Opinion
CIVIL ACTION NO. 3:00-CV-1487-P
September 12, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. Defendant HealthSouth Corporation's Motion for Summary Judgment, filed June 4, 2001;
2. Plaintiff's Response to Defendant HealthSouth Corporation's Motion for Summary Judgment, filed July 16, 2001;
3. HealthSouth Corporation's Brief in Reply to Plaintiff's Response to HealthSouth Corporation's Motion for Summary Judgment, filed August 14, 2001;
4. Defendant's Motion to Exclude Testimony of Plaintiff's Expert Jaclyn F. Low and Memorandum of Law, filed August 14, 2001.
5. Plaintiff's Response to Defendant's Motion to Exclude the Testimony of Expert Jaclyn F. Low, filed September 5, 2001.
For the reasons set forth below, upon thorough review of the summary judgment evidence, considering the pleadings, the parties' briefs, and the applicable law, this Court is of the opinion that Defendant's Motion for Summary Judgment should be granted and Plaintiff's cause of action is dismissed with prejudice.
BACKGROUND
This case arises under Texas state law, specifically Section 161.134 of the Texas Health and Safety Code. Plaintiff, Gerry Nichols, a Texas-licensed occupational therapist, asserts that she was disciplined and promptly terminated from her employment with HealthSouth Corporation's "Stemmons" clinic after reporting a violation of law. Specifically, Plaintiff alleges that on November 4, 1999, she refused to leave unattended several of her occupational therapy patients in order to perform a test on a (second) walk-in patient in another room of Defendant's treatment facility. Pl.'s Br. Resp. Def.'s Mot. Summ. J. at 1. Plaintiff claims she reported verbally at the time, as well as in a letter dated November 7, 1999, that she was trying to avoid endangering patients, negligent practice of occupational therapy, and illegal conduct under her license. Id. at 1-2; Pl.'s First Amend. Compl. at 3.On November 5, 1999, Plaintiff was disciplined in writing for "refusing" to perform the second test, "not being flexible" and "having a negative attitude." Pl.'s First Amend. Compl. at 3. She was placed on probation for those reasons, and then allegedly "laid off" on November 11, 1999. Id.
DISCUSSION
I. Standard for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993), cert. denied sub nom. Turnbull v. Home Ins. Co., 510 U.S. 1177 (1994). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the non-moving party directs. Id.
II. The Parties Allegations
Plaintiff Nichols in this action asserts a right of recovery against Defendant HealthSouth based on its violation of Section 161.134 of the Texas Health and Safety Code, alleging that she was terminated from her employment with a health treatment facility after reporting a violation of law. See Pl.'s First Am. Compl. at 1. Defendant has moved this Court for relief claiming that Plaintiff's designated expert on the issue of "whether Plaintiff allegedly reported and refused to commit a violation of the law" should be excluded, and that it should be granted summary judgment in this case as a matter of law. See Def.'s Mot. Exclude Expert Test. at 2-3; see also Def.'s Mot Summ. J. at 2-3. More specifically, Defendant argues that Plaintiff's allegations are unfounded and that it is entitled to summary judgment on the grounds that (1) Section 161.134, by its express provisions, is inapplicable to it; (2) Plaintiff cannot establish a claim because no causal connection exists between her termination and her alleged report of a violation of law; and (3) Plaintiff cannot establish a claim because she was neither asked to commit, nor did she report, any violation of law. See Def.'s Mot Summ. J. at 2-3.
