Ludivina Estrada v. Michael Wallace

Case: 15-41341 Document: 00513888930 Page: 1 Date Filed: 02/24/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-41341 FILED

February 24, 2017

Lyle W. Cayce

LEANN STARNES, Clerk

Plaintiff - Appellant

v.

MICHAEL G. WALLACE; MICHAEL A. RICH; DONNA RICH; SHERRI

CUNNINGHAM; DONNA MAREZ; DAYBREAK PARTNERS, L.L.C.;

DAYBREAK VENTURE, L.L.C.; DAYBREAK HEALTHCARE,

INCORPORATED; DAYBREAK THERAPY, L.L.C.; HEA MANAGEMENT

GROUP, INCORPORATED; COLD SPRING HOLDINGS, L.L.C.; CANYON

RIVER HOLDINGS, L.L.C.; DENTON RIVER HOLDINGS, L.L.C.; SEVEN

FALLS HOLDINGS, L.L.C.; RED PINE HOLDINGS, L.L.C.,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

The Fair Labor Standards Act (FLSA), passed during the New Deal to

set a federal minimum wage for certain workers, is one of the earliest federal

statutes to contain the antiretaliation provisions that in the years since have

become common in employment laws (the contemporaneous National Labor

Relations Act is another early example). The plaintiff brought this case

contending that the antiretaliation provision was violated when she was

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terminated after raising concerns about whether a coworker’s pay complied

with the FLSA. We decide whether there is sufficient evidence in support of

her claim to reach a jury. We also consider whether a Texas statute dealing

with health facilities prohibits retaliation for reporting FLSA violations.

I.

LeAnn Starnes worked at Daybreak Ventures, L.L.C., a company that

employs thousands of individuals to work at nursing homes in Texas. 1 Starnes

was a Risk Manager in the corporate office, which involved investigating work-

related injuries and reviewing any liability for the company, providing

information to the Texas Workforce Commission, reviewing and denying work-

related injury claims, working on the opposition statements for EEOC

discrimination cases, and attending mediation for lawsuits when they involved

the Risk Management Department.

Sometime in late October or early November of 2010, coworker Ludy

Estrada complained to Starnes that Daybreak was not paying Estrada’s

husband Vincent, a maintenance worker, for his travel time or overtime.

Although Starnes reviewed the information Ludy 2 provided, she referred Ludy

to Andy Shelton who was the Director of Human Resources because Starnes

believed FLSA claims were handled exclusively by his department. Ludy

refused to speak to Shelton, expressing concern that she might lose her job if

she reported the violation. Starnes then met with Shelton herself on Ludy’s

behalf. During the meeting, which took place just a few days after Ludy had

approached Starnes, Starnes told Shelton that Daybreak was “violating the

1 Because of the summary judgment stance, this recitation takes facts in the light

most favorable to Starnes.

2 We refer to the Estradas by first name because both Ludy and Vincent are mentioned

throughout the opinion.

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law by the way [it was] paying Vincent.”

Before New Year’s, Daybreak President Mike Rich pulled Starnes aside

to discuss Vincent’s situation. Starnes again reiterated that “it looked to [her]

like Daybreak was breaking the law” by the way it was paying Vincent. Rich

assured her that they would resolve the situation.

The sequence of the events that followed is disputed, but around this

time, Daybreak began requiring each employee to sign a job description.

Starnes’s own “Job Description” was dated October, 25, 2010, but she did not

sign it until March 11, 2011. According to this document, Starnes was required

to report “all allegations and findings related to violations of Federal and State

law including Anti-Kickback and fraud.” This differs from an earlier “Job

Analysis” of Starnes’s position, which appears to be written by Starnes herself

and describes the amount of time she spent on various duties, none of which

involved reporting violations of law.

Daybreak also began reclassifying maintenance workers like Vincent

Estrada from salaried employees to hourly ones who are covered by the FLSA.

Despite the reclassification, Vincent’s claim for backpay remained unresolved

for most of 2011. Moreover, Daybreak was still not paying Vincent for his

travel time.

In November 2011, Ludy became frustrated that Vincent’s claim still had

not been resolved. She went to Shelton, the HR Director, and demanded that

Vincent be paid. Shelton asked her to put the request in writing so that it

could be presented to Rich. The Estradas ultimately requested $68,713.38 in

owed wages, and Shelton told Ludy that he would relay the request to Rich.

