Senior Living Properties, L.L.C. dba Jeffery Place Healthcare v. Robert James Cole--Appeal from 19th District Court of McLennan County
TENTH COURT OF APPEALS
Senior Living Properties, L.L.C.
dba Jeffery PlaceHealthcare,
Robert James Cole,
From the 19th District Court
McLennan County, Texas
Trial Court No. 2004-1587-1
Robert James Cole sued Senior Living Properties, LLC d/b/a Jeffery Place Healthcare for retaliation under chapter 242 of the Health and Safety Code. The jury found in favor of Cole. In four issues, Senior Living contends that (1) the evidence is legally and factually insufficient to support the jury s retaliation finding; (2) the trial court improperly excluded certain evidence; (3) the trial court improperly submitted a damages question to the jury because the evidence is insufficient to support retaliation; and (4) the cumulative effect of the trial court s errors caused Senior Living to suffer harmful error. In one cross-point, Cole argues that the trial court should have instructed the jury regarding the presumption provided by section 242.133(f) of the Health and Safety Code. We affirm.
In August 1999, Cole, a licensed vocational nurse, became employed with Jeffery Place, a nursing home owned by Senior Living. While employed, Cole told Glenda Fincher, director of nurses, that he believed that a patient was sufficiently independent to perform a certain medical procedure. Fincher told Cole that Jeffery Place could receive more money from the State if the employees handled the procedure. Believing this to constitute fraud and a violation of the law, Cole reported Fincher s conduct to human resource manager Amber Bronson and administrator Darren Long. Around this same time, Jeffery Place had decreased its staff. Cole believed that this caused an inability to timely administer medications to patients and constituted abuse and neglect. Jeffery Place had also changed the patients pharmacies. Cole believed that patients should be allowed to choose a pharmacy and be notified of any changes.
On November 3, 2003, Cole reported his concerns to the Department of Human Services. On November 12 and 13, the Department conducted an investigation at Jeffery Place. The Department investigated several allegations, but could not substantiate Cole s understaffing complaint.
On November 19, corporate nurse consultant Judy Tackett arrived at Jeffery Place to conduct an investigation regarding missing drugs. During her investigation, Tackett discovered that Cole had been arrested and pleaded guilty to a drug charge. Cole s job application stated that he had no criminal convictions. He was on community supervision for the drug charge at that time. That same day, Cole s final community supervision appointment ran late. Tackett noted that Cole had not arrived for his scheduled shift or notified Fincher, his supervisor, that he was running late.
When Cole arrived, Fincher, Tackett and another nurse met with Cole and presented Cole with a memorandum, alleging four grounds for termination: (1) multiple disciplinary actions; (2) failure to report arrests or convictions of crimes; (3) making a false, misleading, or incompetent statement on a job application; and (4) failure to follow policy by arriving late without contacting a supervisor. Cole disputed these allegations and refused to sign the memorandum.
Cole sued Fincher, Long, and Senior Living for retaliation. The trial court granted a directed verdict for Long and Fincher. The jury found that Cole s employment with Jeffery Place was terminated for reporting a violation of law or for initiating or cooperating in any investigation or proceeding of a governmental entity and that his employment would not have been terminated otherwise.
LEGAL AND FACTUAL SUFFICIENCY
In its first issue, Senior Living challenges the legal and factual sufficiency of the evidence to support the jury s retaliation finding.
Standards of Review
A legal sufficiency challenge requires consideration of whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id.
A factual sufficiency challenge to issues on which the appellant did not bear the burden of proof requires us to consider and weigh all of the evidence. Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App. Waco 2000, pet. denied). We may not pass upon the witnesses credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Id. We will reverse the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent s proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Id.
