Durckel v. St. Joseph Hosp.

• Decision Date: 09 May 2002
• Docket Number: No. 14-01-00104-CV.,14-01-00104-CV.
• Parties: Ellen DURCKEL, Appellant, v. ST. JOSEPH HOSPITAL and Kim Nettleton, Appellees.
• Court: Texas Court of Appeals

78 S.W.3d 576

Ellen DURCKEL, Appellant, v. ST. JOSEPH HOSPITAL and Kim Nettleton, Appellees.

No. 14-01-00104-CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 9, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas E. Bilek, Houston, Wilmer D. Masterson, Dallas, for appellant.

Victoria Phipps, Houston, for appellees.

Panel consists of Justices ANDERSON, HUDSON, and FROST.

OPINION

KEM THOMPSON FROST, Justice.

This case arises out of an employment dispute. Appellant Ellen Durckel appeals a summary judgment granted in favor of appellees, St. Joseph Hospital (the "Hospital") and Kim Nettleton. In four issues, Durckel contends the trial court erred in granting summary judgment disposing of her claims for breach of contract, defamation, intentional infliction of emotional distress, and punitive damages. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May of 1987, the Hospital hired Durckel as its Director of Public Relations. In December of 1992, the Hospital promoted Durckel to Executive Producer of its Marketing Department. Durckel's duties as Executive Producer included producing television programs as part of the Hospital's marketing efforts. Funding for these television programs came from the Marketing Department's budget, administered by Nettleton, the Director of Marketing. Nettleton, however, was not Durckel's supervisor. While serving as Executive Producer, Durckel reported directly to Sally Jeffcoat, the Hospital's Chief Executive Officer.

Durckel and Nettleton frequently disagreed on whether the television programs were an effective marketing tool. The Hospital lacked an accurate method of determining whether the programs Durckel produced generated more or less revenue for the Hospital than other marketing tools. The Hospital's only method of determining the effectiveness of its marketing efforts came from an inquiry system for incoming telephone calls. The Hospital's central call center simply asked callers the source of information generating the call and then recorded the caller's response, e.g., physician referral, television program, etc. Almost every year the information from the call center was compiled into a Financial Reconciliation Report, sometimes referred to as a "Revenue Report," and was then used to help analyze the effectiveness of the Hospital's various marketing efforts. According to Durckel's affidavit, Nettleton prepared a Revenue Report for the time period between July 1, 1996, and June 30, 1997, and circulated it at a meeting in June of 1997, attended by the marketing staff and the directors of the Hospital.¹ With regard to the television programs Durckel produced, the report showed discounted revenue of $69,210 for fiscal year 1997. Durckel maintains that this amount is a significant understatement of the actual revenue. Because Nettleton could not estimate the exact amount of revenue generated from the different marketing efforts, she included a disclaimer at the end of the report. The disclaimer stated:

These figures are exact matches only between CentraMax and HBO. Reflect only those callers accurately captured through the call center. In addition, many of our promotions featured physicians, and patients frequently sidestep the call center and go directly to the doctor. Those revenues cannot be accounted for.

Durckel alleges Nettleton's Revenue Report was completely false as to the amount of revenue generated by her television programs and that the report defamed her by "attempting to show that she was not fit for her position and occupation with the Hospital." Around January of 1998, Durckel complained for the first time to her supervisor, Jeffcoat, that she believed the Revenue Report was false. Durckel also made this same complaint to Mario de los Santos, the Human Resources Director. After Durckel's complaint, Jeffcoat met with Nettleton to discuss Durckel's accusations. Thereafter, Nettleton called a meeting of the entire marketing staff. Nettleton, flushed and shaking, handed out a memo to the staff and apologized for any unprofessional behavior. Nettleton's memo contained the following statement:

It has been clear throughout the organization and throughout our department that [Durckel] and I have not been seeing eye to eye on many issues. I apologize for our unprofessional behavior and the blemish it has cast on this department's ability to do the tasks at hand. I take complete responsibility for insuring that it will not continue to be an issue and that this department will again work as the team it has always enjoyed [sic] and with the professionalism for which each of you is known.

