Janis E. Roberts v. CareFlite ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00105-CV
JANIS E. ROBERTS APPELLANT
V.
CAREFLITE APPELLEE
----------
FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Janis E. Roberts sued her former employer Appellee CareFlite
for unlawful termination under Sabine Pilot2 and for invasion of privacy. CareFlite
filed a combined traditional and no-evidence motion for summary judgment,
which the trial court granted without specifying the grounds. In one issue,
Roberts now appeals the grant of summary judgment on her claim of invasion of
1
See Tex. R. App. P. 47.4.
2
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
privacy by intrusion on seclusion. Because we hold that the trial court did not err
by granting summary judgment for CareFlite, we affirm the trial court’s judgment.
CareFlite employed Roberts as a paramedic. Roberts was “friends” on the
website Facebook.com with fellow CareFlite paramedic Robert Sumien and
CareFlite helicopter pilot Scott Schoenhardt. Roberts posted on the Facebook
wall of Schoenhardt that she had transported a patient who needed restraining
and that she wanted to slap the patient.
Sheila Calvert is a compliance officer with CareFlite. Her sister, Delicia
Haynes, is a CareFlite member. Haynes saw Roberts’s wall posting and notified
Calvert. Calvert sent a message to Roberts through Facebook. In her message,
Calvert stated:
I just wanted to remind you that the public sees your posts. People
outside of CareFlite and outside of EMS. In fact, my sister saw your
post to Scott Schoenhardt where you stated you wanted to slap a
patient[,] and she thought she wouldn’t want anyone such as that
taking care of her and made the comment that maybe she didn’t
want to renew her CareFlite membership. People you don’t expect
to see your posts do. I’ll bet Scott has many friends in EMS[,] and all
any of them would have to do is a screen shot and send it in to the
state and you could be looking at a suspension of your EMS license
and fines. Believe me, I’m not trying to come down on you about
this. I’m trying to help you realize that people out there are losing
their jobs and livelihood because of such posts[,] and I don’t want to
see that happen to you. If you don’t believe me, just google it or if
you like I can send you some links to articles. I hope you will
consider removing that post.
Roberts responded with a message to Calvert that stated:
Yeah, whatever. YOU weren’t there. Whenever I have to have a
firefighter ride in with me because of a patient’s attitude, and I fear
2
for MY safety, I truly believe a patient needs an attitude adjustment.
Think about that the next time YOU correct someone!!
Calvert responded to Roberts, again with a message sent through Facebook’s
messaging feature, stating:
I was trying to be nice about the situation and provide you a
courteous reminder of the regulations in which you practice in the
state and the public’s perception. [Rule 157.36(b)(28) of the Texas
Administrative Code3] states you cannot engage in activities which
betray[] the public’s trust in EMS. I believe your comment could
have done that. Additionally, CareFlite has policies against
employees calling into question our honesty, integrity[,] or
reputation. I understand you had a difficult call and patient. I’ve also
had my share of those. That information should not be
broadcasted[,] however. I can show you an article where a Kansas
medic had his license suspended for 90 days, tons of legal bills, and
had to bag groceries during that time because he posted a
derogatory remark about his obese patient. As far as me “thinking
about that before I correct someone[,]” . . . I’m the Compliance
Officer for CareFlite[,] and it’s my job. We can have that
conversation later and off [Facebook].
Roberts responded with a message stating, “[By the way], I didn’t slap the
patient, I was not rude to the family OR the patient and the call went very
smoothly, thank you for asking.” Roberts did delete her comment from
Schoenhardt’s wall.
Roberts later posted on her own Facebook wall, stating
Yes, I DO get upset on some calls when my patient goes off in the
house and I have to have a firefighter ride in with me because I fear
for MY own safety. I think that is a valid excuse for wanting to use
some sort of restraints. Just saying!!
3
25 Tex. Admin. Code § 157.36(b)(28) (2012) (Tex. Dep’t of State Health
Serv., Criteria for Denial and Disciplinary Actions for EMS Personnel and
Applicant and Voluntary Surrender of a Certificate or License).
3
Sumien then posted a comment on this post, which stated, “Yeah like a boot to
the head . . . . . . ;^) Seriously yeah restraints or actual HELP from PD instead of
the norm.”
Roberts sent Sumien an email in which she posted the text from the
Facebook message exchange she had had with Calvert. She sent the message
with the subject line, “Check this shit out.”
About a week later, Haynes (Calvert’s sister) sent an email to CareFlite
CEO James Swartz. In the email, Haynes told Swartz about Roberts’s Facebook
post about wanting to slap a patient and about Sumien’s comment about “a boot
to the head.” CareFlite terminated Roberts’s employment a few days later. As
grounds for termination, CareFlite noted Roberts’s post about “feeling like
slapping a patient to get control of them” and stated that her response to Calvert
was “unprofessional and insubordinate.”4
Roberts asserted that the real reason that CareFlite terminated her
employment was that she had reported an employee for starting an IV on a
patient without the proper certification for performing such a procedure, which
Roberts asserted was a criminal act, and that she refused to participate in a
cover up. In Roberts’s invasion of privacy claim, she asserted that CareFlite’s
4
Sumien’s employment was also terminated because of his comments on
Facebook, and he also sued CareFlite and appealed from the trial court’s
judgment in favor of CareFlite. This court affirmed the trial court’s judgment in
that case. Sumien v. CareFlite, No. 02–12–00039–CV, 2012 WL 2579525, at *3
(Tex. App.—Fort Worth July 5, 2012, no pet.) (mem. op.).
