there are nurses who are employed by the apple e for simmias for more than twenty years each they were instructed by their supervisor to provide particular patient care we stay objective to providing on the basis that they believe the were not qualified under nursing regulations to provide that care and it would not be safe for the patient they were terminated less than sixty days they are about forty four days leaders of this record granted the terminations of their employment they were wrong about the first requests for for treatment training on the second class because it was the second hour press which seemed less offensive to me as a nurse that you would go and take that information and could use it later in life it wasn't like you had to immediately apply well that is that is not how the nurses understood the instruction that they were given them from their surprise a second time right they were actually approached three times i think for their terminations the first time was the verbal instruction to begin treating the patients the second time was in the written corrective action to begin treating the patient on a specific da the third time was in the second written corrective action which included instruction to provide home i'd home he would dialysis treatment as and when instructed to a patient the third time did not include a specific date but the nurses nonetheless understood that the requirement was that they would be required to begin providing the patient the training before they themselves completed the necessary experience on training requirements specific patient that the patient passed away this was just going to be the training for future treatment right well again there's not how the nurses understood the direction there is evidence that the patient was no longer a candid for treatment by the date of thirteen struction there's no evidence that that information was communicated to the nurses and they understood that this was something that they were going to have to do before obtaining the necessary treatment not not after a course of instruction in training instructions of the and in fact the district court part of the district court's rationale for granting summary judgment was that this patient was no longer no longer available there for the district court reason the nurses could not have been terminated for refusing to treat this patient unfortunately there's just no real logical and little basis for that conclusion you know any retaliation case is a retaliation case is based on past conduct not future conduct as of the nurses had in the past within forty five days prior to their terminations objected to this instruction a jury could find that they were terminated for objections that instruction regardless of whether it would have still been possible for them to provide that treatment at something in the future on a you know i think that a good analogy might be a sexual harassment claim you an employee might complain of sexual harassment the employer might terminate the harasser and terminate the employee for complaining of the harassment the employer can say well you would not have been harassed in the future that means we didn't terminate you for just doesn't have any logical foundation and has no foundation in the statu i would like to talk about the the choice of location because i think that's an important issue for texas nurses nurse the mater and nurse kin eunice were licensed in texas they were employed in texas they objected in texas to do the directive from their supervisor and there are employment was terminated in texas so naturally they sued under texas statutes it happens that the particular patient who they were originally directed to provide this treatment to resided in new mexico and the district court held that texas law doesn't apply in this circumstance new mexico one place in that circumstance were different them a different oh well that makes a difference in this case because the nurses sued under texas statutes and so if texas law just doesn't apply in those texas statutes don't apply those texas anti retaliation statutes there is a new mexico kind of common law retaliatory terminations cause of action by the nurses have not stated the cause of action in their in their complaint because this conduct all occurred in texas  district court's decision was based on the nurse licensure compact which is mostly state legislation designed to allow nurses to practice in states other than the state in which they reside they were authorized to practice  mexico they were they had with some kind sometimes called compact licenses permitting them to to practice nursing in the mexico and there's a section of the nurses licensure compact it says that a nurse practicing in a party state must comply with the state practice laws of the state in which the patient is located at the time care is provided but it doesn't follow from that that a nurse is licensed in texas and is practicing new mexico is exempt from texas nursing regulations or taxes competence requirements which she happens to practice outside of the state the nurses understood and even their supervisor understood that if they practice across state lines there was subject to new mexico nursing regulations and taxes everyone the district court in the briefing gets into all these technical issues about you know what you're talking about now about your regulated by what state and of the nursing rules why isn't it just a simple choice of law analysis based on the contacts in the facts involved in the case that where the terminations took place where they were employed it is the simple judge i mean every everything happened in texas the nurses didn't even provide treatment moments ago so so the nurse licensure compaq section stating that the love of the state worker is provided applies at the time care is provided has no obligation because the they didn't provide care if you know going to step further there's nothing at all in the nurse license or compact that purports to describe the law applicable to employers of nurses or to state that employers of nurses are somehow immune from the retaliation statutes of their home state when they send nurses across the border to provide treatment and in another state finally the nurse licensure compact preserves the jurisdiction of the nurse's home state courts between the language of the nurse license or compact relied on by the district court and the district court's decision that texas law does not apply to the nurse conduct or more and more importantly i guess two  conduct in this case the summa you're right texas law applies one of the fact issues the district court missed when it because it alternatively read that there is no fact issue under the texas right  the district court found that there was no evidence of causal relationship between the nurses complaints or their resistance to providing this treatment and the