Opinion
Civil Action No. 3: 03-CV-2035-B.
August 23, 2005
MEMORANDUM ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed June 22, 2004. For the reasons that follow, the Court GRANTS the motion.
I. Factual and Procedural Background
Defendant Crothall Healthcare, Inc. provides non-medical support services, such as housekeeping services, patient transportation services, and laundry and linen services, to its clients, one of whom is Baylor University Medical Center ("Baylor") in Dallas, Texas. (Def.'s App. at 100, 101). Crothall employed Plaintiff Mineva Vaughn from July 2002 through March 2003 as a housekeeper. ( Id. at 15). On November 18, 2002, she was promoted to lead housekeeper and received a raise. ( Id. at 17). Kameka Meeks was a fellow lead housekeeper to whom Vaughn reported. ( Id. at 18). Marlene Johnson was the housekeeping supervisor. ( Id. at 18-19). Johnson reported to Manager Maria Esquivel, who, in turn, reported to John Houts. ( Id.).
Vaughn contends that on January 9, 2003, she first saw Meeks with illegal drugs at the workplace. ( Id. at 85). Vaughn later told Johnson that Meeks had been "selling weed" at work. ( Id. at 40). Johnson arranged for Vaughn to speak with Manager Esquivel. ( Id. at 43). On January 20, 2003, Vaughn met with Esquivel and Johnson. ( Id. at 43, 84). Esquivel asked Vaughn to write a statement describing what she had witnessed. ( Id. at 44, 83-84). Vaughn wrote:
On Thurs. 1/09/03 I witnessed Kameka had weed under the cabinet where we store our checkout list for the day. I witnessed her take the bag out and go into the conference room one with Marlon/ Span[ish] girl, a transporter employee. On Friday Marlon returned with the Spanish girl and the [sic] bought the weed from Kameka[.] Kameka told me that Marlon his girlfriend had previous[ly] bought two bags from her.
/s/ Mineva Vaughn
( Id. at 98, 83-84).
Vaughn later met with Houts. ( Id. at 46-47). Houts took Vaughn to meet with Mike Bahar, Crothall's Regional Manager, and Jacqueline Pentecost of Human Resources. ( Id. at 45-46). During the meeting Houts handed Vaughn the card of a Baylor detective with whom Vaughn was asked to discuss her allegations. ( Id. at 49-50). Vaughn agreed to meet with the detective the next day but missed the appointment. ( Id. at 50). The next day Vaughn informed Houts that she lost the detective's card and asked for another one. ( Id. at 51-52). Within a day or so, Houts gave Vaughn another of the detective's cards and, according to Vaughn, told her that "[i]t's best to keep quiet about it for awhile". ( Id. at 52-53). Vaughn never contacted the detective during her employment with Crothall. ( Id. at 52, 55). "I just didn't do it. I just didn't call him[,]" she said. ( Id. at 52). Vaughn "thinks" that Meeks knew that she had reported Meeks to Crothall management because Meeks treated her differently afterwards. (Pl.'s App. at 17). Although Meeks did not treat Vaughn poorly after Vaughn had reported her activities, Vaughn noticed that Meeks kept more to herself than usual, and the two did not perform errands together as they had previously done. ( Id.).
During Vaughn's employment at Crothall, hourly housekeeping employees were required to manually sign their names in on time sheets laid out on a table staffed by a lead housekeeper. (Def.'s App. at 24-27). The names of each employee scheduled to work a particular shift were typed on the page, and the employees were to sign their name next to their typed name and write the time of their arrival. ( Id. at 24-25, 35). These timesheets were used by Crothall to prepare employee paychecks. ( Id. at 38).
According to Vaughn, she arrived at work on March 3, 2003 at 3:00 p.m. ( Id. at 68). No one was sitting at the sign-in table when she arrived. ( Id. at 68-69). Vaughn says that she wrote her name next to her typed name, and wrote in "3:00" as her arrival time. ( Id. at 68, 70, 73-74). However, she admits that there is a spot underneath the "3:00" on the timesheet that appears to be white-out. ( Id. at 75). Vaughn testified that she does not recall seeing white out on the timesheet when she signed in on March 3, 2003 and has no knowledge of how it got there. ( Id. at 76). Crothall contends that beneath the white-out is a time that is not "3:00" and that Vaughn wrote "3:00" over the white out. ( Id. at 57, 102; Def.'s MSJ Brief at 8).
