Adams v. Memorial Hermann

• Decision Date: 31 August 2020
• Docket Number: No. 19-20651,19-20651
• Citation: 973 F.3d 343
• Parties: Delise ADAMS; Gloria Flores-Olvera; Judy Perez, Plaintiffs—Appellants, v. MEMORIAL HERMANN; Chips Adams; Arnold Carrasco, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

973 F.3d 343

Delise ADAMS; Gloria Flores-Olvera; Judy Perez, Plaintiffs—Appellants,

v.MEMORIAL HERMANN; Chips Adams; Arnold Carrasco, Defendants—Appellees.

No. 19-20651

United States Court of Appeals, Fifth Circuit.

FILED August 31, 2020

Amanda Amy Farahany, Attorney, Barrett & Farahany, L.L.P., Atlanta, GA, Robert Edward McKnight, Jr., Esq., Marek, Griffin & Knaupp, Victoria, TX, for Plaintiffs—Appellants.

Kelley Riddle Edwards, Nehal Anand, Littler Mendelson, P.C., Houston, TX, for Defendants—Appellees.

Before Smith, Willett, and Duncan, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Delise Adams ("Plaintiff Adams"), Gloria Flores-Olvera, and Judy Perez were employed at Memorial Hermann Health System's Southwest Neighborhood Clinic.

That clinic was closed, and the three were terminated. They sued, alleging violations of Title VII of the Civil Rights Act and the Family and Medical Leave Act ("FMLA"). The jury found for defendants on all claims. Plaintiffs challenge two distinct evidentiary rulings and the jury instructions. We affirm.

I.

Memorial Hermann Health System operates hospitals and outpatient "Neighborhood Health Clinics." The outpatient clinics were created to provide affordable health care to individuals with limited or no health insurance. In 2014, it operated three such clinics: the Southwest Clinic, the Northwest Clinic, and the Northeast Clinic. Citing concerns over financial viability and treatment standards, Memorial Hermann made the decision to close the Southwest Clinic in July 2014.

In 2014, Helen "Chips" Adams ("Defendant Adams") was employed by Memorial Hermann as the Associate Vice President of Outpatient Clinics. Arnold Carrasco served as the Director for the Neighborhood Health Clinics. Both were involved in the decision to close the Southwest Clinic.

At the time of the decision, seven individuals worked at the Southwest Clinic: two nurse practitioners, Plaintiff Adams and Margaret Watson, and five medical assistants. Two medical-assistant positions were full-time and were held by Flores-Olvera and Perez. Two were part-time, held by Rachel Magallanes and Mary Lou Macias, and one was a supplemental position held by Jenifer Umana. Closing the Southwest Clinic eliminated all seven positions.

When the closure decision was made, Flores-Olvera and Perez were out on FMLA leave after recently giving birth. Plaintiff Adams was pregnant and preparing to take FMLA leave; by the time she was informed of the decision, she was in the hospital after recently giving birth.

Around this time, leadership at Memorial Hermann identified employment needs at the other neighborhood clinics. Those needs included one full-time nurse practitioner at the Northwest Clinic and one part-time medical assistant in each of the Northwest and Northeast clinics.

The Southwest Clinic employees were notified of the closure decision in a meeting on August 26, 2014. Human Resources representative Jacqueline Patterson, alongside Carrasco and Defendant Adams, notified the employees that their positions at the Southwest Clinic would be terminated. The employees were also informed that there were other positions available within the Memorial Hermann system for which they could apply. All three plaintiffs were out on FMLA leave when the meeting was held and were notified by phone soon thereafter. Plaintiffs were also informed of the three open positions and told that they were welcome to apply.

Carrasco and Defendant Adams were responsible for filling the open positions. They selected Watson for the open nurse practitioner position over Plaintiff Adams. They also selected Magallanes and Umana for the open medical assistant positions at the Northeast and Northwest clinics, respectively. Thus, all three plaintiffs and Macias were terminated. Patterson was terminated a few months later, in February 2015, when it was discovered that she had falsified information on her resume.

Plaintiffs sued, alleging discrimination under Title VII and retaliation under the FMLA. Specifically, they claimed that they were terminated because of their pregnancies and in retaliation for taking leaves of absence under the FMLA. At trial, defendants denied that the employment decisions were made for impermissible reasons.

Defendants relied on, among other things, plaintiffs’ performance evaluations to demonstrate that the decisions were based on legitimate factors.