On December 9, 2011, Rich called Ludy into his office to talk about the amount

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of Vincent’s request. 3 Starnes, who had not had any involvement with the pay

dispute in the year since she had reported it to HR and discussed it with Rich,

was not present. Yet Rich indicated during the negotiations that he believed

that Starnes “was to blame” for the problems with Vincent’s wage claim. The

discussion between Rich and Ludy became “heated” because they disagreed as

to whether the law required payment for Vincent’s travel time. The

conversation was so loud that Starnes could overhear Rich’s angry raised voice

from her own office. After Ludy became visibly upset during the meeting, Rich

agreed to resolve Vincent’s claim and assured Ludy that she would not lose her

job. The last week of 2011, Daybreak finally settled its dispute with Vincent

for $40,000.

Just ten days later, on January 6, 2012, Daybreak laid off five employees,

including Starnes and Ludy, purportedly due to financial difficulties related to

cuts in Medicaid reimbursement rates. Yet one of these employees, Rich’s son,

had already accepted another position with a different company before being

“let go.” Two other employees were soon rehired in different positions within

Daybreak.

The two who were left without a job, Starnes and Ludy, then filed this

lawsuit asserting claims for retaliation under both the FLSA and section

260A.014(b) of the Texas Health and Safety Code, which regulates nursing

homes. Daybreak filed a 12(b)(6) motion that sought dismissal of the state law

claim and also sought a ruling that damages for emotional distress and

punitive damages are not available under the FLSA retaliation provision. The

district court granted that motion in full.

3 Starnes’s affidavit states that this meeting took place in December 2012, but given

that it clearly indicates that Starnes was still working there at the time and that it was before

the 2011 holidays, it is apparent that she meant to say December 2011.

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After discovery, Daybreak moved for summary judgment on liability

under the FLSA. The district court denied the motion with respect to Ludy. It

found that she had established a prima facie case of retaliation and that a jury

could conclude that the “cost cutting” justification for her termination was

pretextual primarily because she and Starnes were the only employees who

wanted to stay, but were “permanently let go” as a result of the supposed

downsizing. The district court reached a different result as to Starnes, finding

that she could not establish a prima facie case for two reasons. First, it

concluded she did not engage in protected activity because she did not act

outside her job duties in reporting the wage dispute. Second, it concluded that

she could not establish causation because more than a year elapsed between

her reporting activity and termination.

Ludy settled with Daybreak before trial. Starnes timely appealed all of

the district court’s rulings except the one about punitive damages.

II.

We begin with our de novo review of the district court’s summary

judgment ruling on the FLSA retaliation claim, viewing the evidence “in the

light most favorable to the non-moving party.” Gray v. Powers, 673 F.3d 352,

354 (5th Cir. 2012). We will affirm summary judgment only “if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

As with most federal employment statutes that require a showing of

improper motive for which direct evidence is usually lacking, courts evaluate

FLSA retaliation claims relying on circumstantial evidence under the

evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir.

2008). The first question is whether Starnes has made a prima facie showing

of: (1) participation in a protected activity under the FLSA; (2) an adverse

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employment action; and (3) a causal link between the activity and the adverse

action. Id. If she has, the burden then shifts to Daybreak to articulate a

legitimate, nonretaliatory reason for the adverse action. Id. Once it has done

so, then the burden shifts back to Starnes to identify evidence from which a

jury could conclude that Daybreak’s proffered reason is a pretext for

retaliation. Id.

A.

As to Starnes’s prima facie case, the parties do not dispute that her

termination was an adverse action, but they disagree about the protected

activity and causal link elements.

To engage in protected activity, the plaintiff must make a “complaint.”

Hagan, 529 F.3d at 626. We have held that:

In order for an employee’s communication to constitute a

“complaint,” the “employer must have fair notice that an employee

is making a complaint that could subject the employer to a later

claim of retaliation” and the “complaint must be sufficiently clear

and detailed for a reasonable employer to understand it, in light of

both content and context, as an assertion of rights protected by the

[FLSA] and a call for their protection.”

