Summary
stating that the employer's act of inviting the employee back to work and then sending her home after telling her that her job was not available is an adverse employment action
Summary of this case from Porch v. Dillard's Inc.Opinion
CA 3:01-CV-227-R
March 20, 2002
MEMORANDUM OPINION AND ORDER
Charlotte Borner ("Borner") filed suit against Zale Lipshy University Hospital ("Zale Lipshy") for violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and these state court causes of action: defamation, tortious interference with prospective business relations, intentional infliction of emotional distress, and breach of contract. Now before the Court are Defendant's Motion for Summary Judgment (filed December 18, 2001), Defendant's Supplemental Motion for Summary Judgment (filed February 5, 2002), Defendant's Letter of Correction (received February 21, 2002) and Plaintiff's Supplemental Response to Defendant's Reply to Plantiff's Response to Defendant's Supplemental Motion for Summary Judgment (filed February 27, 2002). For the reasons herein stated, Defendant's Motion for Summary Judgment on the FMLA and breach of contract claims are DENIED. Zale Lipshy's Motion for Summary Judgment on the defamation, tortious interference with prospective business relations, and emotional distress claims are GRANTED.
It is simplicity that makes the uneducated more effective than the educated when addressing popular audiences." Aristotle, Rhetoric (c. 320 B.C.).
I. FACTUAL BACKGROUND
Although the facts of this case are in dispute, they are presented here in the light most favorable to the nonmoving party, Plaintiff Borner.
Plaintiff Charlotte Borner was employed as an insurance coverage verifier for Defendant Zale Lipshy University Hospital on July 20, 1998. On April 16, 1999, Borner visited Dr. Paul Madeley complaining of severe upper stomach pain. Dr. Madeley referred Borner to Dr. William G. Hodges to perform an upper endoscopy ("EGD"). Borner subsequently had five EGDs, the first EGD was a one-day surgical procedure on May 24, 1999. On that date, Dr. Hodges referred Borner to Dr. David Vanderpool to schedule esophageal surgery. Borner visited Dr. Vanderpool on May 26, 1999 to schedule the surgery.
Also known as gastroscopy, esophagogastroduodenoscopy or an EGD, this procedure is performed to evaluate symptoms of persistent upper abdominal pain, nausea, vomiting, difficulty swallowing or heartburn.See Taber's Cyclonedic Medical Dictionary, (F. A. Davis ed., 19th ed. 2001). This procedure enables examination of the esophageal lining, stomach and duodenum by passing a bendable, lighted tube connected to a camera through a patient's mouth and into the stomach. See id.
Borner returned to work on May 26, 1999, informed her direct supervisor Cory Countryman ("Countryman") of her medical condition, and requested leave commencing on July 8, 1999 to address her medical condition. Borner also provided a copy of Dr. Vanderpool's excuse slip confirming Borner's scheduled procedures to Countryman, to Countryman's supervisor Terry Neal ("Neal") and to the Human Resources Department. On June 17, 1999, Borner completed Zale Lipshy's "Request for Leave of Absence" form, which was approved by Neal on that date. Borner initially requested two weeks of leave.
Borner took this pre-approved leave starting on July 9, 1999. She was admitted to Baylor Medical Center for surgery on July 8, 1999, and she was discharged on July 14, 1999. On July 22, 1999, Borner forwarded a letter (dated July 21, 1999) to Neal from Dr. Vanderpool, explaining that Borner was still recovering from surgery and that she would not be able to return to work before August 16, 1999.
The Plaintiff's Reply to Defendant's Motion for Summary Judgment incorrectly recounts these dates as "July 7-August 20, 2000." P1.'s Reply to Def.'s Mot. Summ. J. at 4. The Court assumes that the events logically must have occurred in 1999.