Chapter 242 of the Texas Health and Safety Code governs nursing homes and requires the oral and written reporting of abuse and neglect to the Department of Human Services. See Tex. Health & Safety Code Ann. 242.001(a), 242.122-.135 (Vernon 2001 & Supp. 2006). Failure to report is a Class A misdemeanor. See Tex. Health & Safety Code Ann. 242.122, 242.131. Chapter 242 prohibits employers from retaliating against employees who report a violation of the law to their supervisor, administrator of the institution, state regulatory agency, or law enforcement agency and provides a retaliation cause of action to employees who are retaliated against. See Tex. Health & Safety Code Ann. 242.133(b); see also Town Hall Estates-Whitney, Inc. v. Winters, 220 S.W.3d 71, 76 (Tex. App. Waco 2007, no pet.).
The employee has the burden of proof, but there is a rebuttable presumption that the person s employment was terminated for reporting abuse or neglect if the person is terminated within sixty days after the date on which the person reported in good faith. Town Hall Estates, 220 S.W.3d at 76; see Tex. Health & Safety Code Ann. 242.133(f). Once an employer submits evidence that it would have taken adverse action in the absence of the report, the rebuttable presumption disappears and the plaintiff must submit evidence of causation. Town Hall Estates, 220 S.W.3d at 81; see Tomhave v. Oaks Psychiatric Hosp., 82 S.W.3d 381, 385 (Tex. App. Austin 2002, pet. denied), overruled on other grounds by Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004); Texas A&M Univ. v. Chambers, 31 S.W.3d 780, 784 (Tex. App. Austin 2000, pet. denied).
Senior Living briefly argues that section 242.133(f) s rebuttable presumption does not apply in this case because Cole failed to comply with the statute s reporting requirements. We do not find it necessary to address this issue. Senior Living presented documentary evidence and testimony that it terminated Cole for the reasons outlined in the memorandum of termination and so would have terminated Cole even in the absence of his report. Regardless of whether the presumption applies, Cole bore the burden of proving causation. See Town Hall Estates, 220 S.W.3d at 84.
We apply a but-for causation standard to retaliation cases under section 242.133, which requires the complaining employee to prove by a preponderance of the evidence that the employer would not have terminated his employment when it did but for the employee s report. See Town Hall Estates, 220 S.W.3d at 81. Because of the inherent difficulty of producing direct evidence of an employer s improper motivation for terminating employment, causation may be established by either direct or circumstantial evidence and reasonable inferences from such evidence. Tomhave, 82 S.W.3d at 385-86; see City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000). A non-exclusive list of causation factors includes timing, adverse employment action taken soon after the protected activity; knowledge of the protected activity by employees making the decision to suspend or terminate employment; a negative attitude towards the protected activity; deviation from company policy or disparate treatment of similarly situated employees; and whether the stated reason for employment termination is false or only a pretext. Tomhave, 82 S.W.3d at 386; Zimlich, 29 S.W.3d at 69; Cont l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); Inv. Props. Mgmt., Inc. v. Montes, 821 S.W.2d 691, 694 (Tex. App. El Paso 1991, no writ).
Cole was terminated approximately two and a half weeks after reporting to the Department and less than one week after the Department completed its investigation.
Knowledge of the protected activity by employees making the decision to suspend or terminate employment.
Senior Living s primary contention is that Tackett made the decision to terminate Cole, Tackett denied knowledge of Cole s report, and Cole cannot prove that Tackett knew about the protected activity. Cole argues that Tackett s decision was influenced by Long and Fincher. Senior Living responds that neither Long nor Fincher knew about Cole s report or participated in Tackett s decision to terminate Cole.
While Texas law is sparse on the issue, the Fifth Circuit has specifically addressed the exercise of influence over the ultimate decisionmaker. [I]n determining whether an adverse employment action was taken as a result of retaliation, our focus is on the final decisionmaker. Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (citing Long v. Eastfield Coll., 88 F.3d 300, 306-07 (5th Cir. 1996)). [S]tatements and actions of ordinary employees are normally not imputable to the employer. Id. Nevertheless, when the person conducting the final review serves as the cat s paw of those who were acting from retaliatory motives, the causal link between the protected activity and adverse employment action remains intact. Id. The ultimate question, therefore, is whether the employee can demonstrate that others had influence or leverage over the official decisionmaker. Id. (quoting Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001)). [T]he degree to which [the final decisionmaker s] decisions were based on his own independent investigation is a question of fact. Id. (quoting Long, 88 F.3d at 307).