4
use of her personal and private message postings on Facebook “that no one can
access except the person to whom it was sent” invaded her common law right of
privacy. Roberts asserted two different invasion of privacy torts: public
disclosure of private facts and intrusion upon her seclusion. 5 Roberts asserted
that CareFlite’s invasion of her privacy caused her to lose her job, resulting in
damages.
In CareFlite’s no-evidence motion on Roberts’s invasion of privacy claims,
it set out the elements for public disclosure of private facts and for intrusion on
seclusion and asserted that Roberts had no evidence on any of these elements.
In its traditional motion on the intrusion on seclusion claim, CareFlite asserted
that it had negated the element of intrusion; that as a matter of law, the subject of
Roberts’s Facebook posting was not within the zone of her seclusion, solitude,
and private affairs; and that as a matter of law, CareFlite’s acts were not highly
offensive to a reasonable person. With its motion, CareFlite attached, among
other evidence, excerpts from Roberts’s deposition; the CareFlite employee
handbook; the Facebook exchanges between Roberts and Calvert; and the email
from Roberts to Sumien.
In her response, Roberts asserted that “[t]he rights of CareFlite employees
to discuss in private the issues of patient restraints which affected their safety
5
See Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex. App.—Corpus Christi
1991, no writ) (discussing the different torts recognized in Texas as invasion of
privacy), abrogated in part by Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex.
1994) (holding that Texas does not recognize the tort of false light).
5
and even their very lives clearly outweigh any issues of public concern in favor of
prospective patients.” The trial court granted summary judgment for CareFlite,
and Roberts now appeals.
In an appeal from a traditional summary judgment, the issue is whether the
movant met the summary judgment burden by establishing that no genuine issue
of material fact exists and that the movant is entitled to judgment as a matter of
law.6 A defendant who conclusively negates at least one essential element of a
cause of action is entitled to summary judgment on that claim. 7 Once the
defendant produces sufficient evidence to establish the right to summary
judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence that raises a fact issue.8
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense.9 The motion must specifically state the elements for which
there is no evidence.10 The trial court must grant the motion unless the
6
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
7
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
8
Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).
9
Tex. R. Civ. P. 166a(i).
10
Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
6
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact.11 If the nonmovant brings forward more than a scintilla of probative
evidence that raises a genuine issue of material fact, then a no-evidence
summary judgment is not proper.12
We review a summary judgment de novo.13 We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not.14 We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.15
In Roberts’s sole issue on appeal, she contends that the trial court erred by
granting summary judgment on her claim for invasion of privacy by intrusion upon
seclusion. We first consider whether the trial court erred by granting no-evidence
summary judgment for CareFlite.16
11
See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
12
Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004)
13
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
14
Mann, 289 S.W.3d at 848.
15
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
16
See Lindley v. McKnight, 349 S.W.3d 113, 123 (Tex. App.—Fort Worth
2011, no pet.) (“When a party moves for both a traditional and a no-evidence
7
Under Texas law, “an unwarranted invasion of the right of privacy
constitutes a legal injury for which a remedy will be granted.”17 The Supreme
Court of Texas has expressly recognized the two separate torts relating to the
invasion of one’s privacy that Roberts asserted in the trial court: intrusion upon
seclusion and public disclosure of embarrassing facts.18 The tort of intrusion
upon seclusion has two elements: “(1) an intentional intrusion, physically or
otherwise, upon another’s solitude, seclusion, or private affairs or concerns,
which (2) would be highly offensive to a reasonable person.”19 In its no-evidence
motion, CareFlite asserted that no evidence supported either element of
Roberts’s claim.
In our review of Roberts’s brief, we did not find where Roberts directs this
court to what summary judgment evidence she produced to raise a fact issue on
these elements. Instead, Roberts raises arguments that do not relate to the
elements of her claim or the evidence to support those elements. Roberts first
argues that the Supreme Court “has recently given a very broad interpretation of
employee privacy rights” in its recent opinion in Texas Comptroller of Public
summary judgment, we generally first review the trial court’s summary judgment
under no-evidence standards.”).
17
Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973).
18
Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994) (recognizing the
torts of intrusion upon seclusion and public disclosure of embarrassing private
facts and declining to recognize the tort of false light).
