Turk v Ray Reynolds and Somervell County Hospital District Lawsuit Continues -On into 2018 Update


 
Magistrate Report Sent to Judge Pittman

Turk v Ray Reynolds and Somervell County Hospital District Lawsuit Continues -On into 2018 Update
 


11 January 2018 at 10:33:11 AM
salon

When last I looked, through pacer, at the Turk v Ray Reynolds and Somervell County Hospital District (Glen Rose Medical Center), Ray Reynolds had entered in a Motion for Summary Judgement. (Previous articles written on the Turk lawsuit)  If you are unfamiliar with the lawsuit, read this first. 

On August 31. 2017,  Reynolds filed a motion for a summary judgement, meaning that if the District Judge agrees, there will be no jury trial. There have been a series of motions and filings. On 9/6/2017, the Motion for Summary Judgement was referred to United States Judge Jeffrey Manske for a report and recommendation. Additional back and forth replies on the motions continued through October, November and December, and the Report and Recommendations came back on 1/8/2018. Those 2 reports are what I'm going to highlight today. Keep in mind as you read this that Judge Pittman has not made a decision yet about whether to accept these recommendations and according to the documents, the defendants (Ray Reynolds and Somervell County Hospital District) have 14 days to respond to this report. Because this is not done and waiting for Judge Pittman to deny or grant the order regarding Reynold's Motion for Summary Judgement, the date set for the jury trial, which was January 16, 2018,  is vacated

Documents: Re: Albert Turk  Re: Shelley Turk

A few parts of the report, bolding is mine.

Following is from the report re: Albert Turk

p 2 "It is helpful to note that neither plaintiff has sued the non-profit entity and the non-profit is not a party to this action. Plaintiffs have instead sued SCHD and Ray Reynolds, the CEO of SCHD and Glen Rose Medical Center.... During their employment,  Dr. Albert Turk and his wife, nurse Shelley Turk, publically and privately spoke out about management and patient-care problems they perceived at Glen Rose Medical Center. Pl.'s Compl. ¶ 10. Plaintiffs submitted written and oral complaints to: the board of trustees of the Somervell County Hospital District, the Glen Rose Medical Center Hospital Staff Committee, the Texas Department of State Health Services, and a local personal blog. Id. at ¶ 10. Defendants filed complaints concerning Shelley and Albert Turk's professional conduct with the Texas Board of Nursing and the Texas Medical Board, respectively. Id. at ¶ 16; Ex. A; Ex. B. Plaintiffs submitted three complaints to SCHD: (1) a complaint concerning alleged retaliatory treatment against Shelley Turk on September 5, 2014, (2) a complaint concerning Dr. Turk's removal from the Medical Executive Committee at Glen Rose Medical Center on January 6, 2015, and (3) a complaint addressing the Texas Board of Nursing complaint filed by Somervell County on January 18, 2015. Id. at ¶ 22. Dr. Turk also presented a grievance to Defendant Ray Reynolds on September 10, 2015, concerning how his practice was moved across the street to a suite without a treatment room. Id. On May 28, 2015, a meeting of the board of trustees of Somervell County Hospital District convened with an agenda item labeled "Executive Closed Session- Physician Employment Agreement." Id. at ¶ 13. The notice for the executive session read:

The Somervell County Hospital District will convene in Executive Session
pursuant to Section 551.074 of the Texas Government Code to discuss personnel
matters related to the possible termination of an employment agreement under
Glen Rose Healthcare, Inc. and pursuant to Section 55 1.071 of the Texas
Government Code to discuss with its attorney, either in person or by telephone,
the same matters and pursuant to Section 161.032 of the Texas Health and Safety
Code to discuss quality of care related issues.

Id. atlJ 13.
Plaintiff alleges that Defendants' counsel informed Dr. Turk that he was the subject of this meeting, but Defendants deny this. Id. at ¶ 14; Def.'s Answer at ¶ 14. The board announced on the same day that they would take "no action" on the agenda item. Pl.'s Compl. at ¶ 16. The  Texas Medical Board dismissed the aforementioned investigation filed by Defendants into Dr. Turk due to lack of evidence on August 28, 2015, and the Texas Board of Nursing dismissed its aforementioned investigation into Shelley Turk on August 24, 2015. Id. Plaintiffs allege that Defendants either dismissed, or did not address, the three aforementioned grievances submitted by Plaintiffs in 2014 and 2015. Id. at ¶ 22. Non-profit Glen Rose Health Care, Inc. notified Plaintiff Dr. Turk that it would not renew his employment contract effective September 1, 2016. Dr. Turk claims that the non-renewal was retaliation for his and his wife's criticism of hospital mismanagement. Id. at ¶ 4. Defendant SCHD, which directly employed Plaintiff Shelley Turk, terminated her employment in June of 2015. Id. at ¶ 9. She, too, claims that her termination was retaliatory.
Dr. Turk and Shelley Turk bring three claims pursuant to the U.S. Constitution and Article I, Sections 19 and 27 of the Texas Constitution: (1) Defendants violated Plaintiffs' protected speech rights by allegedly suppressing complaints about the hospital's management by taking action to terminate both Plaintiffs, (2) that Defendants did not afford Dr. Turk due process in violation of the Fourteenth Amendment by excluding him from a hospital board of directors executive session allegedly concerning his employment contract, and (3) that Defendants systematically denied Plaintiffs the right to petition the government for redress of grievances.
Pl.'s Compl. ¶IJ 25, 26, 28.

