Causal Connection for Protected Conduct Not Proven in Retaliation Claim

Takeaway: An employer that takes adverse action against an employee in a profession required by state law to report potential abuse or neglect of a child must document other prior policy violations justifying termination or the company faces a potential injunction and/or damages. This paper trail will then guard the employer from liability because it will undermine an employee’s ability to demonstrate a causal connection—that “but for” the protected conduct, the employee would not have been fired.

After a plaintiff who engaged in protected conduct to report potential abuse or neglect of a child in good faith under Texas state law was terminated from her job, she failed to demonstrate that her report to Texas Child Protective Services (CPS) was at least one reason she for her termination. She also failed to prove that other prior violations of company policy standing alone were insufficient to justify termination.

A registered nurse reported possible incidents of child abuse or neglect to CPS—as instructed to do so by her supervisor—and was terminated shortly thereafter. She had learned from a school nurse that two divorced parents were each taking their child to different neurologists, resulting in potential mismanagement of medications and thus endangering the health and welfare of the child. The mother complained about the CPS report to the hospital that employed the nurse.

The plaintiff’s employer claimed that because of her discussion with a school nurse, the plaintiff had illegally disclosed confidential information about the child to an outside party without a valid health information release form, in violation of the patient’s rights under the Health Insurance Portability and Accountability Act.

According to the plaintiff’s employer, unauthorized discussions with the school nurse constituted a third violation of the hospital’s personal-conduct policy and provided grounds for termination.

Section 261.110 of the Texas Family Code requires that a professional with reasonable cause to believe a child has been or may be endangered by abuse or neglect that adversely affects their physical or mental health or welfare has a duty, which cannot be delegated, to immediately—that is, within 48 hours—make a report to the proper authorities.

This includes any individual who is licensed or certified by the state or who is an employee of a facility licensed, certified or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.

Specifically, this state law bars an employer from taking retaliatory action against an employee who is a professional, as defined under the statute, and makes a report in good faith. If retaliation does occur, they may sue the employer for injunctive relief, damages or both. But if the employee is fired within 60 days of making a report, the employer can raise an affirmative defense by providing information, observation or evidence of grounds for taking the adverse action if the decision is unrelated to the fact that the employee reported child abuse or neglect.

The statute then shifts the burden back on the plaintiff to show a causal connection. In other words, the employee must show that “but for” their protected actions, they would not have suffered retaliatory actions such as termination.

The Texas Supreme Court explained in its ruling that this causation element has two prongs: 1) an abuse report is at least one of the reasons for an adverse action and 2) any additional alleged violations cited for termination are insufficient grounds alone for an adverse action.

In this case, the plaintiff already had two prior violations and incurred a third by contacting the child’s school nurse without authorization, as documented in the Employee Counseling Form.

Earlier in May 2016, the plaintiff’s supervisor reported she had raised her voice and used profanity during an argument with a co-worker. Then in October, she exhibited “argumentative and disrespectful” conduct toward a physician. The supervisor warned her that any future violations “will result in separation from employment.”

Because the hospital listed the report to CPS in the Employee Counseling Form as at least one reason for termination, the plaintiff asserted, she was punished for protected conduct. The defendant countered that the termination was justified based on several documented incidents, including unauthorized discussions with the school nurse, along with the report to CPS. Therefore, the defendant argued, the employee would have been terminated regardless of the report to CPS, thereby failing to satisfy the second prong of causation.

The Texas Supreme Court explained that the plaintiff did not have to prove that the protected conduct was the sole reason for termination, but she did have to demonstrate that the other reasons cited for termination were insufficient to cause her employer to fire her. This was not done in the case at hand, the state Supreme Court determined.

Thus, the state Supreme Court held that summary-judgment evidence conclusively established that the nurse would have been terminated even if she had not reported her concerns to CPS. In doing so, it reinstated the trial court’s summary judgment in favor of the defendant.

Scott & White v. Thompson, Texas Supreme Court, No. 22-0558 (Dec. 22, 2023).

Anne Woodworth, J.D., is a freelance writer in Laurel, Md.