Summary
holding that a drug test cannot constitute an adverse employment action where it does not directly change an individual's pay, benefits, compensation, or employment status
Summary of this case from Sims v. Univ. of Md. Med. Sys. Corp.Opinion
Civil Action No. 3:99-CV-1217-L
June 30, 2002
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion for Summary Judgment and Defendants' Brief in Support of Motion for Summary Judgment, both filed June 15, 2000; Plaintiff's Response to Defendants' Motion for Summary Judgment and Plaintiff's Reply (sic) Brief to Defendants' Motion for Summary Judgment, both filed July 30, 2001; and Defendants' Reply Brief to Plaintiff's Response to Defendants' Motion for Summary Judgment, filed August 14, 2001. After careful consideration of the motion, response, reply, briefs, appendices, and the applicable law, the court, for the reasons that follow, grants Defendants' Motion for Summary Judgment.
I. Procedural and Factual Background
Plaintiff Carolyn Foster ("Plaintiff" or "Foster") filed this action against Texas Health Systems d/b/a Presbyterian Hospital of Dallas ("Presbyterian") and Martin Yates ("Yates"), collectively referred to as "Defendants," on May 26, 1999. Foster contends that Presbyterian discriminated against her in violation if the Civil Rights Acts of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq; that Defendants violated her due process rights because she was terminated without cause and not provided a pretermination hearing; that Presbyterian retaliated against her in violation of Title VII; that Defendants violated her due process rights under the Texas Constitution; and that Presbyterian terminated her on account of her race in violation of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. § 21.051 (Vernon 1996).
Foster has abandoned her due process claims under federal and state law. See Plaintiff's Response to Defendant's Motion for Summary Judgment ¶ VII, and Plaintiff's Reply [sic] to Defendants' Motion for Summary Judgment ¶ VIII. Accordingly, these claims are withdrawn and are no longer before the court.
Defendants contend that Foster was not discriminated or retaliated against because of her race. Defendants further contend that its actions and decisions were based on legitimate, nondiscriminatory reasons. Finally, Defendants asserted several affirmative defenses, which will be discussed as necessary in this opinion.
The court now sets forth the applicable facts on which it relies to dispose of the pending summary judgment motion. As expected, there are disputed facts in this case; however, many relevant facts are not in dispute. When the facts are in dispute, they are presented and viewed in the light most favorable to Foster as the nonmovant. As set forth later in this opinion, the court, however, does not consider a fact to be in dispute merely because a party makes a conclusory or speculative statement or assertion that it is disputed. Competent summary judgment evidence must establish that it is disputed. Finally, the courts cites and relies only on those facts which are material and relevant to decide the pending summary judgment motion.
Plaintiff Foster is an African-American female and was hired as an anesthesia technician at Presbyterian on December 8, 1997. An anesthesia technician's job duties include preparing the basic anesthesia related supplies and equipment for use by a licensed anesthesia provider and performing diversified duties to support patient care. Foster describes her job duties as assisting the anesthesiologist by turning the room over and cleaning the room for the next patient. Plaintiff's supervisor at Presbyterian was Martin Yates, a co-defendant in this case.
While employed at Presbyterian, Foster alleges that she was subjected to a racial slur by one of the anesthesiologists, Philip Eichenholz, M.D. On September 2, 1998, Foster and two other African-American employees, who worked in the anesthesia department, were standing around conversing when Dr. Eichenholz said, "You people scare me when you get in bunches like that" or "You people make me nervous when you get in huddles like that," or words to that effect. On September 3, 1998, Foster complained to the human resources department at Presbyterian regarding Dr. Eichenholz's statement.