terminations of their employment in fact there's a i think  very strong evidence of a course of conduct in the series of events that draws a strong logical connection between their objections to providing this treatment and the terminations their employment  beginning with the verbal instruction in february twenty third two thousand and sixteen to provide this treatment the nurses right away raised regulatory concerns and patient safety concerns and their supervisor earner's pope who testified that she understood their concerns and even admired their concerns told them that if they did not comply corrective action might follow so from the beginning there was a threat of discipline to the nurses or employment action against the nurses directive from their supervisor they submitted written rebuttals the rebuttals again refer to there but she does give them a couple chances and i would think someone who really wants to get rid of someone because they objected to a demand willing to give them to go first is this one training opportunity they don't like that she gives them a different training opportunity while it was not just training opportunities though it was training opportunities tied to instruction to provide this care before they had the necessary experience to provide this care and that's the problem that's the problem i mean it certainly for cynicism position is that we didn't terminate the nurses for refusing to provide this treatment we terminated the nurses for refusing to participate in this course of training after which they would have had sufficient experience to provide this treatment and the jury might agree with them at trial but that's a jury issue because the jury could also find based on this series of events and the repeated citations of the nurses for insubordination based on their objections to this directive that they were terminated in retaliation  and under texas law we have a a but for causation standard it's but but for cause is not sole cause under texas law and so long as the jury finds that there that they would not  and again you know that there were as you mentioned there were a couple of corrective actions giving the nurses opportunities to participate in training and provide this patient care and the nurses continually responded in opportunity to have the training so they can do this but but the problem is that the percentage is was not offering training in advance of requiring them to do this it was offering training as a part of requiring those them to do this before they were qualified to do this i don't think that's i don't think that with the corrective action whatever you call your honor i respectfully disagree that the third corrective well that there is a second reading corrective action the third corrective action is the terminations document right the terminations document says you're terminated for insubordination and refusing to participate in an ongoing training and your written refusal of a previous instruction that previous written refusal on referred to the patient safety and regulatory concerns that they have been raising all along and their supervisors po testified that she understood these patient safety and regulatory concerns referenced in their written rebuttal to the second corrective action were the same safety and regulatory concerns they've been raising from the and fresenius terminated them based on its own terminations document at least in part for their written refusal expressing his concern eat i mean certainly i think any any employer can understand considering an employee to be insubordinate when the employee refuses the employer's instruction but under texas law a nurse's evaluation of whether a particular treatment is safe or unsafe for a patient and nurses evaluation of whether particular treatment will be grounds for reporting her to the texas nursing board is not subordinate to her employer's instructions texas law protects from making those decisions and a jury could reasonably find in this case based on the evidence as a whole and based on the events support and if you refuse to learn and grow with your job then you're refusing to do your job and that's what this case is about it's undisputed here that it was part of the nurses job to gain competence and competency in all home and so you know we have the claimants here asking to for the the court to order jury toward significant damages and with reference to the underlying standard of care that they claim wasn't met and so at some point we have to be directed to the appropriate standard of care and again the statutory language does in this instance we would look to new mexico now we're not saying that the suddenly the nurses weren't you know subject to the authority of the texas board mexico patients and it's the language that says that when a nurse and that the nurses subject to the law the state the courts and most importantly the discipline and i'm paraphrasing here but the disciplinary process in a state where the carers be provided so it makes no sense if you're planning to treat a patient in new mexico you're going to be looking to even if you haven't started that the care yet your actions are guiding it's your course of action your cursor preparation is going to be guided by what standard would apply when you actually provided the care and the the decision ministry of decision said the appellant sites are not on point and they involve situations where the disciplinary board of another state found there to be misconduct like for example in one case the nurse had d w i eyes in another state in the other case the nurse a stipulated to some sanctions in oklahoma and the texas office of administrative hearings was trying to assess what it would do in light of those sanctions in the interstate and so there's language particularly in it with reference to the case involving the oklahoma the nurse that had restrictions on the license in oklahoma the texas the office of administrative hearings was evaluating is this nurse here trying to evade the restrictions that were placed on placed on them in oklahoma by practicing in texas and it's appropriate in that case to look at several factors to determine what if anything the texas should do to restrict that nurses a practice in the state and one of the factors that they did reference was what one texas law do in this situation but again that's like if it was an issue of misconduct and here the question is what is the appropriate standard of care so it stands to good faith requires some legal or factual basis for their position and in this case they had no legal basis to it for texas law to have to be the guiding standard of care if they had gone to new mexico  to experience this training opportunity are they correct that they would have had to the media tried to apply it to a patient or would there be a time frame within which they could complete adequate training record here and if i