19
Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
8
Accounts.20 She notes that the court in that case “weighed the privacy rights of
State employees with the need of the public to know, and found in favor of the
employees.” Roberts then argues that in this case, the rights of CareFlite
employees to discuss in private the issues of patient restraints that affect their
safety outweigh any issues of public concern. That case did address the privacy
rights of state employees, but in the context of whether the Texas Public
Information Act21 required disclosure of the birth dates of state employees or
whether the information was exempted from disclosure under a provision
exempting information from an employee’s personnel file, “the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.”22
The court applied a balancing test, weighing the employees’ right of privacy
against the purpose of the Public Information Act.23
In this case, there was no allegation that CareFlite or any government
entity disclosed or intended to disclose Roberts’s personal information to the
public under a request for public information, and the tort of intrusion upon
seclusion does not depend upon whether a person’s private information had
20
Tex. Comptroller of Pub. Accounts v. Att’y Gen. of Tex., 354 S.W.3d 336,
348 (Tex. 2010).
21
Tex. Gov’t Code Ann. §§ 552.001–.353 (West 2012).
22
Tex. Comptroller, 354 S.W.3d at 353.
23
Id. at 349.
9
been disclosed to another.24 Thus, the balancing test performed by the Texas
Comptroller court has no application in this case, where the question is whether
CareFlite improperly intruded upon Roberts’s seclusion and not whether
information was exempted from public disclosure.
Roberts next argues that the National Labor Relations Board has held that
an employer cannot fire employees for engaging in concerted workplace related
discussions on Facebook by posting comments about working conditions.
Roberts appealed from the summary judgment as to her intrusion upon seclusion
claim, not her wrongful termination claim. Roberts’s argument about whether
CareFlite could fire her for her Facebook comments is irrelevant to the question
of whether Roberts produced sufficient summary judgment evidence to raise a
fact issue on the challenged elements of her intrusion upon seclusion claim.
Finally, Roberts asserts that CareFlite was “out to get” her and that “[t]he
claim that the public saw [Roberts’s] email post is strictly an ‘in-house, put-up’
affair by CareFlite management.” The questions of whether CareFlite
management was indeed “out to get” Roberts and of whether the public saw the
email exchange between Calvert and Roberts, Roberts’s wall posting, or her
email to Sumien are irrelevant to the question of whether Roberts produced
sufficient summary judgment evidence on her claim. The relevant inquiry is not
24
See Clayton v. Richards, 47 S.W.3d 149, 153 (Tex. App.—Texarkana
2001, pet. denied) (recognizing that liability for intrusion upon seclusion does not
turn on publication of any kind and that the core of the offense is prying into the
private domain of another); see also Sumien, 2012 WL 2579525, at *3.
10
whether Roberts produced evidence relating to the ability of the public to see
Roberts’s writings or whether CareFlite was “out to get” Roberts. Rather, the
inquiry is whether CareFlite intentionally intruded upon Robert’s solitude,
seclusion, or private affairs or concerns and, if it did so, whether such intrusion
would be highly offensive to a reasonable person.
As we have noted, Roberts did not direct this court to any evidence she
produced to raise a fact issue on whether CareFlite intruded upon her
seclusion.25 Roberts attached over 350 pages of summary judgment evidence to
her response, and we are not required to sift through the record to determine
what part of this record, if any, relates to her intrusion upon seclusion claim.26
Roberts makes no argument about why CareFlite’s review of Roberts’s
messages to Calvert or of her comments on Schoenhardt wall—comments that
could be viewed by third parties—constituted an intrusion upon Roberts’s
seclusion,27 and she cites to no cases that would support such an argument.
And in the trial court, Roberts’s response to CareFlite’s no-evidence motion
25
See Tex. R. App. P. 38.1(i) (requiring briefs to contain appropriate
citations to the record).
26
See Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth
1996, writ denied) (“We are not required to search a voluminous record, with no
guidance from Hall, to see if an issue of material fact was raised.”).
27
See, e.g., Restatement (Second) of Torts § 652B cmt. c (1977) (stating
that a defendant is liable for intrusion upon seclusion “only when he has intruded
into a private place, or has otherwise invaded a private seclusion that the plaintiff
has thrown about his person or affairs” and that there is no liability for observing
or photographing someone who is out in public “and open to the public eye”).
11
consisted of essentially the same irrelevant arguments that she makes now on
appeal. She did not point out to the trial court what evidence she had included
with her motion that she contended raised a fact issue on the elements of
intrusion upon seclusion.28 Accordingly, we overrule Roberts’s sole issue and
hold that the trial court did not err by granting no-evidence summary judgment for
CareFlite on this claim. We therefore need not consider whether the trial court
erred by granting CareFlite’s traditional summary judgment motion.
Having overruled Roberts’s sole issue, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DELIVERED: October 4, 2012
28
See Tex. R. Civ. P. 166a(i) & cmt. (requiring the trial court to grant a no-
evidence motion meeting the rule’s requirements unless the non-movant
produces summary judgment evidence raising a genuine issue of material fact
and stating that the non-movant’s response need not marshall its proof but
should point out evidence that raises a fact issue on the challenged elements).
12