Full Opinion (html_with_citations)

          Supreme Court of Texas
                           ══════════
                            No. 22-0558
                           ══════════

 Scott & White Memorial Hospital d/b/a Baylor Scott & White
 McLane Children’s Medical Center a/k/a Baylor Scott & White
                          Health,
                              Petitioner,

                                   v.

                     Dawn M. Thompson, R.N.,
                             Respondent

   ═══════════════════════════════════════
               On Petition for Review from the
       Court of Appeals for the Eighth District of Texas
   ═══════════════════════════════════════

                      Argued October 5, 2023

      JUSTICE BOYD delivered the opinion of the Court.

      Various Texas statutes prohibit employers from taking adverse
employment actions against employees who engage in certain protected
conduct. We have held these statutes impose a “but for” causation
requirement, meaning an employer may violate the statute even if the
protected conduct is not the sole reason the employer takes the adverse
action, but only if the employer would not have taken the action when it
did if the employee had not engaged in the protected conduct. In this
case, a nurse who reported concerns of child abuse or neglect to Texas
Child Protective Services (CPS) alleges that her employer terminated
her in violation of Section 261.110(b) of the Texas Family Code. We hold
that, like the similar statutes we have previously addressed, Section
261.110 imposes a but-for causation requirement. We further hold that
the summary-judgment evidence in this case conclusively established
that the employer would have terminated the nurse when it did even if
she had not reported her concerns to CPS. We therefore reverse the court
of appeals’ judgment and reinstate the trial court’s summary judgment
in the employer’s favor.
                                 I.
                             Background

      Dawn Thompson worked as a registered nurse at Scott & White
Memorial Hospital. In 2015, she received two written reprimands for
violating Scott & White’s personal-conduct policy. In May, after she
raised her voice and used profanity during an argument with a
coworker, she was cited for unprofessional and disrespectful conduct
and warned that any future violation may result in corrective action up
to and including termination. In October, after several additional
“disruptive” incidents culminated in “argumentative and disrespectful”
conduct towards a physician, she was cited and warned that any future
violation “will result in separation from employment.” Thompson
testified that, although she disagreed that she should have received the
second reprimand, she understood that a third violation would result in
termination.




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       The third and final incident occurred in May 2016. Thompson
learned that the divorced parents of a child patient were each having
the child treated by a different neurologist, and she became concerned
the parents were not properly managing the child’s medications.
Without discussing her concerns with the parents, Thompson called the
child’s school nurse and engaged in a conversation in which she disclosed
the child’s protected health information. Although the parents had
previously signed a form authorizing the hospital to disclose such
information under limited circumstances, the authorization expired a
month earlier. After the school nurse advised her that the child’s
“behavior issues” had increased, Thompson spoke to a supervisor who
told her to report her concerns to CPS, which she did. The child’s mother
learned of the CPS report and complained to the hospital. After the
hospital’s subsequent investigation revealed Thompson’s calls and
disclosures to the school nurse, it terminated Thompson’s employment.
       Thompson sued Scott & White for violating Family Code Section
261.110(b).1 Scott & White moved for summary judgment, arguing it
terminated Thompson for committing a third violation of the personal-
conduct policy by disclosing the child’s protected health information to


       1 Thompson also asserted claims under the Texas Health & Safety Code

and the Texas Occupations Code. See TEX. HEALTH & SAFETY CODE § 161.134
(prohibiting hospitals from terminating an employee for reporting a violation
of law); TEX. OCC. CODE §§ 301.4025 (prohibiting a nurse’s employer from
terminating a nurse who reports a failure of care causing substantial risk to a
patient), .413 (prohibiting retaliation against a nurse who makes a report
under Section 301.4025). After the trial court granted summary judgment for
Scott & White on all of Thompson’s claims, she filed a motion for new trial only
on the claim under Section 261.110(b). The court of appeals affirmed the
summary judgment on the other claims, and they are not now before us.




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the school nurse and it would have terminated her for that reason even
if she had not made the report to CPS. The trial court granted summary
judgment in Scott & White’s favor, but the court of appeals reversed.
659 S.W.3d 83
 (Tex. App.—El Paso 2022). We granted Scott & White’s
petition for review.
                                   II.
                       Family Code Section 261.110

      The Texas Family Code promotes “a strong policy to protect
children from abuse by requiring ‘a person having cause to believe that
a child’s physical or mental health or welfare has been or may be
adversely affected by abuse or neglect by any person’ to ‘immediately
make a report’ to the proper authorities.” Golden Spread Council, Inc.
No. 562 of Boy Scouts of Am. v. Akins,
926 S.W.2d 287, 291
 (Tex. 1996)
(quoting TEX. FAM. CODE § 261.101(a)). A “professional” who works with
children2 and “has reasonable cause to believe that a child has been
abused or neglected or may be abused or neglected” has a nondelegable
duty to report that concern within forty-eight hours. TEX. FAM.



