Robinson, Joyce v. The Devereux Foundation--Appeal from 10th District Court of Galveston County

Affirmed and Opinion filed June 6, 2002

Affirmed and Opinion filed June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00081-CV

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JOYCE ROBINSON, Appellant

V.

THE DEVEREUX FOUNDATION, Appellee

On Appeal from the 10th District Court

GalvestonCounty, Texas

Trial Court Cause No. 98CV0391

O P I N I O N

This is an appeal from a summary judgment dismissing Joyce Robinson=s claims for wrongful termination and intentional infliction of emotional distress. In three points of error, Robinson claims the trial court erred in granting summary judgment and in denying her motion for new trial. We affirm.

I. Background and Procedural History

Joyce Robinson brought suit against The Devereux Foundation (ADevereux@), claiming wrongful termination and intentional infliction of emotional distress. Devereux operates a psychiatric treatment facility for children and adults in League City, Texas. The facility offers emergency psychiatric care, long-term hospital care and long-term residential care to patients with illnesses ranging from behavioral problems to homicidal, suicidal or psychotic tendencies. Robinson worked for Devereux as a Mental Health Technician; she looked after patients, monitored their behavior and activities, and assisted in care deemed appropriate by Devereux=s doctors, therapists and nursing staff. Robinson, an at-will employee, worked from November 2, 1992, until her employment was terminated December 23, 1997.

On December 2, 1997, Devereux=s representatives met with Robinson to discuss allegations that she had violated policies relative to Devereux=s Employee Fraud and Patient Funds and that she had engaged in other serious misconduct. Robinson=s documented response to those allegations was Awill add statement tomorrow ... not [too] clear headed right now.@ Devereaux suspended Robinson for ten days. While Robinson was suspended, Devereux received more client complaints against Robinson and scheduled a meeting with her for December 18, 1997, to discuss the complaints. Robinson did not attend.[1] Devereux rescheduled the meeting for December 23, 1997, and informed Robinson by certified mail that her failure to attend this meeting would be considered job adandonment. Robinson acknowledged receipt of this letter but again failed to attend. Devereux terminated her employment on December 23, 1997.

Robinson filed this suit May 15, 1998. Devereux moved for summary judgment, which the trial court granted on October 12, 2000. This appeal followed.

II. Summary Judgment

We first address Robinson=s contention in point of error one that the trial court erred in granting summary judgment on her claims of wrongful termination and intentional infliction of emotional distress.

A. Standards of Review

Devereux filed both a traditional motion for summary judgment and a no evidence motion. See Tex. R. Civ. P. 166a(c), (i). Where, as here, the summary judgment does not specify or state the grounds relied on, it will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

The standard of review for a traditional motion for summary judgment Ais whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.@ KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor. See id.

We review a no evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Norman Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Less than a scintilla of evidence exists when the evidence is Aso weak as to do no more than create a mere surmise or suspicion@ of a fact and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

B. Wrongful Termination

The longstanding rule in Texas is that employment for an indefinite term may be terminated at will and without cause. East Line & R.R.R. Co. v. Scott, 72 Tex.70, 10 S.W. 99, 102 (1888). In Sabine Pilot Service, Inc. v. Hauck, the court created a narrow Apublic policy@ exception to the employment at will doctrine. 687 S.W.2d 733, 735 (Tex. 1985). This exception allows an employee to sue for wrongful termination if fired Afor the sole reason that the employee refused to perform an illegal act.@ Id.(emphasis added); see City of Midland v. O=Bryant, 18 S.W.3d 209, 215 (Tex. 2000) (recognizing Texas has thus far only recognized the narrow Sabine Pilot exception prohibiting an employer from discharging an employee for the sole reason that the employee refused to perform an illegal act that carried criminal penalties). The plaintiff has the burden of proving by a preponderance of the evidence that the discharge was for no reason other than the refusal to commit an illegal act. Texas Dep=t of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). An employer who discharges an employee both for refusing to perform an illegal act and for a legitimate reason cannot be liable for wrongful discharge. Id.

In this case, Robinson argues that she was wrongfully discharged solely because she refused to perform illegal acts.[2] However, in her answers to interrogatories and her deposition, Robinson herself identified several other reasons for her termination. Furthermore, Devereux produced evidence conclusively showing that Robinson was fired for job abandonment. Devereaux provided documentation of a December 2, 1997 meeting regarding client complaints and Robinson=s ten-day suspension resulting from the complaints. Devereaux further documented that (1) on December 18, 1997, a second meeting was held to discuss additional complaints about Robinson; (2) Robinson failed to attend the December 18 meeting; and (3) Robinson failed to attend a follow-up meeting on December 23, 1997. Robinson acknowledged during her deposition that she had received a letter notifying her that failure to attend the meeting on December 23 would be considered Ajob abandonment.@ She further acknowledged that she failed to attend.[3] Devereux terminated Robinson on December 23, 1997, for job abandonment.

