Clinical Pathology Labs., Inc. v. Polo

• Decision Date: 06 August 2020
• Docket Number: No. 08-19-00067-CV,08-19-00067-CV
• Citation: 632 S.W.3d 35
• Parties: CLINICAL PATHOLOGY LABORATORIES, INC., Appellant, v. Juan POLO, Appellee.
• Court: Texas Court of Appeals

632 S.W.3d 35

CLINICAL PATHOLOGY LABORATORIES, INC., Appellant,

v.Juan POLO, Appellee.

No. 08-19-00067-CV

Court of Appeals of Texas, El Paso.

August 6, 2020

ATTORNEY FOR APPELLANT: Mark C. Walker, Dickinson Wright, PLLC, 221 N. Kansas St. Ste. 2000, El Paso, TX 79901.

ATTORNEY FOR APPELLEE: John P. Mobbs, Attorney at Law, 6350 Escondido Drive, Suite A-14, El Paso, TX 79912.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

JEFF ALLEY, Chief Justice

Unfortunate as it may be, employees are sometimes fired. And it is hard to imagine that any worker would be discharged from employment without some internal discussion by the employer, whether from manager-to-manager, manager-to-staff, or staff-to-manager, not to mention the actual communication of the termination decision to the discharged employee. In this appeal we are again confronted with the question of whether those types of discussions are "communications" that might invoke the protection of free speech and associational rights under the Texas Citizens Participation Act ("TCPA"). The question is more than academic, because once the TCPA is invoked, the plaintiff is early on put to the task of presenting by clear and specific evidence a prima facie case for each essential element of the claim in question.¹ Failure to make that case exposes the employee not only to dismissal of their suit, but attorney's fees and sanctions.²

The Texas Supreme Court has already decided that some purely internal company discussions can invoke the TCPA.³ But the same court has also cautioned that discussions attendant to a "private contract dispute affecting only the fortunes of the private parties" do not involve a "matter of public concern"--a necessary predicate under the TCPA.⁴ Because we conclude that the employer in this wrongful discharge case failed to show, by a preponderance of the evidence, that the discussions leading up to the termination of the plaintiff related to a matter of public concern, or that the plaintiff is suing over those discussions as distinct from the termination decision itself, we affirm the trial court's order declining to apply the TCPA.

I. FACTUAL BACKGROUND

Appellant Clinical Pathologies Laboratories ("CPL") terminated Appellee Juan Polo ("Polo") from his employment as a phlebotomist after Polo suffered a work-related injury and filed a worker's compensation claim. CPL is "a reference laboratory" that performs laboratory testing for its clients, which includes physicians, clinics, and hospitals. Polo was employed by CPL as a phlebotomist and driver from March 13, 2012 until his termination on November 14, 2016. Among other things, phlebotomists are tasked with obtaining blood samples from patients.

On August 22, 2016, Polo was involved in a work-related motor vehicle accident while driving a company vehicle. As Polo was unable to immediately return to work, he filed for and received worker's compensation benefits. The parties dispute, however, what happened next. According to Polo, his physician released him to perform light duty work on August 30, 2016, with some restrictions on the movement of his ankle. He claims that despite this limitation, he was physically able to perform the essential functions of his job as a phlebotomist, but CPL nevertheless refused to allow him to return to work on light duty. CPL, however, contends that it never received notification that Polo could return to work on light duty, and that instead, it received multiple reports from Polo's physician indicating that Polo would not be able to return to work for the foreseeable future.

CPL sent a letter to Polo dated November 8, 2016, informing him that it was terminating his employment. In the letter, CPL stated that it had accommodated Polo's need for time off since his work-related accident, but that this had "placed a hardship on the department," and that, despite its concern for Polo's health, CPL could no longer continue to carry him as an employee. The letter further stated that when Polo was fully recovered and released by his physician to return to work, he could reapply for employment with CPL.

II. PROCEDURAL BACKGROUND

A. Polo's Lawsuit

Polo filed his Original Petition against CPL alleging that it had terminated him in violation of Chapter 451 of the Texas Labor Code. See TEX.LAB.CODE ANN. § 451.001 (a person may not discharge or in any other manner discriminate against an employee who has filed a worker's compensation claim in good faith). In his petition, Polo also alleged that after he filed the worker's compensation claim, he was "subjected to a negative attitude" by CPL due to the filing, and that CPL's management had informed him that "he needed to hurry up and return to work on full release."