could i'm the bomb to i'd like to discuss what the record shows because there's come some confusion here the nurses were asked and it's undisputed that in that very first february twenty third meeting kim pope told them that she would be available on most training days that's a supervised training it's the nurses testified on a need given day when they were performing p t as opposed to  that they were operating independently not meeting guidance from their supervisor doing their own thing this is an entirely situation now their supervisor be undisputed lee available on most training days it's a supervised training for my question that they assert that it would take they say at least four weeks to get trained to go work you know train that patient on the home treatment in new mexico you're saying it wouldn't have taken that way i mean feinstein the question correctly there is there's to provide this service in new mexico i think there are you we need at least four weeks of training and you seem to be saying well the nurses said i'll train you're for a few days here was training but you did say you disagree with them that it took it would take four weeks before they yes how would anyone ever get experience to do something independently if they don't do it under the supervision of an appropriate professional that's what this was the training under the at the time that always are supervise their correct and we've been pointed out in our briefing that texas law defined supervision very specifically in his with a initial instruction from an experienced professional and then period out periodic inspection afterwards of the act and in this course their supervisor herself was qualified to conduct this training had said that she would be available on most training days so this was a supervised training they were not expected to go out and just work on their own in home chemo this was part of their training to gain the experience that they needed this was part of their job at some point they have to learn and grow with their job and this was a course of action designed to help them do that and that's where the the complaint doesn't mirror the testimony in reality again it's undisputed that kim said she would be with them most training days him pope in her absence appropriate clinical support would be provided from other nurses or remote support that exactly means if we're looking to texas law exactly meets the level of supervision required but and here's the big point for simmias has its own policy or practice for nurses working in home he mo that it wants them to have three months experience in that mode texas and a federal law which guides new mexico law says that these nurses could have gone out day one and done this on their own and that's based on their experience in hilo bay alice's and these nurses  the the texas board of nursing requirements and c m s requirements in new mexico follow c m s requirements to be qualified to go ahead and do this training as we were saying their position here has no basis in fact or law and i get the idea that you may you may be entirely right about that if that's not what the district court need based on your saying their complaint was unreasonable they would read that they were not asked to do anything improper they had no basis for thinking it was to look at this train of causation i mean just in a very high level the opponents are they focused their entire argument the complaints that on this new mexico patient and that patient was not available to train as of the date of that second corrective action on march seventeenth  it's not included in the second corrective action itself the language of the first corrective action references the patient that they were to begin training in new mexico and rolled eleventh then by the time of the second corrective action it states participate in trains as scheduled in the future so stated differently there was no patient training scheduled at that time that was imminent everything else in that second corrective action had to do with classroom based instruction which there is no dispute that you know there's no legal issue with that it wouldn't be the classroom instruction was fine and it also related to competency exams that they needed to take before they could provide care so there was nothing to refuse as of the date of shows that this patient was unavailable it's not and sadly this patient did pass away but that's not the reason that the patient was unavailable to train this pope testified that the patient had a scheduled surgery and a vacation that had there's also no pretext here because the nurses hemet rebutted each stated reason for the termination decision and second corrective action had ten items in it that would refresh their humor dialysis skills and things that the opponents admit would not require a report to the nursing of jeopardize patient safety in any way and they claim now that they were willing to learn those things but the record doesn't support that that's an accurate assessment of the record the nurses on that point who cite to their rebuttals and which they are in fact refusing to comply with an aspect of the second corrective action or they cite to miss king on his testimony where she says yes she would have been willing to do classroom based activities but there's nothing showing that they communicated t it says in the briefing here that the appellant cited to i you know extension they've looks to case law interpreting federal employment discrimination laws and without having to decide whether that's appropriate or not i think it's helpful that it's a settled proposition u our employment federal employment law jurisprudence that in a case like this to show pretexts you have heard by each of the stated reasons for that terminations decision and there are ten items in that second corrective action that forms the basis for the termination that then again the nurses have no ill patient safety considerations or anything like no valid excuse for refusing to perform  and i'd really like to walk through how how this played out because it's confusing and hard to understand but on february twenty third when this  want to leave the passive clinic she didn't want to be offended for new mexico stopping issue hopes to train the patient herself a traveler nurse should train the patient and she had insufficient experience in h h d similarly miscue known as said that she wasn't willing to travel she doesn't drive on the freeway she didn't want to leave her apostle patients and she had insufficient training and h h d so just taking us a step back at how things stand on february twenty third there's been no mention of texas law or nursing regulations the nurses have admitted in their depositions and by not referencing it all in their complaints that the safety of their or el paso patients who they were normally treated was not an issue they appropriate coverage could be and