79 F.3d at 1430 (stating that a plaintiff cannot survive summary
judgment when there is proof that her employment was terminated for a nondiscriminatory
reason, even though subjectively and without more evidence, she may think she was being

retaliated against).

The Court finds that Plaintiffs failed to establish but-for causation and,

therefore, failed to establish the requirements for their retaliation claim.

CONCLUSION
Plaintiffs brought their retaliation claim under Texas law even though the patient
training would have taken place in New Mexico.

According to the NLC, any concerns

Plaintiffs would have had with home hemodialysis training compliance should have been

brought under New Mexico law and not Texas law because it is the location of the patient at the
time of care that determines which party state laws apply.

Therefore, Plaintiffs' claims brought

under Texas law should be dismissed.
Nevertheless, even if Plaintiffs properly brought their retaliation claim under
Texas law, they failed to establish but-for causation.

Plaintiffs claim that their employment

would not have' been terminated but-for reporting to Defendant the unlawful conducttraining a

New Mexico patient in home hemodialysis when they did not have the sufficient experience to
do so.

Plaintiffs' employment was terminated within sixty days of making the report, so there

is a rebuttable presumption that Defendant retaliated against them for making the report.

Defendant has rebutted the presumption by providing evidence that it terminated Plaintiffs'

employment for their insubordination and not for their reporting.

Furthermore, Defendant has

provided evidence showing that the patient in New Mexico was no longer available for home
hemodialysis training by the time Plaintiffs received their second corrective action, thereby

showing a break in the chain of causation.

Plaintiffs failed to provide evidence of causation

even after Defendant rebutted the presumption, so the Court grants summary judgment on this
ground as well.

The Court is able to dismiss this case on these two grounds, so it will not go

into the Parties' additional claims.
is appropriate on all

For these reasons, summary judgment in Defendant's favor

of Plaintiffs' claims.

Accordingly, IT IS HEREBY ORDERED that Defendant Bio-Medical

Applications of Texas, Inc.'s "Motion for Summary Judgment on all Claims and Brief in
Support," filed on June 6, 2017, is GRANTED.

IT IS FURTHER ORDERED that all of Plaintiffs Gloria Almeida and Irma
Quifionez ' s claims against Defendant Bio-Medical Applications of Texas, Inc. are DISMISSED

WITH PREJUDICE.
SIGNED this 31st day of August 2017.

//

flAVID BRIONES
SENIOR1UNITED STATES DISTRICT JUDGE

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