Borner received a letter from Neal dated July 23, 1999. This letter acknowledged receipt of Dr. Vanderpool's letter; it stated that Zale Lipshy would not honor Borner's request for leave through August 16, 1999. The letter informed Borner that she would be terminated on August 13, 1999, if she did not return to work on that date. On July 30, 1999, Borner had her second EGD.
On August 25, 1999, the date that she had previously indicated, Borner returned to work and gave her medical release from Dr. Vanderpool (dated August 20, 1999) to Human Resources Director Dara Biegert ("Biegert"). The doctor's letter indicated that Borner should not do any heavy lifting over ten pounds for one month. Upon reviewing the medical release, Biegert told Borner that because she could not lift over ten pounds, Borner was unable to do her job and could not work there anymore. However, Borner's insurance verifier position at Zale Lipshy did not require any heavy lifting. Biegert also informed Borner that another person had been hired to fill her position, so there was no job left for Borner to do. Biegert sent Borner home without permitting Borner to remove her personal effects from her work area. Borner returned home and contacted attorney Craig Gant("Gant"). On August 6, 1999, Gant sent a letter to Zale Lipshy's CEO Robert Smith and to Biegert. Gant's letter alleged that Zale Lipshy violated the FMLA through Neal's July 23rd letter which stated that Borner's request for leave through August 16, 1999 would not be honored, and that Borner would be terminated on August 13, 1999, if she did not return to work by that date. Gant also spoke with Zale Lipshy's attorney Simon Whiting ("Whiting"). After Gant spoke with Whiting, Whiting directed Gant to instruct Borner that she should report to work on August 30, 1999, which she did. Upon Borner's return, she was placed on a separate floor to do her work, thus separating her from the other insurance verifiers with whom she had worked previously.
The person hired to replace Borner was JoAnn Holt ("Holt"), an African-American woman.
Gant is not Plaintiff Borner's counsel of record in the instant proceeding.
Whiting is Defendant Zale Lipshy's counsel of record in the instant matter.
Bonier had her fourth EGD on September 17, 1999, and she returned to work on September 20, 1999. Borner reported to the new Admitting Department Supervisor who replaced Countryman, Jane MacCalla ("MacCalla"), and gave her a letter from Dr. Hodges stated that Borner would require another EGD on October 29, 1999. MacCalla sent Borner to Biegert to have this leave approved, and it was. Bonier was granted and took intermittent leave of four hours per day from November 1, 1999 through November 24, 1999. Bonier then went out on full-time FMLA leave on November 25, 1999, and she was scheduled to return to work on February 7, 2000. By letter dated February 4, 2000, Borner resigned her position.
It is undisputed that this leave was a FMLA qualified leave.
In March 2000, after recovering from surgery, Borner sought other employment through Kelly Services, a placement agency. After two apparently promising interviews with U. T. Southwestern and Methodist Hospital, Borner received neither callback interviews nor offers of employment. On June 19, 2000, Borner interviewed with Baylor University Hospital. Human Resources representative Cathy Eubanks ("Eubanks") performed an employment background check with GroupOne Services, a subsidiary of the Dallas — Ft. Worth Hospital Council. The GroupOne Services' report indicated that Borner had been discharged by Zale Lipshy due to a policy violation. Bonier reported this information to attorney Douglas Magary ("Magary").
Magary is Plaintiff Borner's counsel of record in the instant matter.
By letter dated June 21, 2000, Magary notified Whiting that Zale Lipshy had improperly reported the cause of Borner's separation as a discharge due to a policy violation instead of a resignation. The GroupOne Services' records indicate that U. T. Southwestern and Methodist Hospital also received copies of the erroneous report. Whiting was asked to correct Zale Lipshy's records, all reports made to employment reporting agencies, and the improper report sent to Baylor University Hospital through GroupOne Services. By letter dated June 22, 2000, Whiting notified Magary that the error had been corrected. Bonier was subsequently hired at Baylor University Hospital in June 2000 after another position at Baylor University Hospital become available.
II. ANALYSIS
A. STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates it is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The moving party bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. See Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986).