Plaintiffs called Patterson as a witness in part to rebut the reliability of the performance evaluations. Specifically, they sought to introduce testimonial evidence that Patterson was instructed by Memorial Hermann's lawyers to search for plaintiffs’ performance evaluations and that, after engaging in the search, she was unable to find them. At trial, the court ruled that Patterson could not "testify as to conversations she had with lawyers or things she did at the direction of the lawyers." It held that such testimony was protected under either the work-product doctrine or the attorney-client privilege.

Defendants sought to introduce former Memorial Hermann HR Director Lisa Haneberg as a witness to provide testimonial evidence regarding Patterson's employment. The court permitted that testimony but limited the scope of appropriate questioning to that which would either (1) contradict unanticipated testimony by Patterson or (2) impeach Patterson for bias against her former employer. The court permitted Haneberg to testify that Patterson was fired because she lied on her resume and application. It then allowed Haneberg to testify as to the details of Patterson's fabrication.

The court instructed the jury under a but-for standard of causation for both the Title VII and FMLA claims. The jury was thus required to determine whether plaintiffs were discriminated against because of their pregnancies or because of their decisions to take FMLA leave. The jury found for defendants on all claims.

Plaintiffs assert three errors. First, they posit that the court erred when it limited Patterson's testimony under either the work-product doctrine or attorney-client privilege. Second, plaintiffs maintain that the court erred when it permitted Haneberg's testimony. Plaintiffs reason that her testimony amounted to extrinsic evidence attacking Patterson's credibility in violation of Rule 608(b) of the Federal Rules of Evidence. Finally, plaintiffs contend that the district court erred in its instructions to the jury.

II.

A. Exclusion of Patterson's Testimony

Plaintiffs assert that the district court committed harmful error when it limited Patterson's testimony under either the work-product doctrine or the attorney-client privilege. Because any error was harmless, we disagree.¹

1. Standard of Review

We review the district court's application of both the attorney-client privilege and the work-product doctrine for clear error.² We review questions of controlling law de novo .

Taylor Lohmeyer Law Firm P.L.L.C. v. United States , 957 F.3d 505, 509 (5th Cir. 2020) ; Ecuadorian Plaintiffs , 619 F.3d at 377.

Evidentiary rulings are reviewed under a "deferential abuse of discretion standard," Williams v. Manitowoc Cranes, L.L.C. , 898 F.3d 607, 615 (5th Cir. 2018), and are subject to the harmless-error doctrine, Heinsohn v. Carabin & Shaw, P.C. , 832 F.3d 224, 233 (5th Cir. 2016). Therefore, even if the district court has abused its discretion, "the ruling will be reversed only if it affected the substantial rights of the complaining party." Nunez v. Allstate Ins. Co. , 604 F.3d 840, 844 (5th Cir. 2010).

2. The Attorney-Client Privilege

Claims of privilege in federal courts are governed by the "common law—as interpreted by United States courts in light of reason and experience." FED. R. EVID. 501. "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). It protects both "the giving of professional advice to those who can act on it" and "the giving of information to the lawyer to enable him to give sound and informed advice." Id . at 390, 101 S.Ct. 677.

"[T]he attorney-client privilege attaches to corporations as well as to individuals." CFTC v. Weintraub , 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985). Communication between employees and the corporation's attorney is privileged if it is made "at the direction of corporate superiors in order to secure legal advice from counsel" concerning "matters within the scope of the employees’ corporate duties." Upjohn , 449 U.S. at 394, 101 S.Ct. 677.

Even still, the attorney-client privilege "only protects disclosure of communications; it does not protect disclosure of the underlying facts." Id . at 395, 101 S.Ct. 677. Thus, a fact is not privileged "merely because [a client] incorporated a statement of such fact into his communication to his attorney." Id. at 396, 101 S.Ct. 677.

3. The Work-Product Doctrine

Established in Hickman v. Taylor , 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), "the work-product doctrine is distinct from and broader than the attorney-client privilege." United States v. Nobles , 422 U.S. 225, 238 n.11, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). 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." Dunn v. State Farm Fire & Cas. Co. , 927 F.2d 869, 875 (5th Cir. 1991). It protects materials prepared in anticipation of litigation, whether those materials were prepared by the attorney or by agents of the attorney. In re Grand Jury Proceedings , 601 F.2d 162, 171 (5th Cir. 1979).

The doctrine articulated in Hickman was later partially codified as Rule 26(b)(3) in the Federal Rules of Civil Procedure: "Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative."³ Despite the...