Simmons v. Columbia Plaza Medical Center of Fort Worth, Texas
Filing
46
MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 35 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that such claims be, and are hereby, dismissed with prejudice. (Ordered by Senior Judge John McBryde on 7/29/2021) (tln)
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IN
TAMARA J. SIMMONS,
§
§
Plaintiff,
§
§
vs.
§
NO. 4:20-CV-329-A
§
COLUMBIA PLAZA MEDICAL CENTER
OF FORT WORTH SUBSIDIARY, L.P.,
D/B/A MEDICAL CITY FORT WORTH,
§
§
§
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Columbia
Plaza Medical Center of Fort Worth Subsidiary, L.P. d/b/a
Medical City Fort Worth,
for summary judgment. The court, having
considered the motion, the response of plaintiff, Tamara J.
Simmons,
the reply, the record, and applicable authorities,
finds that the motion should be granted.
I.
Plaintiff's Claims
Plaintiff is a registered nurse who was hired by defendant
in August 2005. She alleges that, throughout her employment
until in or around March 2017, she had an excellent performance
history and evaluations and experienced no employment issues. At
that time, she expressed patient safety concerns that caused her
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to be subjected to a series of negative events and retaliatory
behavior that continued until she resigned on January 15, 2019.
On March 17, 2020, plaintiff filed her original petition in
the district court for the 153rd Judicial District of Tarrant
County, Texas. The action was brought before this court by
notice of removal. Doc. 1 1. The operative pleading is plaintiff's
amended complaint. Doc. 14. In it, she asserts causes of action
for retaliation in violation of§ 301.413 of the Nursing
Practice Act, Tex. 0cc. Code§§ 301.001-.657 (West 2019)
("NPA"), constructive discharge, intentional infliction of
emotional distress, breach of contract and promissory estoppel.
II.
Grounds of the Motion
Defendant maintains that plaintiff cannot prevail on any of
her claims. First, she cannot prevail on her anti-retaliation
claim under the NPA because it was not timely brought; she
cannot prove engagement in protected activity; and, she cannot
prove causation. Second, constructive discharge is a theory of
harm, not an independent tort. Third, intentional infliction of
emotional distress is a gap-filler tort not available to
plaintiff, whose claims fall under existing statutory remedies.
1
The "Doc.
"reference is to the number of the item on the docket in this action.
2
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Further, workplace discipline does not amount to intentional
infliction of emotional distress. Fourth, there was no contract
between plaintiff and defendant. And,
fifth, defendant did not
make any promise to plaintiff to support her promissory estoppel
claim.'
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or
defense if 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); Anderson v. Liberty Lobby,
247
Inc., 477 U.S. 242,
(1986). The movant bears the initial burden of pointing out
to the court that there is no genuine dispute as to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential·element of the nonmoving party's case
necessarily renders all other facts immaterial." Id. at 323.
2
In addition, defendant addresses plaintiffs Title VII claims, which were not timely asserted. See Doc. 38 (denying
leave to amend to assc11 such claims), Plaintiff does not address this pmt of the motion and the court need not
consider it.
3
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Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that
creates a genuine dispute as to each of the challenged elements
of its case. Id. at 324; see also Fed. R. Civ. P. 56 (c)
asserting that a fact
the assertion by
in the record
("A party
. is genuinely disputed must support
citing to particular parts of materials
If the evidence identified could not
lead a rational trier of fact to find in favor of the nonmoving
party as to each essential element of the nonmoving party's
case, there is no genuine dispute for trial and summary judgment
is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 597
(1986). In Mississippi Prat.
&
Advocacy Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could
not, as a whole, lead a rational trier of fact to find
for the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 3 Celotex Corp., 477 U.S. at 323. If the record taken as a
whole could not lead a rational trier of fact to find for the
'In Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)
(en bane), the Fifth Circuit explained the standard to be applied in
determining whether the court should enter judgment on motions for
directed verdict or for judgment notwithstanding the verdict.
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non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot.
&
Advocacy sys., 929 F.2d at 1058.
IV.
Objections to Summary Judgment Evidence
Plaintiff objects to the form of defendant's evidence. Doc.
41. Although it would certainly have been better for defendant
to stick to the statutory language for declarations, 28 U.S.C.
§ 1746, and not added "to the best of my knowledge," the
declarations make clear that the facts recited are based on
personal knowledge of the declarants. 4 Doc. 37 at 124, 253.
Further, although one of the declarants is no longer employed by
defendant, she is qualified to attest to documents created
during or prior to her tenure.
5
See Fed. R. Evid. 803 (6) (D). In
any event, as is its custom, the court is giving the summary
judgment evidence whatever weight, if any, it deserves.' The
facts are discussed in the analysis that follows.
4
See In re Dengel, 340 F.3d 300, 313 (5th Cir. 2003)(affidavit based on information and belief is not competent
summa1y judgment evidence); Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5th Cir. 1994)(affidavit based on
affiant's belief had not probative force in opposing summmy judgment).