Two days later, on March 5, 2003, Vaughn was informed by Johnson that she was being terminated for whiting-out her arrival time and writing in another time. ( Id. at 56-59). Vaughn protested that she was being fired for something she did not do. ( Id. at 58-59). She was handed certain paperwork stating that she had reported to work on March 3, 2003 at 3:45 p.m. but that white-out had been used to change her arrival time. ( Id. at 59-61, 93). Vaughn refused to sign this paperwork. ( Id. at 59-60).
After she was terminated, Vaughn contacted the Baylor detective that had previously been referred to her by Crothall management in connection with her report that Meeks had been seen with illegal drugs at the workplace. ( Id. at 78-79). She gave the detective names of several people to talk to regarding the incident, and remembers that the detective said he would investigate the matter and get back with her. ( Id. at 80-81). Vaughn never heard from the detective again, however, a silence which may be explained by Vaughn's change of phone number. ( Id. at 81-82).
Vaughn originally filed suit against Crothall in Texas state court on June 17, 2003. Crothall removed the case to federal court on September 8, 2003. On March 12, 2004, Vaughn filed an agreed motion for leave to amend her complaint. On March 15, 2004 Judge Solis, to whom this case was originally assigned, granted the motion and ordered that Vaughn's Second Amended Complaint be filed among the papers of the case.
In her Second Amended Complaint Vaughn brings a Sabine Pilot claim, a cause of action for wrongful termination for reporting illegal activity, and a cause of action for retaliation against a healthcare worker in violation of the Texas Health and Safety Code. On June 22, 2004, Crothall moved for summary judgment on all three of Vaughn's claims. The Court now turns to the merits of that motion.
II. Analysis
A. Legal Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about material facts will preclude the granting of summary judgment. Id.
The burden is on the summary judgment movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-movant bears the burden of proof at trial, the summary judgment movant need not support its motion with evidence negating the non-movant's case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.
Once the movant has met its burden, the non-movant must show that summary judgement is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). "This burden is not satisfied with `some metaphysical doubt as to material facts,' . . . by `conclusory allegations,' . . . by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (emphasis in original) (quoting FED. R. CIV. P. 56(e)). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000); Anderson, 477 U.S. at 248.
B. Violation of the Texas Health and Safety Code
Crothall first moves for summary judgment on Vaughn's claim under § 161.134(a) of the Texas Health and Safety Code, which provides that a "hospital, mental health facility, or treatment facility may not suspend or terminate the employment of or discipline or otherwise discriminate against an employee for reporting to the employee's supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of this chapter . . ." TEX. HEALTH SAFETY CODE § 161.134(a). Crothall argues that this claim fails because Crothall is not subject to the statute because it is not a "hospital, mental health facility or treatment facility". Rather, Crothall is a housekeeping and patient transportation services company that merely happens to have a contract with a hospital — Baylor. (Def.'s App. at 19, 101).
Vaughn noted in her response to Crothall's summary judgment motion that she has no response to Crothall's claim that it is not an entity covered under § 161.134(a). The Court therefore accepts as undisputed Crothall's evidence that it is not a hospital, mental health facility, or treatment facility. (Def.'s App. at 101-02); Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (holding a party opposing summary judgment is required to identify specific evidence in the record and articulate the precise manner in which that evidence supports her claim). As Vaughn has failed to come forward with any evidence showing that Crothall is a covered entity under § 161.134(a), the Court grants Crothall's motion for summary judgment on Vaughn's claim for relief under that section.
C. Wrongful Termination for Reporting an Illegal Activity
Vaughn has also indicated that she has no response to Crothall's summary judgment motion with respect to her claim for wrongful termination for reporting an illegal activity. Vaughn acknowledges that "Texas has not yet recognized a cause of action for wrongful termination where an employee was terminated for reporting illegal activity." (Pl.'s Sec. Am. Compl. at ¶ 15). But, she maintains that such a cause of action "represents a reasonable extension of the law." ( Id.). The Texas Supreme Court has repeatedly declined to recognize a common law cause of action for wrongful termination for private employees who were terminated for reporting illegal activities. Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 724-25 (Tex. 1990); Austin v. Healthtrust, Inc., 967 S.W.2d 400, 401-03 (Tex. 1998). This Court declines to be the first to recognize such a claim. Crothall is therefore entitled to summary judgment as to Vaughn's cause of action for wrongful termination for reporting an illegal activity.
