Lynda Gail AUSTIN, Petitioner, v. HEALTHTRUST, INC.—THE HOSPITAL COMPANY, Wharton Hospital Corporation d/b/a Gulf Coast Medical Center, and Patrick Lilley, Respondents.
No. 97-0825.
Supreme Court of Texas.
Argued Feb. 3, 1998. Decided April 14, 1998.
967 S.W.2d 400
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.
Gregg M. Rosenberg, Ian Scharfman, Houston, for Petitioner.
David N. Goldman, Chad A. Shultz, M. Elizabeth Ortega, Atlanta, Layne A. Thompson, Houston, for Respondents.
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
HealthTrust moved for summary judgment, asserting that Austin failed 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 whistleblower 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 “Whistleblower 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 Tex. C.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 whistleblower statute, the Texas Legislature has instead opted to enact statutes that protect specific classes of employees from various types of retaliation. For example,
Moreover, the Legislature has enacted specific statutes to address the retaliation that Austin alleges she suffered in the present case. Registered nurses, such as Austin, are required by law to report another registered nurse who “has exposed or is likely to expose a patient or other person unnecessarily to a risk of harm” or who “is likely to be impaired by chemical dependency.”
A person has a cause of action against an individual, organization, agency, facility, or other person that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person reporting under this article.
Although article 4525a was in effect when Austin reported Adam‘s conduct to Lilley, Austin has not alleged that she filed a report with the Board of Nurse Examiners or that she was fired for doing so. She has not pursued any cause of action under the statute.
Beyond the protections provided by article 4525a, the Legislature has recently enacted another specific whistleblower statute for any hospital employee who reports illegal activity. See
Aside from the aforementioned whistleblower statutes, the Legislature has created numerous other restrictions on and exceptions to the employment-at-will doctrine. See, e.g.,
In enacting statutes that prohibit certain conduct in the employment area, the Legislature has carefully balanced competing interests and policies. This has resulted in statutes not only with diverse protections, but also with widely divergent remedies and varying procedural requirements. For example, some whistleblower statutes allow recovery of exemplary damages while other statutes limit recovery to lost wages. Compare
Unlike the Legislature, we cannot craft statutes of limitation that vary depending upon the area of employment. Nor can the Court establish an administrative scheme. Were we to create a broad-based whistleblower cause of action, it would in large part eviscerate the specific measures the Legislature has already adopted.
We do not doubt that significant public policy interests are advanced when employers are prohibited from discriminating against employees who report violations of the law. However, the Legislature has enacted specific statutes to redress wrongful termination. While we are not bound by the Legislature‘s policy decisions when we consider whether to create a common-law whistleblower action, “the boundaries the Legislature has drawn do inform our decision.” Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex. 1998). Accordingly, rather than recognize a common-law cause of action that would effectively emasculate a number of statutory schemes, we leave to the Legislature the task of crafting remedies for retaliation by employers.
*****
For the foregoing reasons, we affirm the judgment of the court of appeals.
GONZALEZ, J., issued a concurring opinion, in which SPECTOR, J., joins.
GONZALEZ, Justice, concurring.
I concur in the judgment. However, I cannot join the Court‘s opinion because its tenor may signal a retreat from the well established policy that recognizes that the employment-at-will doctrine is a judicially created one that this Court is free to amend. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). While the Court is correct that in Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724-25 (Tex. 1990), we declined to further modify the employment-at-will doctrine by permitting a suit for retaliation for employees who report illegal activities, today‘s opinion omits the fact that we only declined to do so “at this time on these facts.” Id. at 725. I write separately to reiterate that when dealing with employment at will, it is still within our realm to “craft a narrow exception that protects the interests of responsible, law-abiding employers while holding accountable those whose activities threaten the public interest.” Id. at 726 (Doggett, J., concurring).
However, such a compelling situation may present itself in the future, and when it does, it will be incumbent on this Court to once again, as we did in Sabine Pilot, carry its “burden and the duty of amending [the doctrine] to reflect social and economic changes.” Sabine Pilot, 687 S.W.2d at 735 (Kilgarlin, J., concurring).