5
In an abundance of caution, defendant has resubmitted the documents under authentication of its current custodian
ofrecord. Doc. 45.
6
The comt notes that plaintiff failed to deliver to the undersigned a paper copy of her summmy judgment appendix
as required by the undersigned's judge-specific requirements set forth in its orders. Docs. 17, 25. The court has
neve1iheless considered plaintiffs evidence and finds that it does not give rise to any genuine issue of material fact
as to the claims she is pursuing.
5
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V.
Analysis
As other courts have recognized, the NPA does not have an
express limitations period. Vasguez-Duran v. Driscoll Children's
Hosp., No. 2:19-CV-51,
2020 WL 7329815, at *17
(S.D. Tex. Nov.
12, 2020); Finney v. VHS San Antonio Partners, LLC, No. 5:14-CV840-XR,
2015 WL 4637696, at *3-4
(W.D. Tex. Aug. 3, 2015).
Accordingly, the court looks to analogous causes of action for
which an express limitations period is available either by
statute or case law. City of Pasadena v. Smith, 292 S.W.3d 14,
22
(Tex. 2009); Johnson & Higgins,
962 S.W.2d 507, 518
Inc. v. Kenneco Energy,
(Tex. 1998). And,
Inc.,
the court agrees with
Vasguez-Duran and Finney that the 180-day limitations period set
forth in Tex. Health
&
Safety Code§ 161.134 should apply.'
Although plaintiff disagrees,
she does not cite any authority to
the contrary or to suggest that another limitations period would
be more appropriate. Doc. 41 at 7.
In this case, plaintiff
resigned on January 15, 2019, but did not file suit until March
17, 2020. Her claims under the NPA are untimely.
The elements of a breach of contract claim in Texas are:
"(1)
the existence of a valid contract;
7
(2) performance or
The 180-day limitations period is actually generous considering that public employees only have 90 days in which
to seek relief. Tex. 0cc. Code§ 301.4130), adopting the limitations period of the Texas Whistleblower Act, Tex.
Gov't Code § 554.005.
6
Case 4:20-cv-00329-A Document 46 Filed 07/29/21
tendered performance by the plaintiff;
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(3) breach of the
contract by the defendant; and (4) damages sustained by the
plaintiff as a result of the breach."
Inc., 564 F.3d 386, 418
(5th Cir. 2009)
Mullins v. TestAmerica,
(internal quotation
marks and citation omitted). To establish a valid contract,
plaintiff must show "an offer and acceptance and a meeting of
the minds on all essential elements." Principal Life Ins. Co. v.
Revalen Dev., LLC, 358 S.W.3d 451, 454
(Tex. App.-Dallas 2012,
pet. denied) .
Here, plaintiff relies on a "position description" document
she says she was required to sign each year. Doc. 41 at 9
(citing Doc. 37 at 128-29) . 8 The document contains a list of
essential job functions,
including supporting defendant's code
of conduct. Doc. 37 at 128. It also concludes with the
statement:
I acknowledge this job description is not designed to
contain or be interpreted as a comprehensive inventory
of all duties, responsibilities and qualifications
required of employees assigned to the job.
Id. at 129. She says that when employees are required "by their
contract to abide by policies or codes of the employer, such
policies become part of the employment contract." Doc. 41 at 9.
However, she overlooks that provisions are not implied in a
8
lronically, this is one of the documents she says should be stricken. Doc. 41 at 5.
7
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contract absent specific reference showing that the parties
intended to incorporate one document into another. Clutts v.
Southern Methodist Univ., 626 S.W.2d 334, 336 (Tex. App.-Tyler
1985, writ ref'd n.r.e.). The job description is certainly not a
contract, as it does not impose any obligation on defendant.
Rather, it is more akin to a provision in an employment manual.
Texas generally rejects the claim that an employment manual
issued unilaterally by an employer constitutes a written
contract that creates contractual rights for employees.
Heggemeier v. Caldwell Cnty., 826 F.3d 861, 871 (5th Cir. 2016)
And, in fact, defendant's employee handbook says that "nothing
in this handbook is intended to create, nor is it to be
construed to constitute a contract between the medical center
and'any of its employees." Doc. 37 at 91. Plaintiff does not
have any evidence that she was anything other than an at-will
employee.
Plaintiff does not address the remaining claims. Rather,
she admits that her claims for intentional infliction of
emotional distress, promissory estoppel, and constructive
discharge as a separate cause of action do not have merit. Doc.
41 at 10. And, since she has not shown that she has a viable
claim for violation of the NPA or for breach of contract, she
8
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does not have a claim for constructive discharge under those
theories.
V.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on her claims against defendant; and that such claims be, and
are hereby, dismissed with prejudice.
SIGNED July 29,
2021.
9
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