Court of Appeals of Texas, Dallas.

Donna BONENBERGER, Appellant

v.

CONTINENTAL INSURANCE COMPANY D/b/A Continental Rehabilitation Resources, Inc., and Augustine Dueno, Appellees.

No. 05-95-01055-CV.

|

July 29, 1996.

Before Justices MALONEY, JAMES, and EVANS.¹

OPINION

JAMES, Justice.

*1 Donna Bonenberger appeals from a summary judgment granted in favor of Continental Insurance Company d/b/a Continental Rehabilitation Resources, Inc. (CRR) and Augustine Dueno (collectively appellees). In four points of error, Bonenberger complains generally the trial court erred in granting summary judgment for the appellees. We overrule appellant’s points of error and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Bonenberger began working for CRR in March of 1990 as a rehabilitation nurse. Bonenberger was promoted to Senior Rehabilitation Nurse in July of 1992. During her employment with CRR, Bonenberger received three disciplinary warnings about her job performance.

On May 21, 1993, CRR received a call from an insurance company client. The insurance company asked CRR to go to Texarkana and evaluate a patient’s injuries and medical status. In the Intensive Care Unit (ICU), Bonenberger reviewed the patient’s medical records. The patient’s doctor, Dr. Smith, twice called the Medical Director of the hospital to complain about Bonenberger. Dr. Smith requested Bonenberger not be allowed to return to the ICU unit. The Medical Director told Bonenberger not to enter the nursing unit. Bonenberger returned to the ICU. The security guard refused to allow Bonenberger to enter the unit. The Medical Director again told Bonenberger she would not be allowed to return to the nursing unit, and there was no need for her to return to the hospital. Bonenberger filed a “24 Hour Catastrophic Report” concerning her visit to the Texarkana hospital.

On May 26, 1993, Bonenberger had a traffic accident while returning to Dallas from a job assignment. Bonenberger called her boss, Dueno, the next day to inform him of her accident.

When Dueno received the 24 Hour Catastrophic Report, he took it to his boss, Brooke Dennis. Dennis and Dueno met with Al Roberts in the Human Resources Department. Roberts asked Dueno to call the Medical Director to make sure there had been no mistake. The Medical Director confirmed the events described in the report. Brooke and Dueno decided to terminate Bonenberger.

When Bonenberger learned she was about to be terminated, she called Earl Millen, CRR’s Director of Human Resources for the Dallas Region. Millen postponed Bonenberger’s termination when Bonenberger asked to meet with him personally. Millen met with Bonenberger for several hours and later met with Dueno. Millen concluded CRR had good cause to terminate Bonenberger for her “gross misconduct” at the Texarkana hospital. CRR terminated Bonenberger on June 14, 1993.

On August 11, 1993, CRR received a phone call from Harris Methodist Hospital. The hospital was verifying Bonenberger’s workers’ compensation coverage.

On March 31, 1994, Bonenberger filed suit alleging: (1) she was discharged in retaliation for her workers’ compensation claim; (2) CRR was negligent in failing to provide knowledgeable and competent managers; (3) Dueno tortiously interfered with her employment relationship with CRR; and (4) intentional infliction of emotional distress by CRR and Dueno.

*2 CRR and Dueno filed a motion for summary judgment based on the following grounds: (1) Bonenberger was discharged for legitimate, non-retaliatory reasons and Bonenberger cannot establish these reasons were pretextual; (2) failure to establish extreme and outrageous conduct; (3) Dueno was CRR’s agent and therefore could not interfere with Bonenberger’s employment relationship with CRR; (4) CRR did not have a duty to provide knowledgeable and competent managers; and (5) the workers’ compensation statute exclusivity defense barred Bonenberger’s negligence and intentional infliction of emotional distress claims.

Bonenberger responded contending fact issues precluded summary judgment. Bonenberger filed objections to appellees’ summary judgment evidence. Appellees filed an objection to Bonenberger’s summary judgment evidence. The trial court signed a written order overruling Bonenberger’s objections to appellees’ summary judgment evidence. The trial court signed an order granting appellees’ motion for summary judgment. The order does not specify the ground or grounds on which the trial court granted summary judgment.

STANDARD OF REVIEW

The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but is to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. See Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962).

In reviewing a summary judgment record, this Court applies the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). Thus, the defendant can prevail by conclusively disproving at least one essential element of each theory pleaded by the plaintiff, Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991), or by conclusively establishing each essential element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiff’s case under attack by the defendant, or on at least one element of each affirmative defense advanced by the defendant. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).

RETALIATORY DISCHARGE

*3 In her first point of error, Bonenberger complains the trial court erred when it granted summary judgment in favor of CRR on her retaliatory discharge claim. Specifically, Bonenberger contends there is a fact issue on whether a causal connection exists between her filing a workers’ compensation claim and her termination.

