Burton v. Bloodcare

• Decision Date: 05 January 2012
• Docket Number: NO. 02-11-00003-CV,02-11-00003-CV
• Parties: LESLIE BURTON APPELLANT v. CARTER BLOODCARE, APPELLEES EMPLOYMENT PRACTICES SOLUTIONS, INC., AND SUSAN SORRELLS
• Court: Texas Court of Appeals

LESLIE BURTON APPELLANT

v. CARTER BLOODCARE, APPELLEES EMPLOYMENT PRACTICESSOLUTIONS, INC., AND SUSAN SORRELLS

NO. 02-11-00003-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: January 5, 2012

FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION¹

Appellant Leslie Burton appeals the trial court's final summary judgment, which the court rendered in favor of appellees Carter BloodCare, Employment Practices Solutions, Inc. (EPS), and Susan Sorrells. Appellant contends in five issues that the trial court erred by granting summary judgment against her claimsfor age discrimination, false imprisonment, intentional infliction of emotional distress, breach of contract, and defamation. We affirm.

Background Facts

In August 2002, when appellant was over fifty years old, Carter BloodCare, a not-for-profit blood center, hired her to be the director of donor collections.² Appellant directed fixed-site collections, mobile collections, staff scheduling, and mobile staging (preparing supplies and equipment for mobile blood drives). Three managers—JoEllen Wallis, Brandye Norman, and Carla Buckendorf— reported directly to appellant, and appellant reported to Joe Ridley, who was a senior director. Other employees reported to the managers who were under appellant's supervision, so appellant had many direct and indirect subordinates. In 2003, in addition to her full-time duties associated with being the director of donor collections, appellant also began to supervise Carter BloodCare's collection training department (which Ridley had previously overseen), so she gained more employees who reported directly to her. Appellant was reluctant to supervise the collection training department, but she received a pay raise for doing so.

In the latter part of 2004 and the early part of 2005, Terrie Henderson, who directs Carter BloodCare's human resources department, began receivingcomplaints from several managers about how appellant treated them and others. Ridley received similar complaints. For example, Wallis cried while complaining to Henderson about how appellant had treated her. Norman and Peggy Barlow also complained to Henderson. Norman and Barlow eventually resigned in 2005,³ and two other managers transferred away from appellant, including Wallis, who transferred to Waco. Mike Perez, who took Wallis's position after she transferred, told Henderson that he was "very upset about how [appellant] behaved in the workplace." Appellant had led a meeting in which she and other managers had criticized Perez's job performance.

Henderson told Ridley about the unrest in appellant's department, and Ridley became concerned about employee turnover in the department. In 2005, Carter BloodCare assigned appellant to work only in the collection training department rather than the donor collections department. Appellant's title changed from director of donor collections to director of procedure development and training. The reassignment gave appellant fewer employees to manage and sometimes allowed her to work less hours per week, but Carter BloodCare did not reduce her salary. Ridley, who is older than appellant, assumed responsibilities related to the donor collections department. According to appellant, she tried to meet with Ridley about the reassignment, but he would notdo so, and he was "cold" toward her. Appellant did not complain in 2005 that the reassignment had occurred because of her age.

In approximately August 2005, appellant began reporting to Michelle Stefan, who was another senior director, and different employees reported to appellant. According to appellant, she and Stefan met with each other "infrequently" because of Stefan's "lack of effort." Parts of appellant's deposition indicate, however, that appellant and Stefan communicated regularly in August and September 2005 and that Stefan organized monthly lunch meetings.

Stefan conducted 360-degree reviews of her subordinates. During these reviews, employees who reported to or interacted with the reviewed employee submitted written comments about the reviewed employee's strengths and weaknesses. A document titled "Summary of 360-Degree Feedback for Leslie Burton - 2005," which was compiled by Stefan in 2006, reveals that some of Carter BloodCare's employees had positive things to say about appellant's 2005 performance, while others complained about her communication skills, flexibility, demeanor, tendency to shift blame, threatening behavior, lack of organization, and failure to create an "atmosphere of cohesiveness." One employee commented that appellant had "many capabilities which are tempered by her attitude . . . . She needs to work on exemplifying teamwork and an even temper[.]" Another employee, however, called appellant a "great leader who cares for each employee and shows it." Yet another commenter stated, "[Appellant] constantly does things to bring this department together as a team."The document also stated that appellant would "need to continue to overcome the perceptions of staff/coworkers that she is unapproachable." Finally, the document stated,

[Appellant] did receive some unfavorable scores and feedback from coworkers/peers on the 360-degree reviews. There is a perception held by some that she is difficult to work with and is not working on developing teamwork between departments. This is a perception that [appellant] will need to understand and recognize as she moves forward. [I]t will be critical for her to work on changing this perception and improving her communication and teambuilding skills.

