Leslie Burton v. Carter Bloodcare, Employment Practices Solutions, Inc., and Susan Sorrells

Citation: Not availableDocket: 02-11-00003-CV

Court: Court of Appeals of Texas; January 4, 2012; Texas; State Appellate Court

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Leslie Burton, the appellant, challenges the final summary judgment issued by the trial court in favor of the appellees: Carter BloodCare, Employment Practices Solutions, Inc. (EPS), and Susan Sorrells. Burton raises five issues, claiming errors related to her allegations of age discrimination, false imprisonment, intentional infliction of emotional distress, breach of contract, and defamation. The court affirms the trial court's decision.

Burton, over fifty at the time of her hiring in August 2002, served as the director of donor collections at Carter BloodCare, overseeing various collection operations and multiple managers. In 2003, she began supervising the collection training department, gaining additional direct reports and receiving a pay raise. Complaints from her subordinates about her management style surfaced in late 2004 and early 2005, leading to significant turnover in her department, including resignations and transfers of several managers.

Due to concerns about employee dissatisfaction, in 2005, Burton was reassigned from the donor collections department to focus solely on the training department, resulting in a change of title but no salary reduction. During this time, her direct supervisor changed to Michelle Stefan, with whom Burton had limited interaction, although Burton’s deposition indicated more frequent communication than claimed. Burton did not assert age-related discrimination regarding her reassignment at the time it occurred.

The document “Summary of 360-Degree Feedback for Leslie Burton, 2005,” compiled by Stefan in 2006, outlines mixed evaluations of Leslie Burton's performance at Carter BloodCare in 2005. Some employees praised her leadership and dedication, noting her efforts to foster teamwork, while others criticized her communication skills, flexibility, demeanor, and ability to cultivate a cohesive work environment. Specific feedback included allegations of her being unapproachable, difficult to work with, and having a tendency to shift blame. Despite receiving some positive comments, her overall feedback reflected significant concerns regarding her management style and interpersonal interactions.

High employee turnover under her supervision persisted even after her transfer in 2005, with complaints about her harshness and hostility documented. In 2008, she was reassigned to lead a new technical writing department, where she had the opportunity to hire her own staff, including Helen Serrano. Although the reassignment did not affect her salary, the move was intended to reduce employee complaints. However, a 2008 survey indicated continued issues with professionalism, moodiness, and inconsistency in her management approach. In early 2009, Serrano raised further complaints about Burton's treatment of her, prompting Carter BloodCare to engage EPS, a human resources consulting firm, to investigate these ongoing concerns. EPS appointed Susan Sorrells to conduct the investigation, during which relevant personnel files were reviewed to address the complaints against Burton.

Sorrells, a nonpracticing attorney, conducted interviews with several employees of Carter BloodCare, including the appellant, in a human resources room. Employees expressed negative opinions about the appellant's job performance, with one comparing it to working in a bomb factory. After the interviews, some employees contacted Sorrells to share further concerns about the appellant. The appellant believed the meeting was intended as a general employee survey, but she found Sorrells’s approach aggressive and insulting, describing the experience as an "interrogation" that left her feeling confined and overwhelmed. Sorrells contended that her open-ended questions were challenging for the appellant because she was unwilling to confront the feedback from her colleagues.

Following the investigation, Sorrells provided a verbal report to senior management, indicating significant employee unrest related to the appellant's conduct. Although Sorrells was not asked to recommend termination, the management team, including Henderson, Stefan, Grigsby, and Dr. Sayers, decided to terminate the appellant's employment in March 2009, emphasizing that the decision was based solely on her workplace behavior, not her age. The appellant, in her late fifties at the time of termination, claimed she was unable to find suitable employment thereafter and filed a charge of age discrimination against Carter BloodCare.