the distance between some of these cities in new mexico where many of the nurses peers were having to travel to cover for each other was greater in some instances and what they would have been required to travel to get to las cruces new mexico and as part of their job they're expected to help provide coverage and so in ms pope's declaration you know part of their objection is we're going to be asked to do more than everyone else by the time of their second rebuttal and no one does what would we do well actually the record shows that  they were doing much less work than their peers and ms pope had operated as a peer of theirs for many years and then moved in the other to their position a supervisor i'm shortly before this training request came to be and as she states in her declaration and then you know and in her desk deposition testimony that the nurses did not offer even though they had come back licenses they were not offering to help out in new mexico and that they had a very low patient workload the kim hopes deposition testimony also reveals that there were other nurses who were trained in h d at least one besides herself and s nurses performing both types of home therapies and again these patients had a very low patients and says the max that they could have was twenty and there's the testimony varies between the two beds five to ten is or home how long was a training period a week three weeks two months i'm not sure exactly how long that it would have been but again on any given day they could be asked to cover new mexico that's the area that's part of their job travel they're in trouble  right many people commute such a distance to get to work every day and so as of two twenty three we have no mention of texas law or texas regulations going to the first written or about all the reasons are similar  by this point in time in a meter is not willing to travel my job description doesn't say anything about travel now they're citing fresenius as three months experience requirement again doesn't to be a bandaid for new mexico staffing issues and not enough there's still no mention of texas law or texas nursing regulations now they're just making circular arguments they need to be trains to attend to training it doesn't like that there's no dispute that can poke was going to be there again on most training days and that they knew that ever since february twenty third when this was first presented it was a supervised training how else would you ever get the experience to do something in the penalty so going into the date or the second written rebuttals now this is the the excuses are for l meta that she doesn't want to leave her is the first mention of any sort of legal concerns an unspecified generic in no reference to texas law or anything else it's hard to infer what she means by that and similarly cannot as she says that she prefers p d to h t she has  insufficient training experience excuse me and that she has a concern about patient safety continuity of care and state regulations unspecified state regulations at this point in time there is no patient to train this is the first time they friend mentioned any sort of legal concern that they have about the training and post so at this point in total i mean has raised concerns that story in her deposition she conceded were invalid that she gave to ms pope for not going to do that considered it to be a transparent attempt to get out of a work assignment it's clear these nurses they just didn't want to have anything to do with h h d and they would not have the court concluded that out of this host of admittedly invalid concerns that they gave to their supervisor that she really terminated them because she thought they didn't want to comply with the training didn't comply with texas law it's just not supported by the record it's pure speculation on their part it's not  in good faith so they come in now and say oh we just thought this was about travel or something that's just inconsistent with her testimony and something that the jury is not required to believe and should not have been a basis for summary judgment is some disputed evidence about whether or not the nurses would have been required to provide this patient care independently or whether they would have been supervised that's a disputed issue but the nurses understood that this was to be unsupervised training them as pope said she would be there most days and they understood they would be alone with the patient some days and that that was not safe for the patient  just to get into the regulatory issue a little bit there or there are three types or categories of regulations that are at issue both under new mexico law or under texas law are or federal law which has adopted new mexico one is the one we've talked most about which is the requirement of a certain number of months of experience in a specific modality before a nurse is qualified to independently train a patient in that modality takes require six months federal regulations adopted in new mexico require three months there's a question as to whether the nurses had sufficient to humor dialysis experience within within the centers and whether that qualify them to provide home he more dialysis training but that's only one of the types of regulations at issue the second type requires nursing competence tex's regulations and in new mexico regulations require nurses to be competent to provide the care that they set out to provide and they used nurse incompetence and in deciding whether to accept or reject an assignment and these nurses testified i think an equivocally that they were not competent to provide the care they were instructed to provide the third nursing regulation or category of nursing regulations at issue requires not just competence but demonstrated competence that is nurses are examined and are required prove their competence in specific modalities of treatment of dialla dialysis treatment and the undisputed evidence is that both nurse maid to and nurse  not take testing on home he might dialysis or even on he will try alice's to demonstrate their competency because they have been instructed by their supervisors in past years not to work in that area so it would have violated regulations requiring demonstrated competencies and home he will dialysis for them to walk in on day one his counsel suggested start writing this treatment certainly you know maybe the nurses are wrong the certainly they believed in good faith that it w regulations for them to provide this care or that it would be grounds for reporting them to the texas board of nursing which is all the statute requires and fact and the pope herself testified that these nurses were not qualified to provide home he would dialysis training independently she just disputes whether or not they were instructed to do so independently or whether there would be supervision so again those are factors pieces should go to the jury