Adams v. Hermann
| Decision Date | 09 November 2018 |
| Docket Number | CIVIL ACTION NO. 4:15-CV-01270 |
| Parties | DELISE ADAMS, GLORIA FLORES-OLVERA, and JUDY PEREZ, Plaintiffs, v. MEMORIAL HERMANN, CHIPS ADAMS, and ARNOLD CARRASCO, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Plaintiffs have sued Defendants for unlawfully interfering with their rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and for unlawfully retaliating against them after they attempted to exercise those rights. Plaintiffs have also sued Defendant Memorial Hermann Health System in particular for employment discrimination on the basis of gender and pregnancy pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.1
Presently before the Court are Defendants' Motion for Summary Judgment [Doc. No. 53] and cross Motions to Disqualify Counsel [Doc. Nos. 66, 113, & 114]. Plaintiffs have also filed a Motion for Special Master and In Camera Review [Doc. No. 66].
For the reasons set forth below, the Court hereby denies Defendants' Motion for Summary Judgment with respect to Plaintiffs' claims for Title VII discrimination and FMLA retaliation. The Court grants Defendants' Motion for Summary Judgment with respect to Plaintiffs' claim for FMLA interference. Furthermore, the Court denies both of the cross Motions to Disqualify Counsel and denies Plaintiffs' Motion for Special Master and In Camera Review.
Plaintiffs are three former Memorial Hermann employees who worked in one of Memorial Hermann's Neighborhood Health Centers. Delise Adams (Plaintiff Adams) was a nurse practitioner for Memorial Hermann. Gloria Flores-Olvera and Judy Perez were medical assistants. Plaintiffs' supervisor was Arnold Carrasco, and Carrasco in turn reported to Helen "Chips" Adams (Defendant Adams). Carrasco was Memorial Hermann's Director of Outpatient Clinics for the Neighborhood Health Centers ("clinics") at the relevant times, and Defendant Adams was Memorial Hermann's Associate Vice President of Outpatient Clinical Services.
In 2014, Plaintiffs were each pregnant and each applied for and took leave under the FMLA. Flores-Olvera took leave from June to mid-September. Perez took leave from July to late September. Plaintiff Adams took leave beginning on August 25 that was scheduled to end in November.
Around August 26, 2014, Memorial Hermann announced that on September 30, 2014, it would close the clinic where Plaintiffs worked, the Southwest clinic ("the clinic"). The clinic evidently had seven employees in addition to the clinic doctor at the time of closure: the three Plaintiffs here as well as Margaret Watson (nurse practitioner), Rachel Magallanes (medicalassistant), Jeniffer Umana (medical assistant), and Marilou Macias (medical assistant).2 All of the employees were being terminated due to the closure. Since Plaintiffs were on FMLA leave at the time, Carrasco called each Plaintiff and informed them that the clinic was closing and that Plaintiffs, like the other employees, could apply for positions in Memorial Hermann's other two clinics.
On August 27, the day after the announcement of the closure, Flores-Olvera applied for one of the positions at another clinic. Perez applied for positions at both of the other clinics. Plaintiff Adams never submitted an application, unlike Flores-Olvera and Perez.
Memorial Hermann rehired three employees from the closing clinic for positions elsewhere. For an open nurse practitioner position, Defendants hired Margaret Watson. For the two open medical assistant positions, Defendants hired Rachel Magallanes and Jeniffer Umana. The four employees whom Memorial Hermann did not rehire were the three Plaintiffs plus Macias. Macias had not been pregnant or taken FMLA leave, and she never applied for any position at another location.
Flores-Olvera and Perez completed their FMLA leave and returned to work in mid and late September respectively. When the clinic closed on September 30, since they were not rehired, Plaintiffs were terminated.
Summary judgment is warranted "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). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the Court should not grant the motion. Celotex Corp., 477 U.S. at 321-25.
The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255. The key question on summary judgment is whether a hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248.
Jacqueline Patterson is a former Memorial Hermann human-resources employee who was involved in discussions about closing the clinic. According to her deposition testimony, Patterson met with Carrasco in June 2014, well before the clinic closure was announced.3 After the clinic had closed, she participated in discussions with Memorial Hermann's in-house and outside counsel regarding Plaintiffs' terminations. Defendants have objected to Patterson's testimony regardingher alleged conversations with Memorial Hermann's in-house and outside counsel on privilege grounds. Defendants have also objected to certain portions of her testimony regarding her alleged conversations with Carrasco on Best Evidence Rule grounds.4
The Court sustains in part and overrules in part Defendants' assertions of privilege. Specifically, the Court sustains the privilege objections with respect to conversations Patterson allegedly had with Memorial Hermann's in-house and outside counsel. The Court overrules the privilege objections with respect to actions that Patterson personally took. Furthermore, the Court sustains the greater part of Defendants' Best Evidence Rule objections. In Appendix A, the Court has set forth its particularized rulings on Defendants' objections based on the attorney-client and/or work-product privileges as well as objections based on the Best Evidence Rule.
In order for the attorney-client privilege to apply, "the proponent 'must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.'" E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (quoting United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)).
Whether the attorney-client privilege applies "is a 'highly fact-specific' inquiry, and the party asserting the privilege bears the burden of proof." Id. (quoting Stoffels v. SBC Commc'ns, Inc., 263 F.R.D. 406, 411 (W.D. Tex. 2009)). "Once the privilege has been established, the burden shifts to the other party to prove any applicable exceptions." Id. (quoting Perkins v. Gregg Cty., 891 F. Supp. 361, 363 (E.D. Tex. 1995)). "Ambiguities as to whether the elements of a privilege claim have been met are construed against the proponent." Id. "There is no presumption that a company's communications with counsel are privileged." Id. at 696.
The work-product privilege protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . including the other party's attorney." Fed. R. Civ. P. 26(b)(3). The privilege is not absolute and may be overcome in circumstances where "the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Id. The Fifth Circuit has held "the privilege can apply where litigation is not imminent, 'as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.'" In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)). The "work product doctrine insulates a lawyer's research, analysis of legal theories, mental impressions, notes, and memoranda of witnesses' statements from an opposing counsel's inquiries." Doe I v. Baylor Univ., 320 F.R.D. 430, 441 (W.D. Tex. 2017) (quoting Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991)). "Like the attorney-client privilege, '[t]he burden of establishing that a document is work product is on the party who asserts the claim.'" Id. (quoting Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).
The Federal Rules of Evidence state that "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise." Fed. R. Evid. 1002. This rule is often referred to as the Best Evidence Rule. As for Defendants' Best Evidence Rule objections, the Court's rulings are set forth in Appendix A. Plaintiffs and/or Patterson purport to testify to the contents of certain documents which they claim to have seen but which they do not possess. This testimony is not hearsay, but it clearly violates the Best Evidence Rule.
It is clear to this Court that Patterson's conversations with both in-house counsel, Sachin...
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