III. Applicable Authority
Under Section 161.134 of the Texas Health and Safety Code:
"A hospital, mental health facility, or treatment facility may not suspend or terminate the employment of or discipline or otherwise discriminate against an employee 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 this [Health and Safety Code], or a rule adopted by the Texas Board of Mental Health and Metal Retardation, the Texas Board of Health, or the Texas Commission on Alcohol and Drug Abuse."See Tex. Health Safety Code Ann. § 161.134(a) (West 2001). This statute is one of the few statutorily created exceptions to the long-standing rule in Texas that employment for an indefinite term may be terminated at will and without cause by an employer. See Winters v. Houston Chronicle Publ'g Co., 795 S.W.2d 723, 724 (Tex. 1990); see also Cole v. Sisters of Charity of the Incarnate Word, 79 F. Supp.2d 668, 670 (N.D. Tex. 1999) (Cobb., J). Therefore, in order to fall within the statutory protection prohibiting retaliation for reporting a violation of law, an essential element of a Plaintiff's claim is to prove that the locality in question falls within the statutory definition of either a "hospital, mental facility, or treatment facility."
The facts in the record establish that beginning on June 1, 1995, Plaintiff Nichols was employed as the Director of Therapy Services for an entity called The Company Doctor. See Nichols Aff. at 1. The Company Doctor operated several outpatient occupational medicine clinics throughout Texas, including one located on Stemmons Freeway in Dallas (the "Stemmons" clinic). Id. at 2. Although these clinics were acquired by HealthSouth Corporation on or about June 29, 1998, Plaintiff continued her employment at the Stemmons clinic in her capacity as an occupational therapist, until her dismissal in November 1999. Id.; see also Nichols Dep. at 64.
The Stemmons clinic, at the relevant times at issue here, was primarily an occupational medicine clinic providing emergent care for injured employees of the various companies that HealthSouth had contracts with. Nichols Aff. at 14; see also Kelly Drake Dep. at 24. Plaintiff readily concedes that the Stemmons clinic where she worked is not a "hospital" or a "mental health facility" within the meaning of the statute. See Pl.'s Resp. Def's Mot. Summ. J. at 5. However, Plaintiff asserts that she did work at a "treatment facility" within the meaning of Section 161.134(a). See Id. Under the Texas Health and Safety Code's sub-chapter on Abuse, Neglect, and Unprofessional or Unethical Conduct in Health Care Facilities, wherein Section 161.134(a) is found, the section entitled "Definitions" explains that "treatment facility" as used in that sub-chapter has the assigned meaning given to the term by Section 464.001. See Tex. Health Safety Code § 161.131(10) (West 2001). Consequently, Section 464.001 defines "treatment facility" to mean:
"(A) a public or private hospital; (B) a detoxification facility: (C) a primary care facility; (D) an intensive care facility; (E) a long-term care facility; (F) an outpatient care facility; (G) a community mental health center; (H) a health maintenance organization; (I) a recovery center; (J) a halfway house; (K) an ambulatory care facility; or (L) any other facility that offers or purports to offer treatment."See Tex. Health Safety Code Ann. § 464.0001(5) (West 2001) (emphasis added). Noting that this laundry list definition includes the denotation of "an outpatient care facility," Plaintiff asks this Court to hold, that as a matter of law, the Stemmons outpatient occupational medicine clinic is such a facility and therefore a "treatment facility" for purposes of the anti-retaliation statute of Section 161.131(a). However, as the Defendant correctly points out, the term "treatment" in Section 464.001 is itself further qualified by the definition it enjoys within that sub-chapter dealing with the Regulation of Chemical Dependency Treatment Facilities. Thus, "treatment," and consequently "treatment facility," are limited to encompass only those facilities wherein "planned, structured, and organized program[s] designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs" take place. See Tex. Health Safety Code Ann. § 464.001(4) (West 2001).
Although taken from the current version of the Texas Health and Safety Code, the statutory language as it existed at the relevant time in question here is exactly the same as today's version of the statute. See Tex. Health Safety Code Ann. § 464.001(5) (Vernon's 1992).