Lasater v. Tex. A & M Univ.-Commerce, 495 F. App’x 458, 461 (5th Cir. 2012)

(per curiam) (quoting Kasten v. Saint–Gobain Performance Plastics Corp., 131

S. Ct. 1325, 1334–35 (2011)). We have also explained that such an assertion

of rights requires that an employee step outside of his normal job role and

assert a right adverse to the company. 4 Hagan, 529 F.3d at 627. Because a

4 The Ninth Circuit has held that Kasten requires a slightly different standard than

the “manager rule” used in Hagan. Rosenfield v. GlobalTranz Enters, Inc., 811 F.3d 282,

287–88 (9th Cir. 2015). The Ninth Circuit thus requires that the plaintiff’s complaint be

“sufficiently clear and detailed for a reasonable employer to understand it, in light of both

content and context, as an assertion of rights protected by the statute and a call for their

protection.” Kasten, 131 S. Ct. at 1335. However, it has acknowledged that its rule, which

treats the plaintiff’s job duties as “one consideration” in determining whether an employee

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manager’s job duties often include “being mindful of the needs and concerns of

both sides and appropriately expressing them” when it comes to pay issues,

merely voicing such concerns does not constitute sufficient notice that the

manager is asserting rights. Id. at 628.

We thus refused to find that a manager of satellite television technicians

acted adversely to his employer when he asked an HR Manager to speak with

technicians who had raised questions about the legality of new pay practices.

See Hagan, 529 F.3d at 629–30. The Hagan manager never advocated on

behalf of his or other technician’s statutory rights. He did not even think there

was any unlawful policy and was so uninterested in the matter that he did not

attend the meeting HR had with the technicians or otherwise follow up with

HR to determine whether the change was, in fact, legal. Id. at 629–30.

Starnes’s communications went much further than that of the field

service manager in Hagan. She did not merely relay concerns of others that

Daybreak’s actions might be illegal; instead she asserted on at least two

separate occasions—first to HR and then in response to the company

president—that Daybreak was “violating the law” by not paying Vincent for

travel time or overtime.

Despite Starnes unequivocally expressing the view that her employer

was violating the law, the district court concluded that her conduct did not

involve stepping outside her role as Risk Manager. It relied on the Job

Description dated October 25, 2010, which states that Starnes investigates and

reports to President Rich all violations of federal and state law, including FLSA

violations. But factual disputes surrounding whether the Job Description

applied at the time Starnes made her report to HR make it an inappropriate

gives fair notice, and our manager rule “likely are consistent.” Rosenfield, 811 F.3d at 287.

And we have continued to apply the language both from Hagan and Kasten consistently. See

Lasater, 495 F. App’x at 461.

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vehicle to warrant judgment as a matter of law. Starnes stated that she alerted

Shelton to Vincent’s wage issue as early as late October 2010; thus, her report

may have been made before Daybreak even created the Job Description. There

is no evidence about when the new description was delivered to Starnes, and

Starnes did not even sign it until March 2011—several months after her initial

report. Daybreak points out that she did not object to the description, but that

does not rule out that it contained new responsibilities. Indeed, the earlier

created Job Analysis does not mention reporting violations of law.

Other evidence reinforces the view that there is a genuine dispute about

whether reporting FLSA violations was part of Starnes’s duties. Aside from

the Vincent Estrada situation, Starnes never dealt with a pay issue during her

tenure as Risk Manager. Her primary responsibility involved insurance and

workers compensation claims. And Starnes’s conduct in handling the Vincent

Estrada issue corroborates her testimony about her responsibilities. She did

not consider the FLSA dispute to be part of her duties, first telling Ludy to take

the issue to HR. When Ludy was afraid to do so, Starnes agreed to talk with

HR. She did not take the issue directly to President Rich, which is what the

Job Description says she should do with compliance issues within her

bailiwick. Starnes’s conduct thus reflects what is typically the case in sizable

companies: a separate HR department handles pay issues.

Unlike the dispute in this case about whether Starnes had any

responsibility for pay issues, the plaintiffs whose cases were dismissed at the

summary judgment stage because they were acting in a “managerial role”

indisputably dealt with pay issues. See Lasater, 495 F. App’x at 459, 462

(Director of the Office of Financial Aid and Scholarships “had the obligation

and the discretion and authority to keep the accumulated comp hours of her

employees[, which were awarded as a substitute for overtime pay] below the

prescribed level” to ensure compliance with the FLSA and university policy);

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McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1481 (10th Cir. 1996) (Personnel

Director responsible for “monitoring compliance with,” among other

employment issues, “wage and hour laws”); Claudio-Gotay v. Becton Dickinson

Caribe, Ltd., 375 F.3d 99, 101 (1st Cir. 2004) (engineer who had to approve

security guard’s “invoices for payment”); 5 Miller v. Metrocare Servs., 2015 WL

477233, at *1, *6 (N.D. Tex. Feb. 5, 2015) (HR Director responsible for ensuring

compliance with employment laws).

Another feature of those cases helps further delineate the line between

the unprotected act of “assist[ing] the company in complying with its

obligations under the FLSA” and the protected act of advocating for a coworker.