In determining whether the movant has met his burden, the court must view the evidence presented and all factual inferences from the evidence in the light most favorable to the party opposing summary judgment. See id. at 1031. All reasonable doubts as to the existence of a genuine issue of material fact must be resolved against the movant

The movant here is Ray Reynolds and the opposition is the Turks

p 7. A. State Action

Plaintiff alleges that nonprofit Glen Rose Health Care, Inc. did not renew his employment contract because Defendants SCHD and Ray Reynolds "took steps to terminate his employment" for speaking out about patient care problems at the hospital. P1.'s Compl. ¶ 25-26. Again, Plaintiff did not sue Glen Rose Health Care, Inc. in this action. Defendants' Motion for Summary Judgment asserts that Dr. Turk's First and Fourteenth Amendment claims fail as a matter of law because there was no employment relationship between Dr. Turk and the defendants. Defendants argue that Glen Rose Health Care, Inc. is a private, non-profit corporation2 and SCHD is a governmental entity. ECF No. 87 at 9.....

2. In the argument section of their Motion, Defendants characterize Glen Rose Healthcare, Inc. as a private, nonprofit corporation. Defendants' Motion for Summary Judgment offers evidence, however, as to the character, structure, funding, and leadership of that entity. No corporate charter is offered in the summary judgment evidence, nor is a deposition or affidavit from a corporate representative offered to support Defendants' assertion as to the corporate character of Glen Rose Healthcare, Inc.

.p 10  Notably absent from Defendants' Motion, however, is any discussion or application of the various tests promulgated by the Supreme Court. The Motion instead applies an incorrect legal standard, focusing narrowly on the existence of an employment relationship. As indicated above, the state action inquiry is a fact-sensitive and extraordinarily complex exercise. Defendants' Motion completely misses the broader inquiry mandated by the Supreme Court.
Moreover, Dr. Turk's response to the Motion points out that that the summary judgment evidence includes: (1) a deposition exhibit of an organizational chart showing non-profit Glen Rose Healthcare, Inc. as a subsidiary of Glen Rose Medical Center with Ray Reynolds as CEO of both, (2) deposition testimony of Ray Reynolds that money earned by physicians appears on the balance sheets of both Glen Rose Healthcare's financial statements and those of the hospital, (3) Reynolds' testimony that "money transfers back and forth" between the hospital and Glen Rose Healthcare, and (4) Dr. Turk's employment contract, signed by Ray Reynolds and Dr. Turk. P1's Resp. atJ 16-19; Reynolds Dep. Ex. 1 SCHD 440; Reynolds Dep. 171:16-22, 172:11-19, 174:12-175:8; SCHD 251-264. Plaintiff's Response sufficiently identifies material questions of fact as to the existence of state action on the part of the defendants. Defendants' burden in this Motion is to conclusively demonstrate the lack of state action on their part, not the lack of a Title VII employment relationship between Dr. Turk and the defendants. Because Defendants have failed to carry their burden under Rule 56, the Court should deny the Motion.
 

p 11 B Statutory Authority

Defendants also argue that SCHD did not employ Dr. Turk because SCHD is legally prohibited from employing physicians, pursuant to the Texas Administrative Code, Title 22 § 177.17. ECF No. 87 at 8; ECF No. 100 at 12-14. The code section at issue names hospital districts that are specifically authorized to employ physicians. Id. at § 177.17 (b)(3)-(19). Somervell County is not included in that list. Id. First, Defendants offer little discussion of the code provision and cite no summary judgment facts to support their argument, as required by FRCP 56 (c)(1)(A)-(B). Second, Defendants' argument begs the question by assuming that SCHD could not employ Dr. Turk because it was forbidden to do so by state law. Applying the same reasoning, Defendants could similarly conclude that they did not violate Dr. Turk's constitutional rights because they were forbidden from doing so by the U.S. Constitution.
Last, as required by Rule 56, Dr. Turk's response cites deposition testimony from Ray Richardson and former SCHD trustee Paul Harper that SCHD could directly hire physicians. ECF No. 93 at 10-11; citing Appx. 0023a-23b, Reynolds Dep. p. 40:19-41:4; Appx. 0055, Harper Dep. p. 26:7-9. Defendants' Motion fails to carry their burden under Rule 56(c)(1), and summary judgment is inappropriate.

