After CareFlite terminated her employment, Janis E. Roberts
sued, claiming, among other things, that CareFlite had unlawfully invaded her
privacy. Roberts v. CareFlite, supra.
__ S.W.3d __, 2012 WL 4820805
(Texas Court of Appeals 2012).
Prior to being terminated, Roberts was employed by CareFlite
as a paramedic. Roberts v. CareFlite, supra.
She was also
`friends’ on . . . Facebook.com with
fellow CareFlite paramedic Robert Sumien and CareFlite helicopter pilot Scott
Schoenhardt. Roberts posted on the Facebook wall of Schoenhardt that she had
transported a patient who needed restraining and that she wanted to slap the
patient.
Roberts v. CareFlite,
supra.
Sheila Calvert “is a compliance officer with CareFlite;” her
sister, “Delicia Haynes, is a CareFlite member.” Roberts
v. CareFlite, supra. Haynes saw
Roberts' post “and notified Calvert”, who sent Roberts a message through
Facebook.” Roberts v. CareFlite, supra.
Calvert’s message said,
`I just wanted to remind you that the
public sees your posts. People outside of CareFlite and outside of EMS. In
fact, my sister saw your post to Scott Schoenhardt where you stated you wanted
to slap a patient[,] and she thought she wouldn't want anyone such as that
taking care of her and made the comment that maybe she didn't want to renew her
CareFlite membership. People you don't expect to see your posts do. I'll bet
Scott has many friends in EMS[,] and all any of them would have to do is a
screen shot and send it in to the state and you could be looking at a
suspension of your EMS license and fines. Believe me, I'm not trying to come
down on you about this. I'm trying to help you realize that people out there
are losing their jobs and livelihood because of such posts[,] and I don't want
to see that happen to you. If you don't believe me, just google it or if you
like I can send you some links to articles. I hope you will consider removing
that post.’
Roberts v. CareFlite,
supra.
Roberts responded with this message:
`Yeah, whatever. YOU weren't there.
Whenever I have to have a firefighter ride in with me because of a patient's
attitude, and I fear for MY safety, I truly believe a patient needs an attitude
adjustment. Think about that the next time YOU correct someone!!’
Roberts v. CareFlite, supra.
Calvert responded, again via Facebook, with this message:
`I was trying to be nice about the
situation and provide you a courteous reminder of the regulations in which you
practice in the state and the public's perception. [Rule 157.36(b)(28) of the
Texas Administrative Code] states you cannot engage in
activities which betray[ ] the public's trust in EMS. I believe your comment
could have done that.
`Additionally, CareFlite has policies
against employees calling into question our honesty, integrity[,] or
reputation. I understand you had a difficult call and patient. I've also had my
share of those. That information should not be broadcasted[,] however. I can
show you an article where a Kansas medic had his license suspended for 90 days,
tons of legal bills, and had to bag groceries during that time because he
posted a derogatory remark about his obese patient.’
`As far as me “thinking about that before
I correct someone[,]”. . . I'm the Compliance Officer for CareFlite[,] and it's
my job. We can have that conversation later and off [Facebook].’
Roberts v. CareFlite, supra.
Roberts responded with this: “`[By the way], I didn't slap
the patient, I was not rude to the family OR the patient and the call went very
smoothly, thank you for asking.’” Roberts
v. CareFlite, supra. She also
deleted “her comment from Schoenhardt's wall.”
Roberts v. CareFlite, supra.
Roberts later posted this on her Facebook wall:
`Yes, I DO get upset on some calls when
my patient goes off in the house and I have to have a firefighter ride in with
me because I fear for MY own safety. I think that is a valid excuse for wanting
to use some sort of restraints. Just saying!!’
Roberts v. CareFlite, supra.
Sumien posted a comment that said, “`Yeah like a boot to the
head. . . . ;) Seriously yeah restraints or actual HELP from PD instead of the
norm.’” Roberts v. CareFlite, supra. Roberts then sent Sumien “an email in which
she posted the text from the Facebook message exchange she had had with
Calvert.” Roberts v. CareFlite, supra. The message had the “subject line, `Check this shit out.’” Roberts v. CareFlite, supra.
About a week later, Haynes sent an email to
CareFlite CEO James Swartz. In the
email, Haynes told Swartz about Roberts's Facebook post about wanting to slap a
patient and about Sumien's comment about `a boot to the head.’ CareFlite
terminated Roberts's employment a few days later. As grounds for termination,
CareFlite noted Roberts's post about `feeling like slapping a patient to get
control of them’ and stated that her response to Calvert was `unprofessional
and insubordinate.’
Roberts v. CareFlite,
supra.
Roberts then sued CareFlite, asserting, in part of the suit,
that
CareFlite's use of her personal and
private message postings on Facebook `that no one can access except the person
to whom it was sent’ invaded her common law right of privacy. Roberts asserted
two different invasion of privacy torts: public disclosure of private facts and
intrusion upon her seclusion.
Roberts asserted that CareFlite's
invasion of her privacy caused her to lose her job, resulting in damages.
Roberts v. CareFlite,
supra.