Robinson claims that the complaints against her were retaliatory based on her failure to commit an illegal act and thus her termination for job abandonment was merely a pretext. We disagree. Devereux produced eleven ACounseling/Corrective Discipline Record@ entries for Robinson=s failure to complete assigned tasks, her falsification of time sheets, her improper relationship with clients, her allowing a client to leave unsupervised, her excessive tardiness, and her leave without prior approval. These entries began September 27, 1993, and continued through December 2, 1997. At least seven of the eleven entries are dated before her alleged refusal to falsify records on December 22, 1996. Furthermore, Robinson concedes that she was notified in advance of the negative consequences if she failed to attend the December 23, 1997 meeting. Accordingly, Devereux established that it terminated Robinson, at least in part, for Ajob abandonment.@

Robinson asserts that Devereux has done no more than raise a fact issue between conflicting claims concerning why Robinson was terminated, citing Higginbotham v. Allwaste, Inc., 889 S.W.2d 411, 416 (Tex. App.CHouston [14th Dist.] 1994, writ denied) and Allen v. Powell, 989 S.W.2d 776, 779 (Tex. App.CAmarillo), aff=d in part and rev=d in part by Powell Ind., Inc. v. Allen, 985 S.W.2d 455 (Tex. 1998). These cases are distinguishable because here, Devereux has conclusively established at least one legitimate reason for terminating Robinson. Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to produce controverting evidence raising a fact issue. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Robinson relies on her affidavit in which she states her belief that she was terminated for refusing to commit an illegal act. However, we cannot say that Robinson=s subjective belief regarding the Atrue@ reason for her termination, without more, is sufficient to raise a fact issue. To hold otherwise would permit every wrongful-termination plaintiff to avoid summary judgment regardless of the evidence simply by asserting a belief that he or she was actually terminated for refusing to commit an illegal act.

We find that the summary judgment evidence conclusively negates the essential element of Robinson=s wrongful termination claim that the sole reason for termination was a failure to commit an illegal act.

C. Intentional Infliction of Emotional Distress

In order to prevail on a claim for intentional infliction of emotional distress, Robinson must establish that: (1) Devereux acted intentionally or recklessly; (2) Devereux=s conduct was extreme and outrageous; and (3) Devereux=s actions caused Robinson severe emotional distress. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Whether Devereux=s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery is initially a question of law. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). Outrageous conduct is that which goes beyond all possible bounds of decency, is atrocious and utterly intolerable in a civilized society. See id.

In this case, Robinson allegedly suffers from post-traumatic stress syndrome after a client=s suicide on December 22, 1996. Robinson acknowledged that her stress resulted from finding the client hanging from a bed sheet and from Robinson=s inability to revive her. The post-traumatic stress disorder allegedly has caused Robinson to see the client=s face in her grandmother=s casket and she stated that she has not been able to close her bathroom door as a result of the suicide. The client=s suicide was not an act or conduct by Devereux directed at Robinson.

Robinson further claims it constituted an emotional assault for Devereux to question Robinson about allegations of wrongdoing while she was experiencing increased emotional problems related to the approaching one-year anniversary of her client=s suicide. However, it is not extreme and outrageous conduct for an employer to question an employee about a report of wrongdoing. See Randall=s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995).

Robinson additionally claims Devereux told her she was not a Ateam player@ and treated her as an Aoutcast.@ Robinson claims that after her termination, she was Adevastated and depressed.@ However, mere worry, anxiety, vexation, embarrassment or anger does not rise to actionable severe emotional distress. See LaCoure v. LaCoure, 820 S.W.2d 228, 234 (Tex. App.CEl Paso 1991, writ denied). Further, termination of an at-will employee is not extreme and outrageous as a matter of law. See Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 33 (5th Cir. 1992).

Robinson=s allegations cannot reasonably be regarded as conduct by Devereaux that was so extreme as to Ago beyond all possible bounds of decency.@ See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (noting that when an employee has benefit checks delayed, is given the Arunaround@ and faces fabricated excuses of lost files and malfunctioning computers, that the employee was treated rudely but that the conduct cannot be regarded as extreme and outrageous). We find Robinson did not satisfy her burden of producing more than a scintilla of evidence to show that Devereux engaged in conduct that was extreme and outrageous. Because we find no evidence of an essential element of Robinson=s claim, summary judgment was appropriate, and we need not consider whether Robinson presented evidence in support of the other elements of her claim.

