Case 3:12-cv G Document 7 Filed 03/06/12 Page 1 of 7 PageID 56 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF DALLAS DALLAS DIVISION

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1 Case 3:12-cv G Document 7 Filed 03/06/12 Page 1 of 7 PageID 56 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF DALLAS DALLAS DIVISION MICHELE HART, V. Plaintiff, DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH & HOSPITAL SYSTEM, Defendant. C.A. NO. 3:12-CV G JOINT STATUS REPORT Pursuant to the Court s Order of February 14, 2012, Plaintiff Michele Hart ( Plaintiff ) and Defendant Dallas County Hospital District d/b/a Parkland Health & Hospital System ( Defendant ) (collectively, the Parties ) conducted a Rule 26(f) Scheduling Conference, and file this Joint Status Report. The parties state as follows: On March 5, 2012, Michael G. Sawicki, counsel for Plaintiff, and E. Leon Carter, and Courtney Barksdale Perez, counsel for Defendant, participated in a meeting to discuss the nature of the lawsuit, the possibilities for prompt settlement, and the following items: (1) A brief statement of the nature of the case, including the contentions of the parties. Plaintiffs: This is an action under Title 42 U.S.C. Section 2000e et. seq. as amended by the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of race, color and sex and under Chapter 21 of the Texas Labor Code, Section et. seq. Texas Labor Code, as amended, to correct unlawful employment practices on the basis of race, color and sex. This action is also brought for violations of the Texas Whistleblower Act, Section et. seq. of the Texas Government Code, and under 29 U.S.C. Section 2601 et. seq. to correct violations of the Family Medical Leave Act. This Court has supplemental jurisdiction over JOINT STATUS REPORT PAGE 1

2 Case 3:12-cv G Document 7 Filed 03/06/12 Page 2 of 7 PageID 57 state law claims discussed below under 28 U.S.C. Section 1367(a) because they arise out of the same case or controversy. Plaintiff Michele Hart is a registered nurse with board certification in psychiatric and mental health nursing. She graduated from nursing school in 1991 and started working for parkland in October of She was first employed with Parkland as a psychiatric nurse educator working on a part time basis. Her duties included work with all Parkland Psychiatric staff including those working in the Psychiatric emergency room, the in-patient psychiatric unit and the psychiatric clinic. In May of 2011, she was promoted to a full time position working in her original capacity and was assigned to provide additional educational programs for all of Parkland s staff. During her time with Parkland, Ms. Hart received numerous commendations and awards from her employer. This included an award from the Psychiatric Department in approximately 2009 for Psychiatric Services for Meritorious Duty. It stated This certifies that Michele Hart has gone above and beyond the boundaries of her job responsibilities in providing support and education to the staff for 8 North (in-patient psychiatry), the Psych ER, and Parkland Behavioral Health Center. She has taught us, led us, and created a role for herself that fits so perfectly with the values of our department that it is impossible to call her anything but PART OF THE FAMILY. She also enjoyed steady positive and exceptional work reviews from her director. As part of her regular job duties, Ms. Hart was required to conduct in service training and other educational programs to the staff of the Psychiatric Emergency Room. Her work required her to spend time in the Psychiatric Emergency Room on almost a daily basis and interact with the staff there. In February of 2011, a psychiatric patient named George Cornell died after being held in seclusion in the psychiatric emergency room. An investigation of the incident determined that staff in the psychiatric emergency room sat on Mr. Cornell in an effort to subdue him which may have contributed to cause his death. The incident drew scrutiny by Centers for Medicare and Medicaid Services which launched an investigation into the incident. Investigators found numerous safety violations present inside the emergency room unit. The investigation results triggered a more widespread investigation of practices and standards throughout Parkland. The hospital was threatened with losing its accreditation and ability to receive Medicare funding after evidence of widespread problems were revealed. In the early summer of 2011, Parkland s psychiatric emergency room was operating on a plan to address the concerns raised by the CMS investigation. A Plan of Action designed to address and correct those issues was created for the psychiatric unit. In order to come into compliance with standard, Parkland psychiatric unit had to successfully implement the Plan of Action and pass a subsequent inspection by CMS. During the time the Plan of Action was being implemented, Ms. Hart was still performing her normal job duties. On June 16, 2011, she had to visit the psychiatric emergency room to JOINT STATUS REPORT PAGE 2