B. PROCEDURAL MATTERS
As part of their Motion for Summary Judgment, Zale Lipshy files their Reply to Plantiff's Response to Defendant's Motion for Summary Judgment. This pleading makes a number of evidentiary objections, moving the Court to strike evidence submitted by Borner in the Amended Complaint, the Declaration of Charlotte Borner, and in the August 6, 1999 Gant letter.
Zale Lipshy's objections to the Plantiff's First Amended Complaint and Jury Demand (filed 11, 2001) are moot because the Court permitted both parties to address the breach of contract claim through a Supplemental Joint Motion for Summary Judgment (filed February 5, 2002), which is also the subject of this Memorandum Opinion and Order. Therefore, Plaintiff Zale Lipshy's objection is DENIED.
The First Amended Complaint and Jury Demand alleges a single additional claim for breach of contract.
Zale Lipshy's objections to the Declaration of Charlotte Borner make frivolous hearsay objections to various portions of the Borner's summary judgment evidence. The Court finds these objections are without merit. Plaintiff Zale Lipshy's objections to matters relating to the Declaration of Charlotte Borner are DENIED. Zale Lipshy's objections to Gant's August 6, 1999 letter are also frivolous hearsay objections; they are without merit and are DENIED.
C. THE FAMILY AND MEDICAL LEAVE ACT
The FMLA guarantees twelve weeks of unpaid leave to an eligible employee with "a serious health condition that makes the employee unable to perform the functions of [his or her] position." 29 U.S.C. § 2612(a)(1)(D). Eligible employees are those that have worked for at least 1,250 hours and twelve months prior to commencement of leave. See id. at § 2614(a)(1). Employees taking qualified leave are entitled to reinstatement upon their return to their former position or to an equivalent one with the same benefits and terms. See id. at § 2612(b). The FMLA also protects employees who exercise their FMLA rights by prohibiting discrimination and retaliation for having availed themselves of the FMLA's provisions. See id. at § 2615(a). Borner claims that she was FMLA eligible and that Zale Lipshy retaliated and discriminated against her for exercising her FMLA protected rights.
1. BORNER'S FMLA ELIGIBILITY
Borner was hired on July 20, 1998. On June 17, 1999, she requested and was granted FMLA leave commencing on July 8, 1999, until she attempted to return to work on August 25, 1999. Zale Lipshy argues that although they granted Borner's leave and subsequently replaced her while out on leave, that she does not have a FMLA claim because she did not meet the statutory employment term requirement on July 8, 1999, when her leave commenced. Bonier argues that she was eligible for leave under Zale Lipshy's personal leave policy, from July 8, 1999 until July 20, 1999, at which point her leave was transformed into an FMLA leave per Zale Lipshy's own employment policies. Bonier's argument has merit.
Zale Lipshy's personal leave policy states that, "Personal Leave is available to employees who have completed six months of service and may be approved in instances where extraordinary circumstances have been imposed upon an employee. Personal leave includes leave of absence requests for medical reasons when the employee does not qualify for FMLA." J.A. at 126. Bonier had worked for approximately ten days fewer than twelve months at the time her leave commenced; she was not yet eligible for FMLA leave. However, Borner's medical leave of absence qualifies as personal leave under Zale Lipshy's own policies. See id.
This is further evidenced by Zale Lipshy's Leave of Absence Agreement, which was signed by Borner and Zale Lipshy representative Neal on June 17, 1999. See id. at 108. Bonier's Leave of Absence Agreement ("Leave Agreement") reads in part,
I understand that if my request is approved, my job will be kept available for my return for six weeks (12 weeks in the case of a qualifying medical leave). After that time, the hospital will give full consideration for placing qualified employees in available positions for up to 90 days.Id.
The term "qualified medical leave" is not well defined in the parties' pleadings. The Court assumes for the purposes of this Motion for Summary Judgment that Borner's leave of absence for well-documented medical reasons satisfies the definition of a "qualified medical leave" under the Leave Agreement.
