AFFIRMED and Opinion Filed July 11, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00501-CV STEPHANIE D. CRAWFORD, Appellant V. TEXAS HEART HOSPITAL OF THE SOU THWEST LLP D/B/A THE HEART HOSPITAL OF BAYLOR PLANO, Appellee On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-16-14418 

### MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Whitehill Stephanie Crawford sued Texas He art Hospital for retaliation a fter the Hospital terminated her employment as an operating room nurse. Following a bench t rial, the trial court entered a final, take-nothing judgment against Crawford. In two issues, Crawfor d argues that the trial court’s judgment was in error because (i) she proved her retaliation ca se and (ii) she established disparate treatment because another similarly situated employee was not d isciplined. A pivotal question is whether undisputed evidence that, despite several prior warnings, the nurse on several occasions viola ted hospital policies is factua lly sufficient to support the trial court’s finding that the hospital terminated the nurse for reas ons other than her reporting alleged poor practices at the hospital. S tated differently, considerin g the evidence as a whole, does the record show that the trial cour t’s fact findings were clearly w rong and manifestly unjust?–2– We do not re-weigh the factfinde r’s credibility determinations. Instead, we conclude that a reasonable factfinder on this r ecord could have reasonably foun d that there was no retaliation in this case. We thus affirm t he trial court’s judgment.
I. B ACKGROUND Crawford, an operating room nurse, sued the Hospital for retali ation under the Nurse Protection Act following her termination. See T EX

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. §§ 301.413(b), 301.4025(b). According to Crawford, the Hospital retaliated against her beca use she reported safety concerns. The Hospital denied Crawford’s allegations and argued that her termination resulted from several policy violations impacting patient safety. Following a bench trial, the trial court dismissed Crawford’s claims with prejudice and entered a take–nothing judgment a gainst her. This appeal follo wed.
II. A NALYSIS A. First Issue: Did the trial court err by determining that Cr awford did not meet her burden to establish retaliation?
1. Standard of Review Crawford’s complaint about the t ake-nothing judgment is essenti ally a challenge to the factual sufficiency of the evidence. We review a trial court’s fact findings under the same legal and factual sufficiency of the evidence standards used when det ermining if sufficient evidence exists to support an answer to a jury question . See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When an appellant with the burden of proof challenges the factu al sufficiency of the evidence on an issue, we consid er all the evidence supporting a nd contradicting the judgment. Plas–Tex, Inc. v. U.S. Steel Corp ., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding f or factual insufficiency only if the finding is so contrary to the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).–3– In a bench trial, the trial cour t, as factfinder, is the sole j udge of the witnesses’ credibility. Wyde v. Francesconi , 566 S.W.3d 890, 894 (Tex. App.—Dallas 2018, no pet.). As lon g as the evidence falls “within the zone of reasonable disagreement,” we will not substitute our judgment for the factfinder’s decisions. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). When, as here, the trial court does not file e xpress findings o f fact and conclu sions of law, we presume the trial court made all necessary findings to suppo rt the judgment. See Pulley v. Milberger , 198 S.W.3d 418, 427 (Tex. App.—Da llas 2006, pet. denied). Consequently, if the trial cour t’s implied findings are support ed by the evidence, we must uphold the judgment on any theory of law applicable to the case

. Sink v. Sink , 364 S.W.3d 340, 344–345 (Tex. App.—Dallas 2012, no pet.). 2. Applicable Law The Nurse Practice Act provides that: A nurse may report to the nurse’s employer or another entity at which the nurse is authorized to practice any situat ion that the nurse has reasona ble cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and preva iling professional practice or to statutory, regulatory, or accreditation standard s . . . . . T EX

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. C ODE § 301.4025(b). A report is made in good faith if the reporting nurse believed that the report was required or authorized and there was a reasonabl e factual or legal basis for that belief. Id