We conclude the trial court did not err in granting summary judgment on Robinson=s claims for wrongful termination and intentional infliction of emotional distress. Accordingly, Robinson=s first point of error is overruled.

D. Inadequate Opportunity for Discovery

Robinson claims the trial court erred in granting Devereux=s motion for summary judgment because Robinson did not have an adequate opportunity for discovery. Robinson notes in her brief that she filed two motions for continuance prior to the trial court=s granting summary judgment. However, there is no evidence Robinson ever obtained a ruling on either motion. Failure to obtain a ruling on the motion for continuance of a summary judgment hearing waives any error. See Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 690 (Tex. App.CTyler 1996, no writ). Further, Robinson did not raise a point of error on the trial court=s failure to grant these two motions.[4] See Tex. R. App. P. 33.1(e). Accordingly, this issue was not properly presented for our review.

III. Motion for New Trial

Robinson argues the trial court erred in denying the motion for new trial based on the discovery of new evidence. We review a trial court=s ruling on a motion for new trial based on newly discovered evidence by an abuse of discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987).

Robinson argues that she produced sufficient new evidence to require the trial court to grant her motion for new trial. Robinson relies on Summers v. WellTech, Inc., in which the court identified four factors that might support a new trial based on newly discovered evidence: A(1) the evidence has come to the party=s knowledge since the trial; (2) the lack of discovery before this point is not due to want of due diligence of the party; (3) the newly discovered evidence is not cumulative, and (4) the evidence is so material that it would probably cause a different result.@ 935 S.W.2d 228, 233 (Tex. App.CHouston [1st Dist.] 1996, no writ). Robinson claimed in her motion for new trial that there is evidence that proves she was Aterminated when other employees who were absent or on Family Medical Leave were not.@ However, Robinson has not demonstrated that this new evidence is material to her claim that Devereux=s allegation of job abandonment was merely a pretext for termination based on her failure to commit an illegal act. Here, Robinson knew that if she failed to attend a meeting, she would suffer negative consequences, yet she chose not to attend. Robinson presents no evidence suggesting that these other employees were in a similar situation as Robinson and were treated differently. Thus, Robinson failed to provide the court with evidence Aso material that it would probably cause a different result.@ Id. Further, this new evidence does not negate Robinson=s admission that her termination was based in part on reasons other than an alleged refusal to commit illegal acts. See City of Midland, 18 S.W.3d at 215. Finally, Robinson produced no new evidence to support her claim of intentional infliction of emotional distress such as would require the trial court to grant a new trial. We find the trial court did not abuse its discretion in denying Robinson=s motion for new trial. Accordingly, this point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Justices Yates, Edelman, and Draughn.[5]

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Robinson was placed on Family and Medical Leave on December 19, 1997, after being diagnosed with post-traumatic stress disorder. Robinson provided a doctor=s note recommending that she not return to work.

[2] Robinson claims that prior to 1996, Devereux ordered her to make false, negative entries in client charts to prolong stays and to record therapy that was not given or that she did not provide. The thrust of that claim centers around events taking place on the night of December 22, 1996. Robinson claims that she was asked to prepare false precaution sheets on the night of December 22, 1996, following the suicide of a client. However, the only evidence she produced to support this claim was her testimony that a supervisor stamped forms, while others were standing around a desk, and stated: AThese need to be filled out.@ Robinson acknowledged in her deposition that Devereux did not ask her to lie or falsify records, but asked her to reduce the details in her report.

[3]Robinson claims Devereux=s request that Robinson attend this meeting while on leave violates the Family Medical Leave Act. We disagree; Anothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave ... to report periodically to the employer on the status and intention of the employee to return to work.@ 29 U.S.C. '2614(a)(5). Further, it is permissible for an employer to terminate an employee for misconduct even while on Family and Medical Leave. See, e.g., Carillo v. Nat=l Council of Churches of Christ, 976 F. Supp. 254 (S.D.N.Y. 1997).

[4] We note, in a traditional motion for summary judgment, a trial court does not err in denying additional time for discovery if the facts necessary to support summary judgment were sufficiently developed when the motion was filed. See Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).

[5] Senior Justice Joe L. Draughn sitting by assignment.