Opinion
Civil Action No. 6:01-CV-091-C
October 25, 2002
ORDER
On this day the Court considered Defendants Shannon Medical Center and Shamrock Clinic's Motion for Summary Judgment, filed September 16, 2002. Plaintiff Jimmy Ellis, filed a Response to Defendants' Motion for Summary Judgment on October 7, 2002. Defendants filed a Reply to Plaintiff's Response on October 23, 2002. After considering all relevant arguments and evidence, the Court GRANTS Defendants' Motion for Summary Judgment.
I. BACKGROUND
Janet Ellis began her employment with Shamrock Clinic in 1992 and was employed by Defendants until her discharge on August 24, 2000. In 1998, Janet Ellis was diagnosed with multiple sclerosis. On or about April 17, 2000, it was reported to Defendants that Janet Ellis had fallen several times during work at the Shamrock Clinic North. On or about April 18, 2000, Defendants requested Janet Ellis undergo a Functional Capacity Evaluation. During the time Janet Ellis was out for the Functional Capacity Evaluation. Defendants placed Janet Ellis on FMLA leave. On or about April 27, 2000. Dr. William A Pollan, DO. sent Defendants' human relations department an Occupational Medicine Work Status Evaluation of Janet Ellis. The reults stated that Janet Ellis could perform the essential functions of the job, but because of the progression of multiple sclerosis, Janet Ellis should be reevaluated in six months. The results recommended that "when her visual symptoms are severe enough that she is unable to draw blood, that she be allowed to send patients downtown to have the blood drawn by a phlebotomist in the lab." The results further stated that "[a] minor emergency center is probably not the best fit for her disease process as it progresses because of the increasing fatigue and difficulty with gait and ability with fine motor skills:"
After the results were received by Defendants, the FMLA leave was withdrawn and Janet Ellis was paid fbr her time off as regular pay. After the Functional Capacity Evaluation, in an attempt to accommodate Janet Ellis. Defendants reduced Janet Ellis's hours. In another attempt to accommodate Janet Ellis, Defendants recommended that she transfer to the Shamrock Clinic South because it was a slower clinic.
On August 9, 2000 Janet Ellis received a written warning for poor work performance. On August 24, 2000, Janet Ellis was terminated for documented job performance complaints.
On September 13, 2001, Janet Ellis filed suit against Defendants for violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964. and for negligent hiring, retention, training, supervision, and intentional infliction of emotional distress. On April 14, 2002, Janet Ellis passed away. On May 20, 2002, the Court granted Jimmy Ehis's Motion for Substitution.
II. STANDARD
Summary judgment is appropriate only if "the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglas v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en bano); SEC v. Recite, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id
III. DISCUSSION
A. Claims Under the Americans with Disabilities Act
Plaintiff brings this lawsuit under the Americans with Disabilities Act, alleging that Defendants participated in discriminatory actions that resulted in Janet Ellis's injuries and damages. Plaintiff contends that Janet Ellis was unlawfully terminated based on her disabilities.
The Americans with Disabilities Act prohibits discrimination against a "qualified individual with a disability" because of that individual's disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, or privileges of employment. 42 U.S.C. § 12112(a); Dutcher v. Ingalls Shipbuilding. 53 E.3d 723, 725 (5th Cir. 1995).
To establish a prima facie ADA employment discrimination claim, Plaintiff must show that (1) Janet Ellis had a disability; (2) she was qualified for the job; and (3) she was subject to an adverse employment decision on account of her disability. Zenor v. El Paso Healthcare Sys, LTD,, 176 F.3d 847, 853 (5th Cir. 1999).
1. "Disability" Under the ADA Claim
(a) Disability
The ADA prohibits employment discrimination against any qualified individual with a disability. 42 U.S.C. § 12101 et seq. (West 1995). This includes action taken with regard to hiring, advancement, discharge, compensation, training and other terms and conditions of employment. 42 U.S.C. § 12112 (West 1995).