As Wikipedia explains, the tort cause of action for public
disclosure of private facts “arises where one person reveals information which
is not of public concern, and the release of which would offend a reasonable
person.” As Wikipedia also explains, the tort of intrusion upon seclusion is
committed when someone intentionally
intrudes, physically, electronically,
or otherwise, upon the private space, solitude, or seclusion of a person, or
the private affairs or concerns of a person. . . or by some other form of
investigation, examination, or observation intrude upon a person's private
matters if the intrusion would be highly offensive to a reasonable
person.
CareFlite responded
to Roberts’ suit by filing “a combined traditional and no-evidence motion for
summary judgment”. Roberts v. CareFlite, supra.
As Wikipedia explains, and as I’ve noted in prior posts, in U.S. civil
practice, a court can award summary judgment
before trial,
effectively holding that no trial will be necessary. Issuance of summary
judgment can be based only upon the court's finding that:
- there are no disputes of `material’ fact requiring a trial to resolve, and
- in applying the law to the undisputed facts, one party is clearly entitled to judgment.
As Wikipedia also notes, a “`material fact’ is one which,
depending upon what the factfinder believes `really happened,’ could lead to
judgment in favor of one party, rather than the other.”
Texas Rule of Civil Procedure 166a creates two types of
summary judgment motion: One is the
traditional motion, which, as noted above, says that (i) the facts are not in
dispute, so there is no need for a trial to resolve them and (ii) based on the
undisputed facts, the party filing the motion prevails. The other summary judgment motion says “there
is no evidence of one or more essential elements of a claim” on which the party
would “have the burden of proof at trial.”
Texas Rule of Civil Procedure 166a(i).
CareFlite’s no-evidence summary judgment motion was directed
at both of Roberts’ claims and asserted that she had no evidence to establish
“any” of the elements of either. Roberts v. CareFlite, supra. This
opinion says the trial judge granted this motion “without specifying the
grounds” for his decision. Roberts v. CareFlite, supra. Roberts apparently abandoned the public
disclosure of private facts claim, because on appeal she only argued that the
judge erred in granting CareFlite’s motion for summary judgment on her
intrusion on seclusion claim. Roberts v. CareFlite, supra.
In that motion,
CareFlite claimed it had
negated the element of intrusion; that
as a matter of law, the subject of Roberts's Facebook posting was not within
the zone of her seclusion, solitude, and private affairs; and that as a matter
of law, CareFlite's acts were not highly offensive to a reasonable person. With
its motion, CareFlite attached, among other evidence, excerpts from Roberts's
deposition; the CareFlite employee handbook; the Facebook exchanges between
Roberts and Calvert; and the email from Roberts to Sumien.
Roberts v. CareFlite, supra.
Roberts’ response
to CareFlite’s motion for summary judgment on this claim asserted that “`[t]he
rights of CareFlite employees to discuss in private the issues of patient
restraints which affected their safety and even their very lives clearly
outweigh any issues of public concern in favor of prospective patients.’” Roberts
v. CareFlite, supra.
In reviewing the
judge’s granting summary judgment on Roberts’ intrusion on seclusion claim, the
Court of Appeals noted, first, that Roberts claimed the “National Labor
Relations Board has held that an employer cannot fire employees for engaging in
concerted workplace related discussions on Facebook by posting comments about
working conditions.” Roberts v.
CareFlite, supra. It found this
assertion inapposite, because “Roberts's argument about whether CareFlite could
fire her for her Facebook comments is irrelevant to the question of whether [she]
produced sufficient summary judgment evidence to raise a fact issue on the
challenged elements of her intrusion upon seclusion claim.” Roberts
v. CareFlite, supra.
The court then
addressed Roberts’ assertion that CareFlite was “`out to get’ her and that `[t]he
claim that the public saw [Roberts's] email post is strictly an “in-house,
put-up” affair by CareFlite management.’” Roberts
v. CareFlite, supra. It explained
that the
questions
of whether CareFlite management was indeed `out to get’ Roberts and of whether
the public saw the email exchange between Calvert and Roberts, Roberts's wall
posting, or her email to Sumien are irrelevant to . . . whether Roberts
produced sufficient summary judgment evidence on her claim.
The relevant
inquiry is not whether Roberts produced evidence relating to the ability of the
public to see [her] writings or whether CareFlite was `out to get’ Roberts.
Rather, the inquiry is whether CareFlite intentionally intruded upon Robert's
solitude, seclusion, or private affairs or concerns and, if it did so, whether
such intrusion would be highly offensive to a reasonable person.
Roberts v. CareFlite, supra.
The Court of
Appeals also pointed out that Roberts
did
not direct this court to any evidence she produced to raise a fact issue on
whether CareFlite intruded upon her seclusion. Roberts
attached over 350 pages of summary judgment evidence to her response, and we are
not required to sift through the record to determine what part of this record,
if any, relates to her intrusion upon seclusion claim.
Roberts
makes no argument about why CareFlite's review of Roberts's messages to Calvert
or her comments on Schoenhardt wall -- comments that could be viewed by third
parties -- constituted an intrusion upon Roberts's seclusion,
and she cites to no cases that would support such an argument.
Roberts v. CareFlite, supra.
It therefore held
that the trial judge did not err in granting “no-evidence summary judgment” on
Roberts’ intrusion upon seclusion claim.
Roberts v. CareFlite, supra.
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