Opinion
No. 04-15-00734-CV
04-27-2016
Cordelia MOSCRIP, Michelle Stewart, and Tracy Romero, Appellants v. Maura KRAUS, Appellee
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10667
Honorable Peter A. Sakai, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This is an accelerated appeal from the trial court's order denying a motion to dismiss filed pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. Appellants Cordelia Moscrip, Michelle Stewart, and Tracy Romero contend the trial court erred in denying their motion because they are employees of a governmental unit, namely the University of Texas Health Science Center San Antonio ("UTHSCSA"), and they conclusively established the claims asserted against them in the underlying lawsuit by appellee Maura Kraus related to conduct that was within the general scope of their employment with UTHSCSA. We affirm the trial court's order.
BACKGROUND
While employed by UTHSCSA, Kraus suffered a cardiac episode at work and subsequently received treatment from Moscrip. Based on alleged actions that were taken while Kraus was a patient of Moscrip, Kraus filed a lawsuit against Moscrip, Stewart, Romero, and others alleging causes of action for invasion of privacy, intentional infliction of emotional distress, and defamation.
In her first amended petition, Kraus alleged she became aware that Moscrip discussed/gossiped about her while she was under Moscrip's care, and Moscrip discussed her medical condition with people "who had no business knowing the information." Kraus alleged Moscrip stated her condition was "all in her head," and Moscrip referred to Kraus as "nuts." Kraus further alleged Stewart and Romero accessed her confidential medical records "not for the purpose of medical treatment or payment or any other lawful purpose" but for "the sole intention of gathering information private to [Kraus]."
Moscrip, Stewart, and Romero filed a motion to dismiss pursuant to section 101.106(f) of the Code, asserting they were employees of UTHSCSA, a governmental unit, the alleged actions were within the general scope of their employment with UTHSCSA, and Kraus's lawsuit could have been brought against UTHSCSA. Affidavits signed by Moscrip, Stewart, and Romero were attached to their motion. Kraus filed a response asserting Moscrip, Stewart, and Romero were not within the general scope of their employment when they committed the alleged acts. At the hearing, Kraus's attorney informed the trial court that Kraus's medical records had been accessed at 2:00 or 3:00 in the morning, and "[n]one of the times that we are complaining of were times consistent with their jobs." Kraus's attorney explained that the audit trail documenting the access to Kraus's records showed that her records were accessed over 300 different times by people Kraus supervised to "spy on what was happening." Kraus's attorney further explained Moscrip made her comment about Kraus being "nuts" at a lunch with a former employee. After the hearing, the trial court denied the motion to dismiss.
Although the attorney's statements were not made under oath, the statements were clearly evidentiary in nature; therefore, opposing counsel waived the oath requirement by failing to object. Banda v. Garcia, 955 S.W.3d 270, 277 (Tex. 1997). --------
STANDARD OF REVIEW
A motion to dismiss filed by an employee pursuant to section 101.106(f) is a challenge to the trial court's subject matter jurisdiction. Mauk v. Pipe Creek Water Well, LLC, No. 04-14-00906-CV, 2015 WL 2405338, at *2 (Tex. App.—San Antonio May 20, 2015, no pet.) (mem. op.). Whether a trial court has subject matter jurisdiction is a question of law which we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). When, as in this case, the motion to dismiss challenges the existence of jurisdictional facts, "we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do." Id. at 227. In our review, "we take as true all evidence favorable to the nonmovant." Id. at 228. "We indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the [motion to dismiss], and the fact question will be resolved by the fact finder." Id. at 227-28.
SECTION 101.106(F) MOTION TO DISMISS
Section 101.106(f) provides:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is
considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). In order for an employee's motion under section 101.106(f) to be granted, the government employee must conclusively establish:
(1) the defendant was a governmental unit employee at the relevant time;See id.; see also Mauk, 2015 WL 2405338, at *2. In this case, it is undisputed that: (1) Moscrip, Stewart, and Romero were employees of UTHSCSA when the alleged acts were committed; (2) UTHSCSA is a governmental unit; and (3) Kraus's suit could have been brought against UTHSCSA. The only issue presented to the trial court and in this appeal is whether Moscrip, Stewart, and Romero committed the alleged acts within the general scope of their employment with UTHSCSA.