Stefan and appellant discussed the negative comments that Stefan had received about appellant. Appellant believed that employees who had completed the survey "took it as an opportunity to document and say mean and gossipy and untrue things." Appellant promised to improve her performance.

High turnover for employees who worked under appellant's supervision continued after appellant's 2005 transfer; according to Henderson, between 2005 and 2008, several employees who reported to appellant transferred or resigned. In 2007, Henderson received a complaint about appellant from an employee in the collection training department; the employee called appellant "harsh," "confrontational," and "hostile."

In 2008, Carter BloodCare reassigned appellant to lead a newly created technical writing department, and Carter BloodCare assigned Sallie Tinney, who is approximately five years older than appellant, to lead the collection trainingdepartment.⁴ In the new department, appellant hired her own subordinates, as she had in the other departments that she had worked in; one of these new employees was Helen Serrano. According to Stefan, appellant's age had no relation to the reassignment.

Appellant again had fewer employees to manage based on the transfer, but Carter BloodCare still did not reduce her pay. Stefan "envisioned that, as a director over a newly created procedure development department, [appellant] would work in an area of her strength . . . . In the newly created procedure development department, she would have fewer employees to manage and hopefully fewer employee complaints and less employee unrest." Respondents to a 2008 360-degree survey said, however, that appellant was unprofessional; often spoke poorly of others; was moody, childish, and difficult to work with; and had "no grasp of consistency."⁵ Also, in January 2009, Serrano complained about how appellant was treating her.

In February 2009, Carter BloodCare hired EPS, a human resources consulting company, to investigate the complaints against appellant. According to Stefan, appellant had previously complained that Stefan made direct contact with appellant's staff, so hiring EPS "accommodated [appellant's] wish that [Stefan] refrain from personal direct contact." In a letter sent by EPS to Henderson, EPS stated that Susan Sorrells, a "Senior Consultant," would investigate the complaint on behalf of EPS. Sorrells considered herself to be an independent contractor of EPS.

Henderson and Stefan met with Sorrells and told her about Serrano's complaint and issues pertaining to appellant's interactions with Carter BloodCare's employees. Henderson allowed Sorrells to review appellant's and Serrano's personnel files. Sorrells, who is a nonpracticing attorney, interviewed many Carter BloodCare employees, including appellant, in a vacant room within the human resources department. Numerous employees made negative comments to Sorrells about various aspects of appellant's job performance. One employee told Sorrells that working with appellant was "like working in a bomb factory." Some employees called Sorrells after the interviews concluded to talk more about appellant.

According to appellant, she believed before her meeting with Sorrells that the meeting was to be part of a general employee survey about Carter BloodCare's strengths and weaknesses. But when the three-hour meeting occurred, Sorrells was, according to appellant, aggressive, unrelenting, andinsulting. Appellant described her meeting with Sorrells as an "interrogation" and said that she felt confined, restricted, and overwhelmed. Sorrells, however, believed that she had asked open-ended questions that appellant had difficulty answering because appellant did not want to "face what other people were saying about her."

After Sorrells completed her investigation, she presented a verbal report to Henderson, Stefan, Bob Grigsby (Carter BloodCare's chief operating officer), and Dr. Merlyn Sayers (the company's chief executive officer). According to Henderson and Grigsby, Sorrells's report indicated there had been substantial employee unrest focused around appellant's behavior in the workplace. Sorrells was not asked for her opinion about whether appellant should be fired, but after a meeting attended by Henderson, Stefan, Grigsby, and Dr. Sayers, Carter BloodCare terminated appellant's employment in March 2009, when she was in her late fifties....