As a threshold requirement, a plaintiff seeking relief under the. ADA must establish that he has a disability protected by the statute. EEOC v. Exxon Corp., 124 F. Supp.2d 987, 2000 WL. 18999487 *4 (N.D. Tex. Oct. 30, 2000); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996). The plaintiff must meet this burden in order to survive a summary judgment motion. Sherrod v. American Airlines Inc., 132 F.3d 1112, 1121 (5th Cir. 1998); Ray v. Glidden Co, 85 F.3d 227, 228 (5th Cir. 1996) (per curiam). The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2) (West 1995).
Plaintiff argues that Janet Ellis was regarded as having an impairment by Defendants. The protection for individuals "regarded as" being disabled is for individuals who are "regarded as" having "such an impairment." 42 U.S.C. § 12102(2)(C). "Such an impairment" means the same kind of impairment as would give rise to protection if it actually existed, that is, one that "substantialy limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A) Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999). On does not have to have "some obvious specific handicap" in order to fall into this category. It is only necessary that a. covered entity "entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton, 527 U.S. at 489.
The Fifth Circuit recently addressed the issue of what a plaintiff must prove in order to be "regarded as" disabled in McInnis. In order to be "regarded as" disabled, a plaintiff must (1) have a physical or mental impairment that does not substantially limit major Life activities, but be treated as such by an employer; (2) have a physical or mental impairment that substantially limits one or more major life activities, but only because of the attitudes of others toward the impairment; or (3) have no actual impairment at all, but be treated by an employer as having a substantially limiting impairment. McInnis v. Alamo Community College Dist., 207 F.3d 276, 281 (5th Cir. 2000); see Sherrod, 132 F.3d at 1121. The plaintiff also must establish that the impairment, if it existed as perceived, would be substantially limiting. See Deas v. River West, L.P., 152 F.3d 471, 476 (5th Cir. 1998).
As suggested by Sutton, the "regarded as" inquiry focuses on the state of mind and perception of the employer. See also Deas, 152 F.3d at 476. An employer is prohibited under this section from making an employment decision based on "common attitudinal barriers" or stereotypes about disabilities. 29 C.F.R. App. § 1630.2(1). Simple awareness of an impairment, however real or perceived, is insufficient to prove that the employer regarded the employee as disabled. Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993), cert. denied, 511 U.S. 1011 (1994)).
Plaintiff asserts that Defendants regarded Janet Ellis as disabled because she was asked to have a Functional Capacity Exam and because after the exam Plaintiff was transferred to another, slower clinic. Defendants did in fact request that Janet Ellis have a Functional Capacity Exam performed, at their expense, to determine if there were any problems that needed to be addressed. The Court also notes that Defendants claim to have "accommodated" Janet Ellis by reducing her work hours and by transferring her to another clinic that had lighter patient traffic. Plaintiff further asserts that Defendants regarded Janet Ellis as unable to perform or significantly restricted in performing a major or life activity. Defendants do not, however, contest that Janet Ellis did in fact have a disability. To the contrary, Defendants admit that Janet Ellis had a disability; Defendants are asserting that Janet Ellis was not a qualified individual with a disability under the ADA. Accordingly, Plaintiff has established that Janet Ellis had a disability.
b. "Otherwise Qualified Individual"
The ADA protects a "qualified individual with a disability'. . : who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires" 42 U.S.C. § 12111(8). The Fifth Circuit, in Chandler v. City of Dallas, sets forth a two-part analysis for determining whether a person is qualified under the ADA: "First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only it) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions." Chandler, 2 F.3d at 1393-94 (citing Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir. 1991)); Milton v. Schrivnzer, 53 F.3d 1118, 1123 (10th Cir. 1995).
The regulations implementing the ADA define essential functions as "those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation." Milton, 53 F.3d at 1124 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(n)). Essential functions must "bear more than a marginal relationship to the job at issue." Chandler, 2 F.3d at 1393.