Borner concedes that she was not eligible for FMLA leave at the time her July 8, 1999 leave took effect; however, she was eligible for leave through Zale Lipshy's personal leave policy because she had worked for more than six months. Bonier believed that when Zale Lipshy granted her leave, that the Leave Agreement provided twelve weeks of job protection. The Court finds that Borner's understanding of the Leave Agreement was very reasonable given a plain reading of its terms.
When an employer's leave of absence agreement includes a promise of job protection to employees who might not qualify for FMLA leave, it is reasonable for an employee to rely on the employer's representations. The Employee Handbook does not modify the notion of at will employment because the handbook itself states that it does not create a contract.See. e.g., Zimmerman v. H. E. Butt Grocery Co., 932 F.2d 469 (5th Cir. 1991). However, the Leave Agreement is a contractual modification to Borner's at will employment. The Employee Handbook further states:
Family and Medical Leave is available to employees who have completed twelve months of employment, worked 1,250 hours in the preceding twelve months, and have met other requirements and documentation as stated in the Family and Medical Leave Act (FMLA). An employee that is eligible for leave under the FMLA will be tracked on a leave of absence from the date that they are eligible.
J.A. at 126 (emphasis added).
Borner reads the emphasized portion of this excerpt to create a policy by which personal leave will be recharacterized or "tracked" as FMLA leave once the employee becomes eligible for FMLA. Bonier argues that Zale Lipshy's leave policies created a roll-over effect, whereby her personal leave from July 8, 1999 until July 20, 1999 was leave granted under Zale Lipshy's personal leave policy; and the leave from July 21, 1999 until August 25, 1999 was leave protected by the FMLA. Bonier's understanding of this language is certainly reasonable enough to create a genuine issue of material fact.
Therefore, the instant case is distinguishable from Dolese v. Office Depot Inc., 231 F.3d 202 (5th Cir. 2000), cited in the Defendant's Motion for Summary Judgment. In Dolese, the Fifth Circuit affirmed a District Court decision dismissing a FMLA cause of action due to the employee's ineligibility. See id. The Court held that an employer's contractual agreement to provide employees with more generous family and medical leave than that mandated by the FMLA did not create a FMLA cause of action. See id. at 203. Bonier's argument is distinguishable from Dolese because Zale Lipshy's leave policy was not per se "more generous" than the FMLA. Id. In the instant case, Zale Lipshy's policy is best characterized as an administrative method of tracking leave.
This argument is meritorious and thus creates a genuine issue of material fact. A correct resolution of the eligibility issue in this case would require a jury to consider facts pertaining to the Leave Agreement itself, such as how the leave was characterized when Borner applied for it; how Zale Lipshy's leave policies have been administered in the past; and whether the application of Zale Lipshy's policy as to individual employees was without prejudice. For these reasons, Defendant's Motion for Summary Judgment regarding FMLA eligibility is DENIED.
2. DISCRIMINATION AND RETALIATION
The FMLA prohibits an employer's interference with an employee's FMLA rights. 29 U.S.C. § 2615(a). This prohibition encompasses an employer's discrimination and retaliation for the exercise of rights guaranteed by the FMLA. See id. at (a)(1)-(2). To make out a discrimination or a retaliation claim under the FMLA, Borner must prove that: 1) she is protected under the FMLA; 2) that she suffered an adverse employment decision; and 3) either that she was treated less favorably than an employee who had not requested leave under the FMLA, or that the adverse decision was made because of Borner's request for leave. See, e.g., Bocalbos v. Nat'l W. Life Ins. Co., 162 F.3d 379, 383 (1998) (5th Cir. 1999) (citing Oswalt v. Sara Lee Corp., 889 F. Supp. 253 (N.D. Miss. 1995), aff'd 74 F.3d 91 (5th Cir. 1991)), reh'g denied, 1999 U.S. App. LEXIS 6405 (Mar. 16, 1999). If Borner succeeds in making a prima facie case, the burden shifts to Zale Lipshy to articulate a legitimate nondiscriminatory or nonretaliatory reason for the adverse employment action. See id. at 383. Once Zale Lipshy has done so, Borner must show by a preponderance of the evidence that Zale Lipshy's explanations are pretext for their discriminatory or retaliatory actions. See id.