p 12 .... Defendants' Motion for Summary Judgment asserts that the plaintiffs freely aired their complaints and that the defendants did nothing to infringe on Dr. Turk's constitutional right to petition. ECF No. 11-14. "The First Amendment right to associate and to advocate "provides no guarantee that a speech will persuade or that advocacy will be effective." Smith v. Ark Highway Emp. Local 1315, 441 U.S. 463, 465 (1979) citing Hanover Federation of Teachers v. Hanover Community School, 457 F.2d 456 (1972). The First Amendment guarantees citizens the right to petition, but it does not create any "affirmative obligation" upon the government to acknowledge or respond to those petitions. Smith v. Ark. Highway Emp. Local 1315, 441 U.S. at 465. 
When the government creates procedural requirements for processing grievances, however, it creates a procedural due process right that the government must obey. Prof'i Assoc. of Coil. Educators v. El Paso Cmty. Coil. Dist., 730 F.2d 258, 263 (5th Cir. 1984). Where a government employer is required to process grievances, the refusal to process a grievance violates the First Amendment when the refusal is motivated by an intention to quash the speech.
Id.
In the instant case, Plaintiffs Response to Defendants' Motion for Summary Judgment offers summary judgment evidence to support the following assertions: (1) The SCHD board of trustees required all grievances were to be handled by the board on a quarterly basis; (2) Plaintiff submitted grievances; (3) Defendant Reynolds repeatedly told board president Harrison "There were never any grievances filed at Glen Rose Medical Center."; (4) during the 24 months Harrison served as president, no grievances were presented to the board; (5) board member Paul Harper also testified that the board did not consider any grievances while he served and attended meetings; (6) Paul Harper requested that Defendant Reynolds to produce "complaints by the Turks." On August 21, 2015, Reynolds responded and produced nothing. Chip Harrison Dep. p. 86:11-87:3; p. 88:21-89:3; Paul Harper Dep. p. 106:10-17;; Paul Harper Dep. atExh. 22.
Again, Rule 56 requires a non-movant to respond with any factual assertion that would preclude summary judgment. See Cleckner v. Republic Van & Storage Co., 556 F.2d 766, 771 (5th Cir. 1977). Plaintiff's response identifies material questions of fact as to the defendants' conduct and motivation with regard to the processing of Plaintiff's grievances at the hospital. As such, summary judgment is inappropriate.

p 13 For the foregoing reasons, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgement pursuant to Federal Rules of Civil Procedure Rule 56 (ECF No. 87) be DENIED.
The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general
objections.

Following is from the report re: Shelley Turk. Many of the same arguments as above are made, including a few others. 

p 10. B Employment retaliation

Plaintiff Shelley Turk alleges that Defendants Somervell County Hospital District  (SCHD) and Ray Reynolds terminated her contract in retaliation for speaking out about her concerns at the hospital, and for sharing information with various outside organizations. Pl.'s Compl. ¶J 25, 28. Plaintiff can only establish a retaliatory termination claim under the First Amendment by proving (1) she suffered an adverse employment action, (2) her speech involved a matter of public concern, (3) her interest in commenting on the matter of public concern outweighed the defendant's interest in promoting efficiency (balancing under Pickering v. Board of Education, 391 U.S. 563 (1968)), and (4) her speech was a substantial or motivating factor behind the defendant's actions.

With regard to the first factor, the parties do not contest that Shelly Turk suffered an adverse employment action. As to the second factor, Defendants argue that Shelly Turk did not speak out as a citizen, but as an employee.

Plaintiff concedes that her internal reporting and complaints to management were made as an employee. However, her complaints to the SCHD board of trustees, board president Chip Harrison, the State of Texas Department of State Health Services were well outside her job duties. Shelly Turk's passing of information to the Somervell County Salonan internet blog, is inarguably outside the scope of her duties, and as such, Plaintiff spoke out as a "citizen".

p 12 Defendant also argues that Shelly Turk's speech (whether "citizen" speech or "employee" speech) was not a matter of public concern. They argue that Plaintiff's true motive was to complain about other employees' performance. ECF No. 88 at 16. A public employee's speech may relate to a public concern for purposes of First Amendment analysis if it does not involve solely personal matters or strictly a discussion of management policies that is only
interesting to the public by virtue of a manager's status as an arm of government.....