Hagan, 529 F.3d at 627. All of the cases just cited involved the plaintiff raising

concerns about the classification of all workers or entire categories of workers.

See McKenzie, 94 F.3d at 1481, 1486–87 (Director complained about the

company’s failure to pay overtime to employees); Claudio-Gotay, 375 F.3d at

102 (plaintiff raised concerns about the guards not being paid overtime);

Miller, 2015 WL 477233, at *1 (HR Director reported that the case

management employees had been misclassified as exempt from the FLSA).

That desire for full compliance with the law for all workers is what one would

expect from a manager “concerned with protecting” his employer. Claudio-

Gotay, 375 F.3d at 102. In contrast, Starnes’s concern was only about

Vincent—even though other maintenance workers were subject to the same

5 Like Hagan, Lasater, McKenzie, and Claudio-Gotay are also cases in which the

employee raised only a “concern” about liability or policy and did not make a definitive

allegation of illegality as Starnes did here. See Lasater, 495 F. App’x at 460 (plaintiff brought

up “concern[s]” about employee comp time violating university policy during a routine audit);

McKenzie, 94 F.3d at 1481 (plaintiff expressed “concerns about the company’s possible FLSA

violations”); Claudio-Gotay, 375 F.3d at 102 (plaintiff was “concerned with protecting [the

company], not asserting rights adverse to [it].”) Allegations of illegality are more indicative

that an employee is acting adversely to his employer than are concerns about liability.

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pay policies (thus the reclassification)—and is thus more akin to “asserting

rights adverse” to the company, id., by advocating “on behalf of [another’s]

statutory rights.” Hagan, 529 F.3d at 630.

We thus conclude that there is a factual dispute about whether Starnes

was stepping outside her ordinary role as Risk Manager and giving fair notice

to Daybreak that she was asserting rights adverse to it.

B.

That brings us to the second reason why the district court found Starnes

could not establish a prima facie case: its conclusion that she could not

establish a causal link because of significant passage of time—more than a

year—between her protected activity and termination. That ruling is

consistent with the closeness our case law requires when proximity between

the protected activity and adverse action alone is being used to establish

causation. See, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471–72

(5th Cir. 2002) (holding that temporal proximity alone furnished insufficient

evidence of causation to withstand motion for judgment as a matter of law

when five months had elapsed). That timing is often all that plaintiffs can

point to in trying to establish causation.

But looking solely at temporal proximity in this case, when nearly

identical evidence of pretext was found sufficient to allow Ludy to establish a

fact issue on the ultimate question of causation, is the “rigid, mechanized, or

ritualistic” application of McDonnell Douglas that the Supreme Court has

warned against. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 6 (2002)

6 Indeed, federal courts’ use of McDonnell Douglas has become so habitual that its

evidentiary framework has been improperly treated as a pleading standard, see Swieriweicz,

534 U.S. at 511 (holding that a plaintiff need not plead a prima facie case as McDonnell

Douglas sets forth a framework for evaluating evidence), and jury instruction, see Walther v.

Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (explaining that jury should not be

instructed using McDonnell Douglas standard).

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(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); see also Gee

v. Principi, 289 F.3d 342, 346 n.3 (5th Cir. 2002) (explaining that temporal

proximity is “part of [the] analysis, but not in itself conclusive” in establishing

the causal link for retaliation (quoting Shirley v. Chrysler First, Inc., 970 F.2d

39, 44 (5th Cir.1992)). Under that framework, the causation requirement for

the prima face case is considered at the initial McDonell Douglas stage, with

pretext evidence being evaluated at the separate final stage. But the big

picture is that both the “causal link” of the prima facie case and the pretext

inquiry are aimed at the ultimate question in a retaliation case: “whether the

defendant discriminated against the plaintiff because the plaintiff engaged in”

protected conduct. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996);

see also McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007)

(describing the ultimate inquiry as whether there is sufficient “evidence from

which the jury may infer that retaliation was the real motive”). The difference

is that the prima facie inquiry is the “much less stringent” causation standard.

Long, 88 F.3d at 305 n.4. We thus recently recognized in the analogous burden-

shifting framework of First Amendment retaliation claims that when plaintiffs

had produced pretext evidence indicating that their employer’s reason for

terminating them was false, they had necessarily satisfied the causation

element of the prima facie case. See Bosque v. Starr Cnty., Tex., 630 F. App’x

300, 304–05 (5th Cir. 2015) (explaining that “attempting to cabin pretext

evidence into the third prong is contrary to other precedent and

commonsense”).