Cole reported Fincher s conduct to Long, and Long discussed the issue with Fincher. Long and Fincher acknowledged these facts. However, the Department told Cole that it did not handle the type of situations raised by Fincher s conduct and referred Cole to Medicare. Cole made several unsuccessful attempts to contact someone at Medicare. The record does not indicate that the Department, or any other governmental entity, investigated Fincher s conduct.
The record contains conflicting evidence regarding whether Cole reported his understaffing complaint to Long. Amber Bronson testified that understaffing was a common complaint amongst employees. Cole often complained to other nurses. On one such occasion, Long called Cole into his office and stated that he was tired of hearing Cole s complaints about understaffing and everything else that was going on, that Cole should quit if he did not like it, and that this company just doesn t care. Long denied discussing this issue with Cole. Thus, there is some evidence that Long was aware of Cole s understaffing complaint.
Cole testified that he did not hide the fact that he had complained to the Department. The Department s records reflect that understaffing was one of several allegations it investigated. The Department investigator met with several employees, including Cole, Long, and Fincher. After meeting with Cole, the investigator told Cole that she would have to stay an additional day. As a result, the Department spent two days conducting an investigation at Jeffery Place. It would be reasonable to conclude that the Department s interviews addressed the allegations it had come to investigate, including understaffing. This is some evidence that Long and Fincher knew the Department was investigating an understaffing allegation. Fincher denied knowledge of Cole s report, but there is some evidence that Long may have at least suspected that Cole had reported his understaffing concerns to the Department.
Senior Living s interrogatory responses indicate that Long and Fincher were involved in the discussion which led to Cole s termination. Long and Fincher claim that the extent of their involvement amounts to Tackett merely advising them of her decision. Tackett denied consulting with Fincher or Long and testified that she was not influenced by any factor other than those listed in the memorandum.
However, the record reveals several circumstances surrounding Tackett s decision to terminate Cole that could lead the jury to believe that Tackett did not conduct an independent investigation. First, Cole was not working the shift during which the drugs disappeared and did not participate in a drug test. Second, Tackett reviewed the criminal histories of several employees, but admittedly did not review any personnel files other than Cole s. Tackett explained that other employees criminal histories were clean and she had no reason to go any further. Yet, the memorandum does not indicate that Cole was terminated for any reason associated with the missing drugs. Third, Tackett came to Jeffery Place for the sole purpose of investigating the drug diversion, but never identified the person responsible for the missing drugs. After deciding to terminate Cole, Tackett simply ended her investigation. No other employee was terminated as a result of Tackett s investigation.
The timing and circumstances of Cole s termination could lead the jury to reasonably conclude that Fincher and Long played more than a passive role in Cole s termination and that Tackett s decision to terminate Cole was not the result of an independent investigation. See Gee, 289 F.3d at 346; see also Long, 88 F.3d at 307. As the sole judge of the weight and credibility of witness testimony, the jury was entitled to disregard contrary testimony and resolve any evidentiary conflicts in Cole s favor. See City of Keller, 168 S.W.3d at 819.
Nevertheless, citing City of Keller and Marsaglia v. University of Texas El Paso, Senior Living contends that the jury was not entitled to disregard Tackett s testimony that she was not aware of Cole s report and was not influenced by Long or Fincher. Senior Living argues that Cole has merely shown that Tackett might have known about his report, not that she actually knew. This argument ignores the fact that other evidence casts doubt upon Tackett s testimony, and it fails to acknowledge the impact of circumstantial evidence upon a witness s testimony, an issue that neither City of Keller nor Marsaglia address.