This statutory construction is further supported by the catch-all provision in the definition for "treatment facility" that includes any and all other facilities offering or purporting to offer such "treatment" to the public. See Tex. Health Safety Code Ann. § 464.001(5)(L) (West 2001). Additionally, the other definitions provided for in Section 464.001 are for "Chemical dependency," the Texas Commission on Alcohol and Drug Abuse, and "Controlled Substances." See Tex. Health Safety Code Ann. § 464.001(1), (2) and (3) (West 2001). Therefore, under this narrower definition, HealthSouth's Stemmons locality can only be subject to the provisions of Section 161.131(a) if the clinic provides some form of planned, structured or organized chemical dependency or addiction treatment programs.
Plaintiff argues that even under this more confined definition, the Stemmons clinic qualifies as a "treatment facility" because "drug screening" was offered at the outpatient facility where Gerry Nichols worked. See Pl.'s Resp. Def.'s Mot. Summ. J. at 6. It is clear from the record that other services, besides emergent care for physical injuries, were provided for the customers at the Stemmons clinic. These additional services included a number of pre-and post-employment screens, such as for strength, vision, hearing, urinalysis, X-ray, as well as drug screens. See Drake Dep. at 24-26. Although there are some ambiguities in the record as to what was the full extent of the drug screens performed at the Stemmons facility, they clearly fell within the range of either (a) generally taking a urine sample and then transporting the sample to another company elsewhere for analysis, or (b) the occasional on-the-spot quick testing to reveal whether test was positive or negative for drug or alcohol abuse. See Robin Suit Dep. at 21-23; see also Nichols Aff. at 15 ("it was not unusual for patients in the occupational medicine part of the clinic to come in for required drug screens to assure compliance with a drug rehabilitation program or [an] employer mandate").
Plaintiff, in her affidavit submitted with her Response to HealthSouth's Motion for Summary Judgment, claims to have "participated in [the] drug rehabilitation treatment of several patients while at the Stemmons clinic." See Nichols Aff. at 4. More specifically, Plaintiff asserts that those patients:
"were either participating in a drug rehabilitation program and were unable to take painkillers for the pain associated with their injury, or were on probation (some in halfway houses) with requirements to remain drug free. In these cases I worked closely with the physician to monitor their pain needs and provide the support needed in therapy to allow them to be successful. This support included patient education on alternative means to treat pain, modifying the treatment plan to decrease the potential for additional pain with exercises and activities performed, additional use of modalities to decrease the pain, working close with each patient to identify and treat areas related to self-esteem, fear, anger, problem solving, goal setting, time management, money management, stress management, etc. to reduce their dependence or need for medications or substances that were not allowed, and monitoring compliance with the treatment plan."
Id. at 4-5. However, during her earlier Deposition in this case, taken some five months before her subscribed affidavit, Plaintiff admitted that the Stemmons clinic where she was employed did not perform any type of drug rehabilitation-type treatments, besides for these drug screens. See Nichols Dep. at 181. Even putting aside the inconsistencies in Plaintiff's perception as to whether drug rehabilitation treatment programs ever took place at the Stemmons clinic, "drug screening" in the sense they took place at the Stemmons clinic, simply cannot be interpreted to mean a "planned, structured, organized program designed to initiate and promote a person's chemical-free status or to maintain that person free of illegal drugs." The taking of a urine sample and transporting these samples elsewhere to be analyzed, or even the occasional on-the-spot quick testing made in order to detect possible drug abuse by some of its patients, cannot be said to have been "planned, structured, or organized" drug treatment programs for the aid of curing these patients' chemical dependency or addictions. Rather, these screens, much like the other screening tests for which employers contracted with the Stemmons clinic for, were likely designed to ascertain the patient's eligibility for employment, or to monitor compliance with an ongoing drug-free requirement.
Except from Nichols deposition taken February 12, 2001:
Q: Does HealthSouth — did the HealthSouth clinic where [you and Dr. Oakes] worked perform any kind of psychological or mental health treatments?
A: No, they did not.
Q: Did they perform any kind of drug rehab — drug rehabilitation-type treatments?
A: Not in that clinic.
Q: Not in the clinic you worked in?
A: (Nods head.)