3 Case 3:12-cv G Document 7 Filed 03/06/12 Page 3 of 7 PageID 58 do her work. She found the room completely unstaffed. This constituted a clear violation of the Plan of Action and was inconsistent with safe practices. Parkland policies required Ms. Hart to report this condition. She immediately reported the unsafe condition to her manager, Emilie Allen. Ms. Hart submitted a Patient Safety Net (PSN) report which was then transmitted throughout the hospital system. The retaliation by psychiatric staff began shortly after Ms. Hart submitted the PSN report. Over the next several weeks, she was repeatedly subjected to intimidation by psychiatric unit staff and its unit manager, Vernell Brown. Ms. Hart is of Caucasian descent and the majority of the psychiatric emergency room staff is comprised of people of African American descent. The psychiatric emergency room staff had a previous history of intimidation of Caucasian employees including a complaint filed against Mr. Brown by Larae Huycke, the interim director of psychiatry. Ms. Huycke alleged that Mr. Brown and his staff used physical intimidation and threats against her. Another complaint was filed against Mr. Brown by Nancy Schierding, the former director of psychiatry, for similar grounds. Ms. Hart experienced numerous episodes of physical confrontation by Mr. Brown and his staff during the weeks after she reported the safety violation. She complained on numerous occasions about the threats to her supervisors and her director, Jackie Brock. Ms. Brock instructed Ms. Hart not to file a formal complaint with human resources because the reinvestigation by CMS was actively underway and the complaint could raise new issues. The threats and intimidations, however, continued and Ms. Hart was forced to ask coworkers to accompany her to the psychiatric emergency room to safeguard her. Her director, Ms. Brock, instructed her to make a co-worker accompany her on all trips to the psychiatric emergency room. This instruction, however, severely hampered Ms. Hart s ability to perform her daily job duties. There were numerous instances where Ms. Hart could not find a free coworker to accompany her to the psychiatric emergency room. This impaired her ability to perform her normal work functions and increased her work load and that of her co-workers. After weeks of no response, Ms. Hart contacted Josh Floren, senior vice president of the hospital, about her problems. He promised Ms. Hart that he would remove Mr. Brown from the psychiatric unit and asked her to continue working at the hospital. But Mr. Brown was never reassigned and Ms. Hart continued to experience the threats and intimidation. Ms. Huycke told Ms. Hart that she and Josh Floren had Mr. Brown on a corrective plan of action and that he was soon to be fired from the unit. But this never happened. Finally in September of 2011, Ms. Hart made a final attempt to address the problems by speaking directly to Mr. Floren and Kurt Delabar, the director of human resources. They both told Ms. Hart that Mr. Brown was about to be reassigned and that she should continue to just wait. But again, Mr. Brown was not fired or reassigned. After repeated promises from her supervisors were left unfulfilled and in the face of the continued intimidation and harassment, Ms. Hart tendered her resignation on September 12, JOINT STATUS REPORT PAGE 3

4 Case 3:12-cv G Document 7 Filed 03/06/12 Page 4 of 7 PageID 59 Defendants: As set forth in Defendant s Original Answer to Plaintiff s Original Petition, Defendant denies Plaintiff s allegations and demands strict proof thereon in compliance with the applicable standards of law and burdens of proof. Without limiting the same, Defendant specifically denies that it discriminated against Plaintiff in violation of any federal or state law, including the Texas Labor Code, Title VII 42 U.S.C. 1981, the Family Medical Leave Act and the Texas Whistle Blower Act. Defendant further denies that Plaintiff is entitled to any of her requested relief or damages. Defendant asserts the following defenses in response to Plaintiff s allegations: (a) To the extent Plaintiff s claims fall outside applicable statutes of limitation, these claims are barred; (b) All claims pursuant to the Texas Labor Code, Texas Whistle Blower Act, Title VII, 42 U.S.C. 1981, for which Plaintiff failed to exhaust her administrative remedies and/or failed to timely file a Charge of Discrimination, and barred because Plaintiff has failed to meet the prerequisites and conditions precedent for filing this action and/or the Court lacks jurisdiction over Plaintiff claims; (c) Plaintiff failed to use reasonable efforts to mitigate her alleged damages, if any; (d) DCHD is immune from punitive and exemplary damages pursuant to 42 U.S.C. 1981a(b)(1) because punitive and exemplary damages are not recoverable against a government, government agency, or political subdivision; (e) Even if DCHD was not immune from punitive damages, Plaintiff could not recover punitive damages under the Texas Labor Code, Texas Whistle Blower Act, Title VII, 42 U.S.C. 1981, because any alleged unlawful employment decisions were contrary to DCHD s good faith efforts to comply with employment discrimination statutes and because DCHD did not act with malice or with reckless indifference to the federally protected rights of Plaintiff; (f) DCHD made reasonable efforts in good faith to implement and enforce its antiharassment, anti-discrimination, and anti-retaliation policies and procedures, and Plaintiff, if she had been subjected to unlawful conduct (a claim which DCHD denies), failed to take advantage of those policies and procedures; (g) DCHD made all employment decisions relative to Plaintiff for legitimate, nondiscriminatory and non-retaliatory business reasons and such reasons were not pretext for unlawful discrimination or retaliation; (h) DCHD would have made all employment decisions relative to Plaintiff irrespective of any consideration allegedly given to Plaintiff s protected categories or Plaintiff s alleged engagement in any protected activity; (i) DCHD exercised reasonable care in order to prevent and correct promptly, if necessary, any harassing, discriminatory, or retaliatory conduct, and Plaintiff failed to report any alleged unlawful behavior or otherwise take advantage of any preventative or corrective opportunities or to avoid harm otherwise; (j) Plaintiff s claim for damages and equitable relief are limited by the relevant provisions of the Texas Labor Code, Title VII, 42 U.S.C and the Texas Whistle Blower Act. JOINT STATUS REPORT PAGE 4