(2) the complained of conduct was within the general scope of the defendant's employment with a governmental unit; and
(3) the plaintiff's suit could have been brought against the governmental unit.
SCOPE OF EMPLOYMENT
The term "scope of employment" as used in section 101.106(f) means "the performance for a governmental unit of the duties of the employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp. 2015). The Texas Supreme Court has adopted the Restatement (Third) of Agency's clarification of the term, noting "'[a]n employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.'" Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (quoting Restatement (Third) of Agency § 7.07(2) (2006)). "Thus, when an employee engages in conduct 'for the sole purpose' of furthering [his own or] someone else's interests and not his employer's, the conduct is outside the employee's scope of employment." Fink v. Anderson, 477 S.W.3d 460, 466 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
"Conduct that serves any purpose of the employer is within the scope of employment even if the conduct escalates beyond that assigned or permitted." Id. For example, if an employee is placed in a position involving the use of force, the use of force is within the general scope of his employment even if the employee's use of force escalates beyond the level of force necessary." Id. Similarly, if the conduct falls within the employee's assigned duties and serves any purpose of the employer, the conduct is within the scope of employment "even if done in part to serve the purposes of the employee or a third person." Anderson v. Bessman, 365 S.W.3d 119, 125-26 (Tex. App.—Houston [1st Dist.] 2011, no pet.). "If the purpose of serving the employer's business motivates the employee, his acts are within the scope of employment." Id. at 126.
"But conduct that is better viewed as a deviation from an assigned task instead of an escalation beyond what was authorized is not within the employee's scope of employment." Fink, 477 S.W.3d at 467. Thus, where an employee engages in an independent course of conduct intended to further her own purpose only and thereby not intending to serve any purpose of the employer, the employee acts outside the scope of her employment. See Donohue v. Dominguez, No. 04-15-00068-CV, 2016 WL 147158, at *4 (Tex. App.—San Antonio Jan. 13, 2016, no pet.).
ANALYSIS
In the instant case, the only evidence presented by the appellants in support of their motion to dismiss were their own affidavits.
In Moscrip's affidavit, she stated her "role as a faculty physician at UTHSCSA at times requires [her] to create or otherwise access the personal health records ("Patient Files") of individuals under [her] care and treatment" and Krause was her patient for approximately two years. Moscrip further stated she "regularly access[es] Patient Files" and is "not required to obtain separate prior authorization to do so."
Similarly, in Stewart's affidavit, she stated her "role as Clinical Operations Manager at UTHSCSA required [her] to access the personal health records ("Patient Files") of individuals who were treated by physicians at UTHSCSA." Stewart explained that as a Clinical Operations Manager she was responsible "for quality improvement and operational metrics enterprise-wide, to include quality assurance for call center operations and receiving and responding to patient and provider complaints, among many other tasks." Stewart concluded, "Because my job duties required me to access Patient Files, I was not required to obtain separate prior authorization to access any particular Patient File."
Finally, in Romero's affidavit, she stated she was a Medical Records Technician at UTHSCSA. She further stated she was "responsible for querying, gathering and disseminating the personal health records ("Patient Files") of individuals treated by physicians at UTHSCSA in response to requests for such information. Requests would sometimes come from patients themselves, an attorney's office, insurance companies, billing companies and others." Like Stewart, Romero concluded, "Because my job duties required me to access Patient Files, I was not required to obtain separate prior authorization to access any particular Patient File."
First, we note Moscrip's affidavit does not address Kraus's allegation that she discussed/gossiped about her by discussing her medical condition "with people who had no business knowing that information" and told such people her condition was "all in her head." Moscrip's affidavit does not describe how her discussions of Kraus's medical condition were within the scope of her employment or assert she only spoke with people to whom she needed to disclose such information in furtherance of her duties.