In its answer to the petition, CPL denied that it terminated Polo as the result of the filing of his worker's compensation claim, asserting instead that its decision to terminate Polo was "induced by business necessity or bona fide occupational qualifications." CPL further elaborated that its termination decision was based on Polo's inability to perform the "essential functions of the job," and that the termination was made "according to a uniform application of a company policy."

B. The TCPA Motion to Dismiss

CPL thereafter filed its motion to dismiss Polo's lawsuit pursuant to the TCPA. In its motion, CPL alleged that Polo's "claims in his suit are based on, related to, or in response to CPL's exercise of its right of free speech on a matter of public concern, or its right to associate, and are subject to dismissal under the TCPA." In particular, CPL argued that the "unequivocal language" in Polo's Original Petition demonstrated that he was complaining about the communications that took place among CPL management or employees, which pertained to, "among other things, Plaintiff's extended time off, which placed CPL's phlebotomy department in a hardship," and caused CPL to be "unable to provide the best service to its clients in the medical community." Although the record does not contain any of the actual alleged communications, CPL contends that these communications were "made in connection with a matter of public concern," as defined by the TCPA, i.e., health and safety issues, given CPL's role in the medical community and Polo's employment as a phlebotomist.

1. Klein's affidavit

In support of its motion, CPL attached an affidavit from Debbie Klein, CPL's Vice-President of Human Resources. In her affidavit, Klein described the several regulations and guidelines that a clinical lab must follow in conducting its operations, and their connection to the health and safety of its customers. She further explained that phlebotomists, such as Polo, are required to understand and follow various regulations and guidelines, and that they are responsible for adhering to "departmental policies and procedures to include departmental programs, quality control, quality assurance, and safety."

Klein explained that in general, when CPL does not have a fully staffed phlebotomy department, it "risks a loss of services" to the community, and it causes "a delay in diagnosing, preventing, or treating disease which would be harmful to [the] community." Klein explained that Polo's inability to return to work as a phlebotomist caused "CPL's ability to provide health services to suffer," and it eventually became "economically necessary" to hire a replacement. According to Klein, after CPL received a Texas Workers' Compensation Work Status Report, dated October 31, 2016, stating that Polo would be unable to return to work until November 30, 2016, CPL called Polo about the situation to determine if his physician would release him to work sooner. But after receiving no response, CPL sent Polo the November 8, 2016 termination letter.

Klein also concluded from a review of Polo's Original Petition, that his lawsuit was based on communications that CPL employees had with each other and with Polo regarding the decision to terminate him. She also concluded that the claim was related to internal communications CPL's staff had with each other discussing the "proper management and staffing of a clinical laboratory" and the "provision of services, which CPL offers in the marketplace." She did not, however, provide the substance of any of those communications, or other details regarding them. In addition, Klein expressed her belief that Polo's lawsuit related to various communications that CPL and its employees had with "state and federal governments, and among each other, with regard to compliance with [CPL's] reporting obligations," and CPL's need to comply with the various "standards and regulations" imposed upon it to ensure the health and safety of the community. Once again, however, Klein did not provide the substance of any such communications or explain how they related to Polo's absence from work.

2. Polo's opposition to the motion and supporting affidavit

Polo opposed CPL's motion to dismiss, contending that his lawsuit was not based on, related to, or made in response to any of the above-described communications, and was instead based solely on CPL's purely private acts of allegedly retaliating against him for filing his worker's compensation claim. He further alleged that CPL's termination decision was not related to any health or safety concerns, and that it was instead related solely to CPL's private "economic concerns." Polo attached his own affidavit in which he averred that he had been released to light duty work in August of 2016, but that CPL had refused to let him return to work, and that its decision to terminate him less than three months later was a "pre-text and a cover up" of CPL's true intent, which was to retaliate against him for filing his worker's compensation claim. In addition, Polo alleged that at an unspecified time, CPL's management had expressed to him that it "did not want people to file worker's compensation claims as that is a loss of money."

Following a hearing on the moti...