Senior Living argues that the evidence is susceptible to a number of inferences but the equal inference rule prohibits the jury from inferring an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). In Hammerly Oaks, the circumstantial evidence presented gave rise to multiple possible inferences. See id. The circumstantial evidence presented in this case gives rise to two possible inferences: (1) Tackett had no knowledge of Cole s report and conducted an independent investigation; or (2) Tackett was influenced by Long and/or Flincher and did not conduct an independent investigation. Either inference is plausible, but the possibility that Long and Fincher influenced Tackett s decision is made more probable in light of Cole s evidence contradicting Senior Living s stated reasons for termination, as discussed below.
A negative attitude towards the protected activity.
There is some evidence that Long exhibited a negative attitude towards Cole s complaints regarding understaffing and everything else that was going on.
Deviation from company policy/disparate treatment of similarly situated employees; whether the stated reason for employment termination is false or only a pretext.
Senior Living contends that Cole was terminated based on the four grounds outlined in the memorandum of termination.
The first ground for termination charged Cole with multiple disciplinary actions related to resident care. Jeffery Place s disciplinary system provides for a written warning for the employee s first two violations of conduct or work rules. A third violation results in discharge if the employee has had two prior written warnings in the preceeding twelve months. Cole s personnel file disappeared after he was terminated and was not available at trial. However, Fincher and Tackett both testified that Cole had received several written warnings. Cole recalled only one written warning. Amber Bronson, who reviewed Cole s personnel file with him after he was terminated, also recalled one written warning and testified that it was not for any violation listed on the memorandum. Amber testified that one write-up is insufficient to justify termination. There is some evidence that Cole did not have a sufficient number of disciplinary actions to justify termination and that Jeffery Place deviated from its own disciplinary policy when applied to Cole.
According to ground number two, Cole failed to report arrests and/or convictions. Jeffery Place s policy states that prior arrests and convictions must be reported and that a failure to do so justifies immediate discharge. The policy does not specify the method by which arrests or convictions must be reported. Cole testified that he has no criminal convictions, but has prior arrests. Cole testified that he verbally reported these arrests to Dennis Sparks, the former assistant administrator who hired Cole, and informed Sparks that he was currently on community supervision for a drug charge. Sparks confirmed this. Melody Bronson, human resources manager at the time of Cole s hire, testified that Cole s community supervision was common knowledge. Long testified that he was not aware of Cole s community supervision until the day of Cole s termination. Fincher testified that a criminal background is not an automatic bar to employment under Jeffery Place s policy. There is some evidence that Cole reported his prior arrests in accordance with Jeffery Place s policy.
The third allegation charges Cole with making misleading statements on his job application. Jeffery Place s policy authorizes immediate discharge for making a false, misleading, or incomplete statement on any job application. Cole did not disclose his prior arrests on his job application, but testified that the application asked about prior convictions, not arrests. Having no convictions, Cole answered accordingly. Melody Bronson agreed that Cole s application inquired about convictions; therefore, she disagreed that Cole made false statements on his application. Even Tackett admitted that the application asked only about convictions. Former director of nurses Norma Jordan testified that when she discovered that Cole was on community supervision, the facility administrator told her not to be concerned because Cole had no convictions. Amber Bronson performed yearly criminal background checks on employees, but never observed anything on Cole s report that was cause for termination. Senior Living concedes that the record does not indicate that Cole has previous convictions. There is some evidence that Cole did not make misleading statements on his job application.
Finally, the memorandum states that Cole violated Jeffery Place s written policy requiring employees to contact a supervisor when running late. Cole admitted violating this policy, but testified that he had informed Sparks that his community supervision appointments sometimes ran late. Sparks agreed that written policy requires a late employee to contact his supervisor, but testified that it was an acceptable practice for a late employee to contact the person he would be relieving and arrange for that person to cover his shift until he arrived. Cole followed this procedure throughout his employment and the record does not reflect that he was ever informed that this procedure was not acceptable. On the day of his termination, Cole had contacted his wife Dedra, who also worked for Jeffery Place and whom Cole would be relieving, to inform her that he would be late. Cole testified that he was only a few minutes late.