a. Retaliation and Discrimination After the July 8, 1999 to August 24, 1999 Leave
Construing the facts in a light most favorable to the nonmovant, the Court assumes that Borner's leave from July 8, 1999 until July 20, 1999 was a qualified medical leave (under Zale Lipshy's employment policies) that rolled over into an FMLA qualified leave from July 20, 1999 until August 24, 1999. As such, Borner was protected under the FMLA and was entitled to reinstatement upon her return on August 25, 1999. The first prong of the burden shifting test has been met.
Bonier arrived at Zale Lipshy ready to work on August 25, 1999. Zale Lipshy's Human Resources Representative Dan Biegert told Borner that her job was no longer available. Biegert said that because Borner's doctor's note indicated that Borner could not lift more than ten pounds, that Borner was unable to perform her job and could not return to work. Biegert sent Borner home without permitting Borner to remove personal items from her desk. Bonier was later informed that just before her own scheduled return to work, JoAnn Holt was hired as her permanent replacement.
Bonier then directed her attorney to contact Defendant's Counsel to argue that she had a right to reinstatement under the FMLA. It was this exchange that led to Borner being invited back to work at Zale Lipshy starting on August 30, 1999. Zale Lipshy's act of sending Borner home and telling her that her job was not available is an adverse employment action. The second prong of the burden shifting test has been met.
Bonier asserts that this retaliatory adverse employment action was taken because she was out on FMLA leave that had to be extended due to a medical necessity. This leave extension from August 13, 1999 to August 24, 1999 was properly documented and timely reported, as required by the FMLA. Bonier's supervisor Terry Neal also indicated in her affidavit that she did not even attempt to hire a temporary employee to replace Borner because Neal thought that it would be too difficult to find a temporary employee able to do insurance verification work. See J.A. at 59-60.
Bonier also argues that she was discriminated against because white employees returning from FMLA leave had been treated better than she was treated. Bonier does not articulate this assertion with great particularity. However, she does state that Biegert's refusal to allow Borner to remove her personal items from her work desk was discriminatory because white employees had not been treated similarly.
Zale Lipshy must articulate a legitimate nonretaliatory or nondiscriminatory reason for their adverse employment actions. Zale Lipshy asserts three reasons. First, Zale Lipshy argues that Borner's short-term lifting restriction prohibited Borner from fulfilling the job requirements of an insurance verifier. The record does not reflect that a function of Borner's job as an insurance verifier required heavy lifting. The Court finds that Borner was fully capable of working on August 25, 1999 when she was sent home by Biegert. Thus, the lifting restriction reason articulated by Biegert is not a legitimate nonretaliatory or nondiscriminatory reason. Bonier has shown by a preponderance of the evidence that Zale Lipshy's lifting restriction explanation is pretext.
Second, supervisor Neal stated that she did not even attempt to seek a temporary employee replacement for Borner because "it was very hard to find temporary people who do this kind of work." J.A. at 60. The facts do not reflect that insurance verification work is so highly specialized that Zale Lipshy should not have at least attempted to hire a temporary employee to cover for one or two weeks until Borner was able to return. At the least, Zale Lipshy should have attempted to keep Borner's job open by employing a temporary employee. Bonier has shown by a preponderance of the evidence that Zale Lipshy's work complexity explanation for not holding her job open is pretext.