Next, we also note that although each of the affidavits globally contends each employee was authorized to access medical records, none of the affidavits states the employee's access to Kraus's medical records was for the purpose of fulfilling their responsibilities. Although Moscrip stated she accesses medical records in her "care and treatment" of patients, Moscrip does not state she only accessed Kraus's medical records for that purpose. Similarly, although Stewart stated she accesses medical records for "quality assurance" purposes and to receive and respond to patient and provider complaints, Stewart does not state she accessed Kraus's medical records for that purpose. Finally, although Romero stated she accesses medical records to respond to requests for information from various people and companies, Romero does not state she accessed Kraus's medical records to respond to any such request.
The evidence presented in support of the motion to dismiss in this case is similar to the evidence presented in Laverie v. Wetherbe, No. 07-13-00348-CV, 2015 WL 739670 (Tex. App.—Amarillo Feb. 20, 2015, pet. filed) (mem. op.). In that case, James Wetherbe, Ph.D. was an associate dean of the Rawls College of Business Administration at Texas Tech University and was a leading candidate in the University's search for a new dean. Id. at *1. After Wetherbe was not chosen for the position, Wetherbe sued Debra Laverie, Ph.D., who was the senior associate dean, for slander, alleging she informed Bob Smith, the University's provost, that Wetherbe disseminated a rumor during the search process that one strong candidate had emerged for the position so "additional internal or extramural candidates need not apply." Id. Wetherbe also alleged Laverie told Smith than Wetherbe was using a listening device to eavesdrop on conversations in the school. Id. Based on his conversation with Laverie, Smith sent an email to squelch the rumor about the search, stating the search "is a totally open search and all qualified candidates are invited to apply." Id. Laverie filed a motion for summary judgment, asserting she was immune from suit under section 101.106(f). Id. The trial court denied the motion. Id.
On appeal, Wetherbe acknowledged Laverie's speaking with Smith about occurrences at the University was generally within the scope of Laverie's employment; however, he urged the summary judgment was properly denied because the record did not conclusively establish that, on the occasion of Laverie's conversation with Smith regarding Wetherbe, Laverie was serving any purpose of the University, "as opposed to furthering her own purposes only." Id. at *4. The Amarillo court agreed, reasoning:
Reiterated, it was Laverie's burden when seeking summary judgment to establish conclusively that she was acting within the scope of her employment when she conversed with Smith. The summary judgment record contains no direct evidence of Laverie's intentions when she spoke with Smith about Wetherbe before Smith sent his email, and does not conclusively establish the nature of her motivation in doing so, either as to the dean search or as to the report of Wetherbe's use of a listening device. Consequently, Laverie has failed to satisfy her traditional summary judgment burden required for dismissal under section 101.106(f). For that reason, the trial court's ruling on Laverie's motion for summary judgment was correct.Id.
Similarly, in the instant case, it was the appellants' burden to conclusively establish they were acting within the scope of their employment when they committed the alleged acts. The record contains no evidence of Moscrip's intentions or motivation when she informed other people that Kraus's condition was "all in her head." Similarly, the record contains no evidence of the appellants' intentions or motivation in accessing Kraus's medical records because the affidavits do not state the appellants had a legitimate employment-related reason for accessing the records. Therefore, the affidavits do not conclusively establish the alleged actions were intended to serve any purpose of UTHSCSA. Given Kraus's allegations that her records were not accessed "for the purpose of medical treatment or payment or any other lawful purpose" but "with the sole intention of gathering information private to" her, and in the absence of evidence to the contrary, we hold the conduct "is better viewed as a deviation from an assigned task instead of an escalation beyond what was authorized" and, therefore, was not within the scope of the appellants' employment. Fink, 477 S.W.3d at 467.
CONCLUSION
The trial court's order is affirmed.
Marialyn Barnard, Justice