Fincher testified that Cole was over two hours late; thus, she presumed he was a no call-no show, meaning that he failed to appear for his assigned shift and so voluntarily resigned his position. However, according to Dedra, Fincher had approached her, looking for Cole. When Dedra informed Fincher that Cole was running late, Fincher stormed off. Dedra then discovered that Cole s name had already been removed from the schedule. Fincher testified that she approached several people looking for Cole, but never learned that Cole was running late. No call-no show was not listed as a reason for Cole s termination. Moreover, other employees also followed the unwritten procedure followed by Cole on the day of his termination. Thus, there is some evidence that the written policy was not uniformly enforced.
Accordingly, Cole presented some evidence contradicting Senior Living s grounds for termination. Proof that the stated reasons for the discharge are false is sufficient to establish that the employee was terminated in retaliation for engaging in protected activity. Lozoya v. Air Sys. Components, Inc., 81 S.W.3d 344, 348 (Tex. App. El Paso 2002, no pet.) (quoting Wyler Indus. Works, Inc. v. Garcia,999 S.W.2d 494, 501 (Tex. App. El Paso 1999, no pet.)); see Cazarez, 937 S.W.2d at 452.
The jury may draw reasonable and logical inferences from the evidence. See Hammerly Oaks, 958 S.W.2d at 392. Even if evidence is undisputed, it is within the province of the jury to draw one reasonable inference from the evidence although another inference could have been made. See City of Keller, 168 S.W.3d at 821. Jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony and are entitled to resolve conflicts in evidence. Id. at 819-20. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, we may not substitute our judgment for that of the trier-of-fact. Id. at 822.
The above indirect and circumstantial evidence, as a whole, is more than a scintilla ; it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). From this evidence reasonable jurors could draw a reasonable and logical inference that Cole s employment would not have been terminated but for his report. Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we conclude that the evidence is legally sufficient to support the jury s finding that Cole s employment would not have been terminated but for his report. City of Keller, 168 S.W.3d at 830.
Viewing all the evidence in a neutral light, we also find that it is factually sufficient to support the jury s finding. The jury was entitled to resolve any conflicts in evidence and base its finding on competing inferences. See El Paso Indep. Sch. Dist. v. Pabon, 214 S.W.3d 37, 42 (Tex.App. El Paso 2006, no pet.). In doing so, reasonable jurors could disbelieve Senior Living s evidence on why Cole s employment was terminated. See Town Hall Estates, 220 S.W.3d at 85. Thus, we cannot say that the finding is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). When conducting a factual sufficiency review, we do not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact. See Dallas County v. Holmes,62 S.W.3d 326, 329 (Tex. App. Dallas 2001, no pet.). Although there were conflicts in the testimony, we will not substitute our judgment for that of the jury s. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) ( [T]he jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. ). We overrule Senior Living s first issue.
EXCLUSION OF EVIDENCE
Senior Living s second issue challenges the trial court s exclusion of Cole s previous employment history. We review a court s exclusion of evidence under an abuse of discretion standard. See In the Interest of J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
Senior Living contends that Cole s previous employment history shows that (1) Cole made misleading statements on his job applications to Hillcrest Medical Center and Lake Shore Village Nursing Home; (2) Cole was terminated and/or resigned from Hillcrest and Lake Shore Village for legitimate reasons ; and (3) Cole disputed Hillcrest s and Lake Shore Village s reasons for his separation from employment. Cole responds that this evidence is not relevant.
Evidence must be relevant in order to be admissible. See Tex. R. Evid. 402. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401.
