Town Hall Estates-Whitney, Inc. v. Winters

• Citation: 220 S.W.3d 71
• Decision Date: 07 February 2007
• Docket Number: No. 10-04-00339-CV.,10-04-00339-CV.
• Parties: TOWN HALL ESTATES-WHITNEY, INC., Crystal Long, Ronald Darren Long, and American Religious Town Hall Meeting, Inc., Appellants, v. Cathy Ann WINTERS, Appellee.
• Court: Court of Appeals of Texas

220 S.W.3d 71

TOWN HALL ESTATES-WHITNEY, INC., Crystal Long, Ronald Darren Long, and American Religious Town Hall Meeting, Inc., Appellants, v. Cathy Ann WINTERS, Appellee.

No. 10-04-00339-CV.

Court of Appeals of Texas, Waco.

February 7, 2007.

Rex Davis, Sheehy Lovelace & Mayfield, Waco, for appellants.

Brad Newsom, Meridian, Richard G. Ferguson, Waco, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

This is a retaliatory-discharge case involving a nursing home employee, Cathy Winters, who alleged she was fired for reporting to her supervisor the possible sexual abuse of a nursing home resident by another employee. Cathy sued and prevailed, and the defendants appeal. We will modify the judgment in part and affirm it as modified.

Texas Health and Safety Code Chapter 242: Duties Specific to Nursing Homes

Chapter 242 of the Texas Health and Safety Code governs nursing homes; its stated legislative goal is "to ensure that institutions in this state deliver the highest possible quality of care." TEX. HEALTH & SAFETY CODE ANN. § 242.001(a) (Vernon 2001). The Legislature directs us to construe chapter 242 broadly to accomplish the regulation of the operation of nursing homes in a manner that protects nursing home residents. Id. § 242.001(d-f).

This regulatory scheme includes, among other things, a statutory requirement for the oral and written reporting of abuse and neglect to the Texas Department of Human Services or a law enforcement agency. See id. § 242.122-.135 (Vernon 2001 & Supp.2006). A nursing home owner's or employee's failure to report under section 242.122 is a Class A misdemeanor. Id. § 242.131. In addition, section 242.133 prohibits retaliation for reporting a violation of law and provides nursing home employees who are retaliated against for reporting a violation of law with a retaliation cause of action:

(b) 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.

Id. § 242.133(b) (emphasis added).

An affected employee may recover: (1) the greater of $1,000 or actual damages, including mental anguish damages and lost wages; (2) exemplary damages; (3) court costs; and (4) attorney's fees. Id. § 242.133(c). The employee has the burden of proof, except there is a rebuttable presumption that the person's employment was suspended or terminated for reporting abuse or neglect if the person is suspended or terminated within sixty days after the date on which the person reported in good faith. Id. § 242.133(f).

Background

In May 2000, Cathy, a nurse for almost thirty years, became employed by Town Hall Estates-Whitney, Inc. (Town Hall), a nursing home owned by American Religious Town Hall Meeting, Inc. (ARTH). Darren Long was Town Hall's administrator, and his wife Crystal was the assistant administrator. Both served on the boards of Town Hall and ARTH.

Cathy worked the night shift (11 p.m. to 7 a.m.) on Friday, June 29, 2001. On the morning of Saturday, June 30, A.R., an elderly female resident of Town Hall, complained to Cathy that overnight Pete Coviello, a certified nursing assistant (CNA), had exposed his penis to A.R. and made her touch it. Without giving him a reason, Cathy told Pete to stay out of A.R.'s room the rest of the shift and asked the charge nurse, Beth Lewis, whether and how to write up the incident in A.R.'s chart. Lewis said she did not know, and nothing was written in A.R.'s chart. Cathy then called Fran Jackson, a floor nurse and Cathy's supervisor, at home, and reported A.R.'s allegation. According to Cathy, Jackson indicated that she wasn't happy to hear about the allegation. Because of A.R.'s history of false complaints and belligerence, both Cathy and Jackson were unsure about the truth of A.R.'s allegation;¹ Jackson testified that Cathy told her she felt she had a duty to report it to Jackson.

