In re Castillo

• Decision Date: 19 December 2013
• Docket Number: No. 13–12–00181–CV.,13–12–00181–CV.
• Citation: 421 S.W.3d 263
• Parties: Ramiro CASTILLO, Rogelio Garza Jr., Stephanie V. Gonzalez, Brenda Saenz, Lynda Valdez, Cleofe Vasquez, and Juan M. Vela, Appellants, v. BROWNSVILLE–VALLEY REGIONAL MEDICAL CENTER, INC., Appellee.
• Court: Texas Court of Appeals

421 S.W.3d 263

Ramiro CASTILLO, Rogelio Garza Jr., Stephanie V. Gonzalez, Brenda Saenz, Lynda Valdez, Cleofe Vasquez, and Juan M. Vela, Appellants,

v.BROWNSVILLE–VALLEY REGIONAL MEDICAL CENTER, INC., Appellee.

No. 13–12–00181–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Dec. 19, 2013.

Limited on Preemption Grounds

V.T.C.A., Occupational Code §§ 301.352(a),(a–1), 301.413(b), 301.4025; V.T.C.A., Health & Safety Code § 161.134(a); 22 TAC § 217.19(m); 25 TAC § 133.43(b).

David Van Os, Austin, for Appellants.

Nancy L. Patterson, Morgan, Lewis & Bocklus LLP, Houston, for Appellee.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

OPINION

Opinion by Justice RODRIGUEZ.

Appellants Ramiro Castillo, Rogelio Garza Jr., Stephanie V. Gonzalez, Brenda Saenz, Lynda Valdez, Cleofe Vasquez, and Juan M. Vela challenge the trial court's granting of appellee Brownsville–Valley Regional Medical Center's (the Hospital) plea to the jurisdiction on appellants' claims under the Texas Occupations Code, Texas Health and Safety Code, and Texas Administrative Code. By one issue, appellants argue that the trial court erred in granting the Hospital's plea because the National Labor Relations Act (NLRA or the Act)—under which both appellants and the Hospital had claims pending before the National Labor Relations Board (NLRB or the Board) in connection with the same events giving rise to this case—does not pre-empt appellants' state law claims. We affirm.

I. Background

In their petition, appellants alleged the following facts:

26. On April 3, 2011, Plaintiff Gonzalez was serving as Charge Nurse [in the Hospital's Intensive Care Unit (ICU) ]. She was called away from ICU on a rapid response code to assist with a patient in a medical-surgical unit. After providing the necessary assistance to the other unit, Plaintiff Gonzalez returned to ICU to attend to her duties as Charge Nurse and for her own patients.

27. Due to Plaintiff Gonzalez being away from ICU for the rapid response code, one of her ICU patients received scheduled medication approximately one hour late, through no fault of Plaintiff Gonzalez['s].

28. A nurse in the other unit asked Plaintiff Gonzalez to remain away from ICU longer in order to accompany the patient to a CT scan. By that point in time the rapid-response patient had stabilized and Plaintiff Gonzalez was not urgently needed to accompany the patient to the CT scan. Plaintiff Gonzalez, having already been away from ICU for a dangerous period of time, thus declined to accompany the patient to the CT scan ....

....

30. ... [The Hospital] issued Plaintiff Gonzalez a disciplinary warning for declining the request of the nurse in the other department to accompany the patient to a CT scan and instead returning to ICU ....

31. By imposing the above described disciplinary action on Plaintiff Gonzalez, [the Hospital] effectuated a drastic change in hospital policy. Never before had [the Hospital] imposed disciplinary action against an ICU nurse over the nurse's exercise of reasonable judgment in dealing with impossibly contradictory responsibilities arising from a rapid response code. This change in policy meant than an ICU nurse serving as Charge Nurse would not have the right to use the nurse's own judgment as to when it was appropriate to return to the nurse's critical duties in ICU from a rapid response situation. This change in policy meant, therefore, that an ICU nurse in such a situation would be forced to make an unreasonable choice between unethically leaving her critical ICU duties unattended and thus jeopardizing her nursing license, or declining to remain away from ICU and thus immediately jeopardizing her employment.

Appellants alleged that the foregoing was precipitated by the Hospital's failure to “implement and enforce a written nurse staffing policy that ensures an adequate number and skill mix of nurses are available to meet the highly acute level of patient care needed in ICU.” Appellants alleged that the Hospital's nurse staffing policy: is “inadequate for the proper and safe care for acute care patients”; is “not based on multiple nurse and patient considerations”; is “not in accordance with evidence-based safe nursing standards”; “does not include a method for adjusting the staffing plan to provide flexibility to meet patient needs”; and “does not include a contingency plan when patient care needs unexpectedly exceed direct patient care staff resources.” Appellants also alleged that the Hospital failed “to provide for a Charge Nurse in its ICU nurse staffing plan,” instead rotating “Charge Nurse assignments among the Registered Nurses [RNs] in the ICU.” As a result of this failure, in particular, appellants alleged that the rotating ICU charge nurse was responsible for his or her charge nurse duties, a full load of ICU patients, and responding to rapid response codes in other parts of the hospital. Appellants allege that this policy is different from the charge nurse policies in the Hospital's other departments, where the nurse staffing policies provide for a dedicated charge nurse who has no other responsibilities.

