El Paso Court of Appeals Recognizes Private Right of Action for Retaliation for Assisted Living Facility Employees

Posted on July 11, 2011 by Russell Cawyer

In an issue of first impression, the El Paso Court of Appeals has held that the Assisted Living Facility Licensing Act creates a private right of action for an employee who has filed a complaint, grievance of providing information in good faith relating to personal care services of the assisted living facility.

In Emeritus Corp. v. Blanco, Blanco was Interim Executive Director for an Assisted Living Facility in El Paso.  During her employment, she complained about inadequate staffing and training to her superiors.  Ultimately, Blanco tendered her two week notice of resignation.  Shortly before her scheduled final day of employment, she sent  an email to seven Emeritus employees and supervisors further detailing her concerns that patient care and safety she attributed to the lack of staff and inadequate training.  Her resignation was accepted the following day.

She brought suit alleging that she had been retaliated against and constructively discharged because of her complaints about patient care and safety.  A jury returned a verdict in her favor for lost wages and mental anguish in the amount of $128,500.  Emeritus appealed, in part, arguing that the ALFLA provided no private cause of action for retaliation because the Act, while expressly prohibiting retaliation, provided not right to bring a lawsuit.

In reaching its decision, appellate court reviewed a variety of the statutes under the Health & Safety Code.  It noted that some of the provisions contain anti-retaliation provisions and create private rights of action; some have anti-retaliation provisions but only provide for administrative penalties; and one that prohibits retaliation but provides neither an administrative penalty or private right of action.  The Court reasoned that by interpreting the ALFLA to expressly prohibit retaliation but not provide a remedy for retaliation would lead to an absurd result and render the retaliation provisions meaningless.  Therefore, it recognized an implied private cause of action for an employee believing he or she has been retaliated against.

This opinion appears to be in contrast to the longstanding rule in Texas that it is for the Legislature to create new causes of action and not for judicial bodies to do so.  Given the lack of an express private right to file a lawsuit under the statute (when other provisions of the Health & Safety Code provide a remedy), I expect an appeal to the Texas Supreme Court with amicus briefs from the Assisted Living Facility interest and business groups that think a judicially created private cause of action in the absence of express statutory provision providing for such is unsupported by Texas jurisprudence.

You can download a complete copy of the Court's opinion in Emeritus Corp. v. Blanco here.

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El Paso Court of Appeals Holds that Employer May Use Mandamus Petition to Challenge Trial Court's Jurisdiction Where Employee's Charge of Discrimination was not Timely

Posted on January 9, 2011 by Russell Cawyer

The El Paso Court of Appeals held this week that a Texas employer can use mandamus petition to challenge a trial court's jurisdiction where the plaintiff-employee failed to file his charge of discrimination timely.  A link to the opinion is here. 

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El Paso Court Holds Employee Abandoned Job --Did Not Quit for Good Cause

Posted on March 1, 2010 by Russell Cawyer

Last week, the El Paso Court of Appeals affirmed a judgment in favor of an employer on an unemployment benefit eligibility issue where the employee, abandoned his job.  The employee was a Nationwide Financed Agent from January 2003 until November 2005.  A Financed Agent is an employee-agent of Nationwide who starts an insurance agency and operates it to the point of economic self-sustainability.  At that point the Financed Agent becomes an independent contractor. 

In June 2005, the employee's supervisor met with the employee to discuss his poor job performance.  The employee continued to under perform and the employer attempted to meet with the employee on three successive occasions to address the continued poor performance; however, the employee failed to attend those meetings.  Ultimately, the supervisor telephoned the employee and left a message for him to return the call immediately.  The call went unreturned.  Further investigation revealed that the employee had not been to the office in two months and that he had removed computer equipment and all of his personal belongings from the office.  The supervisor wrote the employee to advise that Nationwide considered his employment to have been abandoned. 

The employee filed for unemployment benefits claiming he quit with good cause.  He contended that he quit with good cause because: 1) he was require to work overtime without being paid time -and-a half; 2) he believed he was about to be laid off; and 3) supervisor acted in bad faith to create a record for his eventual discharge.  The appellate court affirmed the judgment for the employer because:

Uranga had been employed by Nationwide from January of 2003 to November 2005. As an agent, Uranga would have a full day but he was able to set his own office hours. Uranga was aware at the time he was hired of the job responsibilities and the required time commitment. When Uranga's job performance became a problem, Scott met with him to discuss the deficiencies in his operation. Uranga's job performance did not improve and Scott attempted to meet with him again, but Uranga did not attend the scheduled meetings. Scott subsequently discovered that Uranga had been absent from the office for most of the two previous months and he had removed computer equipment and personal belongings. Scott determined Uranga had abandoned his employment and wrote Uranga a letter notifying him that Nationwide considered his employment at an end.

Given these facts, there is nothing surprising or controversial about about the fact the appellate court affirmed the conclusion that the claimant resigned without good cause.  Similarly, the opinion doesn't state any new rules of law.  However, the opinion emphasizes a few points about eligibility for unemployment benefits under Texas law including:

  • Leaving a job when work is still available (even when a definite notice of layoff is given) constitutes a voluntary resignation.
  • Claimant working under objectionable conditions for a prolonged period of time weighs against a finding that his eventual resignation was for good cause.

A copy of the court's opinion is available here.

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