IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20827

TAMMY JOHNSON

Plaintiff - Appellant

v.

DIVERSICARE AFTON OAKS LLC; DIVERSICARE MANAGEMENT

SERVICES COMPANY; DIVERSICARE LEASING CORPORATION;

ADVOCAT FINANCE INCORPORATED

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Tammy Johnson appeals the district court’s grant of summary judgment

in favor of Diversicare Afton Oaks LLC (“Afton Oaks”), Diversicare Management

Services Company, Diversicare Leasing Corporation, and Advocat Finance

Incorporated (collectively, “Diversicare”). Johnson also appeals the district

court’s denial of her motion for reconsideration and for a new trial. For the

reasons set forth below, we AFFIRM.

I

Johnson was working as the Assistant Director of Nursing at Afton Oaks

when she was alerted by a resident to an incident of resident abuse that had

United States Court of Appeals

Fifth Circuit

F I L E D

February 17, 2010

Charles R. Fulbruge III

Clerk

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No. 08-20827

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occurred two days prior. Johnson approached her supervisor, Pat Petry, about

the incident. Petry told Johnson to start an investigation immediately and to

obtain statements from the employees who had been working during the shift

when the incident occurred. However, when Petry spoke with Johnson the

following day, Johnson admitted to obtaining only one employee statement.

Petry told Johnson that Petry wanted all employee statements under her office

door by the next morning. Johnson failed to comply with this directive, and

Petry suspended Johnson pending an investigation into Johnson’s inability to

complete the report in a timely fashion. Johnson was told that she would be

compensated for her missed work if she was cleared. 

At the conclusion of the investigation, Johnson was invited to return to

work with pay for the days of the suspension. However, Johnson declined to

return to work, as she had already filed this action for retaliation in Texas state

court pursuant to TEX. HEALTH & SAFETY CODE § 242.133, which protects

nursing home employees who report violations of law from adverse employment

actions. Diversicare removed to federal court on the basis of diversity, and

subsequently moved for summary judgment, which the district court granted.

The district court also denied Johnson’s motion to reconsider and for a new trial.

Johnson appeals both decisions.

II

A

Johnson argues that the district court erred in finding that she did not

make a “report” pursuant to TEX. HEALTH & SAFETY CODE § 242.133(b).

Specifically, Johnson contends that the district court improperly made credibility

determinations regarding her testimony in its evaluation of the record on

summary judgment. We review an appeal from an order granting summary

judgment de novo. In re ADM/Growmark River Sys., Inc., 234 F.3d 881, 886

(5th Cir. 2000). Summary judgment is appropriate when, after considering the

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pleadings, discovery, and disclosures on file, along with any affidavits, the court

finds “no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine issue of

material fact exists if the summary judgment evidence is such that a reasonable

jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). The court views all facts and evidence in the light

most favorable to the non-movant. LeMaire v. La. Dep’t of Transp. & Dev., 480

F.3d 383, 387 (5th Cir. 2007). Conclusory allegations or unsubstantiated

assertions are insufficient to show a genuine issue of material fact. Anderson,

477 U.S. at 256.

A court reviewing a summary judgment motion must not weigh the

evidence or evaluate the credibility of witnesses. Boudreaux v. Swift Transp.

Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). However, “summary

judgment is appropriate unless [a] plaintiff can produce significant evidence

demonstrating the existence of a genuine fact issue.” Russell v. Harrison, 736

F.2d 283, 287 (5th Cir. 1984) (citation omitted) (emphasis in original). In a nonjury case, such as this one, “a district court has somewhat greater discretion to

consider what weight it will accord the evidence.” In re Placid Oil Co., 932 F.2d

394, 397 (5th Cir. 1991). When deciding a motion for summary judgment prior

to a bench trial, the district court “has the limited discretion to decide that the

same evidence, presented to him or her as a trier of fact in a plenary trial, could

not possibly lead to a different result.” Id. at 398 (citing Nunez v. Superior Oil

Co., 572 F.2d 1119, 1124 (5th Cir. 1978)). 

B

TEX. HEALTH & SAFETY CODE § 242.133(b) states in pertinent part: 

An employee has a cause of action against an institution, or the

owner or another employee of the institution, that suspends or

terminates the employment of the person or otherwise disciplines or

discriminates or retaliates against the employee for reporting to the

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employee’s supervisor, an administrator of the institution, a state

regulatory agency, or a law enforcement agency a violation of law,

including a violation of this chapter or a rule adopted under this

chapter, or for initiating or cooperating in any investigation or

proceeding of a governmental entity relating to care, services, or

conditions at the institution.

Pursuant to the language of the statute, an employee only has a cause of action

under § 242.133(b) if he or she makes a “report” of a violation of law. We must

determine if anything in the record indicates that Johnson made such a report.

