Employment / 3 min read
The Texas Supreme Court case, Scott & White Memorial Hospital v. Thompson, highlights the importance of documenting employee terminations, especially when the termination occurs close in time to a protected activity.
This case involved a nurse who received two written reprimands for violating the hospital's personal-conduct policy. The second reprimand warned the nurse that any future violation would result in termination.
Shortly thereafter, the nurse became concerned with the welfare of a child-patient. Without discussing her concerns with the parents, the nurse called the child's school nurse and disclosed the child's protected health information. While the parents had previously authorized the hospital to disclose such information, the authorization had expired. After talking with the school nurse, the nurse spoke to a supervisor who told her to report her concerns to Child Protective Services (CPS), which she did.
The child's mother learned about the CPS report and complained to the hospital. The hospital investigated the matter and discovered the unauthorized disclosure of protected health information to the school nurse. The hospital terminated the nurse, stating it was due to her violating the hospital's personal-conduct policy for a third time. The nurse sued the hospital, arguing that her termination was retaliation for reporting the suspected child abuse to CPS— which is a protected activity under Texas law.
The Texas Supreme Court’s Ruling Turns on Good Documentation
The Court clarified that to prove discrimination under Texas law, an employee must show the protected activity was the ""but-for"" cause of termination. This means, the protected activity doesn't need to be the only reason for the termination, but any additional reasons for termination must be insufficient on their own to justify termination.
The Court noted that while the nurse’s CPS report may have been a factor in her termination, the hospital showed her policy violation was a sufficient reason for dismissal by itself.
The Court was able to reach this ruling largely due to the hospital’s clear and concise documentation for the termination. The hospital had documented two prior policy violations and given an explicit warning that a third policy violation would lead to termination. After the nurse disclosed protected health information, the hospital’s Employee Counseling Form stated the termination was the result of the unauthorized disclosure. In relevant part, the Form provided the following:
“[The hospital] received complaint of [the nurse] inappropriately contacting a school nurse to discuss a patient without a signed release of information from the parent. This is a violation of HIPAA and patients['] rights. As a result of this violation your employment is being terminated immediately.”
Takeaway for Employers
Scott & White Memorial Hospital v. Thompson shows the importance of clear documentation during the disciplinary process. The hospital's documented trail showed the nurse’s termination was justified based on the policy violation, regardless of her CPS report.
To reduce legal risk and better defend against discrimination claims, employers should:
- Have clear written policies outlining conduct expectations and consequences for violations;
- Give written warnings specifying the policy violation and potential consequences;
- Thoroughly document reasons for termination, explaining how non-protected reasons are sufficient grounds on their own; and
- Train managers on proper termination procedures and the importance of documentation.
By following these practices, employers can reduce or avoid liability for discrimination claims.
Disclaimer for Federal Claims and Pretext
As a final note, it’s important to understand the context in which Scott & White Memorial Hospital v. Thompson was analyzed. That case was a state-court case tried, appealed, and analyzed under Texas law. Many employment discrimination cases end up in federal courts, are tried under federal laws and face the issue of “pretext”.
Pretext is when an employer terminates an employee for a protected activity, but claims the termination was based on a different reason that is valid—i.e. the valid reason is just pretext for termination. The Scott & White Memorial Hospital v. Thompson does not appear to have addressed the issue of pretext. It is possible that if this case were analyzed under federal law, the results could have been different, but it is impossible to say because different evidentiary issues would have been raised.