Third, Zale Lipshy argues that Borner's replacement Holt is herself an African-American female. As a matter of law, this fact in and of itself does not refute that Zale Lipshy could have discriminated or retaliated against Borner for her exercising her FMLA rights. Thus, Zale Lipshy has failed to articulate a legitimate nonretaliatory or nondiscriminatory reason for their adverse employment action against Borner on August 25, 1999. Bonier has shown by a preponderance of the evidence that Zale Lipshy's explanations are pretext for their discriminatory and/or retaliatory actions. Zale Lipshy's Motion for Summary Judgment on this claim is DENIED.
b. Retaliation and Discrimination After the September 17, 1999 to September 20, 1999 Leave
Borner's second retaliation claim stems from her treatment upon returning to work from leave spanning September 17, 1999 to September 20, 1999. It is undisputed that this particular leave is a FMLA qualified leave. The first prong of the prima facie test has been met.
Bonier alleges that she suffered retaliation because she was separated from her co-workers and placed on a different floor to be watched as she conducted her work. Bonier states that upon her return to work, supervisor MacCalla "did not greet her, ask her how she was feeling or welcome her back." Pl.'s Reply to Def.'s Mot. Summ. J. at 6. Bonier asserts that this ostracism was retaliatory because there was no business reason to sequester her from her co-workers. The second prong of the prima facie test has been met.
The burden shifts to Zale Lipshy to articulate a nonretaliatory nondiscriminatory reason for their adverse employment action. Zale Lipshy argues that Borner was not ostracized in retaliation for FMLA protected activity, but because of the changing work procedures at Zale Lipshy. This new work flow required an insurance verifier to work on the Emergency Room floor to expedite emergency room patients' insurance coverage verification. Zale Lipshy asserts that they did not take any adverse compensation, benefits, or disciplinary actions against Borner; therefore, their actions of seating her separately from her co-workers was not retaliatory.
The Court agrees with Zale Lipshy. The FMLA does not entitle Borner to be greeted warmly by her supervisor, nor does it prevent Zale Lipshy from moving its employees' physical locations to increase the hospital's ability to properly service patient care. Even assuming all facts in Borner's favor, she has not proven by a preponderance of the evidence that Zale Lipshy's patient care explanation is pretext. Therefore, Zale Lipshy's Motion for Summary Judgment on this claim is
GRANTED.
E. STATE TORT CLAIMS
This Court has supplemental jurisdiction over Borner's state tort claims. See 28 U.S.C. § 1367(a). It is undisputed that Borner took a FMLA qualified leave from November 25, 1999 until February 7, 2000. Before her leave expired, Borner resigned her position by letter dated February 4, 2000. Zale Lipshy reported Borner's separation to GroupOne Services, a subsidiary of the Dallas Ft. Worth Hospital Council. It is undisputed that Zale Lipshy erroneously reported that Borner's separation was a termination due to a policy violation. GroupOne Services' records indicate that that this false information was released to two prospective employers (U. T. Southwestern and Methodist Hospital) before Borner was made aware of the erroneous GroupOne report by the third prospective employer to receive it (Baylor University Hospital). Zale Lipshy argues that although their report was false, Texas law requires malice for such a report to be actionable.
1. DEFAMATION
In Texas, defamation is a "statement orally communicated or published to a third person without legal excuse." Halbert v. City of Sherman, 33 F.3d 526, 530 (5th Cir. 1994); Randall's Food Markets. Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). In order to prevail on her defamation claim, Borner must show that Zale Lipshy had constructive knowledge that their report to GroupOne was false, and that the report was made with malice. See, e.g., Foster v. Laredo Newspapers. Inc., 541 S.W.2d 809. 819 (Tex. 1976), cert. denied, 429 U.S. 1123 (1977).
Here, Zale Lipshy asserts that their false report to GroupOne is not defamatory because it is protected by a qualified privilege. Though privileged, a statement may nevertheless be actionable if it was made with actual malice. See Randall's Food, 891 S.W.2d at 646. If the communication was made without actual malice, the effect of the privilege is to create a legal excuse, thereby nullifying a defamation claim. Actual malice is "the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true." Duffy v. Leading Edge Prods., Inc., 44F.3d 308, 313 (5th Cir. 1995) (quoting Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989)).