Q: You need to answer verbally.
A: Oh, I'm sorry, no, they did not in that clinic.
Nichols Aff. at 181.
Moreover, Plaintiff's reference that these drug treatment patients "were either participating in a drug rehabilitation program and were unable to take painkillers for the pain associated with their injury, or were on probation (some in halfway houses) with requirements to remain drug free," clearly evidences the fact that they were likely participating in a drug treatment or rehabilitative programs outside of the Stemmons clinic. That is, this described method of dealing with these patients, evidenced a sensitivity for their compliance with other treatment or rehabilitative programs, and not the immediate services for which the Stemmons clinic was being utilized by them.
When evaluating the summary judgment evidence, courts must resolve factual controversies in favor of the nonmoving party, but only where there is an actual controversy; that is, when both parties have submitted evidence of contradictory facts. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). However, the Fifth Circuit has clearly established it will not allow a party to defeat a motion for summary judgment by using an affidavit that impeaches, without explanation, sworn testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (rejecting use of an affidavit, executed 18 months after giving sworn deposition testimony, to contradict the deposition testimony and create a dispute). The affidavit submitted by Ms. Nichols here, included in her Response to Defendant's Motion for Summary Judgment, does more than simply "supplement" her Deposition given in this case. Rather, it contradicts a material part of her prior sworn testimony in this case without any explanation. Therefore, any assertions made in that subsequent affidavit, designed to create a material issue in order to prevent summary judgment here, must be viewed with extreme skepticism by this Court. See also Almazan v. CTB, Inc., No. Civ.A.SA-99-CA3555PMA, 2000 WL 33348244, at *5 (W.D. Tex. April 27, 2000) (in summary judgment proceedings, affidavits contradicting deposition testimony without explanation — as opposed to supplementing — may not be considered in determining the existence of genuine issues of fact).
Having decided that Texas Health and Safety Code § 161.134(a) is inapplicable to the Stemmons clinic wherein Nichols was employed, Plaintiff has failed to make a showing sufficient to establish the existence of an essential element on which she bears the burden of proof at trial. Celotex, 477 U.S. at 322-23. Therefore, this Court finds that summary judgment must be granted for Defendant as a matter of law.
This Court also finds that Plaintiff, under the circumstances, cannot state a cognizable claim under Texas law. In Austin v. Healthtrust, Inc., the Texas Supreme Court declined an invitation to create a judicial exception to the employment-at-will doctrine by refusing to recognize a cause of action for private whistleblowers. Austin v. Healthtrust, Inc. 967 S.W.2d 400 (Tex. 1998). There the Court acknowledged that Texas does not recognize a common-law cause of action for the retaliatory discharge of a private employee who reports the illegal activities of others in the workplace. Id., 967 S.W.2d at 401. Only two recognized exceptions exist to this long standing rule that employment for an indefinite term may be terminated at will and without cause. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (exception for an employee discharged "for the sole reasons that the employee refused to perform an illegal act); see also McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69, 71 (Tex. 1989) (exception for employee who demonstrates principal reason for discharge was employer's desire to avoid contributing or paying benefits under employer's pension fund), rev'd on other grounds, Ingersoll-Roll Co. v. McClendon, 498 U.S. 133 (1990). However, neither of these situations seems to apply to the allegations made herein by Plaintiff Nichols. The Court does not reach Defendant's other grounds for asserting summary judgment, or Defendant's Motion to Exclude Plaintiff's Expert.
CONCLUSION
Accordingly, having decided that Texas Health and Safety Code § 161.134(a) is inapplicable to the Stemmons clinic wherein Nichols was employed, HealthSouth Corporation's Motion for Summary Judgment shall be, and is hereby, GRANTED. Further, this Court finds Plaintiff cannot state a cognizable claim under Texas law, and thereby dismisses Plaintiff's cause of action, with prejudice.
So Ordered.
Signed this 12th day of September, 2001.