Likewise here, the evidence that the district court found could allow a

finding of pretext for Ludy Estrada—that only she and Starnes, the two

individuals complaining about the FLSA violations, were permanently let go

—also helps establish the “less stringent” causation element of the prima facie

case. If a jury could disbelieve that Daybreak fired Ludy and Starnes for cost-

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cutting reasons, then that would be proof of a retaliatory motive. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“In appropriate

circumstances, the trier of fact can reasonably infer from the falsity of the

explanation that the employer is dissembling to cover up a discriminatory

purpose.”).

And even when it comes to timing, we have recognized that the prima

facie case does not rigidly consider only one form of temporal connection. See

Gee, 289 F.3d at 347 (holding that highly critical comments made about

plaintiff by her former harasser and others with knowledge of the harassment

at selection meeting—over two years after her harassment complaint—

indicated a causal connection between her nonselection for the position and her

protected activity when meeting and nonselection occurred about a month

apart). Although Starnes was terminated more than a year after she engaged

in protected activity, the termination occurred just ten days after Daybreak

paid $40,000 to resolve the problem Starnes raised. The time when funds have

gone out the door may be when the retaliatory impulse is strongest. The

termination also came within a month of the meeting between Rich and Ludy,

in which Rich heatedly blamed Starnes for the dispute over Vincent’s pay.

We thus find that Starnes has established the causal link required to

establish a prima facie case. 7

7 Daybreak argues Starnes is unable to establish the causal link for another reason.

It contends that Wallace, Daybreak’s Chief Financial Officer, terminated her, not Rich. This

means, in its view, there is no evidence Wallace knew about Starnes’s reporting of the Vincent

Estrada wage issue. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.

2000) (explaining that the final decisionmaker must be aware of the protected activity or he

must have been improperly influenced by someone with retaliatory intent). In evaluating

Ludy Estrada’s claim, however, the district court found a factual dispute concerning who

terminated her. We agree with that assessment of the evidence and find there is a similar

dispute as to who terminated Starnes. As the district court noted, there is evidence that Rich

sent out the email announcing which positions were to be eliminated and personally signed

both Plaintiffs’ termination letters. Although Daybreak cites Wallace’s affidavit, in which he

states that the termination decision was made solely by him, the parties’ competing stories

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C.

For many of the reasons just discussed, the same evidence that

supported the district court’s pretext ruling as to Ludy Estrada also establishes

sufficient evidence from which a jury could conclude that Daybreak’s reason

for firing Starnes (financial problems related to Medicaid reimbursement cuts)

was a pretext for retaliation. See Hagan, 529 F.3d at 624. Most compelling to

the district court was that Starnes and Ludy—the two employees who reported

the alleged FLSA violation—were the only employees permanently let go who

wanted to stay at Daybreak. Daybreak counters by arguing that it never filled

either woman’s eliminated position. That may be so, and a jury may agree that

cost-cutting was the true motivation. But a reasonable juror could also find to

the contrary, especially given that the amounts paid for bonuses in 2011 and

the partners’ repeated assurances as late as the fall of 2011 that there would

be no need for layoffs paint a different financial picture.

III.

We next consider the district court’s decision to grant a Rule 12(b)(6)

motion to dismiss the request in Starnes’s complaint for emotional damages if

she were to prove a violation of the FLSA. Until recently, we had never directly

confronted this question, see Adams v. Cedar Hill Indep. Sch. Dist., 2014 WL

66488, at *6 (N.D. Tex., Jan. 8, 2014) (noting that “[t]he Fifth Circuit has not

squarely addressed” this question), and district courts in our circuit were split

on the answer. 8 While this appeal was pending, however, an opinion issued

demonstrate that there is a fact issue as to who terminated Starnes. Our review of the

evidence also indicates a dispute about whether, assuming Wallace was the decisionmaker,

he had knowledge of Starnes’s conduct before she was terminated. And it is undisputed that

Rich had such knowledge.

8 Compare Little v. Tech. Specialty Prods., LLC, 940 F. Supp. 2d 460, 479 (E.D. Tex.

2013) (holding that emotional distress damages are available under the FLSA) and Saldana

v. Zubha Foods, LLC, 2013 WL 3305542, at *6 (W.D. Tex., June 28, 2013) (same) with

Douglas v. Mission Chevrolet, 757 F. Supp. 2d 637, 639–40 (W.D. Tex. 2010) (holding that

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holding that a retaliation victim may recover emotional distress damages

under the FLSA. Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062 (5th Cir.