Although a disabled employee may be unable to perform the essential functions of e. position, his termination may be unlawful if the employer has failed reasonably to accommodate the employee's disability. Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995) (citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 a. 17, 107 S.Ct. 1123, 1130-31 n. 17, 94 L.Ed.2d 307 (1987)). The ADA defines reasonable accommodation as "modification or adjustments to work environment, or to the manner of circumstances under which the position held is customarily performed, that enable a qualified individual with a disability to perform the essential functions, s of that position." Johnson v. City of Port Arthur, 892 F. Supp. 835, 842 (E.D.Tex. 1995) (quoting 29 C P.R. § 1630.2(o)(1)(ii)). In order to defeat summary judgment, the plaintiff must proffer evidence that he was able to perform the essential functions of his job with reasonable accommodation. See Milton, 53 F.3d at 1124; White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir. 1995). "Once the plaintiff produces evidence sufficient to make a facial showing that accommodation is possible, the burden of production shifts to the employer to present evidence of its inability to accommodate" Milton, 53 F.3d at 1124 (quoting White, 45 F.2d at 362).
However, qualification standards which are "consistent with business necessity" can provide a defense to a discrimination charge under the ADA. Turco v. Hoechst Celanese Chemical Group, Inc., 906 F. Supp. 1120, 1129 (S.D. Tex. 1995), aff'd, 101 F.3d 1090 (5th Cir. 1996); 42 U.S.C. § 12111(9). Also, standards which disqualify individuals who pose "a direct threat to the health or safety of other individuals in the workplace" may pass muster under the ADA. Turco, 906 F. Supp. at 1129; 42 U.S.C. § 12113(b), 12111(3). The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. Turco, 906 F. Supp. at 1130; Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir. 1995). If reasonable accommodation will no: eliminate a significant safety risk, a handicapped person is not otherwise qualified. Turco, 906 F. Supp. at 1130-31 (citing Chandler, 2 F.3d at 1395). Finally, the law does not impose upon employers the burden of awaiting uncertain results of a disabled employee's treatment program. Turco, 906 F. Supp. at 1130.
Nor does the ADA require an accommodation that would result in other employees having to work harder or longer hours. Miller, 53 F.3d at 1125 (citing C.F.R. § 1630.2(p)(2)(v)). Furthermore, the term "qualified individual with a disability," as used in the ADA, does not refer to an employee's future ability to perform the essential functions of his position. Myers, 50 F.3d at 283. Instead, the provisions of the ADA are "formulated entirely in the present tense, framing the precise issue as whether an individual `can' (not `will be able to') perform the job with reasonable accommodation." Id. Reasonable accommodation does not require the defendant to wait indefinitely for the plaintiff's medical condition to be corrected. Id. Reassignment to a vacant position may be considered a reasonable accommodation. Daugherty, 56 F.3d at 698. The ADA does not, however, require an employer to promote a disabled employee, reassign the disabled employee to an occupied position, or to create a new position to accommodate the disabled worker. White, 45 F.3d at 362.
Plaintiff presents to this Court the results of the functional capacity evaluation in support of the argument that Janet Ellis could perform the essential functions of her job with minimal accommodation. The results of the functional capacity evaluation indicate that in April of 2000, Janet Ellis was able top perform all the essential functions of her job as listed on the Shannon Medical Center job description of licensed vocational nurses. The evidence also establishes that, in the opinion of the doctor administering the test, Janet Ellis could perform the primary functions of a licensed vocational nurse with minimal accommodation. Defendants claim, however, that when Janet Ellis was terminated in August of 2000. she could not perform the essential functions of her job with minimal accommodation. Defendants rely on the deposition testimony of Barbara Washington, Janet Ellis's co-worker, stating that Janet Ellis had little control of her muscles, could not draw blood, could no: draw medicine for shot; could net remove sutures, had difficulty seeing, could not stand for more than a few minutes, and had difficulty walking.