Clear and convincing evidence of malice is required in order to defeat a qualified privilege. Id. (citing Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.Civ.App.-Dallas 1991. writ denied)). Texas courts ordinarily burden the defendant with proving lack of malice on summary judgment. See, e.g., Duffy, 44F.3d at 313-14. However, because Texas law requires that the plaintiff demonstrate actual malice at trial, the Fifth Circuit burdens the plaintiff with adducing proof of malice in order to avoid a summary judgment against her. Compare Randall's Food, 891 S.W.2d at 646 (holding that an employer must establish absence of malice on summary judgment by clear and convincing evidence in Texas) with Duffy, 33 F.3d at 313 (concluding that the burden of showing malice is upon the employee in a federal forum).
Zale Lipshy asserts that both state and federal statutory privileges protect them from claims stemming from the erroneous GroupOne report. The state qualified privilege exists for "bona fide communications, oral or written, upon any subject in which the author or the public has an interest or with respect to which he has duty to perform to another owing a corresponding duty." Dixon v. Southwestern Bell Tel. Co., 607 S.W.240, 242 (Tex. 1980) (quoting Buck v. Savage, 323 S.W.2d 363 (Tex Civ. — Houston 1959, writ ref'd n.r.e.)). Zale asserts that their report to GroupOne is also protected by a federal statutory privilege granted by the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et. seq..
The FCRA grants a qualified privilege to employers who furnish employment information to consumer reporting agencies. See id. The parties do not dispute that GroupOne is a qualified agency under the FCRA. See 15 U.S.C. § 1681a(f) (defining "consumer reporting agency" under FCRA). In order to defeat the qualified privilege, Borner must prove that the information Zale Lipshy reported was false and furnished with malice or willful intent. See 15 U.S.C. § 1681h(e).
Borner does not offer clear and convincing evidence of malice to refute Zale Lipshy's assertion that the false report was merely an administrative error; therefore, she has not met her burden. In fact, within a day of being informed of the false report, Zale Lipshy immediately corrected Borner's report in their system, with GroupOne, and with Baylor University Hospital. Zale Lipshy also reformed their internal methods of recording and reporting employment information to GroupOne to avoid future errors. Although the burden is on Borner, Zale has effectively rebutted any malice. Therefore, Zale Lipshy's qualified privilege remains intact. Zale Lipshy's Motion for Summary Judgment on the defamation claim is GRANTED.
2. TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS
Borner's claim of tortious interference with prospective business relations stems from the fact that Borner had interviews with U. T. Southwestern and Methodist Hospital prior to her discovery that the GroupOne report was false. Bonier believes that these interviews did not lead to call back interviews because the GroupOne report falsely indicated that Zale Lipshy had terminated her due to a policy violation. Subsequently, Borner was unable to find other employment until the GroupOne report had been corrected and another opening in June 2000 became available at Baylor University Hospital.
The elements of this Texas tort require a showing of actual malice to rebut a qualified privilege. To wit, a tortious interference claim is similar to the defamation claim discussed supra in Part II(E)(1) at 15-17. This Court granted summary judgment in Part II(E)(1) because Zale Lipshy was not malicious and therefore preserved its privilege. Therefore, there is no necessity in addressing the individual elements of this tort knowing that Borner's arguments regarding Zale Lipshy's malicious intent and lack of legal excuse have already failed. This Court thus finds that there is no genuine issue as to any material fact regarding the tortious interference with prospective business relations claim. Therefore, Zale Lipshy's Motion for Summary Judgment on this claim is GRANTED.
