United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Rosenthal Chief United States District Judge.
Samia Khalil sued UTH McGovern Medical School and Memorial
Hermann Medical System in Texas state court, alleging age
discrimination and retaliation under the Texas Commission on
Human Rights Act, Tex. Labor Code § 21.010, et
seq., the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq., and Title VII, 42 U.S.C.
§ 2000e, et seq. The defendants timely removed
to federal court. The petition named UTH McGovern Medical
School and Memorial Hermann as defendants, but Dr. Khalil
dismissed her claims against UTH, without prejudice. (Docket
Entry No. 17). Memorial Hermann moved to dismiss under the
Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.
Code § 27.001, et seq., for judgment on the
pleadings under Rule 12(c), and for a more definite statement
under Rule 12(e). (Docket Entries No. 15, 16). Dr. Khalil
responded to both motions, and Memorial Hermann replied.
(Docket Entries No. 21, 22, 24, 25).
Khalil's response to Memorial Hermann's motion under
the Texas Citizens Participation Act included several
exhibits and a supplement. The court held a hearing on
October 16, 2017, at which the parties argued the motions. At
that hearing, Dr. Khalil's counsel represented that she
is no longer pursuing the claims for retaliation or under
Title VII, and the court dismissed those claims, without
prejudice. (Docket Entry No. 27). The court converted
Memorial Hermann's Rule 12(c) motion for judgment on the
pleadings to a motion for summary judgment, see Fed.
R. Civ. P. 12(d), and allowed the parties to supplement their
motions and responses. (Id.). Memorial Hermann has
moved for clarification, or, in the alternative,
reconsideration of the ruling. (Docket Entry No. 29).
on the parties' submissions, arguments, and the
applicable law, Memorial Hermann's motion to dismiss
under the Texas Citizens Participation Act is granted as to
Dr. Khalil's state-law discrimination claims. Those
claims are dismissed, with prejudice, because the Texas
Citizens Participation Act and the Texas medical peer-review
immunity statute, Tex. Occ. Code § 160.010, bar them,
and because Dr. Khalil received her right-to-sue letter from
the Texas Workforce Commission on December 30, 2016, but did
not file this suit until May 5, 2017, after the 60-day
limitations period under § 21.254 of the Texas Labor
Code had expired. The motion to dismiss Dr. Khalil's
federal discrimination claims under the Texas Citizens
Participation Act is denied because in its motion for
reconsideration, Memorial Hermann indicates that it seeks
dismissal only of Dr. Khalil's state-law discrimination
claims. (Docket Entry No. 29, at p. 12). Memorial
Hermann's supplemented motion for summary judgment should
address only the remaining federal discrimination claims. The
motion for reconsideration, (Docket Entry No. 29), is denied
reasons for these rulings are explained below.
background facts are based on Dr. Khalil's state-court
petition in this lawsuit and the exhibits attached to the
parties' submissions. This is Dr. Khalil's second
lawsuit based on her work at Memorial Hermann. In the earlier
suit, Dr. Khalil asserted state-law claims for several
business torts. See Memorial Hermann Health Sys. v.
Khalil, 2017 WL 3389645 (Tex. App.-Houston [1st Dist]
Aug. 8, 2017). The facts of the case are also set out in
detail in the Texas Court of Appeals decision rejecting Dr.
Khalil's claims. Id. at * 1-3.
Khalil was a clinical professor of pediatric anesthesiology
at UTH and worked at Memorial Hermann as a pediatric
anesthesiologist. In December 2014, Dr. Carin Hagberg, the
chair of the Anesthesiology Department at UTH, told Dr.
Khalil that the hospital administration had received
"vague complaints" about Dr. Khalil and that the
hospital had asked Dr. Hagberg to implement a
corrective-action plan for Dr. Khalil. (Docket Entry No. 1,
Ex. 5 at ¶ 8). Dr. Khalil met with a corrective-action
plan advisor several times. In June 2015, she received a
report that she had not adequately complied with the
"patient safety checklist" component of the plan.
Instead, she had a "lack of team attitude or just a
simple disagreement with regards to accountability on certain
aspects of the checklist." (Id. at¶ 10).
August 3, 2015, Dr. Hagberg put Dr. Khalil on administrative
leave based on "patient safety issues." These
issues arose from a peer review of her work, including her
anesthesiology charts. Dr. Khalil alleges that this
administrative leave was the equivalent of suspending her
from clinical duties at UTH. She also alleges that the 2015
peer review was different from her previous peer reviews in
two ways: she was not allowed to review or refute the
responses; and it was based on a larger sample of anesthesia
charts. Dr. Khalil alleges that the UTH suspension "had
the practical effect of preventing her from performing her
clinical duties at Memorial Hermann." (Id.
August 14, 2015, Dr. Hagberg told Dr. Khalil that she needed
to attend the "PACE" or "KSTAR" program
to assess her ability to practice with skill and safety. In a
letter to the chair of the Memorial Hermann credentials
committee dated November 30, 2015, Dr. Khalil stated,
"[a]s for compliance with the EAP recommendations for an
outside assessment by PACE, I am unwilling to participate in
a process that is flawed by design and intrinsically
unfair." (Docket Entry No. 15, Ex. B at p. 1083). In her
petition, however, Dr. Khalil alleges that she applied to the
PACE program and "was in line to go" on January 4,
2016. (Docket Entry No. 1, Ex. 5 at ¶ 22).
Khalil independently contacted Dr. Charles Cote, an
anesthesiologist at Harvard Medical School, to review her
anesthesiology charts. His report to her stated that,
"[a]s far as I can tell there are no medical legal
issues regarding harm to the patients, rather the critiques
are management style rather than substantive errors in
judgment." (Id. at ¶ 18). Dr. Khalil
presented Dr. Cote's report to UTH, but, according to her
petition, UTH did not consider it because it was
"outside their normal process." (Id.