      2 The statute defines “Professional” to mean


      an individual who is licensed or certified by the state or who is
      an employee of a facility licensed, certified, or operated by the
      state and who, in the normal course of official duties or duties
      for which a license or certification is required, has direct contact
      with children. The term includes teachers, nurses, doctors, day-
      care employees, employees of a clinic or health care facility that
      provides reproductive services, juvenile probation officers, and
      juvenile detention or correctional officers.

TEX. FAM. CODE § 261.101(b); see id. § 261.110(a)(2) (giving the term “the
meaning assigned by Section 261.101(b)”).




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CODE § 261.101(b). To encourage such reports by protecting those who
make them, Section 261.110 prohibits an employer from taking any
adverse employment action against “a person who is a professional and
who [makes the report] in good faith.” Id. § 261.110(b).3
       A professional who believes she has been retaliated against in
violation of Section 261.110(b) may sue her employer for injunctive relief
or damages or both. Id. § 261.110(c). The professional bears the burden
of proving the claim, “except that there is a rebuttable presumption that
the plaintiff’s employment was . . . terminated . . . for reporting abuse or
neglect if the . . . termination . . . occurs before the 61st day after the
date on which the person made a report in good faith.” Id. § 261.110(i).4
As an “affirmative defense,” the employer may establish that it “would
have taken the action against the employee that forms the basis of the



       3 The statute also protects a professional who “initiates or cooperates

with an investigation or proceeding by a governmental entity relating to an
allegation of child abuse or neglect.” TEX. FAM. CODE § 261.110(b). Thompson
has not argued that this prong applies to her.
       4 The parties agree that this rebuttable presumption applies under
these facts because Scott & White terminated Thompson’s employment less
than sixty days after she made the child-abuse report to CPS. But on summary
judgment, Thompson cannot rely on the presumption to create a fact issue and
shift the burden to Scott & White to negate the presumption. See Chavez v.
Kan. City S. Ry. Co.,
520 S.W.3d 898, 900
 (Tex. 2017). The presumption, in
other words, “does not shift the burden of proof and stands only in the absence
of evidence to the contrary.” City of Fort Worth v. Johnson,
105 S.W.3d 154, 163
 (Tex. App.—Waco 2003, no pet.) (citing Tex. Nat. Res. Conservation
Comm’n v. McDill,
914 S.W.2d 718, 723
 (Tex. App.—Austin 1996, no writ))
(discussing the Texas Whistleblower Act). Once Scott & White produced
evidence that it did not terminate Thompson’s employment for reporting abuse
or neglect, the analysis “proceeds as if no presumption ever existed.”
Id.




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suit based solely on information, observation, or evidence that is not
related to the fact that the employee reported child abuse or neglect.”
Id.
 § 261.110(k).5
       The statute does not explicitly describe the standard of causation
a plaintiff must prove to establish a violation. It does provide some
guidance, however, by prohibiting adverse actions against a professional
“who” files a report in good faith, creating a presumption that the
adverse action was taken “for” filing the report, and providing a defense
when the employer would have taken the action “based on” conduct
other than the report. Id. § 261.110.
       Construing similar statutes that provide similar protections
using similar language, we have consistently held that, for a violation to
occur, the protected conduct “need not be the employer’s sole motivation”
for the adverse action “but it must be such that without” the protected
conduct the adverse action “would not have occurred when it did.” Tex.
Dep’t of Hum. Servs. v. Hinds,
904 S.W.2d 629, 631, 633
 (Tex. 1995)
(construing the Texas Whistleblower Act, which prohibits adverse
actions against an employee “who in good faith reports a violation of
law” and establishes a presumption that the action was “because the


       5 Although Scott & White contends that the evidence conclusively
established that it would have terminated Thompson for disclosing protected
health information even if she had not made the report to CPS, it did not rely
on this affirmative defense and instead argued that these facts prevented
Thompson from bearing her burden of establishing that Scott & White
terminated her “for” making the report. Thompson has not argued that Scott
& White can raise this argument only by relying on the statutory affirmative
defense, and neither party addresses the relationship between the causation
standard and the affirmative defense. We thus decline to consider or address
that issue in deciding this case.