Foster further contends that she was subjected to racial discrimination and retaliation when she was required to submit to a drug test and locker search following the discovery of some missing syringes and drugs on October 2, 1998. Mark Loftice, nurse manager, contacted Fran Koch, the Director of Operating Room and Sterile Processing, who was overseeing the anesthesia technicians on this day, and informed her that a syringe(s) was missing from one of the operating rooms. Koch immediately asked Loftice to interview each person assigned to that operating room and anyone in the area that could have been in the room. One of those assigned to that room was Foster. Shortly after Koch was notified of the missing syringe(s), she notified Scott Bissett, a security officer at Presbyterian, and Anne Jernigan, the Director of Pharmacy. Following Loftice's conversation with those assigned to the room and those in the area, Loftice told Koch that he could identify Foster as the only person with access to the missing syringe(s). After obtaining this information from Loftice, Bissett, Jernigan and Koch made the decision to request Foster to submit to a drug test and locker search. Foster submitted to the drug test and the search of her locker. No drugs were found in Foster or her locker.
The record at times indicates that several syringes were missing, and at other times indicates only one was missing. The court uses the plural term because Dr. Eichenholz and Plaintiff speak of more than one syringe. In any event, the number of syringes does not affect the court's analysis of the legal issues presented.
Foster states that she only submitted or "consented" to the drug test and search of her locker because she faced the possibility of termination if she refused.
On October 5, 1998, Foster filed a Charge of Discrimination ("charge") with the Equal Employment Opportunity Commission ("EEOC"). This charge listed the type of discrimination as "retaliation" and did not include an allegation of race discrimination. According to the charge, the action complained about by Plaintiff occurred on October 2, 1998, the date of the locker search and drug test. The charge does not specifically mention the September 2, 1998, incident involving Dr. Eichenholz, although it does state that Foster had internally complained about racial discrimination, which could reasonably be construed to be an oblique reference to the Eichenholz statement. Plaintiff never amended this charge and did not file any additional documents with the EEOC that referenced the statement by Dr. Eichenholz on September 2, 2998; her suspension on March 11, 1999; or her termination on March 15, 1999.
On March 11, 1999, Plaintiff was involved in an incident with Kelly Cole ("Cole"), a white male anesthesia technician. This altercation stemmed from an operating room not being prepared. The facts surrounding the incident are disputed by Plaintiff and Defendants. Both accounts are set forth in the following two paragraphs, and the court accepts, as it must, Foster's version to the extent it conflicts with that of Defendants.
According to Foster, she and Cole were discussing why he had not set up a particular room for surgery. During the discussion, Cole used some profane language. Foster stood up and told him to step back because he was in her space. At this point, according to Foster, Cole took the palm of his hand and pushed her in the face, and she fell back onto some racks. As she fell back, Foster caught herself stood up straight, told Cole never to touch her again and shoved him away from her. Foster acknowledged that she and Cole yelled at each other during the incident, that she used some "curse words," but that she never threatened to harm, kill or "drop [Cole] out in the parking lot."
According to Defendants, during this altercation, Plaintiff shoved Cole, causing his hot coffee to spill on him and the floor of the room. At no time did Cole touch Foster. In addition, Foster threatened to kill Cole and used profane language. After the initial altercation between Foster and Cole ended, Foster's husband showed up at Presbyterian and barged through the door. Foster then said, "There is the bitch right there," or words to that effect, and pointed to Cole. Defendants further state that Foster's husband threatened to kill not only Cole, but all the white men in the anesthesia workroom.
Foster and her husband left before security from Presbyterian arrived in the workroom. Once security arrived, Cole was asked if he wanted to press charges against Foster. Cole told security that he wanted to press charges, and personnel from the Dallas Police Department came to Presbyterian and took down information about the altercation. Cole filed an assault complaint against Foster because he was concerned about his personal safety. The assault charge was later dismissed.
Presbyterian suspended both Foster and Cole on March 11, 1999, pending an investigation. After Presbyterian conducted an investigation into the altercation by interviewing several witnesses, it terminated Foster on March 15, 1999. Shortly after her termination, Foster filed this lawsuit against Presbyterian and Martin Yates.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Defendants' Motion for Summary Judgment
A. Contentions of the Parties 1. Defendants' Contentions
Defendants move for summary judgment on several grounds. First, they contend that Defendant Yates cannot be held liable to Foster for discrimination or retaliation under Title VII or the TCHRA. They contend that these statutes specifically state that a supervisor is not classified as an "employer," and, therefore, no individual liability can attach to a supervisor as a matter of law.