She subsequently sued, alleging false imprisonment, defamation, invasion of privacy, age discrimination against Carter BloodCare, and intentional infliction of emotional distress against EPS and Sorrells, seeking actual and punitive damages. Carter BloodCare and EPS/Sorrells filed motions for summary judgment against her claims, which the appellant contested. Carter BloodCare objected to new claims raised in her responses and to the admissibility of parts of her deposition. The trial court upheld these objections and granted summary judgment for the defendants, prompting the appellant to appeal. The appeal will be reviewed under a de novo standard, considering evidence in favor of the appellant unless reasonable jurors could not.

In evaluating summary judgment motions, every reasonable inference and doubt must be resolved in favor of the nonmovant. The determination hinges on whether fair-minded jurors could reach different conclusions based on the evidence. When a party requests both traditional and no-evidence summary judgment, the review typically starts with the no-evidence standard. If the trial court does not clarify its basis for the summary judgment, the appealing party must demonstrate error based on any ground asserted in the motion. An appellate court will affirm if any of the movant's theories are valid.

In traditional summary judgment cases, the appellant must show that the movant failed to meet the burden of proving no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. Uncontroverted evidence from an interested witness does not raise a fact issue unless it is clear, credible, and free from contradictions. After discovery, a party without the burden of proof can move for summary judgment by asserting a lack of evidence for an essential element of the opposing party’s claim or defense, which must be specifically stated. The trial court must grant this motion unless the nonmovant provides evidence that raises a genuine issue of material fact. If the nonmovant presents more than a scintilla of evidence, a no-evidence summary judgment is inappropriate.

In the case of age discrimination, the appellant claims the trial court improperly granted summary judgment for Carter BloodCare, asserting that she was discriminated against based on age through demotion, unfavorable work conditions, and wrongful termination without legitimate reasons. The Texas Labor Code defines unlawful employment practices related to age discrimination, requiring that age be a motivating factor in the employer’s actions, even if other factors also contributed.

Evidence of one employee replacing another is insufficient to establish an unlawful employment practice without additional proof of discrimination. In cases where a plaintiff asserts that an employer's stated reason for an adverse action is a pretext for discrimination, the McDonnell Douglas burden-shifting framework applies. Under this framework, the plaintiff must first establish a prima facie case of discrimination; if successful, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. The plaintiff then must demonstrate that this reason is merely a pretext.

In this case, the appellant provided evidence of being over 40 years old at the time of her discharge but failed to show that she was replaced by someone under 40 or younger. She must instead prove that her discharge was due to age discrimination. The appellant relied on alleged age-biased comments from her supervisors, including statements about hiring a younger management team and remarks related to aging. However, the court noted two key issues: first, the admissibility of these comments was challenged by the employer and upheld by the trial court, which the appellant did not contest on appeal; thus, the court could not consider them. Second, even if the comments were admissible, they were deemed insufficient to establish a factual dispute regarding discrimination, referencing a similar case where a comment made by an employer was not enough to support an age discrimination claim.

The Fifth Circuit ruled that a statement must meet four criteria to be considered evidence of discrimination: it must relate to the plaintiff's protected class, be proximate in time to the adverse employment decision, be made by someone with authority over that decision, and directly relate to the employment decision. Comments failing to meet these criteria are classified as "stray remarks" and cannot defeat summary judgment. In the case of Jackson, while a comment from the chief operating officer satisfied the first and third criteria, there was no evidence connecting it to the timing of Jackson's termination or the decision itself, rendering it irrelevant. 

Additionally, precedent cases, such as Rubinstein v. Adm’rs of Tulane Educ. Fund and Niu v. Revcor Molded Products Co., reinforced that comments made far in advance of an employment decision do not support claims of discrimination. In this context, Ridley’s comment about hiring a younger management team lacked relevancy due to its distance from the termination decision and Ridley's lack of authority over it. Similarly, Stefan’s comment, which was unrelated to employment management, could not substantiate a discrimination claim. 

The appellant also cited instances of alleged disparate treatment, claiming she faced involuntary demotion and differential supervision compared to younger peers. However, she lacked evidence to substantiate these claims, as she did not know whether complaints had been made regarding the treatment of her peers.