Applicable Law

Texas is an employment-at-will state. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991). As a general rule, absent a specific contract term to the contrary, this doctrine allows an employee to quit or be terminated with or without cause. Schroeder, 813 S.W.2d at 489. However, article 8307c of the Workers’ Compensation Act provides an exception to this doctrine:

No person may discharge or in any other manner discriminate against an employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceedings.

See Act of April 22, 1971, 62nd Leg., R.S., ch. 115 § 1, 1971 Tex. Gen. Laws 884, 884-85, amended by Act of May 11, 1993, 73rd Leg., ch 269, § 1, 1993 Tex. Gen. Laws 987, 1235-36 (current version at Tex. Lab.Code Ann. §§ 451.001-.003 (Vernon Pamph.1996)).

The employee is not required to show that her discharge was solely because of her workers’ compensation claims to maintain a successful action under article 8307c. It is necessary to show only that the employee’s workers’ compensation claims were a determining factor in her discharge. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex.App.-El Paso 1986), aff’d, 734 S.W.2d 667 (Tex.1987); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex.App.-Dallas 1986, no writ). We apply this standard of proof of causation: The employer’s termination of the employee would not have occurred when it did but for the employee’s legally protected actions. See Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) (applying standard of causation to Whistleblower Act and similar cases).

The employee may prove this causal connection with circumstantial evidence. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1989, writ denied). Such evidence may consist of: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies with regard to progressive disciplinary action; and (4) discriminatory treatment of the employee in comparison to other employees allegedly guilty of similar infractions. Paragon Hotel Corp., 783 S.W.2d at 658.

An employer who has been sued under article 8307c for wrongfully discharging an employee may obtain summary judgment if it shows, by appropriate summary judgment evidence, that there was no causal link between the employee’s compensation claim and the employee’s termination. Trevino v. Corrections Corp. of Am., 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied); see Hunt, 711 S.W.2d at 79. The defending employer is entitled to summary judgment if it establishes a legitimate, non-discriminatory reason for the discharge, and the employee fails to produce any evidence of retaliatory motive. Texas Division-Trantor, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994). The mere subjective belief of an employee that she was discharged because of her participation in workers’ compensation proceedings is not sufficient to controvert competent summary judgment evidence of a neutral explanation for discharge. Trantor, 876 S.W.2d at 313-14.

Application of Law to Facts

*4 Bonenberger contends that CRR is not entitled to summary judgment on her wrongful discharge claim because she raised a fact issue about the reasons for her discharge. Bonenberger contends that her summary judgment evidence shows that conflicting reasons were given by CRR for her termination.

CRR contends (1) it established its right to summary judgment by establishing a legitimate, nondiscriminatory reason for the termination and (2) Bonenberger failed to establish a causal link between her termination and her workers’ compensation claim.

Bonenberger directs us to the summary judgment evidence that she reported her injury to Dueno. Bonenberger also directs us to the summary judgment evidence that the only other employee terminated during Dueno’s eighteen-month supervision of Bonenberger’s eight-person work group also filed a worker’s compensation claim.

CRR relies on the “24 Hour Catastrophic Report” attached to Millen’s affidavit. This report was filed by Bonenberger concerning the incident at the Texarkana hospital. Bonenberger reports the patient’s doctor, Dr. Smith, was uncooperative when she met him. In the ICU, Bonenberger reviewed the patient’s medical records. Dr. Smith twice called the Medical Director of the hospital to complain about Bonenberger being disruptive. Dr. Smith requested Bonenberger not be allowed to return to the ICU unit. The Medical Director told Bonenberger she was not cleared to enter the nursing unit. Despite these instructions, Bonenberger returned to the ICU to provide copies of an authorization form for the patient’s medical records. The security guard refused to allow Bonenberger to enter the unit. The Medical Director again informed Bonenberger she would not be allowed to return to the nursing unit and there was no need for her to return to the hospital.

CRR attached portions of Dueno’s deposition testimony to its motion for summary judgment. When Dueno received the report, he took it to Dennis. Dennis and Dueno met with Roberts. Roberts asked Dueno to call the Medical Director to make sure there had not been a mistake. The Medical Director confirmed the events described in the report.

Bonenberger contends Millen’s affidavit conflicts with CRR’s discovery responses. Millen states he postponed Bonenberger’s termination when Bonenberger asked to meet with him. Millen met with Bonenberger for several hours and later met with Dueno. Millen concluded CRR had good cause to terminate Bonenberger for her “gross misconduct” at the Texarkana hospital.

Bonenberger directs us to CRR’s interrogatory answer describing the reasons for Bonenberger’s termination. CRR states Bonenberger “was discharged from Continental for repeated violations of company policies and procedures. Despite repeated warnings, both written and verbal, [Bonenberger] refused to follow well-established guidelines and procedures, resulting in her termination on June 14, 1993.