2016). In accord with Pineda, we conclude that the district court erred by

dismissing Starnes’s request for emotional damages. 9

IV.

In its motion to dismiss, Daybreak also challenged the sufficiency of the

claim Starnes asserts under section 260A.014(b) of the Texas Health and

Safety Code. That section is located in the subtitle dealing with “Licensing of

Health Facilities” and the chapter entitled “Reports of Abuse, Neglect, and

Exploitation of Residents of Certain Facilities.” TEX. HEALTH & SAFETY CODE

ch. 260A. It provides a cause of action to employees who experience:

retaliat[ion] . . . for reporting to the employee’s supervisor, an

administrator of the facility, a state regulatory agency, or a law

enforcement agency a violation of law, including a violation of

Chapter 242 or 247 or a rule adopted under Chapter 242 or 247, or

for initiating or cooperating in any investigation or proceeding of a

governmental entity relating to care, services, or conditions at the

facility.

Id. § 260A.014(b).

emotional damages are not available under the FLSA); Adams, 2014 WL 66488, at *7 (N.D.

Tex. Jan. 8, 2014) (same).

9 Daybreak argues that Pineda did not address its argument that the general “legal

or equitable relief” language of the remedy provision is limited by the examples that follow:

“reinstatement, promotion, and the payment of wages lost.” 29 U.S.C. § 216(b). Because the

listed remedies target economic harm, Daybreak contends this ejusdem generis canon—

meaning words should be interpreted to be “of the same kind”—precludes allowing emotional

damages under the general language. Even if we could use this argument to reconsider

Pineda, Daybreak misapplies this canon. It applies when “general words follow[] an

enumeration of two or more things,” not to a statute like this one that starts with the general

and follows that with specifics. ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 199, 203-205 (2012). Another canon is actually implicated

because the section 216(b)’s specific examples are preceded by the phrase “including without

limitation”: “the verb to include introduces examples, not an exhaustive list.” Id. at 132-33

(emphasis in original) (noting this canon is reinforced when “without limitation” in included).

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We agree with the district court’s conclusion that “a violation of law” in

this statute is limited to violations related to abuse, neglect, or exploitation of

residents at a covered facility and thus does not include whistleblowing on pay

policies. The subtitle and chapter title support that view. See TEX. GOV’T CODE

§ 311.023 (“In construing a statute, whether or not the statute is considered

ambiguous on its face, a court may consider among other matters the . . . title

(caption) . . . .”). So do the surrounding provisions in the chapter which

address, among other issues related to health facilities, requirements and

immunities for reporting acts that might impair the welfare of residents and

criminal penalties for failing to make such reports. 10 Id. §§ 260A.001–017;

Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437 (Tex. 1972) (noting that

“[i]t is a cardinal rule of statutory construction that all sections, words and

phrases of an entire act must be considered together . . . and [that] one

provision will not be given a meaning out of harmony or inconsistent with other

provisions, although it might be susceptible of such construction if standing

alone.”) We recognize, moreover, that it would make little sense for the

legislature to carve out special protection for wage-and-hour whistleblowers in

nursing homes, but not employees of other industries. TEX. GOV’T CODE §

311.023 (allowing courts to consider the “consequences of a particular

construction” in construing a statute). For these reasons, it is not surprising

that not a single Texas court has adopted Starnes’s broad reading of the

statute. McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 474 (5th Cir.

10 Starnes argues that the surrounding provisions support her broad interpretation of

“violation of law.” In support, she cites the incorporation of federal law as part of the

minimum standards by which Texas nursing homes are required to operate and to the

requirement that compliance with applicable federal standards must be shown to obtain a

license. HEALTH CODE §§ 242.001(b), 242.032(c)(2). But these provisions do no more than

reinforce the obvious point that simultaneous compliance with federal and state law is

required—they do not broaden the cause of action created under section 260A.014.

15

Case: 15-41341 Document: 00513888930 Page: 16 Date Filed: 02/24/2017

No. 15-41341

2015) (“[O]ur duty is to apply existing state law, not create it.”). We thus affirm

the holding that the state statute does not provide protection to employees

reporting FLSA violations.

** *

We AFFIRM the district court’s dismissal of Starnes’s claim for relief

under Texas Health and Safety Code section 260A.014, but we REVERSE the

judgment with respect to Starnes’s FLSA retaliation claim and her request for

emotional damages. The case is REMANDED.

16