Henderson faced personnel issues with a long-term employee but was not subjected to any disciplinary actions, unlike the appellant. Biersmith had problematic working relationships without repercussions, and Norman displayed questionable behavior without consequences, to the appellant's knowledge. The appellant, however, could not confirm the ages of Henderson, Liles, Norman, or Biersmith. She claimed that Stefan's management style was age-biased, as he isolated her from meetings, neglected to address her criticisms while being attentive to younger peers, and provided less administrative support to her compared to younger employees. Carter BloodCare contested the appellant's testimony regarding the lack of discipline for younger employees, arguing it was unfounded and speculative, leading the trial court to sustain these objections. Consequently, the appellant's claims about age discrimination lacked sufficient evidence. During her deposition, the appellant admitted she had no factual basis for asserting that her coworkers were younger, undermining her comparisons for discriminatory treatment. The evidence did not show significant age differences necessary to establish a prima facie case of age discrimination. Furthermore, her claims of "involuntary demotion" were unsupported, as she failed to demonstrate that significantly younger employees were treated differently. The evidence indicated that older employees took over her responsibilities after her transfer, negating claims of age discrimination related to her position changes.

Appellant claims disparate treatment by her supervisor, Stefan, compared to younger employees, citing a lack of meetings, poor communication, exclusion from meetings, no birthday recognition, inadequate training, absence of performance evaluations, lack of administrative support, and being assigned to a cubicle. However, the trial court excluded her testimony regarding this treatment, and appellant has not appealed this ruling, limiting the consideration of such evidence. To establish discrimination through disparate treatment, misconduct of both the disciplined and undisciplined employees must be of comparable seriousness, which does not require precise equivalence but necessitates that the misconduct be nearly identical. The Beaumont Court of Appeals emphasized that employees with different supervisors or divisions, or those subjected to adverse actions at different times, are generally not considered similarly situated. Favorable treatment of employees outside a protected class can only indicate discrimination if their circumstances are nearly identical. Employment actions are deemed to have been taken under nearly identical circumstances when employees share job responsibilities, a supervisor, and have similar violation histories. If differences in conduct explain the treatment variance, the employees are not similarly situated for discrimination claims. Even if evidence of disparate treatment had been admitted, the appellant failed to provide sufficient evidence showing she was similarly situated to those younger employees or was significantly older than them.

Appellant did not establish a genuine issue of material fact regarding the fourth element of age discrimination, specifically that her termination was due to her age. The court found insufficient evidence to support a prima facie case for age discrimination as outlined in chapter twenty-one of the labor code, affirming the trial court's decision to grant Carter BloodCare's no-evidence motion for summary judgment. 

Regarding the false imprisonment claim, the appellant argued that the trial court erred in granting summary judgment. The appellees' motions for summary judgment were based on both traditional and no-evidence grounds. To challenge the no-evidence motions, the appellant needed to present more than a scintilla of evidence demonstrating a willful detention without consent and without lawful authority. Liability for false imprisonment can extend to those who direct or request the detention. The first element, willful detention, can occur through violence, threats, or other means that restrict movement. If a threat is alleged, it must be shown to instill a just fear of harm to a person’s safety, reputation, or property.

The court referenced a case where a store manager questioned an employee about a stolen item. The employee was asked to stay but was not willfully detained, as the employer has the right to manage its employees and direct their actions during work hours. The court concluded that the restriction in the workplace did not amount to false imprisonment under the law.