Cole argues that the evidence is not relevant because it is too remote. In reliance on Palmer v. Miller Brewing Co., Senior Living urges that this argument must fail. In Palmer, Miller Brewing sought to introduce Palmer s employment record to rebut the allegations that it wrongfully discharged Palmer. 852 S.W.2d 57, 62 (Tex. App. Fort Worth 1993, writ denied). Palmer objected that the evidence was too remote in time. Id. The Fort Worth Court noted that Palmer s absence record was both probative and directly related to Miller s reason for placing Palmer on the Final notice procedure, which eventually led to his discharge. Id ( [w]here the evidence is directly related to the main subject in controversy, it need not relate to the exact time in question ).
We note two important distinctions between Palmer and the present case. First, Senior Living sought to introduce Cole s employment records from other employers, not Jeffery Place. Second, the excluded evidence is not directly related to Jeffery Place s reasons for terminating Cole. The jury was charged with determining the legitimacy of Jeffery Place s reasons for terminating Cole, not the reasons provided by Cole s previous employers. Hillcrest s and Lake Shore Village s reasons are not relevant to the truth of Jeffery Place s reasons.
Neither do we agree that the excluded evidence calls Cole s credibility into question. The fact that Cole represented to Hillcrest, Lake Shore Village, and Jeffery Place that he has no convictions does not establish that he made misleading statements on his job applications. Cole presented evidence that he has no convictions. Moreover, the record does not indicate that either Hillcrest or Lake Shore Village accused Cole of making misleading statements. Neither does Cole s history of disputing his employers allegations make the truth of Jeffery Place s allegations any more or less probable. Whether Hillcrest s and Lake Shore Village s reasons for Cole s termination and/or resignation are legitimate, or evenly remotely similar to those of Jeffery Place, does not lend credence to Jeffery Place s stated reasons for terminating Cole.
In summary, we cannot say that the trial court abused its discretion by excluding evidence regarding Cole s previous employment history. See J.P.B., 180 S.W.3d at 575 We overrule Senior Living s second issue.
Having overruled Senior Living s first and second issues, we need not address its fourth and fifth issues or Cole s sole cross-point. See Tex. R. App. P. 47.1. The trial court s judgment is affirmed.
Before Chief Justice Gray,
Justice Vance, and
Opinion delivered and filed September 19, 2007
 The trial court s refusal to submit a rebuttable presumption instruction to the jury is the subject of Cole s cross-point.
 Fincher had previously required all nurses with access to the drugs, whether or not present when the drugs disappeared, to participate in a drug test. Cole testified that Long told him he did not need to be tested since he was not working when the drugs disappeared. Fincher claims that Cole asked not to be tested because he was on community supervision.
 In City of Keller, the Wilsons merely proved that the City might know, not that it did know, that the plans it approved were substantially certain to increase flooding on the Wilsons' properties. City of Keller v. Wilson, 168 S.W.3d 802, 830 (Tex. 2005). The Supreme Court held that where a case involves scientific or technical issues requiring expert advice (as this one does), jurors cannot disregard a party s reliance on experts hired for that very purpose without some evidence supplying a reasonable basis for doing so. Id at 829. In Marsaglia, the El Paso Court found that Marsaglia failed to prove that President Diana Natalicio had knowledge of Marsaglia s complaints or was improperly influenced. See Marsaglia v. Univ. of Tex., E l Paso, 22 S.W.3d 1, 5 (Tex. App. El Paso 1999, pet. denied). In her affidavit, Natalicio stated that before notifying Appellant [Marsaglia] of the tenure decision, she was not aware of any complaint by Appellant. Id. Dr. G. Randy Keller, to whom Marsaglia made her report, testified that he did not inform Dr. Nick Pingitore, about whom Marsaglia complained, of Marsaglia s report. See id.
 Jordan could not recall who the administrator was at that time.
 Senior Living urges that, even were the jury to reject its purported reasons for termination, Cole was an at-will employee and could be terminated at any time for any reason. This argument implies that at-will employment precludes a retaliation claim. We reject such a contention.
 Senior Living argues that the excluded evidence is relevant to Cole s credibility because Cole s trial testimony regarding his prior employment history differed from that given at oral depositions. However, the jury did not hear this conflicting evidence, as it was presented during Senior Living s offer of proof.