A recent decision by the Texas Supreme Court provides a valuable lesson for employers on how to draft employee discipline. Let’s start by examining law theory and then move on to look at how to put theory into practice.
Legal Theory
An important concept in Texas employment law is causation in a retaliation claim. For example, an employee complains about an issue at work—such as unlawful discrimination—or blows the whistle on government misconduct. This is called “protected conduct.” There’s evidence the employee suffers an adverse employment action as a result.
But the employer says, “So what? We also had clearly good reasons for firing the employee.” So, there are two reasons, one legitimate and one not. How do you untangle them? This is how the Texas Supreme Court summed it up recently:
We have consistently held that, for a violation to occur, the protected conduct need not be the employer’s sole motivation for the adverse employment action, but it must be such that without the protected conduct the adverse action would not have occurred when it did. Under this causation standard, the evidence must establish that the employer would not have taken the adverse action “but for” the . . . protected conduct, meaning no violation occurs if the employer would have taken the adverse action when it did even if the employee had not engaged in the protected conduct.
Put differently, “We may have sinned, but so what? The employee would have been fired in any event. Some results are just, well, inevitable.”
In Practice
Enter: Dawn Thompson, a registered nurse working at Scott & White Memorial Hospital. In May 2015, she was written up for raising her voice and using profanity during an argument with a coworker. She was warned that future unprofessional conduct may result in discharge.
In October, she received another write-up after several incidents of “argumentative and disrespectful” conduct toward hospital doctors. The warning was ratcheted up: Any future violations would “result in separation from employment.”
In May 2016, as part of a dispute between divorced parents over the care of their child, Thompson gave the child’s protected health information to a school nurse and reported the parents to Texas Child Protective Services (CPS).
How was this written up? According to the hospital, “An Audit revealed that the above-named nurse contacted a school nurse without a release of information. Furthermore, a CPS referral was made without all details known to Ms. Thompson. It is a violation of [the Health Insurance Portability and Accountability Act] HIPAA to share information with third parties without a release of information.”
Standing alone, the write-up makes it sound like the CPS report was one of the reasons for the discharge. If that were true, it would violate the antiretaliation provision of the Texas Family Code, which requires professionals to report conduct endangering children and protects them from adverse employment actions if they do so.
But clarity was just a paragraph away: As a result of the HIPAA violation “her employment is being terminated immediately.”
Legal Combo
Now let’s marry theory and practice.
The two earlier write-ups delivered a clear message: Discharge was in the cards for future violations. The question is always the same: Why was the employee fired when she was? Here, it was after a warning and a substantive and undisputed violation of policy, not an ethereal and speculative one.
Finally, the last write-up contains a simple declarative sentence on the reason for the discharge, clearing up any confusion. The case was dismissed without a trial in favor of the hospital. Scott & White Hospital v. Thompson (Tex. 2023).
Bottom Line
Write carefully, and be precise. Some thoughts:
First, grandfather all previous write-ups into the last write-up—as in, “Ms. Smith is being discharged as of today. She was written up twice before [insert dates] for XYZ and ABC and was told that further misconduct or policy violations [keep it broad] could result in her discharge.” This way, everything that’s important is in one place.
Second, leave out extraneous information. Here, the CPS report really had nothing to do with the discharge and was just a stray remark.
Third, don’t “pile on.” The more you say, the more you’ll have to justify.
Fourth, if you think someone is stealing from you by fudging documents, write that you’re firing for improper paperwork, not for stealing. Stick to what you can prove.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.