The Court notes that after the functional capacity evaluation, Defendants transferred Janet Ellis to a slower clinic and reduced her shift from twelve to eight hours in an effort to accommodate Janet Ellis. It is also clear to the Court that the multiple sclerosis Janet Ellis suffered from had progressed significantly during the months following the functional capacity evaluation. This is evidenced by the deposition of her co-worker Barbara Washington stating, "I tried to do everything, because she couldn't do very much, because she had difficulty walking and standing, so I did everything and just kind of limited her to what she did, like mostly x-rays." Plaintiff has failed to demonstrate that further accommodation was possible. Defendants accommodated Janet Ellis; however, at the time of Janet Ellis's discharge, her multiple sclerosis had progressed so that, according to her co-worker, her vision had deteriorated so that she could not draw blood, give injections, or draw medicine; she could not remove sutures; she had difficulty walking; she had difficulty standing; she could not control her muscles; and she had tremors constantly. It is clear to the Court as evidenced by Plaintiff's lack of evidence that Defendants could not have provided an accommodation that would have allowed Janet Ellis to perform the essential functions of her job. The Court finds that Janet Ellis was not a "qualified individual with a disability"; accordingly, Plaintiff's claim under the Americans with Disabilities Act cannot survive Defendants' Motion for Summary Judgment.
B. Title VII and ADEA Claims
Title VII creates a private right of action against employers who engage in unlawful employment practice and provides as follows:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or rend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2 (2000).
The ADEA was enacted to promote employment of older persons based on their ability rather than age and provides as follows:
(a) Employer practices
It shall be unlawful for an employer —
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age.29 U.S.C. § 623 (a)(1) (1999).
"The same evidentiary procedure for allocating burdens of production and proof applies to discrimination claims under both [Title VII and the ADEA]." Brown v. Bunge Corp, 207 F.3d 776, 781 (5th Cir. 2000).
A plaintiff may establish a violation of Title VII by using either direct evidence of discrimination, statistical proof, or circumstantial evidence. Urbano v. Continental Airlines Inc., 138 F.3d 204, 206 (5th Cir. 1998). Absent direct evidence of discrimination based on race, gender, or age, a plaintiff may establish unlawful discrimination under the basic framework articulated by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the order of progression for proving up a Title VII claim of discrimination is controlled by the following:
1. The plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination;
2. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's termination;
3. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.See Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1178 (5th Cir. 1990) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000).
Plaintiff's Prima Facie Case
Plaintiff must first prove a prima facie case of discrimination under the McDonnell Douglas framework by proving that Janet Ellis was (1) a member of a protected group; (2) qualified for the position held; (3) discharged from the position; and (4) replaced by someone outside of the protected group. Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001). See also Byers, 209 F.3d at 426; Bauer v. Albermarle Corp., 169 E3d 962, 966 (5th Cir. 1999).
(1) Member of Protected Group
Defendants do not dispute that Janet Ellis was a white female over forty (40) years of age. However, in Plaintiff's Response, Plaintiff claims that Janet Ellis is a member of a protected group because she had a disability and was perceived by Defendants as unable to perform the duties required by her job. A claim brought because Janet Ellis "had multiple sclerosis (`MS') and was perceived by Defendants' [sic] as incapable of performing her work" is a disability discrimination claim brought under the ADA, not Title VII. 42 U.S.C. § 2000e-2 (2000); 42 U.S.C. § 1201 et seq. Accordingly, Plaintiff cannot meet a Title VII prima facie case. This Court, however, finds that Plaintiff has satisfied the first prong of a prima facie case under the ADEA.
The Court also notes that Plaintiff appears to be alleging a Title VII claim for retaliation; after a close examination of Plaintiff's Complaint, the Court finds that nowhere in the Complaint has Plaintiff made a Title VII claim for retaliation. Accordingly, the Court will not address the retaliation claims made by Plaintiff the Response to Defendants Motion for Summary Judgment.
(2) Qualified for the Position Held
Plaintiff argues that Janet Ellis was qualified for the position held at the tame she was terminated. Janet Ellis was a licensed vocational nurse and had been employed by Defendants since 1992. Janet Ellis believed that her total longevity and experience demonstrate sufficient evidence to support her allegation that she was qualified for the position which she held at the time she was terminated. Drawing all justifiable inferences in favor of Plaintiff as non-movant, this Court finds that Plaintiff has satisfied the second prong of a prima facie case under the ADEA.