5 Case 3:12-cv G Document 7 Filed 03/06/12 Page 5 of 7 PageID 60 (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) DHCD asserts the defense of sovereign immunity, both from suit and from liability, save only to the extent of the partial waiver of same given by the Texas Tort Claims Act, Texas Civil Practice and Remedies Code Ann. Chapter 101, and hereby pleads and asserts the defense of sovereign immunity and the limits, exceptions, and exclusions of the Texas Tort Claims Act; DHCD specifically pleads and incorporates herein by reference as an affirmative defense, all applicable caps and limitations upon any award of damages, both compensatory and punitive, which are provided by law, including but not limited to the Texas Tort Claims Act; DCHD denies that Plaintiff is entitled to any relief demanded by her lawsuit, and further denies that Plaintiff is entitled to any damages, attorneys fees, and/or costs in any amount whatsoever; DCHD avers that Plaintiff s Original Petition and any amendment thereto should be dismissed for failure to establish a prima facie case of race and/or color and sex discrimination in regard to some, if not all, of her allegations; To the extent Plaintiff alleges such a claim, DCHD aver that Plaintiff s Original Petition and any amendments thereto should be dismissed for failure to establish a prima facie case of retaliation in regard to some, if not all, her allegations; To the extent Plaintiff alleges such a claim, DCHD aver that Plaintiff s Original Petition and any amendments thereto should be dismissed for failure to establish a prima facie case of a whistle blower violation in regard to some, if not all, her allegations; Even if Parkland were not immune from punitive damages, Plaintiff could not recover punitive damages under the Texas Commission on Human Rights Act, Title VII, or the Family Medical Leave Act because any alleged unlawful employment decisions were contrary to Parkland s good faith efforts to comply with employment discrimination statutes, and because Parkland did not act with malice or with reckless indifference to the federally protected rights of Plaintiff. Parkland pleads alternatively that it is entitled to the applicable limits, exclusions and/or offsets on damages set forth in the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(g) and the Civil Rights act of 1991, as well as sections and of the Texas Civil Practice and Remedies Code, as applicable, and hereby notifies Plaintiff of its intention to assert the damage limits, exclusions and offsets. Plaintiff s claim as alleged in her Original Petition are barred insofar as they assert matters outside the scope of any EEOC or TWC charges. DHCD avers that Plaintiff s action is frivolous, unreasonable and groundless and accordingly, DCHD is entitled to attorneys fees and costs associated with the defense of this action. (2) Any challenge to jurisdiction or venue. None. JOINT STATUS REPORT PAGE 5

6 Case 3:12-cv G Document 7 Filed 03/06/12 Page 6 of 7 PageID 61 (3) Any pending motions. None. (4) Any matters which require a conference with the court. The parties agree that a conference with the Court is not necessary at this time. (5) Likelihood that other parties will be joined. None at this time. (6) (a) An estimate of the time needed for discovery, with reasons, and (b) a specification of the discovery contemplated. The parties agree that factual discovery should be completed five (5) months before trial and that expert discovery should be completed four (4) months before trial. (7) Requested trial date, estimated length of trial, and whether jury has been demanded. Plaintiff Trial date in February 2013, 1 week for trial, and jury demanded. Defendant Trial date in August 2013, and 3-5 days for trial. (8) Whether the parties will consent to trial (jury or non-jury) before a United States Magistrate Judge per 28 U.S.C.A. 636(c). The parties do not consent. (9) Prospects for settlement, and status of any settlement negotiations. The parties have not engaged in formal settlement negotiations, but agree to discuss settlement within sixty (60) days of the completion of discovery. (10) What form of alternative dispute resolution (e.g., mediation, arbitration, summary jury trial) would be most appropriate for resolving this case and when it would be most effective (e.g. before discovery, after limited discovery, at the close of the discovery). The parties agree that mediation is appropriate after limited discovery has been conducted. JOINT STATUS REPORT PAGE 6

7 Case 3:12-cv G Document 7 Filed 03/06/12 Page 7 of 7 PageID 62 (11) Any other matters relevant to the status and disposition of this case. The parties are not aware of any other matters relevant to the status and disposition of this case that require the Court s attention at this time. Respectfully submitted, SAWICKI & LAUTEN, L.L.P. /s/ Michael G. Sawicki MICHAEL G. SAWICKI State Bar No N. Central Expressway, Ste. 850 Dallas, Texas (214) (214) (Fax) ATTORNEY FOR PLAINTIFF CARTER STAFFORD ARNETT HAMADA & MOCKLER, P.L.L.C. /s/ E. Leon Carter E. LEON CARTER State Bar No JOSHUA BENNETT State Bar No COURTNEY BARKSDALE PEREZ State Bar No STEPHEN S. COY State Bar No N. Central Expy, Suite 1950 Dallas, Texas (214) (214) (Fax) ATTORNEYS FOR DEFENDANT DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH & HOSPITAL SYSTEM JOINT STATUS REPORT PAGE 7