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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