In connection with these ICU nurse staffing policy failures, appellants then alleged the following:

33. The realization that good faith service as Charge Nurse would place them in jeopardy of violating proper nursing practices and endangering their patients as a condition of their employment with [the Hospital] caused [appellants] to suffer great stress and anxiety over the prospect of serving as Charge Nurses, thus rendering [appellants] emotionally incapable of serving as Charge Nurses, and therefore requiring Plaintiffs to decline Charge Nurse assignments under the Standards of Practice required of nurses by the Rules of the Texas Board of Nursing ....

34. Accordingly, on April 29, 2011, within 60 days before [the Hospital] terminated their employment, each [appellant] informed [the Hospital] in good faith that [the Hospital']s practice of requiring nurses in ICU to perform Charge Nurse duties under these circumstances exposed ICU patients to unnecessary health risks ....

35. At the same time, each [appellant] also informed [the Hospital] in good faith that he or she could not accept Charge Nurse assignments in the future under these circumstances ....[¹]

Appellants alleged that the next time each of them was asked by the Hospital to perform charge nurse duties, over a period between May 3 and May 6, 2011, he or she refused, citing his or her concerns about patient safety and his or her duties under the Texas Board of Nursing rules. After each appellant refused, the Hospital asked him or her to clock out and suspended his or her employment. On May 13, 2011, the Hospital terminated the employment of Vela, Garza, Vasquez, and Castillo. On May 20, 2011, the Hospital terminated the employment of Gonzalez, Valdez, and Saenz.

In connection with the foregoing events, the Hospital filed an unfair labor practice charge with the NLRB, alleging that appellants had violated the NLRA by “engaging in a partial work stoppage” without providing proper notice as required by the Act. Appellants' union also filed an unfair labor practice charge, alleging that the Hospital violated the NLRA by: denying employees their Weingarten rights ²; disciplining Gonzalez because she engaged in union activities; terminating appellants' employment when they engaged in the protected, concerted activity of protesting the disciplining of Gonzalez; and refusing to bargain with the union and, instead, unilaterally changing charge nurse responsibilities and ICU discipline practices. The NLRB eventually dismissed the charge filed by appellants' union.³ Appellants' union has appealed the dismissal.

While the NLRB charges were pending, appellants filed their state lawsuit, alleging claims under the Texas Occupations Code, the Texas Health and Safety Code, and the Texas Administrative Code. Appellants made the following claims in their petition:

1. By suspending and terminating appellants' employment after they reported that requiring ICU charge nurses to perform both charge nurse duties and supervise a full-load of patients would create unnecessary health risks, the Hospital violated section section 301.4025 of the Texas Occupations Code and title 22, section 217.19(m) of the Texas Administrative Code, which create a whistleblower cause of action for nurses reporting a situation that he or she has reasonable cause to believe exposed a patient to substantial risk of harm as a result of failure to provide an acceptable standard of care. See Act of May 26, 2007, 80th Leg., R.S., ch. 803, § 9, 2007 Tex. Gen. Laws 1662, 1664–65 (amended 2011) (current version at Tex. Occ.Code Ann. § 301.4025 (West 2012)) ⁴; 22 Tex. Admin. Code § 217.19(m) (2011) (Tex. Bd. of Nursing, Incident–Based Nursing Peer Review and Whistleblower Protections).

2. When it suspended and terminated appellants' employment after they reported, in good faith, that the hospital's ICU charge nurse policy exposed patients to a substantial risk of harm, the Hospital violated section 161.134(a) of the Texas Health and Safety Code and title 25, section 133.43(b) of the Texas Administrative Code, which create a whistleblower cause of action for hospital employees reporting a violation of law. SeeTex. Health & Safety Code Ann. § 161.134(a) (West 2010); 25 Tex. Admin. Code § 133.43(b) (2011) (Tex. Dep't of State Health Servs., Discrimination or Retaliation Standards). Appellants alleged that working under the hospital's policy would have violated various reporting requirements imposed on nurses by the Texas Occupations Code and Texas Health and Safety Code and various provisions of the Texas Administrative Code related to standards of care for nurses and health care providers. See Act of May 26, 2007, 80th Leg., R.S., ch. 803, § 9, 2007 Tex. Gen. Laws 1662, 1664–65; Tex. Health & Safety Code Ann. § 257.003 (West 2010) (governing hospital's...