The court differentiated between cases involving threats to an individual’s person, reputation, or property, citing several precedents. In Grant v. Stop-N-Go Mkt. of Tex. Inc., evidence supported a false imprisonment claim when a store manager physically restrained a suspected thief and called the police, leading to the plaintiff's detention. In Black v. Kroger Co., a jury could find false imprisonment when an employee was threatened with arrest and separation from her child during an interrogation, restricting her free will to leave. Similarly, in Kroger Co. v. Warren, false imprisonment was upheld when an employee was told she could not leave until she signed a statement and was physically restrained when she attempted to exit. Conversely, in Safeway Stores, Inc. v. Amburn, the court found no false imprisonment claim. Amburn was interviewed in a secluded area about alleged theft without being physically restrained or told he could not leave; he had the ability to depart but did not express a desire to do so. The court ruled that discussing employment-related matters in the workplace is permissible, and while the interview's nature may have intimidated Amburn, it did not constitute false imprisonment as he was not physically impeded from leaving. The court stated that any intimidation did not invalidate the legality of his presence in the interview area.

Employers must maintain reasonable and humane interactions with employees, but a standard that could routinely subject employees to false imprisonment claims cannot be established. The interrogation of Amburn, directly related to his employment duties and conducted while he was compensated, does not equate to false imprisonment unless it involved unlawful detention. Although Amburn expressed fear during the questioning, fear alone does not constitute false imprisonment; there must be a calculated threat of detention that goes beyond mere intimidation. Reference is made to Morales v. Lee, where a defendant's threats did not amount to false imprisonment, contrasting it with Skillern v. Sons, where evidence supported a claim of false imprisonment due to physical restraint and coercion.

In the case involving Carter BloodCare, EPS hired Sorrells to investigate a complaint against an employee, appellant, after concerns about high turnover rates. Sorrells conducted interviews based on complaints from other employees, including Serrano, who expressed fear of appellant's potential retaliation. The setting of the interview was described as a vacant office that was comfortable for two people, and Sorrells closed the door for privacy. The context indicates a serious concern for employee safety and the nature of the investigations being conducted.

Sorrells, a nonpracticing attorney, conducted a three-hour interview with the appellant, clarifying that the conversation was not being recorded and would be confidential to a limited extent, as results would be reported to Carter BloodCare officials. Sorrells warned the appellant against discussing the interview with others and interviewed other employees for shorter durations. During the interview, Sorrells's tone reportedly became agitated, and she questioned the appellant about negative comments attributed to her. The appellant denied some allegations but admitted to making some comments. She described Sorrells's questioning as aggressive, feeling "dirty, worthless, and insulted," and claimed the interview was unexpected and humiliating, contrary to her belief that it was an employee satisfaction survey. Despite expressing discomfort and shock during the session, the appellant did not ask to leave and acknowledged she was not explicitly told she could do so. Sorrells admitted to noticing the appellant's discomfort and stated that the difficulty in answering questions contributed to the appellant's surprise. Sorrells refrained from discussing positive feedback about the appellant, believing it would not be disputed. At the conclusion, Sorrells invited the appellant to share any final thoughts, which the appellant declined, and instructed her not to disclose the interview's content to others. Sorrells provided the appellant with her business card, offering assistance for her situation.

Appellant indicated she would consider a matter and follow up with Sorrells, later sending an email requesting further information and inquiring about a subsequent meeting. Sorrells replied that there were no plans for another meeting. Despite being unrestrained, not instructed to remain, and never having requested to leave the interview, appellant claimed that several factors suggested willful detention by the appellees. Appellant argued that Sorrells referred to her as an "accused individual" and questioned her about derogatory comments, but the cited record failed to support this claim, as Sorrells discussed accused individuals in general during her deposition. Furthermore, appellant contended that her psychological sensitivity, disclosed during the interview, warranted its immediate termination; however, Sorrells's inquiry into workplace behavior was deemed relevant to the investigation. It was noted that discomfort in answering difficult questions does not equate to false imprisonment. Appellant also alleged that Sorrells misled her about the interview's purpose, but Sorrells stated she was truthful. Additionally, appellant claimed Sorrells’s more extensive preparation and longer interview duration compared to others implied intent to detain her; however, this was not found persuasive, as the complexity of the inquiries justified the longer interview. The court rejected appellant's assertions that the case facts aligned with those in Skillern and Black.