. §301.4011. The act further provides that, “A nurse’s employer may not “su spend, terminate, or otherwise discipline, discrimina te against, or retaliate agains t a person . . . who reports in good faith.” Id . §301.413(b)(1). A person bringing an action under this subsection has the burde n of proof. Id . §301.413(e). If a plaintiff is terminated within sixty days of making a repo rt, there is a rebuttable presumption that the employer retaliated against the plaintiff. Id. But that presumption applies–4– only if the plaintiff asserts his or her claim within sixty day s of being terminated and other factors exist. Id . § 301.413(e). To establish retaliation, a plai ntiff must show that: (i) she e ngaged in a protected activity; (ii) an adverse employment action occurred; and (iii) a causal link existed between the protected activity and the adverse action. See McCoy v. Texas Inst., In c., 183 S.W.3d 548, 555 (Tex. App.— Dallas 2006, no pet.). Although not explicitly stated in the s tatute, to establish a retaliation claim under the Texas Occupations Code, a plaintiff must show that he r “protected behavior was the cause of the employer’s decision to . . . terminate [her] emplo yment . . . when it did.” Almeida v. Bio-Medical Applications of Texas, Inc ., No. EP-16-CV-263-DB, 2017 WL 3841929, at *6 (W.D. Tex. 2017). If a plaintiff establishes a prima facie case of retaliation, t he burden shifts to the defendantemployer to articulate a legitimate, nondiscriminatory purpose for the adverse employment action. Dias v. Goodman Mfg. Co., L.P ., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also McCoy, 183 S.W.3d at 555 (retaliation uses the same burden shifting a nalysis as race discrimination claims). After the employer articulates legitimate, nondiscriminatory re asons, the burden shifts back to the plaintiff to provide that the employer’s articulated rea sons are a mere pretext. See Herbert v. City of Forrest Hill , 189 S.W.3d 369, 375 (Tex. App.—Fort Worth 2006, no pet.).
3. The Evidence Adduced at Trial Here, there is no initial pres umption of retaliation because C rawford does not assert, nor does the record reflect that, she asserted her complaints withi n sixty days of her termination. See
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. C ODE §301.413(e).–5– Crawford worked for the Hospital as a surgical nurse from Septe mber 8, 2014 to March 8, 2016 (when she was terminated). She reported to Erin Glanz, th e surgery and recovery room manager. Courtney Yost was her training manager. During her tenure at the Hospital, Crawford made several proces s improvement suggestions to Glanz and Yost. These suggestions, made via ema il, generally concerned: (i) running out of supplies (November 2014), (ii) issues with the e vening shift (January 21, 2015), (iii) preliminary counting and documentation (April 22, 2015), (iv) timeout difficulties (May 1, 2015), (v) when operating room damp dusting should occur (June 18, 2015), (v) a scrub nurse failing to count concurrently (September 18, 2015), and (iv) co mingling clean and dirty surgical items on the surgical cart (October 26, 2015). Glanz said that she encouraged employees to come to her with ideas or concerns, addressed all of Crawford’s idea s, and often used Crawford’s suggestions as a source of topi cs for staff training meetings. Crawford testified about these c oncerns in detail. She acknowl edged, however, that Glanz told her to enter reports frequently and whenever she felt like it. 1 According to Crawford, Glanz responded to her concerns, her “door was always open,” and she was always available to talk. Crawford said that she never had any issues with Glanz and they had a good working relationship. Glanz was a good manager, very supportive of her, accommodated some attendance issues Crawford had, and was one of the best managers Crawford ever ha d. Crawford also said she did not b elieve that Glanz retaliated ag ainst her. But she changed her mind after she heard Glanz’ s trial testimony, because Glanz “labeled [her] an unsafe nurse” and “presented a whole different a ttitude to [Crawford] than sh e did to the court.”

1 The parties refer to these as MIDAS reports. MIDAS is the el ectronic system used to generate reports at the Hospital, inclu ding audits and incident reports. Anyone who works for the Hospital can enter a MIDAS.–6– Crawford’s first warning, in the spring of 2015, was oral and c oncerned her use of social media. Glanz was not in then, but Crawford was counseled by th e Hospital’s director of surgical services, Larry Pierce. Crawford described the incident as hea ring a doctor tell a funny joke that she hen posted on Facebook. Pierce told her not to post those types of things again. In November 2015, Crawford, at a doctor’s request, administere d a deep sedative drug, Propofol, to a surgical patient i n violation of Hospital policy and the Nursing Practices Act. Crawford admitted that Hospital policy prohibited nurses from a dministering deep sedation medication, without exception. After the Propofol was administ ered, the patient’s heart stopped beating for three minutes and Crawford had to do chest compress ions to save his life. The patient had to be admitted to the ICU and have his surgical procedure r escheduled. Nonetheless, Crawford insisted the patient was not harmed because “he didn’t die.” Then, during a shift-break, Crawford posted about the chest com pressions on Facebook. Crawford admitted that she had been warned about posting on soc ial media and that posting about patient care takes away from a patient’s dignity. Crawford als o admitted that she was aware of the Hospital’s social media policy and that it applied to her. Although she was aware that she was required to document in the nursing record that she had administered the anesthesia, Crawford did not do so. Later , Glanz learned about the incident after Crawford entered a MIDAS report and heard from the charge nurse and supervisor. Glanz described the Propofol inc ident as a “safety issue,” but she did not terminate Crawford at that time because she wanted to give her a second c hance. After consulting with Larry Pierce, on November 20, 2015, Glanz issued Crawford a final war ning for administering the Propofol, posting on Facebook, and failing to document the admi nistration of the Propofol in the nursing record. The warning sai d, among other things, that: “[ f]ailure to exhibit immediate and sustained improvement in all ar eas outlined above or any other unacceptable conduct or–7– performance may result in further corrective action up to and i ncluding separation from employment.” Crawford signed th e warning and understood that f urther infractions could lead to her termination. Crawford said she did not believe that the final warning was re taliatory. In fact, on January 22, she sent Glanz an email saying that Glanz was the best mana ger ever and she did not blame Glanz for the warning. Crawford subsequently had two additional policy violations conc erning patient safety. The first occurred on February 29, 2015 when Crawford mislabeled a patient specimen. Then, on March 1, 2016, Crawford failed to accurately account f or all of the items for which she was responsible during a patient surgery. The patien t’s chest was closed and it was then discovered that the count was incorrect. The missing item was found in the patient’s chest via xray. Thus, the patient had to be re-opened to remove that item , which removal required additional operating room and anesthesia time for the patient. Crawford acknowledged that she h ad been trained on all of the surgical count competencies expected of a circulating nurse . Although she was required to visualize every item as it was counted, Crawford admitted that she had just relied on what the scrub nurse had told her. Glanz also verified that as the circulating nurse, Crawford was respo nsible for keeping the count correct. 2 Consequently, because Crawford made multiple errors that harmed patients and did not follow Hospital policy and procedures, Glanz decided to termina te Crawford. According to Glanz, Crawford’s prior process improvement suggestions did not factor into Glanz’s decision. Instead, she decided to terminate Crawford because she thought Crawford was a risk to patients.

