Opinion
EP-02-CA-268-DB
May 20, 2003
MEMORANDUM OPINION AND ORDER
On this day, the Court considered a Motion for Summary Judgment filed by Defendant Hospice of El Paso ("Hospice") in the above-captioned cause on January 3, 2003. Plaintiff Debra Garcia ("Garcia") filed a Response on January 21, 2003. The Court is of the opinion that the Motion should be granted for the reasons stated below.
BACKGROUND
On January 18, 2001, Garcia began her employment with Hospice as an education associate. Initially, Garcia reported directly to Allen Carter ("Carter"), the team leader of the education associates. Garcia was assigned to visit doctors, hospitals, and social workers to review and promote Hospice services. She trained with Carter by accompanying him in a vehicle on field visits around town. When she began her employment, Garcia signed an acknowledgment form that stated that Hospice was her only employer and she was not receiving income from anyone for independent contract work. Garcia also agreed that should she be interested in a second job, she would be required to notify Hospice in writing that she had been offered the job and then obtain approval before accepting the position.
Soon after she began work at Hospice, Garcia's former employer, Respiratory Medical Homecare Unlimited, Inc. ("RespMed"), contacted Garcia several times and asked her to come back to the company. Garcia refused the offer, but negotiated a contract with RespMed in April 2001. Garcia agreed to help RespMed educate its new marketing staff and provide assistance with their revenue reports. Garcia agreed to be paid $3,000 for two months of work. If RespMed was satisfied with her performance, the company had the option of retaining Garcia until they no longer needed her. Garcia did not inform Hospice about her contract with RespMed. However, Garcia mentioned to Carter that RespMed had contacted her about the offer, and the two discussed a possible salary. According to Garcia, she planned to inform Hospice of her contract, but Carter instructed her not to do so. He told Garcia that the human resources director had become upset with her because Garcia had recently received a raise. Carter then insisted that Garcia pay him $500 from her contract earnings. When Garcia protested, Carter told Garcia that she should pay him to "look the other way" and cover for her should she ever need to attend a meeting at Respmed during Hospice time. Garcia relented and paid Carter the money. Garcia believed that it was against her better judgment not to reveal her plans to Hospice and that she understood she was required to notify Hospice if she obtained an outside job.
On July 2, 2001, Garcia submitted a compliance complaint to Hospice alleging that Carter was participating in unethical behavior during company time. Garcia complained that Carter was working out at a gym during Hospice time; that he ordered her and other subordinates to pick up his wife from work and his children from school; that he had facials, shoe shines, and hair cuts during work hours; that he would bring unauthorized people to luncheons paid by Hospice; and that he attended the movies during work time. Prior to filing that complaint, Garcia complained informally to Charles Roark ("Roark"), Executive Director of Hospice. Garcia told Roark that Carter would force her to drive around town with him to pay his bills, visit his girlfriend, and shop for furniture during company time. Garcia also met with the human resources director and Pat Macias ("Macias"), Compliance Director for Hospice, and complained about Carter's behavior.
Around the time Garcia submitted her complaint, Roark received a call from Dr. Jesurun, a physician at Texas Tech Medical Center, notifying Roark that Garcia had accepted payment from RespMed for referrals of Hospice patients. Roark became concerned t hat this allegation, if true, would implicate federal Medicare regulations and could be considered Medicare fraud.
On July 5, 2001, Roark met with Garcia and Macias to review Garcia's complaint against Carter and to discuss the report made by Dr. Jesurun about possible Medicare violations. Roark informed Garcia of what Dr. Jesurun had reported; he did not accuse Garcia of Medicare fraud. Garcia denied taking any money for referrals. However, she did admit to entering into a contractual relationship with RespMed and receiving $3,000 for contract work. Roark told Garcia that her contract with RespMed was against Hospice policy and that she needed to repay the money to RespMed. Garcia notified Roark that Carter had ordered her to give him $500. Garcia also stated that she did not complete the contract with Respmed and Respmed canceled the contract. Roark informed Garcia that she was no longer to travel with Carter and that he would investigate her allegations against him.
Roark interviewed Carter regarding Garcia's allegations. Carter denied demanding or receiving money from Garcia, but admitted doing some non-work related activities during Hospice work hours. Roark at tempted to communicate with RespMed's owner regarding the allegations against Garcia, but the owner refused to speak with him. Roark did not communicate Dr. Jesurun's allegation to anyone other than Garcia and Macias during the July 5 meeting.
On July 27, 2001 Roark issued memoranda of disciplinary action. Roark concluded that Garcia had violated Hospice policy with respect to her contractual relationship with RespMed because she did not inform Hospice in writing of the relationship, did not obtain approval, and performed some of the work during Hospice time. However, Roark also concluded that there was no direct evidence that Garcia had accepted payment for referrals. Roark placed Garcia on probation for ninety days. As for Carter, Roark concluded that he was involved in activities that were not related to his duties at Hospice, and therefore placed Carter on probation for ninety days.