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employee made the report”).6 Under this causation standard, the
evidence must establish that the employer would not have taken the
adverse action “but for” the professional’s 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.
Id. at 631
.
       Consistent with these decisions, we hold—and the parties appear
to agree—that Section 261.110 also requires a but-for causal connection
between the employee’s protected conduct and the adverse employment
action. Applying this standard, Thompson contends that Scott & White
terminated her employment, at least in part, because she reported her
child-abuse concerns to CPS. Scott & White, however, contends that it
fired Thompson because she violated the personal-conduct policy a third
time by disclosing the child’s protected health information to the school
nurse7 and it would have terminated her when it did for that reason

       6  See also Apache Corp. v. Davis,
627 S.W.3d 324
, 339 (Tex. 2021)
(construing Texas Labor Code Section 21.055, which prohibits employers from
retaliating against a person “who” opposes a discriminatory practice); Cont’l
Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444, 451
 (Tex. 1996) (construing Texas
Labor Code Section 451.001, which prohibits discrimination against an
employee “because” the employee filed a workers’ compensation claim).
       7 Thompson’s supervisor concluded the disclosure violated “HIPAA,” the

federal Health Insurance Portability and Accountability Act of 1996, Pub. L.
No. 104–191, § 262,
110 Stat. 1936
, 2021–31 (codified as amended at 42 U.S.C.
§§ 1320d to 1320d–8 (2006)). The “privacy rules” enacted under HIPAA’s
authority generally “prohibit the disclosure of protected health information
except in specified circumstances.” In re Collins,
286 S.W.3d 911, 917
 (Tex.
2009). “A person who discloses protected health information in violation of the
privacy rule is subject to a fine of up to $50,000, and imprisonment of no more
than a year, or both.”
Id.
 (citing 42 U.S.C. § 1320d–6 (2006)). We have received
an informative amicus brief from the Texas Nurses Association and the Texas




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even if she had not made the report to CPS. Because the trial court
dismissed Thompson’s claim on summary judgment, she argues that the
summary-judgment evidence creates a fact issue on Scott & White’s
reasons for terminating her employment and thus fails to conclusively
establish that Scott & White did not terminate her for making the CPS
report.
                               III.
                    Summary-Judgment Evidence

       Because Scott & White moved for traditional summary judgment,
it bore the burden to negate at least one element of Thompson’s claim.
See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of Crim. Just.,
148 S.W.3d 374, 381
 (Tex. 2004) (citing Randall’s Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644
 (Tex. 1995)). The only element the parties dispute is
causation. Scott & White contends it negated that element by
demonstrating a legitimate basis for terminating Thompson: her third
violation of the personal-conduct policy by releasing protected health
information to the school nurse. According to Scott & White, whether
the CPS report was a possible “additional reason” for her termination is



School Nurses Organization contending Thompson’s disclosure in fact did not
violate HIPAA. But the question before us is whether the evidence conclusively
establishes that Scott & White would have terminated Thompson when it did
for disclosing information to the school nurse even if Thompson had not made
the report to CPS. Whether Thompson’s disclosure was in fact legal or illegal
is irrelevant to that question, and we pass no judgment on the issue. See
Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,
547 F. App’x 484, 490
(5th Cir. 2013) (“The relevant question is not whether an employer’s proffered
reason was justified but rather ‘whether [the employer’s] perception of [its
employee’s] performance, accurate or not, was the real reason for her
termination.’” (quoting Laxton v. Gap Inc.,
333 F.3d 572, 579
 (5th Cir. 2003))).




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irrelevant because it would have fired Thompson at that time regardless
of whether she made the CPS report.
      In response, Thompson argues that she created a fact issue by
providing evidence that Scott & White terminated her, at least in part,
because of her CPS report. In support, she relies on just one piece of
evidence: the Employee Counseling Form that Scott & White completed
and provided to her when she was terminated. This document states
that Thompson’s employment is being terminated, describes the
“Primary Nature” of the “Issue” that led to termination as a “Policy
Violation,” and describes the “Secondary Nature” of the “Issue” as
“Performance.” Then, under a section labeled “Describe the Incident or
Issue,” the document states:
      On 5/10/2016, [Scott & White] received complaint of Dawn
      M[.] Thompson 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.