We do not see a conflict between Millen’s affidavit and the interrogatory answer. Millen’s affidavit also states that prior to Bonenberger’s termination, “Dueno had documented several incidents pertaining to deficiencies in Ms. Bonenberger’s performance.” Copies of documents describing three warnings are attached to Millen’s affidavit. This also contradicts Bonenberger’s claim she did not receive an opportunity to correct her performance and therefore proper procedures were not followed by CRR.

*5 Bonenberger also directs us to Millen’s deposition testimony that the decision to terminate Bonenberger was made by Bonenberger’s management, not him. This also does not conflict with Millen’s affidavit. In his affidavit, Millen states CRR’s “Human Resources Department reviews every proposed termination to ensure compliance with all relevant company policies and applicable laws.” (emphasis added) The Human Relations Department had completed its review of Bonenberger’s termination when Bonenberger asked to meet with Millen personally.

Bonenberger presented only evidence of knowledge of her auto accident but no other circumstantial evidence of a causal connection. Knowledge alone was not sufficient to raise a fact issue about whether there was a retaliatory discharge. See Paragon Hotel Corp., 783 S.W.2d at 658. We conclude CRR established a legitimate, non-discriminatory reason for the discharge, and Bonenberger failed to produce any evidence of retaliatory motive. See Trantor, 876 S.W.2d at 313-14; Trevino, 850 S.W.2d at 808. We overrule Bonenberger’s first point of error.

TORTIOUS INTERFERENCE WITH EMPLOYMENT

In her second point of error, Bonenberger complains the trial court erred when it granted summary judgment in favor of Dueno on her claim Dueno tortiously interfered with her employment relationship with CRR. Specifically, Bonenberger contends Dueno’s agency status is not a proper basis for summary judgment.

Applicable Law

An at-will employment agreement can be the subject of a claim of tortious interference. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688 (Tex.1989). A cause of action for tortious interference with a contract is established upon a showing that: (1) a contract existed between the plaintiff and a third party that was the subject of interference; (2) the defendant’s act of interference was willful and intentional; (3) the intentional act of the defendant was a proximate cause of damage to the plaintiff; and (4) actual damage to the plaintiff resulted. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991).

By definition, the person who induces the breach cannot be a contracting party. Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex.1995). As a general rule, an agent cannot be personally liable for tortious interference with its principal’s contracts. Massey v. Houston Baptist Univ., 902 S.W.2d 81, 85 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The rationale for this rule is that “the agent and the principal are treated as one entity since the agent is the principal’s ‘alter ego’ and both individuals have the same financial interest.” John Masek Corp. v. Davis, 848 S.W.2d 170, 175 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

However, an agent can be liable for tortiously inducing a breach if the agent acts outside the scope of their agency, pursuing purely personal objectives. Holloway, 898 S.W.2d at 796; American Medical Intern., Inc. v. Giurintano, 821 S.W.2d 331, 335-36 (Tex.App.-Houston [14th Dist.] 1991, no writ); see John Masek Corp., 848 S.W.2d at 175. By itself, “it is immaterial that the actor [agent] also profits by the advice or that he dislikes that third party and takes pleasure in the harm caused to him by the advice.” Holloway, 898 S.W.2d at 796 (citation omitted).

*6 Proof of agency requires a showing that the alleged principal has the right to assign the agent’s task and the right to control the means and details of the process to be used to accomplish the task. Ross v. Texas One Partnership, 796 S.W.2d 206, 210 (Tex.App.-Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991). Whether an agency relationship exists is a question of fact unless the evidence established the relationship as a matter of law. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

Application of Law to Facts

Dueno’s deposition testimony states he was a Rehabilitation Coordinator Supervisor and Branch Manager while he was assigned to CRR’s Dallas area location. Millen’s affidavit states Dueno was responsible for recruiting, hiring, evaluating, and supervising new personnel. In managing the Dallas office, Dueno took all of his directions and instructions for conducting business from CRR. Dueno was authorized to discipline and reward personnel under Dueno’s supervision. We conclude Dueno established his status as CRR’s agent and that he was acting within the scope of his agency. See Holloway, 898 S.W.2d at 796; Bhalli, 896 S.W.2d at 210.

Bonenberger argues her summary judgment evidence demonstrated that during the eighteen months Dueno managed Bonenberger’s work group, the only two employees that were terminated both filed workers’ compensation claims. Bonenberger directs us to Roberts’s deposition testimony that Betty Brolsma filed a workers’ compensation claim and was terminated. Roberts did not know when Brolsma was terminated. In addition, although Brolsma worked in the Dallas branch, there is no evidence Dueno was Brolsma’s supervisor. We conclude these are not facts that support Bonenberger’s contentions that Dueno acted outside the scope of his agency. See Giurintano, 821 S.W.2d at 335-36.

