Fifth Circuit Rules for Employer in Retaliation Claim under Texas Health and Safety Code

/ 03/07/2010
The Fifth Circuit ruled for an employer in a workplace retaliation matter.  Johnson v. Diversicare Afton Oaks LLC, No. 08-20827 (5th Cir. Feb. 17, 2010), available at

The plaintiff, an assistant director at a nursing home, failed to investigate an alleged incident of resident abuse and was suspended pending an investigation into her failure to investigate the alleged incident of abuse.  Following the investigation, she was asked to return to work but declined to do so because she had already filed a retaliation claim against her employer.

Texas law protects a nursing home employee from retaliation by an employer if the employee reports a violation of law.  Here, the employer moved for summary judgment, alleging that the plaintiff failed to actually make a report.  Evidence showed that, while the plaintiff telephoned a Texas agency on the relevant date, she did so merely to ask a question and did not report a violation of law.  Further, while the plaintiff argued that an employer can be held liable for retaliation when an employee is punished for the intent of reporting, she failed to show any causal relationship between her intent to report a violation and the retaliatory action of suspension.  Accordingly, the Court affirmed the district court’s grant of summary judgment.

To speak with a Texas retaliation attorney, please contact the employment law lawyers at Clouse Dunn Khoshbin LLP at [email protected].

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