Second, Defendants contend that Foster cannot meet the burden of proof necessary under the McDonnell Douglas framework to support her claims for discrimination and retaliation under Title VII or the TCHRA. Defendants contend that Plaintiff did not suffer an adverse employment action and therefore fails to establish a prima facie case. Even if Plaintiff meets this initial burdens Defendants contend that they had a legitimate, nondiscriminatory business reason for the actions taken against Plaintiff.
Third, Defendants contend that Foster failed to exhaust her administrative remedies prior to filing this lawsuit. According to Defendants, several of the claims asserted by Plaintiff are not properly before this court. Finally, with respect to the exhaustion issue, Defendants contend that even if Plaintiff wanted to amend her original charge which she filed with the EEOC, she would be time-barred from doing so because more than three hundred (300) days have lapsed since the last alleged act of discrimination.
2. Plaintiff's Contentions
Foster, of course, disagrees that Defendants are entitled to summary judgment. She contends that genuine issues of material fact exist regarding all of her claims and that summary judgment would therefore be improper. Foster contends that she made out prima facie cases of discrimination and retaliation under federal and state law, and that Defendants proffered reasons for their conduct is merely a pretext for the real reason that she was discharged. Finally, Foster contends that she has exhausted her administrative remedies because all subsequent acts of discrimination or retaliation arose from her charge of discrimination.
B. Analysis 1. Exhaustion of Administrative Remedies
The court first addresses Defendants' exhaustion of administrative remedies argument. Defendants contend that Plaintiff is limited in the issues that she can bring forth to this court by her charge filed with the EEOC and the factually related issues that could be reasonably be expected to grow out of the EEOC's investigation of the charge. Defendants contend that since Foster only complained about the locker search and drug test, and did not present any other matter to the EEOC or the Texas Commission on Human Rights ("TCHR"), the only issues properly before the court pertain to the locker search, drug test, and any other factually related issues. Defendants contend that because Foster was terminated on March 15, 1999, and because the EEOC issued Foster her right-to-sue letter on February 25, 1999, no EEOC investigation could be reasonably expected to grow out of Foster's initial charge that related to an event yet to occur. Plaintiff never refiled or amended her charge, and Defendants contend that the EEOC was denied the opportunity to investigate any alleged discrimination or retaliation claim based on the termination. For these reasons, Defendants contend that any argument involving Plaintiff's termination as an ultimate employment decision or adverse employment action is not properly before the court.
Foster contends that Defendants' arguments have no merit. She contends that the "rule of reason" permits the scope of a Title VII suit to extend as far as, but no further than, the scope of any EEOC investigation which could reasonably grow out of the administrative charge. According to Foster, a Title VII action may be based, not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination "like or related" to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charge of discrimination. Foster takes this position because
[t]he charge clearly states that it is premised upon retaliation and at the time of the filing of the charge that Plaintiff's personal harm was that she was subjected to a locker search and drug test. Moreover, the charge states in the discrimination statement portion that, "Plaintiff believed that she had been retaliated against because she had complained internally of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, in that I was the only employee who was subjected to this treatment and there was a room full of people who also had access to the alleged missing drugs." It is reasonable to think that the EEOC would investigate racial discrimination in violation of Title VII, and that such an investigation would reasonably grow out of Plaintiff's charge.
Plaintiff's Reply [sic] to Defendants' Motion for Summary Judgment at 10.
A condition precedent to bringing suit on an employment discrimination claim is the timely filing and exhaustion of an EEOC charge. Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). The scope of the lawsuit thereafter extends no further than the scope of the investigation that can reasonably be expected to grow out of the charge of discrimination. Id; Fine v. GAF Chem. Corp., 995 F.2d 576, 577-78 (5th Cir. 1993). A Title VII cause of action, however, may be based
not only on the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.
Id. at 578 (quoting Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983). The determination is driven by the competing policies of promoting the "voluntary settlement of all issues without an action in the District Court," and expanding the scope of the lawsuit to recognize "the remedial and humanitarian underpinnings of [Title VII]." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th Cir. 1970).
For the reasons that follow, the court determines that Foster has not exhausted her administrative remedies for her claim of race discrimination based on her termination and her claim for retaliation, which also is based on her termination. To understand the basis for the court's decision, a succinct review of key facts is in order.