Because the memo noted her previous confrontations with Nettleton, Durckel believed the memo was a threat to retaliate against her. Durckel also claims that in January of 1998, sometime before she made her complaint that the Revenue Report was false, Nettleton stated "someone is going to lose their job and it is not going to be me." Although she interpreted this statement as a threat, Durckel did not mention it to anyone at the time it was made.

On April 15, 1998, Durckel met with Jeffcoat to discuss her future as Executive Producer of Marketing for the Hospital. Jeffcoat explained that she had decided to reorganize the Marketing Department to reduce costs; however, Jeffcoat was unsure of the structure of the new organization. Although Jeffcoat did not terminate Durckel at that time, she told Durckel that she should consider applying for another job.

One month later, Durckel was told that her position would be eliminated, effective June 12, 1998. Durckel's termination was confirmed by a letter dated May 29, 1998, in which Jeffcoat told Durckel that the Hospital was eliminating her position because of a change in the marketing strategy. Sometime after she received word of her termination, Durckel asked Jeffcoat if she could buy the Hospital's Beta machine, which was used for viewing film. Then, without first obtaining permission, Durckel took the machine and left a check for what she considered to be its reasonable value.

Durckel claimed she was terminated solely because she brought an ethics complaint against Nettleton. On June 17, 1998, Durckel met with Brad Mitchell, the Hospital's Chief Operating Officer, to discuss her termination and her rights under the Hospital's integrity policy against employee retaliation. At their meeting, Mitchell informed Durckel that the Hospital was missing a camera,² referring to the Beta machine, and stated that she needed to return it immediately. Durckel claims Mitchell was rude to her and accused her of stealing the Hospital's property.

Six months after Durckel's termination, Nettleton and most of the Hospital's marketing department were also terminated, in a round of budget cuts. The Hospital reduced its workforce in fiscal year 1998 because it had lost nearly $3 million. The Hospital lost another $4.5 million in fiscal year 1999.

Durckel sued the Hospital and Nettleton, asserting claims for breach of contract/wrongful termination, defamation, and intentional infliction of emotional distress. The Hospital and Nettleton filed a motion for summary judgment. The trial court granted summary judgment and entered a take-nothing judgment against Durckel.

II. STANDARD OF REVIEW

The standard for reviewing a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In conducting our review, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant's favor. Id. A movant is entitled to summary judgment when it negates at least one element of the plaintiff's theory of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Because the trial court's order did not specify the grounds for its ruling, we will affirm if any of the theories advanced in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

III. BREACH OF CONTRACT/WRONGFUL TERMINATION CLAIM

In her first issue, Durckel contends the trial court erred in granting summary judgment as to her breach of contract claim because the Hospital's Corporate Integrity Policy modified her employment-at-will status and limited the Hospital's right to terminate her at any time and for any reason. Durckel asserts that the Hospital's Corporate Integrity Policy imposes a contractual obligation on the Hospital not to terminate her for bringing a complaint under this policy, and that the Hospital breached this contract when it terminated her employment for bringing a complaint against Nettleton. We disagree with Durckel's assertions.

It is undisputed that the Hospital employed Durckel on an at-will basis. Thus, we must determine if the Hospital ever expressly modified the at-will relationship during Durckel's employment. As the discharged employee, Durckel bears the burden of proving that the parties contractually agreed to limit the at-will relationship. See Hussong v. Schwan's Sales Enters., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ).

In order to establish a wrongful termination claim based on a written contract of employment, Durckel must prove that her contract specifically limited the Hospital's right to terminate her at will. See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 505 (Tex.1998); Stiver v. Texas Instruments, Inc., 750 S.W.2d 843, 846 (Tex.App.-Houston [14th Dist.] 1988, no writ). Under Texas law, we presume Durckel remained an at-will employee throughout her employment. See Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993). Durckel must prove that the Hospital expressly, clearly, and specifically agreed to modify her at-will status. Se...