      In the next section, labeled “Expectations,” the document states:
      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 a patient’s
      rights under HIPAA to share information with outside
      parties without a current [Release of Information].

      Thompson contends that the middle sentence of the second
section—“Furthermore a CPS referral was made without all details
known to Ms. Thompson.”—establishes in Scott & White’s own words
that, even if it terminated her because of her disclosure to the school




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nurse, it also terminated her because she reported her concerns to CPS.
According to Thompson, the form’s reference to the CPS referral
establishes that Scott & White terminated her for both reasons and thus
creates a fact issue as to whether the CPS referral was a but-for cause
of her termination.
      This argument, however, addresses only half of the but-for
causation standard. It is true that, under that standard, Thompson need
not prove that her report to CPS was the “sole” reason for her
termination, and the fact that Scott & White also terminated her for an
additional reason would not prevent her from establishing the necessary
causation. See Hinds,
904 S.W.2d at 631
. But the causation standard’s
second half requires her to prove that the additional reason, standing
alone, was insufficient to cause Scott & White to fire her when it did. As
we explained in Hinds, “the report need not be the employer’s sole
motivation, but it must be such that without it the discriminatory
conduct would not have occurred when it did.”
Id.
      Here, the Employee Counseling Form itself establishes that
Scott & White would have terminated Thompson for disclosing
information to the school nurse regardless of whether she made the
report to CPS. The first section makes this clear, stating that
Thompson’s “inappropriate[]” contact with the school nurse was “a
violation of HIPAA and patients[’] rights” and “[a]s a result of this
violation [Thompson’s] employment is being terminated immediately.”
[Emphasis added.] And the second section confirms this, repeating that
Thompson “contacted a school nurse without a [Release of Information]”
and explaining that “[i]t is a violation of a patient’s rights under HIPAA




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to share information with outside parties without a [Release of
Information].” These statements establish that Thompson was fired “as
a result” of her disclosures to the school nurse, despite the additional
reference to her CPS referral.
      Beyond the Employee Counseling Form, additional evidence
further establishes that Scott & White would have fired Thompson when
it did because of her contact with the school nurse. The second written
reprimand only seven months earlier warned Thompson that a third
violation “will” result in termination, and Thompson conceded in her
deposition testimony that she was aware of that warning. Indeed, she
testified that she believed a hospital administrator “wanted [her]
terminated” and was looking for a reason to find a third violation
because of an altercation they had in 2015, long before she called the
school nurse or made the report to CPS. And when asked why hospital
employees would be motivated to retaliate against her for making the
CPS report, she testified, “I don’t think they were.”
      We conclude the evidence establishes that Thompson’s contact
with the school nurse motivated Scott & White to terminate her
employment when it did. Thompson offers no evidence to dispute that
conclusion. Instead, she contends that the evidence establishes that
Scott & White also terminated her because she made the CPS report.
But that evidence does not contradict the evidence that Scott & White
would have terminated her when it did because of her contact with the
school nurse. Without evidence that she would not have been terminated
when she was “but for” the CPS report, she cannot establish a violation
of Section 261.110. See Apache, 627 S.W.3d at 338 (“Because Apache and




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Davis agree that unapproved overtime was an undisputed basis for her
termination, there could be no evidence that she would not have been
terminated but for her email.”); Cont’l Coffee,
937 S.W.2d at 451
 (“If an
employee’s termination is required by the uniform enforcement of a
reasonable . . . policy, then it cannot be the case that termination would
not have occurred when it did but for the employee’s [protected
conduct].”). As a result, Thompson has produced no evidence to create
an issue on causation in her claim for retaliation under Family Code
Section 261.110, and summary judgment in favor of Scott & White was
proper.
                                 IV.
                              Conclusion

      While the amount of evidence needed to survive a claim for
summary judgment is certainly lower than that needed to ultimately
prevail on a claim for retaliation, the claimant must nevertheless
produce evidence sufficient to create a fact issue. Scott & White’s
evidence conclusively established that it would have terminated
Thompson’s employment when it did because of her disclosures to the
school nurse and thus conclusively negated the causation element of
Thompson’s claim under Section 261.110. We therefore reverse the court
of appeals’ judgment and render judgment reinstating the trial court’s
order granting summary judgment in favor of Scott & White.



                                        Jeffrey S. Boyd
                                        Justice

OPINION DELIVERED: December 22, 2023




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