Bonenberger also directs us to her deposition testimony that Dueno made derogatory comments to Bonenberger, and Dueno’s deposition testimony that if Bonenberger did not correct her previous behavior of delegating her responsibilities without authority, she would have been terminated. Any animosity Dueno felt towards Bonenberger is not relevant, by itself, to show Dueno acted outside the scope of his agency. See Holloway, 898 S.W.2d at 796. This is not evidence tending to prove that Dueno committed an act that was so contrary to CRR’s best interests that it could only have been motivated by the pursuit of his personal interests. See Holloway, 898 S.W.2d at 796. We conclude Bonenberger did not establish a fact issue about whether Dueno tortiously interfered with Bonenberger’s employment relationship with CRR. See Victoria Bank & Trust Co., 811 S.W.2d at 939; Torres, 457 S.W.2d at 52. We overrule Bonenberger’s second point of error.

NEGLIGENCE

In her third point of error, Bonenberger complains the trial court erred when it granted summary judgment in favor of CRR on Bonenberger’s negligence claim. Specifically, Bonenberger contends CRR breached its “duty to provide knowledgeable and competent managers.”

*7 In her petition, Bonenberger alleges CRR owed her a duty to provide knowledgeable and competent managers, CRR breached this duty because Dueno was not a knowledgeable and competent manager, and this proximately caused damages to Bonenberger. Bonenberger’s brief directs us to one case, National Union Fire Ins. v. National Convenience Stores, Inc., 891 S.W.2d 20 (Tex.App.-San Antonio 1994, no writ). In Union Fire, the opinion quotes the plaintiff’s petition, which stated “NCS [National Convenience Stores, Inc.] owed Carbajal [employee-plaintiff] the duty to be supervised by a competent, thoroughly trained and emotionally stable supervisor, and NCS breached that duty.” Id. at 21. The opinion concluded this language did not create a cause of action covered by NCS’s insurer, Union Fire Insurance. Id. at 21-22. The opinion did not discuss whether this was a viable cause of action under Texas jurisprudence.

We have not located any other opinions that recognize an employer’s duty to provide knowledgeable and competent managers to its employees. We decline to recognize an employer’s duty to provide knowledgeable and competent managers as a viable common law cause of action in Texas. We overrule Bonenberger’s third point of error.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In her fourth point of error, Bonenberger complains the trial court erred when it granted summary judgment in favor of CRR on her intentional infliction of emotional distress claim. Specifically, Bonenberger contends CRR’s summary judgment evidence did not negate the essential element of outrageous behavior.

Applicable Law

To prevail in a suit for intentional infliction of emotional distress, the plaintiff must show: (1) intentional or reckless conduct; (2) that is extreme or outrageous; (3) that caused emotional distress; (4) that was severe in nature. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). The defendant’s conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman, 855 S.W.2d at 621 (quoting Restatement (Second) of Torts § 46 (1965)). In the context of the employer-employee relationship, the termination itself cannot constitute the outrageous conduct. Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex.1993). However, actionable outrageous behavior may accompany an employee’s termination. Wornick, 856 S.W.2d at 735.

Application of Law to Facts

In her brief, Bonenberger directs us to a portion of her deposition testimony describing a department meeting held by Dueno. Dueno, Bonenberger, and seven other employees were present. When Bonenberger asked if similar meetings were going to be held every month, Dueno “started shouting at me that he was tired of me challenging his authority” and that Bonenberger was determined to be disruptive. Bonenberger felt physically threatened and intimidated. Bonenberger was afraid Dueno would strike her, although Dueno never struck her. Bonenberger never saw Dueno strike anyone. Bonenberger felt Dueno’s demeanor was menacing and frightening. Bonenberger also directs us to the portion of Dueno’s testimony that even if the Texarkana incident had not occurred, Bonenberger would still have been terminated if she had not corrected her previous behavior of delegating her responsibilities without authority.

*8 The conduct Bonenberger complains about is not so outrageous and extreme in degree as to go beyond all bounds of decency. See Twyman, 855 S.W.2d at 621. Bonenberger’s termination does not qualify as sufficiently outrageous conduct. See Wornick, 856 S.W.2d at 735. Bonenberger’s fear Dueno would strike her also fails to qualify as sufficiently outrageous conduct. See Wornick, 856 S.W.2d at 735. We conclude Bonenberger failed to establish a fact issue on the essential element of outrageous behavior. See Twyman, 855 S.W.2d at 621; Torres, 457 S.W.2d at 52. We overrule Bonenberger’s fourth point of error.

We affirm the trial court’s judgment.

	Footnotes
1		The Honorable Frank G. Evans, Chief Justice, Court of Appeals, First District of Texas at Houston, Retired, sitting by assignment.