Jackson went to work that morning, spoke with Cathy again about the allegation, and then interviewed A.R., who repeated a similar allegation. Jackson wrote a summary of her interview with A.R. and then called Crystal Long, the assistant administrator, at home, and informed her of the situation. Jackson also relayed Cathy's report and Cathy's disbelief in the allegation. Two days later, the Longs terminated Cathy's employment, stating that she was being terminated for insubordination and progressive discipline.² This lawsuit for retaliatory discharge under section 242.133 against the Longs, Town Hall, and ARTH followed. See id. § 242.133(b).

A jury unanimously found that Cathy was terminated for reporting sexual abuse of a resident to her supervisor and awarded her $3,100 for lost wages, $20,000 in compensatory damages, and $34,200 for attorney's fees. Based on a finding that the Longs, Town Hall, and ARTH acted with malice in terminating Cathy's employment, the jury unanimously assessed exemplary damages against the Longs for $20,000 each, against Town Hall for $2,000, and against ARTH for $350,000. In accordance with the cap in Texas Civil Practice and Remedies Code section 41.008(b), the trial court reduced the exemplary damages award against ARTH to $200,000 and otherwise entered a judgment based on the jury's findings.

Was there a Report?

The first of Appellants' six issues asserts that section 242.133 does not apply because, as a matter of law, Cathy did not report an incident of abuse as contemplated by that statute. Appellants first argue that Cathy did not make a "report" because she did not believe A.R.'s allegation of sexual abuse.³ Therefore, Appellants reason, if Cathy did not believe a violation of law had occurred, she could not have made a report of a violation of law under section 242.133. This superficially clever contention does not withstand scrutiny in the context of chapter 242 and the facts of this case.

It is not disputed that Cathy reported A.R.'s sexual abuse allegation to Jackson, her supervisor, orally, and to the Longs, in writing.⁴ Instead, Appellants' first issue centers on the substance of Cathy's report. Essentially, Appellants' argument is that, because Cathy did not manifest a subjective belief in A.R.'s sexual abuse allegation, Cathy was not reporting a violation of law and section 242.133 simply does not apply. We reject Appellants' argument for several reasons.

First and foremost, it is not supported by the language of section 242.133, which we construe broadly to accomplish its purposes. Id. § 242.001(f); cf. iRogers v. City of Fort Worth, 89 S.W.3d 265, 274 (Tex.App.-Fort Worth 2002, no pet.) (stating that Whistleblower Act is remedial in nature and must be liberally construed). We should determine and give effect to the Legislature's intent, starting with the plain and common meaning of the words used. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). If the statutory language is unambiguous, we will interpret the statute according to its plain meaning. Id. We presume that the Legislature did not intend an unjust result. TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 2005); see also Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 367 n. 20 (Tex.2004) (appellate court should not construe statute in manner that will lead to foolish or absurd result when another alternative is available).

In providing a cause of action for an employee who is retaliated against "for reporting . . . a violation of law" in section 242.133, the Legislature did not require that the employee subjectively believe there had been a violation of law. And we cannot think of a reason why — especially in a situation like this case where an elderly, disoriented nursing home resident with a history of false complaints has made a sexual abuse allegation to a nurse employee — the employee's subjective belief in the allegation should matter when the employee reports the allegation in accordance with her statutory duty to report. In the nursing home setting, we imagine that the abuse, neglect, or violation of law against a resident will not occur in plain view and that, as in this case, the original allegation will be made by the resident to another employee. Requiring that the employee know or subjectively believe the allegation to be true appears to us not only to add to the statute, but to add a requirement that contradicts the reality of nursing home abuse and neglect.⁵ And it would appear unjust or absurd for the Legislature (1) to impose a legal duty on a nursing home employee to report abuse or neglect; (2) to provide a cause of action for retaliation for reporting a violation of law (including abuse or neglect), but only if the employee subjectively believed there had been a violation of law; and (3) to omit from the statute such a subjective belief requirement. We cannot conceive that the Legislature would so frustrate a cause of action while creating it.

Appellants also argue that Cathy did not make a report contemplated by section 242.133 because Cathy did not comply with chapter 242's reporting requirements. See TEX. HEALTH & SAFETY CODE ANN. § 242.122-.125. Turning again to the relevant statutory language, an employee must orally report abuse or neglect immediately upon learning of it and in writing no later than five days after the oral report. Id. § 242.122. The report must contain the name and address of the resident, the name and address of the person responsible for the care of the resident, and the...