Foster filed an EEOC charge on October 5, 1998. The incident regarding the Dr. Eichenholz's statement took place on September 2, 1998, and the incident regarding the missing syringes and drugs took place on October 2, 1998. In her EEOC charge, Foster checked the box for "retaliation," and in complaining about the locker search and drug test, stated:
I believe I have been retaliated against because I complained internally of racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, in that, I was the only employee who was subjected to this treatment and there was a room full of people who also had access to the alleged missing drugs.
Foster's Charge of Discrimination, filed October 5, 1998. The EEOC issued Foster a right-to-sue letter regarding this charge on February 25, 1999. Foster, along with Cole, was suspended on March 11, 1999. She was discharged on March 15, 1999. Foster did not file a new or amended charge regarding her suspension or discharge.
As the suspension and termination occurred after Foster's initial charge and the issuance of the right-to-sue letter, the EEOC could not have possibly investigated a charge of discrimination or retaliation based on events that had not occurred and for which no charge was ever filed. Accordingly, one could not expect that an EEOC investigation would reasonably grow out of Foster's charge on two events which had not occurred and for which no new or amended charge was ever filed. Likewise, Foster's lawsuit cannot be based on "discrimination like or related to the charge's allegations" because her initial charge could not have possibly set forth allegations regarding discrimination or events that had not occurred. Furthermore, the basis of her suspension and termination was not the missing syringe(s) and drugs. Instead, she was terminated for her participation in the altercation. Foster thus failed to exhaust her administrative remedies regarding her claim of discrimination and retaliation related to her discharge in March 1999. As a result of this failure, these claims are precluded and cannot be maintained in this action by Foster. No genuine issue of material fact exists regarding the exhaustion of administrative remedies, and Defendants are therefore entitled to judgment as a matter of law on these two claims.
Foster's claim of discrimination under § 21.051, Tex. Lab. Code, fails for the same reason as the two federal claims because the TCHRA "requires the exhaustion of state remedies as a jurisdictional prerequisite." Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir. 2001). Under the TCHRA, "a complainant must first exhaust his state administrative remedies and request a right to sue letter from the TCHR before filing a civil action." Id. at 975. No evidence exists in the record that Foster exhausted her state administrative remedies. Accordingly, any civil action regarding Foster's state race discrimination claim is precluded, and this court has no authority to entertain such claim. Id.
2. Plaintiff's Title VII Race Discrimination Claim.
Under the applicable burden-shifting paradigm for Title VII race discrimination claims, Foster must establish a prima facie case of discrimination; Presbyterian must then articulate a legitimate, nondiscriminatory reason for its action; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext state" and Foster must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981);Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000). Regarding the establishment of a prima facie case, the Fifth Circuit has stated:
To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof; or the test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas test requires the plaintiff to show: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.
Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998); see also Rutherford v. Harris County, Tex., 197 F.3d 173, 184 (5th Cir. 1999); Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). Although Urbano and Rutherford are sex discrimination cases, the same standard applies to race discrimination cases, as the statute was enacted to prohibit both kinds of discrimination. Moreover, these two cases cite McDonnell Douglas for the proposition that these elements are required to establish a prima facie case for Title VII discrimination cases.
Defendants contend that Foster's claim for race discrimination regarding the drug test and locker search fails because these actions are not adverse employment actions, and she has therefore failed to establish a prima facie case of race discrimination. The court agrees.
An adverse employment action is one of the necessary elements to establish a prima facie case under Title VII. "Adverse employment actions include only ultimate employment decisions . . . such as hiring, granting leave, discharging, promoting, and compensating. An employer's action does not rise to the level of an adverse employment action when it fails to have more than mere tangential effect on a possible future ultimate employment decision." Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001) (internal quotation marks, citations, and footnotes omitted).
