Austin v. Healthtrust, Inc.-The Hospital Co.

967 S.W.2d 400, 41 Tex. Sup. Ct. J. 679, 13 I.E.R. Cas. (BNA) 1707, 1998 Tex. LEXIS 62, 1998 WL 181950
CourtTexas Supreme Court
DecidedApril 14, 1998
Docket97-0825
StatusPublished
Cited by74 cases

This text of 967 S.W.2d 400 (Austin v. Healthtrust, Inc.-The Hospital Co.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. Healthtrust, Inc.-The Hospital Co., 967 S.W.2d 400, 41 Tex. Sup. Ct. J. 679, 13 I.E.R. Cas. (BNA) 1707, 1998 Tex. LEXIS 62, 1998 WL 181950 (Tex. 1998).

Opinions

OWEN, Justice,

delivered the opinion of the Court,

in which PHILLIPS, Chief Justice, HECHT, ENOCH, BAKER, ABBOTT, and HANKINSON, Justices, join.

We have been requested in this case to create a judicial exception to the employment-at-will doctrine by recognizing a cause of action for private whistleblowers. Because the Legislature has been so proactive in promulgating statutes that prohibit retaliation against whistleblowers in many areas of the private sector, we decline to recognize a common-law cause of action. Accordingly, we affirm the judgment of the court of appeals.

I

This case was decided by summary judgment. The parties included in the trial court record only the facts necessary to resolve the legal issue of whether a private whistleblower cause of action exists under the common law. Therefore, our account of the facts is brief, and we set forth only the factual allegations asserted by Austin, against whom summary judgment was rendered.

Lynda Gail Austin worked as an emergency room nurse at Gulf Coast Medical Hospital for approximately fifteen years. In July 1992, she noticed that another emergency room nurse, Clay Adam, appeared to be under the influence of drugs. Austin learned shortly thereafter that Adam had been distributing prescription medication to patients without authorization from a physician. Austin relayed this information to her supervisor, Patrick Lilley. She also submitted a written report to Lilley detailing Adam’s conduct and actions. Lilley instructed Austin to keep the information to herself, and she complied.

Austin alleges that Lilley subjected her to extreme scrutiny after she reported Adam’s conduct. Then, on December 1, 1992, Lilley fired Austin and asked her to leave the premises. Upon learning that Lilley was a family friend of Adam, Austin brought this suit against HealthTrust Inc. — The Hospital Company, the Gulf Coast Medical Foundation d/b/a Gulf Coast Medical Center, and Lilley (hereinafter HealthTrust). Austin al[401]*401leges that she was discharged in retaliation for reporting Adam’s unlawful, dangerous, and unethical activities.

HealthTrust moved for summary judgment, asserting that Austin faded to state a cognizable claim under Texas law. The trial court granted the motion. The court of appeals affirmed, holding that Texas does not recognize a common-law cause of action for retaliatory discharge of a private employee who reports the illegal activities of others in the workplace. 951 S.W.2d 78. We affirm.

II

This is not the first time that the Court has been urged to recognize a private whistleblower cause of action. In Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 723 (Tex.1990), Richard Winters, who worked as an at-will employee for the Chronicle, was discharged after reporting suspected illegal activities of his fellow employees to his superiors. We declined to further modify the employment-at-will doctrine by permitting a suit for retaliation. In so doing, we observed that the Legislature had already enacted numerous measures to protect employees who report illegal activity in the workplace. Id. at 724.

Since Winters, several courts of appeals have contemplated whether to recognize a private whistleblower cause of action. In Thompson v. El Centro Del Barrio, 905 S.W.2d 356, 356-57 (Tex.App. — San Antonio 1995, writ denied), a private nonprofit corporation allegedly fired an employee for reporting coworkers who were misusing public money. Concluding that the issue was better left to the Legislature or this Court, the court of appeals refused to recognize a cause of action. Id. at 359. Similarly, in Burgess v. El Paso Cancer Treatment Center, 881 S.W.2d 552, 554, 556 (Tex.App. — El Paso 1994, writ denied), the court of appeals held that there was no cause of action for an employee who was discharged after reporting an alleged conspiracy among fellow employees to replace new parts from radiation machines with defective used parts. See also Ford v. Landmark Graphics Corp., 875 S.W.2d 33, 34 (Tex.App. — Texarkana 1994, no writ) (refusing to recognize a private whistle-blower cause of action).

Austin urges us to embrace a cause of action that is more narrowly tailored than those that were under consideration in Winters and Thompson. Taking a page from the concurring opinion in Winters, Austin advocates a private whistleblower cause of action in cases in which the conduct or activity that was reported would have “a probable adverse effect upon the public.” Winters, 795 S.W.2d at 725 (Doggett, J., concurring). Our review of legislative action in the employment-at-will area leads us to conclude that it would be unwise for this Court to expand the common law because to do so would essentially eclipse more narrowly-crafted statutory whistleblower causes of action. Prior to Winters, and in the eight years that have followed, the Legislature has enacted a variety of private remedies and has declined to create a cause of action that would have general applicability.

As recently as the 1995 legislative session, an amendment to the Labor Code was proposed that would have created a “Whistle-blower Act” for all private employees. Tex. H.B. 622, 74th Leg., R.S. (1995). The proposed bill, like the cause of action Austin proposes here, would have prohibited an employer from terminating an employee “who in good faith reports activities within the workplace that constitute a violation of law or would otherwise have a probable adverse effect on the public.” Id. (emphasis added). This version of the bill was rejected in legislative committee. An amended bill was then proposed that deleted protection for reports of activities that would have a “probable adverse effect on the public” in favor of the requirement that the reported activity “constitute a violation of law.” Compare id. with TexiC.S.H.B. 622, 74th Leg., R.S. (1995). However, the Legislature did not pass the modified bill.

Rather than create a one-size-fits-all whis-tleblower statute, the Texas Legislature has instead opted to enact statutes that protect specific classes of employees from various types of retaliation. For example, section 554.002 of the Government Code protects public employees from retaliation for reporting, in good faith, the employing govemmen-[402]*402tal entity’s or fellow employees’ violations of law to an appropriate law enforcement agency. Tex. Gov’t Code § 554.002. Similarly, a physician cannot be retaliated against for reporting to the State Board of Medical Examiners the acts of another physician that pose a continuing threat to the public welfare. Tex.Rev.Civ. Stat. Ann. art. 4495b, § 5.06(d), (q) (Vernon Supp.1998). The Legislature has also enacted a statute that prohibits retaliation against nursing home employees who report abuse or neglect of a nursing home resident. Tex. Health & Safety Code § 242.133. Additionally, employers who use hazardous chemicals may not retaliate against employees for reporting a violation of the Hazard Communication Act. Id.

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967 S.W.2d 400, 41 Tex. Sup. Ct. J. 679, 13 I.E.R. Cas. (BNA) 1707, 1998 Tex. LEXIS 62, 1998 WL 181950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-healthtrust-inc-the-hospital-co-tex-1998.