Johnson v. Diversicare Afton Oaks LLC

• Citation: 597 F.3d 673
• Decision Date: 17 February 2010
• Docket Number: No. 08-20827.,08-20827.
• Parties: Tammy JOHNSON, Plaintiff-Appellant, v. DIVERSICARE AFTON OAKS, LLC; Diversicare Management Services Company; Diversicare Leasing Corporation; Advocat Finance, Incorporated, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

597 F.3d 673

Tammy JOHNSON, Plaintiff-Appellant, v. DIVERSICARE AFTON OAKS, LLC; Diversicare Management Services Company; Diversicare Leasing Corporation; Advocat Finance, Incorporated, Defendants-Appellees.

No. 08-20827.

United States Court of Appeals, Fifth Circuit.

Feb. 17, 2010.

Michael Patrick Doyle, Alan B. Daughtry (argued), Doyle Raizner, L.L.P., Houston, TX, for Plaintiff-Appellant.

Jeffrey Allen Hagelman, Ebe & Associates PC, Austin, TX, Timothy Patrick Reilly (argued), Taft, Stettinius & Hollister L.L.P., Cincinnati, OH, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Tammy Johnson appeals the district court's grant of summary judgment in favor of Diversicare Afton Oaks LLC ("Afton Oaks"), Diversicare Management Services Company, Diversicare Leasing Corporation, and Advocat Finance Incorporated (collectively, "Diversicare"). Johnson also appeals the district court's denial of her motion for reconsideration and for a new trial. For the reasons set forth below, we AFFIRM.

I

Johnson was working as the Assistant Director of Nursing at Afton Oaks when she was alerted by a resident to an incident of resident abuse that had occurred two days prior. Johnson approached her supervisor, Pat Petry, about the incident. Petry told Johnson to start an investigation immediately and to obtain statements from the employees who had been working during the shift when the incident occurred. However, when Petry spoke with Johnson the following day, Johnson admitted to obtaining only one employee statement. Petry told Johnson that Petry wanted all employee statements under her office door by the next morning. Johnson failed to comply with this directive, and Petry suspended Johnson pending an investigation into Johnson's inability to complete the report in a timely fashion. Johnson was told that she would be compensated for her missed work if she was cleared.

At the conclusion of the investigation Johnson was invited to return to work with pay for the days of the suspension. However, Johnson declined to return to work as she had already filed this action for retaliation in Texas state court pursuant to Tex. Health & Safety Code § 242.133 which protects nursing home employees who report violations of law from adverse employment actions. Diversicare removed to federal court on the basis of diversity and subsequently moved for summary judgment, which the district court granted. The district court also denied Johnson's motion to reconsider and for a new trial. Johnson appeals both decisions.

II

A

Johnson argues that the district court erred in finding that she did not make a "report" pursuant to Tex. Health &amp Safety Code § 242.133(b). Specifically, Johnson contends that the district court improperly made credibility determinations regarding her testimony in its evaluation of the record on summary judgment. We review an appeal from an order granting summary judgment de novo. In re ADM/Growmark River Sys., Inc., 234 F.3d 881, 886 (5th Cir.2000). Summary judgment is appropriate when, after considering the pleadings, discovery, and disclosures on file, along with any affidavits, the court finds "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if the summary judgment evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court views all facts and evidence in the light most favorable to the non-movant. LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.2007). Conclusory allegations or unsubstantiated assertions are insufficient to show a genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

A court reviewing a summary judgment motion must not weigh the evidence or evaluate the credibility of witnesses. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). However, "summary judgment is appropriate unless [a] plaintiff can produce significant evidence demonstrating the existence of a genuine fact issue." Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984) (citation omitted) (emphasis in original). In a non-jury case, such as this one, "a district court has somewhat greater discretion to consider what weight it will accord the evidence." In re Placid Oil Co., 932 F.2d 394, 397 (5th Cir.1991). When deciding a motion for summary judgment prior to a bench trial, the district court "has the limited discretion to decide that the same evidence, presented to him or her as a trier of fact in a plenary trial, could not possibly lead to a different result." Id. at 398 (citing Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978)).

B

Tex. Health & Safety Code § 242.133(b) states in pertinent part:

An employee has a cause of action against an institution, or the owner or another employee of the institution, that suspends or terminates the employment of the person or otherwise disciplines or discriminates or retaliates against the employee for reporting to the employee's supervisor, an administrator of the institution, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of this chapter or a rule adopted under this chapter, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services or conditions at the institution.

Pursuant to the language of the statute, an employee only has a cause of action under § 242.133(b) if he or she makes a "report" of a violation of law. We must determine if anything in the record indicates that Johnson made such a report.

In her brief and in deposition testimony taken eleven months after the initial incident, Johnson alleges that she phoned the Texas Board of Nurse Examiners ("TBNE") for the purpose of making an incident report. However, this self-serving statement is contradicted by the record. First, in a handwritten memo dated the same day as the alleged phone call, Johnson stated that she called TBNE "to ask a question" about how to deal with the nurse who was the subject of the complaint. In a typed memo later that day, Johnson stated only that she had "a conversation" with TBNE and that during the course of the conversation she never mentioned Afton Oaks' name, nor the name of the nurse in question, both of which would be necessary in an actual report. Indeed, Johnson expressly stated in her typed memo that Petry was under the mistaken impression that Johnson called TBNE to make a report, and that this impression was, in fact, untrue.

Thus, contrary to her present assertion, Johnson's own record testimony indicates that she did not make a report to TBNE. Rather, the record demonstrates that Johnson was merely contacting TBNE for information about how to handle the resident abuse investigation. Indeed, the only evidence in the record that appears to support Johnson's position that she made a "report" are her self-serving, conclusory statements in her later deposition testimony. The district court, as the trier of fact, was permitted to draw inferences from this evidence to conclude that Johnson failed to present sufficient evidence of "reporting" a violation of law within the meaning of § 242.133(b). See Placid Oil 932 F.2d at 397-98; Nunez, 572 F.2d at 1124.

Johnson also contends that the district court improperly applied the reporting requirements to § 242.133(b), relying on Toam Hall Estates-Whitney, Inc. v Winters, 220 S.W.3d...