August 2015, Dr. Khalil filed a grievance with UTH under its
established grievance process. UTH denied the grievance on
September 14, 2015; Dr. Khalil appealed the denial in
September. In November, the grievance committee denied Dr.
KhaliPs appeal and Dr. Hagberg informed her that she no
longer had clinical research privileges. Later that month,
Dr. Khalil received a letter confirming that her appeal was
denied. She made a "final appeal" to the president
of the UTH Science Center. The president denied that appeal
in December 2015.
letter dated November 19, 2015, the chair of the Memorial
Hermann credentials committee advised Dr. Khalil that her
application for reappointment to the Memorial Hermann staff
had been tabled because: (1) Dr. Khalil had not completed the
PACE program; (2) the credentialing committee was concerned
about clinical patient safety based on Dr. Khalil's
anesthesiology charts; (3) the committee needed additional
information from the Anesthesiology Department; and (4) Dr.
Khalil was "not actively practicing clinical anesthesia
with patients." (Id. at ¶ 22). On November
30, 2015, Dr. Khalil responded that "it borders on
absurd to suggest that as a basis for my appointment being
incomplete when it was UT, at the urging of Memorial Hermann
Hospital that suspended my clinical duties on August 3, 2015
with no notice and no hearing or due process."
December, Memorial Hermann's chief of staff, on behalf of
the medical executive committee, wrote Dr. Khalil a letter
about the re-credentialing process. The subject line states
"Final Peer Review Ratings." The letter identified
two cases in which Dr. Khalil failed to meet the standard of
care. (Docket Entry No. 15, Ex. B at pp. 1086). The letter
stated that the committee "accepted and agreed
with" the findings and recommendations of the
credentials committee and the medical staff pediatric quality
review committee that "aggregated information in [Dr.
Khalil's] overall credentials file, to date, is
disturbing and has led to the finding that your clinical
practice represents the potential of imminent patient
harm." (Id.). The letter listed several
findings, including that Dr. Khalil failed to read patient
records, communicate with surgeons, demonstrate insight or
basic knowledge, recognize serious symptoms, or acknowledge
incorrect dosing. (Id.). The letter concluded that
"[n]o action has been taken on your incomplete
application for reappointment. Your current appointment will
expire on January 31, 2016. If the application is completed
and progresses through the committee structure, regrettably,
I doubt the recommendation will be favorable."
(Id. at p. 1087).
Khalil did not complete the corrective-action plan. Her
credentials with Memorial Hermann expired on January 31,
2016. On February 2, Memorial Hermann's chief of staff
wrote Dr. Khalil a letter confirming that her credentials had
expired because "[i]ncomplete applications cannot be
considered for appointment, " but if she is "able
to address and meet the previously communicated deficiencies,
[she] may submit an application for appointment and clinical
privileges that will be considered and processed as an
initial application." (Id. at p. 1116). Dr.
Khalil does not allege that she ever submitted a completed
6, 2016, Dr. Khalil filed a charge with the Equal Employment
Opportunity Commission, alleging that UTH had discriminated
against her based on her age. On June 8, 2016, Dr. Hagberg
informed Dr. Khalil that she would not be reappointed to the
UTH faculty for the 2016-2017 term, and that for the
remaining period of her employment, Dr. Khalil would receive
special assignments from Dr. Hagberg. Dr. Hagberg instructed
Dr. Khalil to turn in her keys and access badge. Dr. Khalil
alleged that UTH terminated her on August 31, 2016, and that
after she was suspended from clinical duties, UTH hired two
younger pediatric anesthesiologists. In her affidavit, Dr.
Khalil stated that Memorial Hermann also replaced her with
younger pediatric anesthesiologists: "Since my
suspension and eventual effective termination by Memorial
Hermann, the hospital has acquired at least [four] pediatric
anesthesiologists under the age of 40 to replace me
...." (Docket Entry No. 22, Ex. A).
Khalil alleged that: (1) UTH and Memorial Hermann
intentionally delayed implementing the corrective-action
plan; (2) UTH, "at the apparent urging of and in concert
with Memorial Hermann, " waited nearly nine months to
complete its review of Dr. Khalil's progress and review
her anesthesia charts; (3) Memorial Hermann delayed
submitting her re-credentialing packet for a month and a
half; (4) Memorial Hermann "accepted UTH's
conditions and reasoning to remove Dr. Khalil without taking
into consideration Dr. Khalil was entitled to rights under
the By Laws she did not get the opportunity to
exercise"; and (5) Memorial Hermann "refused to
offer Dr. Khalil any alternative guidelines to apply for
renewal of her privileges; instead, they discouraged her from
applying stating the likelihood of her being considered was
very diminutive." (Docket Entry No. 1, Ex. 5 at
¶¶ 21, 33).
earlier state-court lawsuit, Dr. Khalil sued Memorial Hermann
for defamation, fraud, tortuous interference with an existing
contract, intentional infliction of emotional distress,
"assisting and encouraging, " conspiracy, and age
discrimination, and also challenged the Texas Citizens
Participation Act under the Texas Constitution's open
courts provision, Tex. Const, art. 1, § 13. Memorial
Hermann moved to dismiss several of those claims under the
Texas Citizens Participation Act, but because the trial court
did not rule on Memorial Hermann's motion to dismiss
within 30 days, the motion was denied by operation of law
under the Texas Citizens Participation Act. The Texas Court
of Appeals reversed the ...