(3) Discharged from the Position
There is no disagreement between the parties that Janet Ellis was terminated by Defendants on August 24, 2000. Therefore, the third prong of Plaintiff's prima facie case under the ADEA has been satisfied.
(4) Replaced by Someone from Outside the Protected Group
Plaintiff has presented no competent evidence which shows that Janet Ellis was replaced by someone from outside the protected group. Plaintiff alleges that Janet Ellis was replaced by someone significantly younger. Plaintiff urges this Court to rely on Janet Ellis's subjective belief that she was replaced by someone from outside the protected group. This Court refuses to do so. "Speculation and belief," "unsubstantiated assertions," and `conclusory allegations' are not adequate substitutes for specific facts sufficient to support a prima facie case. See Douglas, 79 F.3d at 1428; Lowery v. Univ. of Houston-Clear Lake, 82 P. Supp.2d 689, 696 (S.D. Tex. 2000). This Court finds that Plaintiff has not satisfied the fourth prong of the prima facie case under the ADEA.
In conclusion, this Court finds that Plaintiff has failed to established a prima facie case under Title VII or under the ADEA.
C. Intentional Infliction of Emotional Distress
Plaintiff's Prima Facie Case
Intentional infliction of emotional distress requires Plaintiff to prove the following elements: (1) that Defendants acted intentionally or recklessly; (2) that Defendants' conduct was extreme and outrageous; (3) that Defendants' actions caused Plaintiff emotional distress; and (4) that Plaintiff's resulting emotional distress was severe. Standard Fruit Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1988). A claim for intentional infliction of emotional distress is available only in those instances in which severe emotional distress is the intended or primary consequence of Defendants' conduct. Id. at 67.
For Defendants' conduct to be sufficiently extreme and outrageous, the conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious. and utterly intolerable in a civilized community Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id. at 699. "Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999).
Plaintiff has offered no evidence that Defendants acted intentionally or recklessly with the intended primary consequence being Plaintiff's emotional distress. Nor has Plaintiff shown that any of Defendants' conduct was outrageous in character, extreme in degree, or in any other manner atrocious or utterly intolerable. Further, Plaintiff has offered nothing to substantiate that emotional distress was actually suffered by Plaintiff or that such distress was severe.
Therefore, this Court finds that Plaintiff's arguments do not support a claim of intentional infliction of emotional distress and that summary judgment as to this claim is also appropriate.
D. Negligent Hiring Training, Supervision, or Retention
Defendants move for summary judgment of Plaintiff's claim of negligent hiring, training, supervision, and retention. claiming that no evidence exists to support the charge. Alternatively, Defendants argue that the Plaintiff did not suffer physical injury as required to support the negligence claim.
Texas law allows recovery for negligent hiring, training, retention, and supervision where an employer knew or should have known through the exercise of reasonable care that an employee was incompetent or unfit and that his hiring or retention would thereby create an unreasonable risk of harm to others. Kesler v. King, 29 F. Supp.2d 356, 376-77 (S.D. Tex. 1998) (citing Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ.App — Tyler 1979). As between employer and employee, the duty in general implies an inquiry into the qualifications of candidates for employment, the termination of employees who are not qualified or are unfit, and the adequate supervision and training of employees. See Carney v. Roberts Investments Co., 837 S.W.2d 206, 211 (Tex.App.-Tyler 1992).
Plaintiff has failed to submit competent summary judgment evidence that Defendants knew or should have known that Ms. Knightstep and Ms Creel were incompetent or unfit. Plaintiff has not shown that there was not an inquiry into the qualifications of Ms. Knightstep and Ms. Creel. Plaintiff has also failed to provide evidence that Ms. Knightstep and Ms. Creel were not adequately trained and supervised by Defendants. In addition, Plaintiff has presented no competent summary judgment evidence that Defendants knew or should have known that the hiring or retention of Ms. Knightstep and Ms. Creel would create an unreasonable risk of harm to others. Accordingly, Plaintiff's claims for negligent hiring, training, retention, and supervision should be dismissed.
IV. CONCLUSION
For the reasons previously discussed, Defendants' Motion for Summary Judgment is GRANTED All relief not expressly granted is denied.
SO ORDERED