2 Crawford’s version of events varied. She said she left the roo m and returned and was not sure the count was correct. She also said the she became distracted from the count and she it was correct even th ough she was not sure that it was. Regardless, there is no dis pute that Hospital counting policy was not followed.–8– Likewise, Larry Pierce did not recall Crawford’s process improv ement suggestions and said Crawford was terminated because of “a multitude of patient safety incidents.” He did not retaliate against Crawford and ha s no reason to believe that an yone else did so. Crawford offered various excuses for her policy violations, but she never disputed that they occurred. And she failed to establish that “but for” her proce ss improvement suggestions she would not have been terminated. Indeed, there is no evidence t hat anyone involved had a negative attitude about the p rocess improvement sugg estions. Thus, the evidence supports the trial court’s implied finding that Crawford did not meet her burden to prove retaliation. Moreover, the evidence supports the trial court’s implied finding that the Hospital es tablished legitimate, non-retaliatory terminating Crawford. See Dias , 214 S.W.3d at 676. We thus resolve Crawford’s first issue against her. 3 B. Second Issue: Did the court use a proper comparator? Crawford’s second issue argues th at the trial cour t erred becau se she proved that similarly situated employees received disparate treatment. See Ysleta Indep. Sch. Dist. v. Monarrez , 177 S.W.3d 915, 917–18 (Tex. 2005). Employees are similarly situat ed if their circumstances are comparable in all material respects, including similar standard s, supervisors, and conduct. Id. “The situations and conduct of t he employees in question must b e nearly identical.” Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 584 (Tex. 2017). Thus, “[e]mployees with diff erent responsibilities, supervisors, capabilities, work rule violatio ns, or disciplinary records are not considered nearly identical.” AutoZone, Inc. v. Reyes , 272 S.W.3d 588, 594 (Tex. 2008).

3 We need not reach the Hospital’s alternative argument that the judgment should be affirmed because Crawford’s suit is time-ba rred. T EX

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. P. 47.1.–9– Crawford argues that the Hospital treated Alphane McKinney, who was also involved in the improper counting incident, differently than it did her. B ut the record reflects that McKinney was not similarly situated to C rawford for several reasons. First, Crawford and McKinney had different jobs and responsibil ities. McKinney was a non-employee scrub nurse provided to the Hospital through an ag ency. Crawford, however, was a circulating nurse employed by the Hospital. Scrub technician s earn about half as much as a circulating nurse. A scrub technician’s job is to assist the s urgeon on the sterile field; a technician is not capable of doi ng anything on the uns terile field. On th e other hand, a circulating nurse is to remain on the unsterile field a nd verify and document that all surgical items have been accounted for. The circulating nurse is in charge of maintaining the cor rect count. Next, McKinney and Crawford also have different disciplinary h istories. Crawford had received a verbal warning and a final warning before the incide nts leading to the termination, whereas McKinney had no disciplin ary action during the six year s she was assigned to the hospital. Finally, McKinney did not engage in conduct of comparable seri ousness. McKinney counted the sponges with Crawford during the incident in questi on and admitted that the count was not correct. But Crawford was responsible for and in charg e of maintaining the correct count. And for Crawford, this incident occurred in add ition to her rep eated policy violations. Under these circumstances, we conclude that the evidence suppo rts the trial court’s implied finding that McKinney was not sim ilarly situated to Crawford. Crawford’s second issue is resolved against her.–10– III. C ONCLUSION Having resolved all of Crawford’ s issues against her, we affir m the trial court’s judgment.

180501F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–11– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEPHANIE D. CRAWFORD, Appellant

No. 05-18-00501-CV V.

TEXAS HEART HOSPITAL OF THE SOUTHWEST LLP D/B/A THE HEART HOSPITAL OF BAYLOR PLANO, Appellee On Appeal from the 95th District Court, Dallas County, Texas Trial Court Cause No. DC-16-14418. Opinion delivered by Justice Whitehill. Justices Partida-Kipness and Pedersen, III participating.

In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee TEXAS HEART HOSPITAL OF THE SOUTHWEST LLP D/B/A THE HEART HOSPITAL OF BAYLOR PLANO recover its costs of this appeal from appellant STEPHANIE D. CRAWFORD.
Judgment entered July 11, 2019