On August 3, 2001, Garcia gave two weeks' notice of resignation because she had obtained other employment. Prior to the end of the two weeks, Garcia notified Roark that Carter made a comment to Norma Torres, an acquaintance of Garcia, that Garcia had slept with Carter to get her job at Hospice. Upset by the comment, Garcia chose not to complete her last two weeks at work and left the office. According to Roark, he contacted Norma Torres to inquire about the comments, but she did not confirm what Garcia had reported to Roark. Garcia then sued Hospice for defamation, negligent hiring, supervision and retention, and sex discrimination. The instant Motion followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet t his burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 So. Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Hospice moves for summary judgment on the grounds that there is no genuine dispute about any material fact with regard to Garcia's defamation, negligent hiring, supervision and retention, and sex discrimination claims. The Court will address each in turn.1. Defamation
Garcia alleges that she was defamed by the comment made by Roark at the July 5 meeting that accused her, in the presence of Pat Macias, of engaging in Medicare fraud. Garcia also alleges that she was defamed when Carter stated to Norma Torres that Garcia had slept with Carter to get the job at Hospice. Hospice moves for summary judgment on Garcia's defamation claim, arguing that there is no evidence that Hospice defamed Garcia. The Court agrees with Hospice.
A defamatory statement is one that is orally communicated or published to a third person without legal excuse. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). An employer has a qualified privilege that attaches to communications made in the course of an investigation. Id. The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate. Id.; Butler v. Central Bank Trust Co., 458 S.W.2d 510, 514-15 (Tex.Civ.App. — Dallas 1970, writ dism'd). Proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. Randall's Food Market, 891 S.W.2d at 646. A statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth. Id.; Hagler v. Proctor Gamble Mfg. Co., 884 S.W.2d 771 (Tex. 1994) (per curiam). In federal court, the burden is on the plaintiff to show, by clear and convincing evidence, the existence of malice to survive the defendant's motion for summary judgment. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 313 (5th Cir. 1995).
"Reckless disregard" is defined as a high degree of awareness of probable falsity. Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989).
As an initial matter, the Court notes that the summary judgment evidence does not support Garcia's factual assertion that Roark actually accused Garcia of engaging in Medicare fraud during the July 5 meeting. Instead, the evidence indicates that Roark, in the presence of Macias, simply informed Garcia that a report had been made by a physician that she was taking money for referrals, and that the allegation was under investigation. As such, a qualified privilege attached to Roark's statement because it was made in the course of an investigation by Hospice. As for Macias, the evidence shows that her presence was necessary at the meeting because she served as Hospice's administrator responsible for ensuring that the company is in compliance with federal Medicare regulations, and because she received Garcia's July 2 complaint about Carter. Therefore, because the alleged defamatory statement was communicated to Macias in the course of an investigation, it remained privileged. Furthermore, there is no evidence that the communication was made to anyone that did not have an interest in the investigation. Garcia's own deposition testimony reveals that she did not believe that anyone other than Roark or Macias was even aware of the allegations against her. Garcia's deposition testimony states in relevant part:
Q: But besides Mr. Roark and Ms. Macias and this physician, you don't know of anyone else who even knows about this allegation. Is that right?
A: From knowing from Charles and Hospice of El Paso?
Q: Yes.
A: I guess you're correct, yeah.
Q: Okay. So, as far as you know, Mr. Roark didn't go out and spread it around to unnecessary people, correct?
A: No, he — Charles, no.
Q: Okay. Or Ms. Macias?
A: No.
In order to defeat Roark's privilege, Garcia must present competent summary judgment evidence that the statement was made with malice. Duffy, 44 F.3d at 313. However, Garcia presents no evidence upon which the Court may find that actual malice existed at the time Roark made the statement. Garcia presents no set of facts that establish that Roark knew the allegation by Dr. Jesurun was false or that he acted with reckless disregard as to its truth. Roark simply informed Garcia of the allegation and sought a response from her as part of his investigation on behalf of the company. As stated previously, Roark did not communicate the allegation to others without an interest in the investigation. For her part, Garcia contends that the allegation should have been fully investigated before she was hailed to a meeting with Roark and informed of the allegation. This is insufficient to establish t he existence of malice. Because there is no showing of malice, Garcia cannot overcome Hospice's qualified privilege. Therefore, the Court concludes that summary judgment is appropriate as to this portion of Garcia's defamation claim.
As for Garcia's claim that Carter told Torres that Garcia had slept with him to get her job, the Court agrees with Hospice that the comment is double hearsay and inadmissible as a matter of law. Garcia's double hearsay statement is inadmissible under Federal Rule of Evidence 801(d)(2), and, pursuant to Federal Rule of Civil Procedure 56(e), may not be considered as part of the Court's summary judgment analysis. See Winkler v. National Union Fire Ins. Co., 930 F.2d 1364, 1367 n. 4 (9th Cir. 1991).
2. Negligent Hiring, Supervision and Retention
Hospice moves for summary judgment on Garcia's claim of negligent hiring, training, supervision, and retention, claiming that no evidence exists to support the charge. Garcia's pleadings allege that Hospice was negligent in hiring and retaining Carter, whom Hospice knew or, by the exercise of reasonable care, should have known that he was incompetent or unfit and posed a risk of harm to Garcia. While not altogether clear from Garcia's pleadings, this claim appears predicated on Garcia's allegation that, following Carter's placement on probation, Roark told Garcia that Carter would be "watched carefully." During that time, Garcia alleges, Carter made the comment that Garcia had slept with him to obtain her job with Hospice. Therefore, according to Garcia, Hospice was negligent in its retention and supervision of Carter because Carter was acting on behalf of Hospice when he made the statement.
