United States District Court, S.D. Texas, Houston Division
Sarah V. Kelly, Plaintiff,
Merrill O. Hines, III, Defendant
MEMORANDUM OPINION & ORDER
H. Miller United States District Judge
before the court is (1) the defendant Dr. Merrill O.
Hines's motion to dismiss (Dkt. 9) Dr. Sarah Kelly's
complaint and (2) Kelly's motion for leave to file a
surreply (Dkt. 16). Having considered the motions, responses,
replies, and applicable law, the court finds that Hines's
motion to dismiss should be GRANTED and that Kelly's
motion for leave to file surreply should be DENIED.
action arises from Kelly's allegations that her rights
were violated under Title II of the Americans with
Disabilities Act (“ADA”), the Rehabilitation Act,
and § 1983. Dkt 13 at 1 (citing 42 U.S.C. § 12132,
29 U.S.C. § 794, and 42 U.S.C. § 1983). Kelly is a
physician living in Fort Bend County, Texas. Id. at
2. Hines is an assistant medical examiner and director of the
Forensic Pathology Fellowship Program at the Harris County
Institute for Forensic Science (the “Program”).
Id. Kelly entered a one-year fellowship training at
the Program to receive a certification in Forensic Pathology.
Id. at 3. Hines is the Program's director and
supervised Kelly throughout the duration of her fellowship
training. Id. at 7. Kelly entered the Program on
July 1, 2012, and formally resigned from the Program on
January 10, 2013. Id. Kelly suffers from several
medical conditions that she alleges require accommodation in
the workplace. Id. at 6.
in July 2012, the first month of the fellowship, Kelly had
issues with Hines's supervisory approach. Id. at
7-8. During a meeting, Kelly felt that Hines inappropriately
raised his voice at her and invaded her personal space.
Id. at 7. Kelly informed Hines of her disabilities
and asked for a reasonable accommodation from Hines in the
form of improved communications with her to avoid an
“adversarial dynamic.” Id. at 8. The
communications between Kelly and Hines continued unchanged,
causing Kelly to experience physical symptoms. Id.
In early October 2012, Kelly sent an email to Hines's
superior regarding the alleged hostile work environment and
requested a reasonable accommodation, but received no
her time in the Program, Kelly was reprimanded for lapses in
adherence to the Program's policies and procedures. The
1. Identifying herself and her work to an unidentified person
at an accident site, jeopardizing the Program's
protection of sensitive information and appearance of
impartiality. Id. at 9.
2. Not correcting placeholder values for heart valve
dimensions and not notifying attending physicians of her
preliminary measurements, against acceptable practice.
Id. at 11.
3. Violating the Program's visitation policy when her
family visited her office, potentially exposing them to
autopsy material. The family members were allowed into the
office by another fellow. Id. at 13.
4. Falling asleep at the wheel after work, causing her
vehicle to run into a light pole. This resulted in a meeting
with Hines about the importance of adhering to duty hours and
avoiding fatigue. Id. at 14.
5. Stating, “sometimes I could just kill him, ”
regarding Hines. The statement was a result of Hines finding
a typographical error on a report he requested be completed
immediately. Hines shouted at Kelly in a hallway about the
report. Id. at 17.
January 2, 2013, Hines and other directors met with Kelly
regarding the threatening statement she made against Hines.
Id. Kelly expressed her desire to resign, but she
was told she needed a summative evaluation first.
Id. at 18. On January 10, 2013, the directors,
Kelly, and her attorney went over her summative evaluation.
Id. The Program accepted her letter of resignation
and Kelly's attorney viewed her employment file and found
no evidence of any disciplinary action against her.
Id. at 19.
leaving the Program, Kelly applied to the Texas Medical Board
for a medical license which was denied. Dkt. 10 at 2. In May
2013, as part of the licensing process, Hines submitted a
Physician Licensure Form (“Form L”) to the Texas
Medical Board. Dkt. 13 at 3. On Form L, Hines stated that
Kelly had a history of disciplinary issues, suspension,
misconduct, and unprofessional conduct while training with
the Program. Id. On January 17, 2014, Kelly's
new attorney received her entire academic file, revealing the
adverse information that Hines submitted. Dkt. 10 at 2-3.
alleges discrimination under Title II of the ADA and Section
504 of the Rehabilitation Act. Dkt 13 at 1 (citing 42 U.S.C.
§ 12132 and 29 U.S.C. § 794). Kelly further alleges
that the information Hines submitted to the Texas Medical
Board was false, misleading, fraudulent, and led to the
denial of her medical license application. Dkt. 10 at 3.
Kelly alleges that she was denied due process because of her
inability to rebut or challenge any of the adverse
information on her record. Id. at 2. On March 21,
2016, Hines filed a motion to dismiss Kelly's complaint
based on the theory that all of Kelly's claims are barred
by the statute of limitations. Dkt. 9. Kelly responded. Dkt.
10. On April 22, 2016, Kelly filed a second amended
complaint, repeating identical allegations but clarifying
some of the nature of her claims and grounds for relief. Dkt.
13. On reply, Hines reasserts his motion to dismiss
arguments, indicating to the court that his motion to dismiss
remains applicable to the live complaint. Dkt. 17 at 1.