Case: 08-20827 Document: 00511028752 Page: 1 Date Filed: 02/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2010
No. 08-20827 Charles R. Fulbruge III
Clerk
TAMMY JOHNSON
Plaintiff - Appellant
v.
DIVERSICARE AFTON OAKS LLC; DIVERSICARE MANAGEMENT
SERVICES COMPANY; DIVERSICARE LEASING CORPORATION;
ADVOCAT FINANCE INCORPORATED
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
Case: 08-20827 Document: 00511028752 Page: 2 Date Filed: 02/17/2010
No. 08-20827
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 T EX. H EALTH & S AFETY C ODE § 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 T EX. H EALTH & S AFETY C ODE § 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
2
Case: 08-20827 Document: 00511028752 Page: 3 Date Filed: 02/17/2010
No. 08-20827
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.” F ED. R. C IV. 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 (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.
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
T EX. H EALTH & S AFETY C ODE § 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
3
Case: 08-20827 Document: 00511028752 Page: 4 Date Filed: 02/17/2010
No. 08-20827
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
4
Case: 08-20827 Document: 00511028752 Page: 5 Date Filed: 02/17/2010
No. 08-20827
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 Town Hall Estates-Whitney,
Inc. v. Winters, 220 S.W.3d 71 (Tex. App.))Waco 2007, no pet.) for support.
However, this case is distinguishable from the instant matter. In Town Hall, a
nurse prevailed on her retaliation complaint for having reported an incident of
alleged sexual abuse of a nursing home resident to her supervisor despite
concerns that the allegation of abuse might be false. The Texas Court of Appeals
found no subjective belief in the veracity of the allegation necessary for a report
to be legitimate. In the instant matter, the issue is not whether Johnson
believed the allegation of resident abuse to be true, but rather whether an actual
report was made. Though Johnson is correct in arguing that § 242.133 does not
require that an employee alleging a retaliation claim adhere to the letter of the
reporting requirements, see id. at 79–80, some sort of report must have been
made to qualify as the basis for a retaliatory action.
Johnson also points to Clark v. Texas Home Health, Inc., 971 S.W.2d 435,
437–38 (Tex. 1998), arguing that liability for retaliation attaches when an
employee is punished for the intent of reporting, even if no report has actually
been made. However, Johnson “must demonstrate a causal relationship between
the retaliatory action and the reporting.” Id.; see also Town Hall, 220 S.W.3d at
81 (applying a “but-for” causation standard in retaliation causes of action). Even
assuming arguendo that Johnson intended to report the nurse when she
contacted TBNE for advice, it does not follow that her intent to report led to her
suspension. Johnson failed to complete her investigation of the incident in a
timely fashion, as she was asked to do by her supervisor. Johnson admitted that
she had not obtained the statements, in contradiction to a direct order to do so.
5
Case: 08-20827 Document: 00511028752 Page: 6 Date Filed: 02/17/2010
No. 08-20827
As the rationale for Johnson’s suspension was her failure to complete her
investigation of the alleged resident abuse, she has not shown that but for her
conversation with TBNE, she would not have been suspended. Accordingly, the
district court did not err in concluding that Johnson did not make a “report” as
required by § 242.133(b).
III
Johnson argues that the district court erred in denying her motion to
reconsider and for a new trial. We review a denial of a motion for
reconsideration pursuant to F ED. R. C IV. P. 59(e) for abuse of discretion. Lake
Hill Motors, Inc. v. Jim Bennett Yacht Sales, Inc., 246 F.3d 752, 757 (5th Cir.
2001). Courts have broad discretion in deciding such motions. Templet v.
HydroChem, Inc., 367 F.3d 473, 482–83 (5th Cir. 2004). A motion to reconsider
based on an alleged discovery of new evidence should be granted only if “(1) the
facts discovered are of such a nature that they would probably change the
outcome; (2) the facts alleged are actually newly discovered and could not have
been discovered earlier by proper diligence; and (3) the facts are not merely
cumulative or impeaching.” Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688,
696–97 (5th Cir. 2003) (citation omitted).
Johnson points to a “newly discovered” letter from the Texas Department
of Aging and Disability Services (“TDADS”) that allegedly supports her having
made a report of the resident abuse incident. However, this document was
produced by Johnson during discovery and therefore should have been part of
the evidence Johnson submitted to the court on summary judgment. Id.
Moreover, the record reflects that the identification number of the report
referenced in Johnson’s letter matches the identification number of a report
created two weeks after Johnson’s initial suspension. Thus, even if Johnson did,
in fact, make this report with TDADS, it would not support a retaliation claim
based on an employment action that occurred two weeks earlier. Consequently,
6
Case: 08-20827 Document: 00511028752 Page: 7 Date Filed: 02/17/2010
No. 08-20827
Johnson has not presented sufficient grounds for reconsideration of the district
court’s grant of summary judgment, and the district court did not abuse its
discretion in denying her motion.
IV
For the foregoing reasons, we AFFIRM.
7