In her brief and in deposition testimony taken eleven months after the

initial incident, Johnson alleges that she phoned the Texas Board of Nurse

Examiners (“TBNE”) for the purpose of making an incident report. However,

this self-serving statement is contradicted by the record. First, in a handwritten

memo dated the same day as the alleged phone call, Johnson stated that she

called TBNE “to ask a question” about how to deal with the nurse who was the

subject of the complaint. In a typed memo later that day, Johnson stated only

that she had “a conversation” with TBNE and that during the course of the

conversation she never mentioned Afton Oaks’ name, nor the name of the nurse

in question, both of which would be necessary in an actual report. Indeed,

Johnson expressly stated in her typed memo that Petry was under the mistaken

impression that Johnson called TBNE to make a report, and that this impression

was, in fact, untrue.

Thus, contrary to her present assertion, Johnson’s own record testimony

indicates that she did not make a report to TBNE. Rather, the record

demonstrates that Johnson was merely contacting TBNE for information about

how to handle the resident abuse investigation. Indeed, the only evidence in the

record that appears to support Johnson’s position that she made a “report” are

her self-serving, conclusory statements in her later deposition testimony. The

district court, as the trier of fact, was permitted to draw inferences from this

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evidence to conclude that Johnson failed to present sufficient evidence of

“reporting” a violation of law within the meaning of § 242.133(b). See Placid Oil,

932 F.2d at 397–98; Nunez, 572 F.2d at 1124.

Johnson also contends that the district court improperly applied the

reporting requirements to § 242.133(b), relying on Town Hall Estates-Whitney,

Inc. v. Winters, 220 S.W.3d 71 (Tex. App.))Waco 2007, no pet.) for support.

However, this case is distinguishable from the instant matter. In Town Hall, a

nurse prevailed on her retaliation complaint for having reported an incident of

alleged sexual abuse of a nursing home resident to her supervisor despite

concerns that the allegation of abuse might be false. The Texas Court of Appeals

found no subjective belief in the veracity of the allegation necessary for a report

to be legitimate. In the instant matter, the issue is not whether Johnson

believed the allegation of resident abuse to be true, but rather whether an actual

report was made. Though Johnson is correct in arguing that § 242.133 does not

require that an employee alleging a retaliation claim adhere to the letter of the

reporting requirements, see id. at 79–80, some sort of report must have been

made to qualify as the basis for a retaliatory action.

Johnson also points to Clark v. Texas Home Health, Inc., 971 S.W.2d 435,

437–38 (Tex. 1998), arguing that liability for retaliation attaches when an

employee is punished for the intent of reporting, even if no report has actually

been made. However, Johnson “must demonstrate a causal relationship between

the retaliatory action and the reporting.” Id.; see also Town Hall, 220 S.W.3d at

81 (applying a “but-for” causation standard in retaliation causes of action). Even

assuming arguendo that Johnson intended to report the nurse when she

contacted TBNE for advice, it does not follow that her intent to report led to her

suspension. Johnson failed to complete her investigation of the incident in a

timely fashion, as she was asked to do by her supervisor. Johnson admitted that

she had not obtained the statements, in contradiction to a direct order to do so.

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As the rationale for Johnson’s suspension was her failure to complete her

investigation of the alleged resident abuse, she has not shown that but for her

conversation with TBNE, she would not have been suspended. Accordingly, the

district court did not err in concluding that Johnson did not make a “report” as

required by § 242.133(b).

III

Johnson argues that the district court erred in denying her motion to

reconsider and for a new trial. We review a denial of a motion for

reconsideration pursuant to FED. R. CIV. P. 59(e) for abuse of discretion. Lake

Hill Motors, Inc. v. Jim Bennett Yacht Sales, Inc., 246 F.3d 752, 757 (5th Cir.

2001). Courts have broad discretion in deciding such motions. Templet v.

HydroChem, Inc., 367 F.3d 473, 482–83 (5th Cir. 2004). A motion to reconsider

based on an alleged discovery of new evidence should be granted only if “(1) the

facts discovered are of such a nature that they would probably change the

outcome; (2) the facts alleged are actually newly discovered and could not have

been discovered earlier by proper diligence; and (3) the facts are not merely

cumulative or impeaching.” Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688,

696–97 (5th Cir. 2003) (citation omitted).

Johnson points to a “newly discovered” letter from the Texas Department

of Aging and Disability Services (“TDADS”) that allegedly supports her having

made a report of the resident abuse incident. However, this document was

produced by Johnson during discovery and therefore should have been part of

the evidence Johnson submitted to the court on summary judgment. Id.

Moreover, the record reflects that the identification number of the report

referenced in Johnson’s letter matches the identification number of a report

created two weeks after Johnson’s initial suspension. Thus, even if Johnson did,

in fact, make this report with TDADS, it would not support a retaliation claim

based on an employment action that occurred two weeks earlier. Consequently,

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Johnson has not presented sufficient grounds for reconsideration of the district

court’s grant of summary judgment, and the district court did not abuse its

discretion in denying her motion.

IV

For the foregoing reasons, we AFFIRM.

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