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Almeida v. Bio-Medical Applications of Texas, Inc.

United States District Court, W.D. Texas, El Paso Division

August 31, 2017

GLORIA ALMEIDA and IRMA QUINONEZ, Plaintiffs,
v.
BIO-MEDICAL APPLICATIONS OF TEXAS, INC., Defendant.

          MEMORANDUM OPINION

          DAVID BRIONES, SENIOR UNITED STATES DISTRICT JUDGE.

         On this day, the Court considered Defendant Bio-Medical Applications of Texas, Inc.'s ("Defendant") "Motion for Summary Judgment on all Claims and Brief in Support" ("Motion for Summary Judgment"), filed in the above-captioned case on June 6, 2017. On June 26, 2017, Plaintiffs Gloria Almeida ("Plaintiff Almeida") and Irma Quinonez ("Plaintiff Quinonez ") (collectively, "Plaintiffs") filed their Response. On June 30, 2017, Defendant filed its Reply. By a short order, on July 14, 2017, the Court granted Defendant's Motion for Summary Judgment. The Court indicated that it would later issue a memorandum opinion explaining the ruling's basis. This is the corresponding memorandum opinion.

         BACKGROUND

         This is an employment retaliation case. Plaintiff Almeida and Plaintiff Quinonez are registered nurses who were employed by Defendant for more than two decades. They claim that Defendant terminated their employment after they refused an assignment to train a patient to perform home hemodialysis in New Mexico. Plaintiffs claim that they did not have the requisite experience to train the patient and that accepting the assignment would have jeopardized the patient's safety. Plaintiffs reported this information to Defendant, and eventually Defendant terminated their employment.

         Defendant hired Plaintiff Almeida in 1991 and Plaintiff Quinonez in 1996. Def's Ex. B, ECF No. 18-3, at 6; Def's Ex. C, ECF No. 18-4, at 16; Pis.' Ex. A, ECF No. 24-2, at 3; Pis.' Ex. B, ECF No. 24-3, at 10. Their supervisor during the relevant time period was Kimberly Pope ("Ms. Pope"), the Home Therapy Program Manager. Def.'s Ex. A, ECF No. 18-2, ¶ 6, at 2; Pis.' Resp. to Def's Mot. Summ. J. ("Pis.' Resp."), [1] ECF No. 24, at 8.

         Defendant offers different dialysis treatments to patients suffering from end stage renal disease, including in-center dialysis and home therapies. Def's Ex. A, ECF No. 18-2, ¶ 2, at 1. There are two types of treatment methods as well: hemodialysis and peritoneal dialysis. Def's Ex. A, ECF No. 18-2, ¶ 4, at 2; Pis.' Resp., ECF No. 24, at 3. Plaintiffs primarily worked with peritoneal dialysis patients, and, even if for a short period of time, were trained to do in-center hemodialysis. Def's Ex. B, ECF No. 18-3, at 17-18, 25, 76; Def's Ex. C, ECF No. 18-4, at 13-14, 18-19, 20; Pis.' Resp., ECF No. 24, at 4, 6-7. Hemodialysis requires a machine to remove and cleanse a patient's blood, as the dialysis occurs via the patient's bloodstream. Def.'s Ex. A, ECF No. 18-2, ¶ 4, at 2; Pis.' Resp., ECF No. 24, at 3. Peritoneal dialysis occurs internally, as the dialysis occurs via the lining of the patient's abdomen. Def's Ex. A, ECF No. 18-2, ¶ 4, at 2; Pis.' Resp., ECF No. 24, at 3. For home therapies, patients have the option of receiving peritoneal dialysis or home hemodialysis, and are trained to treat themselves independently. Def's Ex. A, ECF No. 18-2, ¶ 5, at 2; Pis.' Resp., ECF No. 24, at 3. A caregiver, usually a relative, is also trained so that he or she can help the patient with the home therapy. Def.'s Ex. A, ECF No. 18-2, ¶ 5, at 2; Pis.' Resp., ECF No. 24, at 3.

         On February 23, 2016, Ms. Pope met with Plaintiffs to discuss home hemodialysis training for a patient in Las Cruces, New Mexico. Def's Ex. A, ECF No. 18-2, ¶ 9, at 4; Pis.' Resp., ECF No. 24, at 8. Plaintiffs claim that no supervisor ever asked them to train a patient in home hemodialysis before, they had no experience, and they did not know how to do so. Pis.' Resp., ECF No. 24, at 9. They told Ms. Pope, among other things, that they did not have the training or experience in home hemodialysis to train the patient in New Mexico and that they would not participate in training the patient in New Mexico. Def.'s Ex. A, ECF No. 18-2, ¶ 10, at 5; Def's Ex. B, ECF No. 18-3, at 47-49; Def's Ex. C, ECF No. 18-4, at 52-53; Pis.' Resp., ECF No. 24, at 9, 13.