Texas law allows recovery for negligent hiring and supervision in cases where the employer's direct negligence in hiring or retaining an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others. Wise v. Complete Staffing Services, Inc., 56 S.W.3d 900, 902 (Tex.App. — Texarkana 2001, no pet.) (citing Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.)). The negligent performance of those duties may impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the misconduct of its employees. Garcia v. Allen, 28 S.W.3d 587, 592 (Tex.App.-Corpus Christi 2000, pet. denied). As between employer and employee, the duty 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, writ denied).
In order to prevail on a claim of negligent hiring and supervision, a plaintiff must prove all the elements of a common law negligence claim; that is, she must prove that the employer owed her a legal duty to protect her against injury, that her employer breached that duty, and the breach proximately caused the plaintiff's injury. See Wise, 56 S.W.3d at 902 (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). The element of duty required to establish a claim of negligent hiring and supervision is premised on foreseeability. Id. at 496. The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Therefore, to establish that Hospice's actions were the proximate cause of her injuries, Garcia must show that the company's actions in hiring, supervising, or retaining Carter were the cause in fact of her injuries and that Carter's comments and Garcia's resulting injuries were a foreseeable consequence of Hospice's hiring, supervision, or retention of Carter. See Houser v. Smith, 968 S.W.2d 542, 544 (Tex.App.-Austin 1998, no pet.).
Garcia has failed to submit competent summary judgment evidence to create a genuine issue as to her claim for negligent hiring and supervision. There is no evidence that shows, prior to Carter's comment about Garcia, that Hospice knew or should have known that Carter was incompetent or unfit in the manner alleged by Garcia and that his hiring and retention would create an unreasonable risk of harm to others. Even taking as true Garcia's assertion that she complained to Roark and Macias about Carter's behavior on several occasions before Carter made the alleged comment about Garcia, and that such a comment was allegedly made during Carter's probationary period, it was certainly not foreseeable to Hospice that Carter would make a disparaging comment about Garcia, thereby damaging her reputation and causing her emotional distress. Although Hospice was made aware that Carter had a propensity to engage in unauthorized activities during work hours, those activities involved using company time and resources for personal use. There is no evidence to suggest that his actions should have put Hospice on notice that Carter would later claim that Garcia slept with him to obtain her job. Absent a showing of foreseeability, Hospice has negated the elements of duty and proximate cause and Ho spice cannot be held liable as a matter of law for the negligent hiring and supervision of Carter. Accordingly, Hospice is entitled to summary judgment as to Garcia's claim for negligent hiring and supervision.
3. Sex Discrimination
Finally, Hospice moves for summary judgment on Garcia's claim that Hospice committed an unlawful employment practice by discriminating against her on the basis of sex in violation of 42 U.S.C. § 2000c. The Court notes that Garcia so much as concedes in her Response to Hospice's Motion for Summary Judgment that there is no genuine issue of material fact on this claim. Garcia's concession notwithstanding, the Court will address her claim and apply the appropriate summary judgment standard thereto.
In order to overcome a motion for summary judgment on a claim for sex discrimination, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In general, a plaintiff establishes a prima facie case by showing: (1) that she is a member of a protected class; (2) was qualified for her position; (3) was subjected to an adverse employment action; and (4) others similarly situated were more favorably treated. See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). Once a plaintiff establishes a prima facie case, a presumption of discrimination is raised, and the burden shifts to the defendant t o rebut by articulating a legitimate, nondiscriminatory reason for its actions. See Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995) (citing Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the defendant satisfies this burden, the burden shifts back to the plaintiff to prove that the reasons articulated by the defendant are mere pretext for unlawful discrimination. "To carry that burden, the plaintiff must produce substantial evidence of pretext." Wallace v.Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (citing Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001)). Here, Hospice asserts that even assuming Garcia can establish a prima facie case of discrimination, Hospice has proferred a legitimate, non-discriminatory reason for the challenged action. The Court agrees with Hospice.
The only adverse action suffered by Garcia was her placement on ninety days of probation as a result of her violation of Hospice's policy requiring Garcia to disclose in writing and obtain approval to perform work for a company other than Hospice. Therefore, Hospice has produced a legitimate, non-discriminatory reason for placing Garcia on probation. For her part, Garcia has provided no facts to rebut Hospice's non-discriminatory reason for the adverse action. As Defendant has pointed out, Carter, a male employee, was also disciplined for ninety days for his involvement in Garcia's violation of Hospice policy. Therefore, summary judgment is appropriate as to Garcia's claim of sex discrimination.
Accordingly, the Court is of the opinion t he Hospice's Motion for Summary Judgment should be granted and that the following orders should enter:
IT IS HEREBY ORDERED that Defendant Hospice of El Paso's "Motion for Summary Judgment" is GRANTED. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.