Foster set forth facts that Presbyterian forced or required her to submit to an involuntary drug test and locker search because some syringes and drugs were missing from an operating room at the hospital. Plaintiff was the only person required to submit to the drug test and locker search. Other hospital employees had access to the room where the drugs were found to be missing, but they were not required to submit to the drug test and locker search. Assuming that no white employee was required to submit to a drug test and search of his or her locker, Foster's claim fails as a matter of law. These actions simply do not fall within the scope or definition of an adverse employment action as defined by existing precedent. See Mota, 261, F.3d at 519; Mattern v. Eastman Kodak, 104 F.3d 702, 707-08 (5th Cir.) cert. denied, 552 U.S. 932 (1997); Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). The drug test and search of Foster's locker did not affect her pay, benefits, or compensation in any way. Her employment status did not change, that is, she was not suspended, demoted, discharged, transferred, denied a bonus, given another job with significantly fewer responsibilities, or refused a promotion as a result of the drug test and search of her locker. Accordingly, the involuntary drug test and locker search cannot form the basis for a race discrimination claim because neither is an adverse employment action, a prerequisite to establishing a prima facie case.
Regarding Foster's claim that she was subjected to racial discrimination when she was terminated, no dispute exists that Foster was terminated. A termination constitutes an adverse employment action. Foster's claim that she was subjected to racial discrimination, however, fails because she, as previously set forth, failed to exhaust her administrative remedies under Title VII or the TCHRA.
3. Plaintiff's Claims of Retaliation
Foster contends that Defendants retaliated against her because she filed charges of discrimination with the EEOC and opposed allegedly discriminatory practices and treatment directed at her by Defendants. She contends that the retaliation by Defendants occurred when they forced her to submit to a drug test and a search of her locker on October 2, 1998, and terminated her in March 1999. Defendants deny that they retaliated against Foster, and contend that Foster cannot meet her burden to establish retaliation.
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden- shifting framework applies to Title VII retaliation cases, in which a plaintiff presents only circumstantial evidence of retaliatory animus, as has Foster in this case. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To prove a prima facie case of retaliation under Title VII and defeat summary judgment, Foster must demonstrate that: (1) she engaged in protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a casual link existed between the protected activity and the adverse employment action. Id. (citing Mota v. University of Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001); Long v. Eastfield College, 88 F.3d 300, 305 n. 23 (5th 1996). If Foster establishes a prima facie case, a rebuttable presumption arises, and Presbyterian must produce a legitimate, nondiscriminatory reason for the adverse action. Id. If Presbyterian satisfies its burden of production, the analysis shifts to the ultimate determination of whether the protected activity was a "but for" cause of the adverse employment action. Id.
Foster's claims for retaliation fail as a matter of law because, for the reasons previously set forth by the court, she did not suffer an adverse employment action at the hands of Defendants. Assuming that the drug test and locker search took place because she protested and opposed the statement by Dr. Eichenholz, they, for the reason previously set forth by the court, simply do not constitute adverse employment actions. Foster thus fails to establish a prima facie case of retaliation. No genuine issue of material fact exists regarding her claims of retaliation, and Defendants are therefore entitled to judgment as a matter of law on these claims.
Although a termination constitutes an adverse employment action, no retaliation claim can exist based on the termination because Foster did not exhaust her administrative remedies under Title VII or the TCHRA.
IV. Miscellaneous
A. Alternative Grounds for Summary Judgment
Defendants raised other grounds as bases for their summary judgment motion. As the court has decided the summary judgment motion for the reasons set forth herein, the court finds it unnecessary to address the other grounds Defendants asserted as entitling them to a grant of summary judgment.
B. Motion to Withdraw
Before the court is Yusuf Abdullah's Motion to Withdraw as Attorney in Charge, filed April 10, 2002. The court has reviewed the motion of Plaintiff's counsel to withdraw and determines that Mr. Yusuf Abdullah has stated good cause to withdraw as Plaintiff's counsel. Accordingly, his motion is granted.
V. Conclusion
For the reasons stated herein, Defendants' Motion for Summary Judgment is hereby granted, and this action is hereby dismissed with prejudice against Defendants Texas Health System d/b/a Presbyterian Hospital of Dallas and Martin Yates. Judgment will issue by separate document as required by Fed.R.Civ.P. 58. Yusuf Abdullah is hereby permitted to withdraw as counsel for Plaintiff, and such withdrawal shall so be reflected on the docket sheet.