         Ms. Pope told Plaintiffs that during the first week an experienced nurse would be available to start training the patient and Plaintiffs; after that, Plaintiffs would continue training the patient and Ms. Pope would be available as much as possible, including via telephone, throughout the entire time they were training the patient. Def.'s Ex. A, ECF No. 18-2, ¶ 9, at 4; Def's Ex. B, ECF No. 18-3, at 48, 53; Def's Ex. C, ECF No. 18-4, at 52, 54, 70-71. But see Pis.' Resp., ECF No. 24, at 10 (stating that Plaintiffs believed they were asked to train the patient independently and without supervision because only sporadic help would be available after the first week).[2] Additionally, Plaintiffs would switch off during the first week of training in New Mexico-while one was training in New Mexico, the other would be covering the El Paso patients for both Plaintiffs. Def's Ex. A, ECF No. 18-2, ¶ 9, at 4; Def's Ex. B, ECF No. 18-3, at 47; Pis.' Resp., ECF No. 24, at 10. Plaintiffs and Ms. Pope agree that Plaintiffs were not qualified to independently train the patient in New Mexico. Def's Ex. A, ECF No. 18-2, ¶ 11, at 5; Pis.' Resp., ECF No. 24, at 11-12 (citing Ms. Pope's deposition). At the end of the meeting, Plaintiffs stated they would not follow Ms. Pope's directive. Def's Ex. A, ECF No. 18-2, ¶ 10, at 5; Pis.' Resp., ECF No. 24, at 9, 13.

         On March 2, 2016, Ms. Pope issued Plaintiffs each a corrective action in the form of a write-up. Def's Ex. A, ECF No. 18-2, ¶ 12, at 5-6; Def's Ex. A-3, ECF No. 18-2; Def's Ex. A-4, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 17-18. The write-ups included a summary of the February 23, 2016, meeting Plaintiffs had with Ms. Pope. Def's Ex. A, ECF No. 18-2, ¶ 12, at 5-6; Def's Ex. A-3, ECF No. 18-2; Def's Ex. A-4, ECF No. 18-2; Def's Ex. C, ECF No. 18-4, at 66-67; Pis.' Resp., ECF No. 24, at 17-18. Additionally, it listed eleven tasks Plaintiffs were expected to complete, including classroom training courses and patient training in home hemodialysis to tentatively begin on April 11, 2016. Def's Ex. A, ECF No. 18-2, ¶ 12, at 5-6; Def's Ex. A-3, ECF No. 18-2; Def's Ex. A-4, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 17-18. Plaintiffs prepared rebuttals to the write-ups, again stating their concerns about not having sufficient home hemodialysis experience to train the patient in New Mexico. Def.'s Ex. A, ECF No. 18-2, ¶ 13, at 6; Def's Ex. A-5, ECF No. 18-2; Def's Ex. A-6, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 19-20.

         On March 17, 2016, Ms. Pope issued Plaintiffs each a second and final corrective action in the form of a write-up because Plaintiffs had not completed or begun to complete the tasks Ms. Pope assigned them during the first corrective action. Def's Ex. A, ECF No. 18-2, ¶ 14, at 6-7; Def's Ex. A-7, ECF No. 18-2; Def's Ex. A-8, ECF No. 18-2. See generally Pis.' Resp., ECF No. 24, at 23. These write-ups were similar to the ones issued on March 2, 2016. Def's Ex. A, ECF No. 18-2, ¶ 14, at 6-7; Def's Ex. A-7, ECF No. 18-2; Def's Ex. A-8, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 23. Defendant claims that by the time this corrective action was issued, the patient who Plaintiffs would have worked with in New Mexico was no longer available for training. Def. 's Ex. A, ECF No. 18-2, ¶ 15, at 7. Plaintiffs do not dispute this fact in their Response. Again, Plaintiffs prepared rebuttals to the final write-ups. Def. 's Ex. A, ECF No. 18-2, ¶ 15, at 6-7; Def's Ex. A-9, ECF No. 18-2; Def's Ex. A-10, ECF No. 18-2; Pis.' Resp., ECF No. 24, at 24.

         On April 7, 2016, Ms. Pope terminated Plaintiffs' employment because they refused to complete the tasks she had assigned them in their write-ups. Def's Ex. A, ECF No. 18-2, ¶ 16, at 8; Pis.' Resp., ECF No. 24, at 25-26; Pis.' Ex. A-24, ECF No. 24-2, at 55 (Plaintiff Almeida termination document); Pis.' Ex. B-3, ECF No. 24-3, at 16 (Plaintiff Quinonez termination document). Plaintiffs' employment was terminated within sixty days of their February 23, 2016, meeting with Ms. Pope, where they reported that they did not believe they had proper home hemodialysis experience to train the patient in New Mexico. Defendant claims it terminated Plaintiffs' employment due to their insubordination, while Plaintiffs claim that it terminated their employment because they refused to participate in a training that would have endangered a patient in New Mexico and would have violated applicable regulations. Def's Ex. A, ECF No. 18-2, ¶ 16, at 8; Pis.' Resp., ECF No. 24, at 26.

         On May 10, 2016, Plaintiffs filed this case in state court. Defendant removed the case to this Court on June 30, 2016. Plaintiffs alleged one cause of action in their Original Petition: retaliation under Texas Occupations Code Sections 301.352, 301.4025(b), and 301.413. Pis.' Original Pet., ECF No. 1-4, ¶¶ 25-26, at 7.

         STANDARD

         "The court shall grant summary judgment if the movant shows that 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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ...." Fed.R.Civ.P. 56(c)(1). "[T]he plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         "Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex, 477 U.S. at 323). Where the burden of proof lies with the nonmoving party, the moving party may satisfy its initial burden by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. While the moving party "must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

         A fact is "material" only if it would permit "a reasonable jury . .. [to] return a verdict for the nonmoving party" and "might affect the outcome of the suit." Douglass v. United Servs. Auto. Ass 'n,65 F.3d 452, 458-59 (5th Cir. 1995), aff'd en banc,79 F.3d 1415 (5th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986)). "If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of ...


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