Tortious interference with prospective business relations' elements are: 1) a reasonable probability that plaintiff would have entered into a contractual relationship; 2) defendant's intentional and malicious interference; 3) causing actual harm by preventing the business relationship; and 4) a lack of legal justification or excuse for defendant's actions. See Kiepfer v. Beller, 944 F.2d 1213, 1220 (5th Cir. 1991); Exxon Corp. v. Allsup, 808 S.W.2d 648, 658 (Tex.App. — Corpus Christi, writ denied).
3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Under Texas law, an intentional infliction of emotional distress claim may prevail only if the plaintiff shows that: (I) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; and (3) the defendant's actions caused the plaintiff severe emotional distress. See MacArther v. University of Texas Health Center, 45 F.3d 890, 898 (5th Cir. 1995); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1375 (5th Cir. 1992).
In Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993), Texas adopted the Restatement (Second) of Torts' definition of "extreme and outrageous" conduct as that which goes "beyond all possible bounds of decency, and is regarded as atrocious and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 cmt.d (1965); see also Randall's Food, 891 S.W.2d at 640. A mere violation of laws regulating conduct in the workplace or an employment dispute alone is not enough to establish intentional infliction of emotional distress. See Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606, 613 (5th. Cir. 1999). As well, the Fifth Circuit has held that continuous name calling, bigoted statements, or a single incidence of severe treatment does not give rise to an actionable claim for intentional infliction of emotional distress. See Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989).
Borner argues that Zale Lipshy caused her intentional infliction of emotional distress because they falsely reported her cause of separation, thereby preventing her from successfully gaining replacement employment from March 2000 until June 2000. Bonier asserts that Zale Lipshy's report indicating that Borner was terminated due to a policy violation was embarrassing and was "extreme and outrageous conduct" causing her severe emotional distress. P1.'s Reply to Def.'s Mot Summ. J. at 11.
In reviewing every fact in a light most favorable to the plaintiff, this Court finds that Borner's workplace was not a "den of terror" outrageous enough to permit a finding of intentional infliction of emotional distress. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex. 1999). The false report made to and promulgated by GroupOne was no doubt surprising, embarrassing and inconvenient at worst; it did not cause Borner severe emotional distress. Zale Lipshy's Motion for Summary Judgment on the intentional infliction of emotional distress claim is GRANTED.
4. BREACH OF CONTRACT
As previously discussed supra in Part II(C) at 7-14, Zale Lipshy and Borner entered into a Leave of Absence Agreement on June 17, 1999, whereby Zale Lipshy contracted with Borner to hold her job open for twelve weeks. On July 23, 1999, Zale Lipshy sent a letter to Borner informing her that she would be terminated on August 13, 1999 if she did not return to work. This was an anticipatory breach by Zale Lipshy.
Zale Lipshy's anticipatory breach would have no effect unless it was acted on by Zale Lipshy or was relied on by Borner. See e.g., Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App.-Tyler 1991, no writ). In this case, Zale acted upon their anticipatory breach by hiring an employee to replace Borner; thus, they actually breached the contract Thus, when Borner's leave expired and she returned to work on August 25, 1999. she was sent home and told that her job was no longer available. Bonier's counsel of record then negotiated with Zale Lipshy's counsel of record, and Borner was restored to her job on August 30, 1999. Therefore, Borner sustained actual damages of lost work time and possibly attorney's fees. A genuine issue of material fact remains regarding the amount of those damages. For these reasons, Zale Lipshy's Motion for Summary Judgment on the contract breach claim is DENIED.
Therefore, the issue of whether Borner detrimentally relied on Zale Lipshy's anticipatory breach becomes moot for the purposes of summary judgment.
III. CONCLUSION
For the reasons stated in this Memorandum Opinion and Order, Zale Lipshy's Motion for Summary Judgment on the FMLA and breach of contract claims are DENIED. Zale Lipshy's Motion for Summary Judgment on the defamation, tortious interference with prospective business relations, and intentional infliction of emotional distress claims are GRANTED.
It is so ORDERED.