Evidence for false imprisonment was noted when a plaintiff was threatened with handcuffing and jail if she did not admit to theft (Black, 527 S.W.2d at 800–01) and when another plaintiff was physically restrained until she confessed (Skillern, 379 S.W.2d at 689). However, in the case at hand, the court found that the appellant's situation—where she felt compelled to remain in an interview to defend herself—did not constitute willful detention. Comparisons with prior cases indicated that the appellant did not present sufficient evidence to challenge the summary judgment motions from the appellees on the false imprisonment claim. Consequently, the trial court's decision to grant summary judgment on that claim was upheld.

Regarding the claim for intentional infliction of emotional distress (IIED), the appellant argued that the trial court erred in granting summary judgment for EPS and Sorrells. To establish an IIED claim, the plaintiff must demonstrate intentional or reckless conduct that is extreme and outrageous, resulting in severe emotional distress (Leachman v. Dretke, 261 S.W.3d 297, 315). The defendants argued that the appellant could not show evidence of such conduct. The court noted that it is responsible for determining whether the conduct in question is sufficiently extreme and outrageous before allowing a jury to decide on liability (Canchola, 121 S.W.3d at 741). The standard for such conduct is high, requiring it to be beyond all possible bounds of decency and intolerable in a civilized community (Zeltwanger, 144 S.W.3d at 445). This stringent standard serves to differentiate between mere inadvertence and intentional or reckless misconduct.

Insensitivity or rudeness does not equate to extreme or outrageous conduct necessary for a claim of intentional infliction of emotional distress (IIED). Conduct such as insults, threats, or annoyances is insufficient unless it is placed in a specific context, considering the relationship between the parties involved. The Texas Supreme Court has clarified that actions deemed intentional or malicious do not automatically qualify as extreme or outrageous. Employers have the right to manage their workforce, including conducting investigations into employee misconduct, without fear of litigation for ordinary workplace disputes. For an IIED claim to be valid, the behavior must transcend typical workplace interactions into something extreme. In Canchola v. Wal-Mart, the court held that an employer's investigation of sexual harassment allegations, which included suspending and terminating an employee, did not constitute extreme or outrageous conduct, but rather fell within the employer's discretion to manage employee relations. The ruling emphasized that unpleasant experiences in the workplace do not inherently warrant legal intervention, as long as the employer's actions remain within the scope of their managerial authority.

An employer's questioning of an employee regarding personal use of a company credit card in front of colleagues was deemed not to constitute extreme or outrageous conduct. In Sebesta v. Kent Elecs. Corp., the court declined to assign liability despite the employee being yelled at and subjected to an “exit parade” during peak hours. The appellant argued that Sorrells's conduct during her investigative interview was egregious due to her knowledge of the employee's economic vulnerability, psychological susceptibility, and treatment of the employee as an accused person through aggressive questioning. However, the record did not substantiate claims that Sorrells acted differently because of this knowledge. The appellant described the interview as intimidating and degrading, with rapid-fire accusatory questions. Despite viewing the facts favorably for the appellant, the court concluded that Sorrells's behavior, although potentially unprofessional, did not meet the stringent threshold for extreme or outrageous conduct necessary for intentional infliction of emotional distress (IIED) claims, which typically require circumstances bordering on serious criminal acts. The case was likened to others where recovery for IIED was denied despite unpleasant experiences.

The court held that the conduct of a company's CEO, who refused to provide a reference letter and allegedly facilitated a terminated employee's eviction, was not extreme and outrageous, but rather callous and mean-spirited. In another case, inappropriate behavior towards a woman whose husband was terminally ill did not meet the threshold for extreme and outrageous conduct as there were no physical threats or vulgar language. Additionally, negative comments made about a professor's tenure did not qualify as extreme or outrageous conduct. A comparison of cases revealed that while some instances warranted claims for intentional infliction of emotional distress (IIED), the current case did not. The court concluded that the appellant failed to provide sufficient evidence of extreme and outrageous conduct, affirming the trial court's summary judgment in favor of the defendants on the IIED claim.