Plaintiff responds that the Defendants mischaracterize her complaints. The parties have offered a large body of summary judgment evidence, and that record is replete with discussions of Plaintiff's complaints about patient safety, patient care, and medical errors by nursing staff at a public hospital. See e.g., ECF 95-2 at 1-6. Those issues are a matter of public concern. Moreover, Plaintiff's public complaints are not interesting to the public simply because of her status as a government employee, but because the speech indicates that persistent mismanagement at the local hospital places the health of patients at peril. As such, Plaintiff satisfies the second factor.

...Defendants' Motion cites no uncontroverted facts that show that the hospital was even remotely as volatile a workplace as that cited in Price. The Motion fails to provide uncontroverted evidence that Plaintiffs complaints disrupted the ability of staff to cooperate, or disrupted the hospital's ability to operate. Moreover, Defendants' Motion explicitly asserts that they did not fire Plaintiff for her complaints about the hospital, but that she was fired for namecalling
a co-worker. This provides further indication that Plaintiff's complaints were not significantly disruptive. On the other hand, Plaintiff's interest in publically discussing patient safety issues was significant. Considering the content, form, and context of Plaintiffs statements, in the context of the whole record, Plaintiff adequately alleges that she slowly escalated her concerns through the administration. Rankin, 107 S.Ct. at 2897 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). When dissatisfied with the response, she took her complaints to the SCHD board of trustees and ultimately to a local political blog. Id. Viewed in the light most favorable to Shelly Turk, she establishes that her interest in speaking out about the hospital outweighs SCHD's interest in promoting workplace efficiency. Pickering, 391 U.S. at 568.

p 15 ...Defendant, who has the burden of producing evidence that shows there is no genuine issue of material fact, simply does not offer uncontroverted evidence to dispose of Plaintiff's claims against the defendants. Defendants' Motion relies almost solely on competing depositions in the record to rebut Plaintiff's retaliation claims. Defendant states that Reynolds recommended Plaintiff's firing because she referred to another nurse as a "camel toe idiot," but Plaintiff asserts that she did not even make the remark and was speaking about another individual entirely. Def.'s Mot. Summ. J. Ex. H, Ex. I Miller Dep. at 54:1-59:13, 60:14-63:1, 63:15-19, 64:7-8, 64:19- 65:11, 65:23-66:13, 67:9-68:6, 72:9-73:7, 74:6-77:19; Appx. 0044-0045, S. Turk Dep. 180:20 - 181:19; 183:11-20. Critically, Plaintiff alleges that the defendants fired her moments after she refused to ask the publisher of the Somervell County Salon to take down a blog post that was critical of the hospital. Appx. 0005, S. Turk Dccl., Para. 21.

p 16 .... it is not the function of the trial judge, in ruling on a summary judgment, to assess credibility or to determine the most reasonable
inference from conflicting facts. That is the role of the jury
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Plaintiff has adequately alleged that her speech was a motivating factor in her termination, and summary judgment is inappropriate.
C. Ray Reynolds

Defendant argues that Plaintiff's First Amendment retaliation claim should be dismissed against Ray Reynolds because Plaintiff makes no specific allegation that Defendant Reynolds retaliated against her. ECF No. 88 at 20. Plaintiffs argument focuses on two events directly tying Ray Reynolds to her termination: (1) her meeting with Chief Nursing Officer Donna Miller and Ray Reynolds in which they asked her to stop sending e-mails to other employees so that the e-mails would not be subject to an open records request, and to try and get the e-mails published on Salon removed, and (2) the phone call Reynolds had with Board President Chip Harrison, in which Reynolds told Harrison about the June 24, 2015 "camel toe idiot" incident, an allegation
of misconduct that Plaintiff contends was utterly false. S. Turk Dep. at 84:1-25; Appx. 0064, Harrison Dep. p.82:21- 83:14.
While there is stark disagreement as to the motivations for terminating Plaintiff, the burden to prove that there is no genuine issue of material fact rests on the movants, SCHD and Ray Reynolds. FED. R. CIV. P. 56(a); Impossible Electronics Techniques, Inc., 669 F.2d 1026.
In this instance, Defendants fail to demonstrate that there is no genuine issue of material fact regarding Ray Reynolds' personal involvement and motivation in the alleged infringement on Plaintiff's First Amendment rights. Accordingly, this Court RECOMMENDS that Defendants' Motion for Summary Judgment be DENIED in regard to Plaintiff Shelley Turk's claims against Ray Reynolds.

 


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