D. Sabine Pilot Claims
Texas recognizes an exception to the employment at-will doctrine where the employee's refusal to perform an unlawful act was the reason for the termination. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1983). To establish a prima facie case of wrongful termination under Sabine Pilot, Vaughn must prove that (1) she was required to commit an illegal act carrying criminal penalties; (2) she refused to engage in the illegal act; (3) she was discharged; and (4) the sole reason for her discharge was her refusal to commit the illegal act. White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003). Vaughn shoulders the burden to prove by a preponderance of the evidence that her termination was for no other reason than her refusal to perform an illegal act. Sabine Pilot, 687 S.W.2d at 735.
First, Vaughn claims that she refused to deliver or possess marihuana in violation of sections 481.120 and 481.121 of the Texas Health and Safety Code. Vaughn's Sabine Pilot claim with respect to those sections fails for at least two fundamental reasons. First, there is no evidence that she was required to commit an illegal act carrying criminal penalties. Vaughn testified at her deposition that no one at Crothall ever instructed her to possess or to deliver marihuana. (Def.'s App. at 56). According to her own testimony, then, Vaughn cannot meet the first element of a Sabine Pilot claim. See Borninski v. Williamson, 2003 WL 22952571, at * 7 (N.D. Tex. July 31, 2003) ("To come within the [ Sabine Pilot] exception, an employee `must be unacceptably forced to choose between risking criminal liability or being discharged.'") (quoting Winters, 795 S.W.2d at 724).
Moreover, Vaughn fails to explain how she refused to engage in an illegal act. Although she reported Meeks's allegedly illegal activities to Crothall management, no cause of action exists in Texas for private whistleblowing. Winters, 795 S.W.2d at 724. Rather, she must show that she refused to perform an illegal act. Vaughn claims that Meeks exercised leverage and control over her because Meeks was in charge of her training. Even assuming that this is true, Vaughn has failed to show how she opposed Meeks's illegal activities, other than by simply reporting those activities to Crothall management. In her response to Crothall's motion for summary judgment, Vaughn rather indicates that she actually acquiesced in assisting Meeks in her drug-related endeavors:
Thus the assistance Vaughn rendered on the job became assistance towards Meeks' proclivities. For instance, if a person came to the office and asked to see Meeks, Vaughn would direct the person to Meeks. Because Vaughn was aware that Meeks was selling drugs and that individuals were coming to buy drugs, such assistance would run afoul of the statute. Vaughn kept the drawer locked for business purposes, but she was also helping Meeks protect her stash.
(Pl.'s Resp. Brief at 9). Thus, Vaughn admits that she was aware that Meeks was selling drugs and that she assisted in such efforts. Although Vaughn reported Meeks to Crothall management, there is no evidence in the record that Vaughn at any point refused to engage in illegal activities and that she was discharged for her refusal to do so.
Vaughn also claims that she refused to perform acts made illegal under 21 U.S.C. § 856. This statute provides that it is a criminal offense to:
(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance;
(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.21 U.S.C. § 856. Vaughn argues that she and Meeks shared a suite in the basement of the hospital and exercised control of the suite for the purpose of selling and storing marihuana. This claim fails because, again, Vaughn has failed to adduce any evidence showing that Crothall required her to use the suite for such illicit purposes. Moreover, even assuming that Crothall had required her to use the suite for the selling and storage of illegal drugs, there is no evidence in the record that Vaughn refused to use the suite for such purposes or that such refusal was the sole reason for her discharge. The record instead reflects that Vaughn's only act of opposition to Meeks's activities was in reporting them to Crothall management. And even then, taking as true Vaughn's allegation that Hout told her to "keep things quiet", the evidence shows that Vaughn submitted to this admonition and kept things quiet. Vaughn was offered an opportunity to contact a Baylor detective to investigate her allegations, but declined to avail herself of that opportunity until after she was terminated. Vaughn has thus failed to bring forth summary judgment evidence in support of the first, second, and fourth elements of a Sabine Pilot claim, and such claim fails accordingly.
III. Conclusion
For the reasons set forth in this order, it is ORDERED that Crothhall's Motion for Summary Judgment be, and it is hereby, in all things GRANTED. The Court will separately enter a final judgment in accordance with this opinion.
SO ORDERED.