Regarding the breach of contract claim, the appellant alleged that Carter BloodCare breached an agreement by disclosing her personnel file to Sorrells, arguing that the disclosure was unauthorized under their employment policies. Carter BloodCare interpreted this claim as related to invasion of privacy and sought summary judgment, asserting that the appellant had no evidence to support her claim. However, the appellant clarified that her complaint was based on breach of contract rather than invasion of privacy.

Carter BloodCare’s employee handbook emphasizes that personnel files are confidential and controlled by the Human Resource Department, limiting access to authorized personnel only. It clarifies that the handbook is not an employment contract. The trial court sustained Carter BloodCare's objection to the appellant's attempt to introduce a breach of contract claim during summary judgment, as the appellant did not appeal this decision. Consequently, the merits of the breach of contract claim will not be considered. 

In addressing the defamation claim, the appellant alleged that employees of Carter BloodCare made false statements about her to a third party, Sorrells. Carter BloodCare sought summary judgment, arguing that the appellant lacked evidence for her claim, that the statements were not defamatory as a matter of law, and that a qualified privilege protected the comments. Appellant categorized the supporting communications as statements made during a 360-degree review and comments during interviews with Sorrells. To succeed in a defamation claim, a private plaintiff must demonstrate that the defendant published a statement containing defamatory content while acting negligently. Statements are considered published if communicated to a third party who understands their defamatory nature, and slander refers to orally communicated defamatory statements.

In defamation cases brought by private individuals, truth serves as an affirmative defense to slander. A statement, while potentially false or objectionable, may not constitute defamation depending on the context. For a statement to be deemed defamatory, it must be factually based and capable of being proven true or false, distinguishing it from subjective opinions. The appellant referenced over forty pages of record containing various statements about her conduct, including accusations of self-promotion, intimidation, threats, and unfair treatment of coworkers. However, she did not clarify which of these statements she relied upon for her defamation claim, nor did she apply established defamation principles to the cited comments in her appeal. Instead, she argued that the collective statements were defamatory as they aimed to harm her reputation. An appellate brief must include relevant arguments and supporting authority; failure to do so can lead to waiver of issues on appeal. The court emphasized that it is not required to search the record for support of a party's claims, reiterating the burden on the appellant to substantiate her assertions of error.

The court clarified that it is not obligated to search the record for facts that support a party's position, specifically in defamation cases, where a clear statement must be identified. The appellant failed to provide a specific defamatory statement despite citing a substantial portion of the record, leading to the overruling of her fifth issue due to inadequate briefing. The court affirmed the trial court's judgment after overruling all of the appellant’s issues. Additionally, the court noted that while the appellant had previously labeled her invasion of privacy claim as a breach of contract, her testimony was often based on hearsay rather than direct evidence. Lastly, the court rejected the appellant's attempt to introduce new complaints post-submission, reinforcing procedural rules against raising new issues in reply briefs.

The Texas Rules of Appellate Procedure prohibit an appellant from raising new issues in a reply brief that were not included in the original brief. In cases of disparate treatment claims, federal courts require that the compared employee be significantly younger than the plaintiff; for instance, a seven-year age difference was deemed insufficient by the Seventh Circuit. The appellant claimed differential treatment compared to younger employees after her 2005 transfer, but this evidence was excluded by the trial court. She justified her second transfer as being a positive encouragement. Key employees Liles and Norman, whom the appellant alleged to have met with, were not shown to be significantly younger than her. The Beaumont Court of Appeals noted that threats of termination related to ordinary business disputes do not qualify for intentional infliction of emotional distress claims. The elements of invasion of privacy torts were outlined in a Texas Supreme Court case. The appellant failed to cite legal authority or state the elements for her breach of contract claim, leading to a refusal to consider it. Texas law generally posits that employee handbooks do not form contracts, especially when disclaimers are present. The appellant cited a single alleged defamatory comment regarding theft, but the record does not support an accusation of criminal intent.