Slaughter-Cooper v. Kelsey Seybold Med ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 17, 2004
July 26, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 03-20965
_____________________
LILLIE SLAUGHTER-COOPER, M.D.,
Plaintiff - Appellant,
versus
KELSEY SEYBOLD MEDICAL GROUP P.A.,
Defendant - Appellee.
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Appeal from the United States District Court for the Southern
District of Texas, Houston Division
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BEFORE SMITH, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Lillie Slaughter-Cooper, M.D., (“Doctor”),
a physician formerly employed by Defendant-Appellee Kelsey-Seybold
Medical Group P.A. (“the Clinic”), appeals from the district
court’s denial of her partial motions for summary judgment and
grant of the Clinic’s motion for summary judgment, dismissing with
prejudice her claims for breach of contract, retaliatory discharge
under the Family Medical Leave Act (“FMLA”),1 defamation, and
tortious interference with business relations. We affirm.
1
29 U.S.C. § 2601, et seq.
I. FACTS AND PROCEEDINGS
The facts underlying this appeal are not in dispute. The
Clinic hired Doctor in September 1997 as a family practice
physician at its Quail Valley Clinic in Missouri City, Texas. In
that month, the parties entered into an agreement which defined the
terms and conditions of Doctor’s employment at the Clinic. This
employment agreement specified several ways that it could be
terminated, three of which are at issue in this appeal.2 First,
either party could terminate the agreement without cause by
providing written notice to the other at least thirty days prior to
Doctor’s “last day of patient care.” Second, the Clinic could
terminate the agreement without cause and without prior notice but
with thirty days pay to Doctor. Third, the agreement would
terminate automatically if, inter alia, Doctor was unable to work,
because of a disability, for a period exceeding three calendar
months:
In any event, this Agreement is automatically terminated
upon . . . your disability lasting longer than three (3)
calendar months that prevents you from performing the
essential functions of your position with or without
accommodation (unless the [Clinic] reviews the
circumstances and grants written waiver of termination).3
2
The fourth ground for termination, gross misconduct on the
part of Doctor, is not relevant to this appeal, as her work
performance has never been at issue.
3
In addition to such a protracted disability, “mutual
consent, the suspension, revocation, restriction, or cancellation
of [Doctor’s] right to practice [her] profession, [or her] death”
would cause the automatic termination of the agreement.
2
Doctor began practicing medicine at the Clinic’s Quail Valley
location in October 1997. On November 7, 2000, she was injured in
a non-work-related accident. She returned to the Clinic on the day
of the accident, but she began to feel disoriented while performing
her duties and left shortly thereafter. Doctor subsequently sought
medical treatment from a fellow Clinic physician who diagnosed her
with a concussion.
After Doctor had been absent from work for almost a month
because of her injury, she received a letter dated December 1,
2001, from the Clinic’s Director of Human Resources, Susan Moore
(“Moore”), outlining the benefits that Doctor was entitled to
receive under the Clinic’s Family Medical Leave (“FML”) policy.
Moore’s letter explained that Doctor’s leave time under the
Clinic’s FML had commenced on November 8, 2000, the first day of
her absence from work because of disability, and would expire
twelve weeks later, on January 31, 2001. Moore’s letter also
cautioned that
[d]uring the FML, your job as a Family Practitioner at a
Kelsey-Seybold Clinic site and your right to your current
benefits are protected; however, at the end of the 12
week period, we cannot commit to any position
reinstatement. (emphasis added)
Soon after receiving Moore’s letter, Doctor applied for and began
receiving benefits under the Clinic’s FML policy.
On February 15, 2001, more than two weeks after the expiration
of Doctor’s FML period, Moore sent a second letter to Doctor. In
this letter, Moore informed Doctor that the Clinic had “placed
3
[her] employment in ‘inactive’ status” effective February 1, 2001
(which was after the expiration of her FML period). This
“inactive” status period, advised Moore, was “a benefits
continuation period during which [Doctor] could retain [her] clinic
subsidized health insurance options” but “did not include a
commitment to reinstatement” (emphasis added). Moore concluded by
stating:
Your benefit continuation period (inactive status) can
continue until April 30, 2001. Please understand that the
clinic cannot make a commitment to reinstate you when you
are able to return to work. Should you still be unable
to return to work after April 30, your employment with
the clinic will be terminated (emphasis added).
On March 8, 2001, Doctor’s treating physician notified Dr.
James Hoyle (“Dr. Hoyle”), the Clinic’s medical director of
operations, that Doctor would be able to resume her
responsibilities at the Clinic on April 1, 2001. In response, Dr.
Hoyle sent Doctor a third (and final) letter on March 26, 2001. In
it, Dr. Hoyle stated that, although he was pleased to learn of her
improved condition, “due to patient needs,” the clinic had been
unable to hold her position “beyond the beginning of March” and had
since filled the position. As there would be no position available
for Doctor on the day she was scheduled to return to work, wrote
Dr. Hoyle, her employment would be considered terminated as of that
date:
Under the terms of your employment agreement with the
Clinic, this letter will serve as 30 day written notice
of your termination with [the] Clinic. The effective
4
date of termination will be April 1, 2001 which is
consistent with your release to return to work.
On April 12, 2001, Dr. Hoyle sent a letter to Doctor’s
patients notifying them that she had “resigned from [the] Clinic,
effective April 1, 2001[] . . . to pursue other professional
interests.” This letter identified the Clinic’s physicians who
were available to take over their medical care. Doctor eventually
opened her own family medical practice in August 2001.
On September 28, 2001, Doctor filed suit in Texas state court
alleging, inter alia, that the Clinic had (1) breached the
employment agreement, (2) defamed her by making false statements,
orally and in writing, to her patients regarding the circumstances
surrounding her termination, and (3) tortiously interfered with her
prospective business relations with patients.4 One year later,
Doctor amended her complaint to add a claim for retaliatory
discharge under the FMLA. The Clinic then removed the action to
federal court.
In the district court, Doctor filed separate motions for
partial summary judgment on her claims for breach of contract and
defamation. The Clinic responded to each of her motions and filed
its own cross-motion for summary judgment on all of Doctor’s
4
Doctor’s allegations that the Clinic (1) defamed her in
letters sent to insurance providers, and (2) tortiously interfered
with her existing contracts with patients and insurance providers
and her prospective contracts with insurance providers were not
briefed on appeal and are therefore considered abandoned. See
Sepulvado v. CSC Credit Servs., 158 F.3d 890, 897 n.7(5th Cir.
1998)(claims not briefed on appeal are considered abandoned).
5
claims. In February 2003, the district court referred the matter
to the magistrate judge. After considering the parties’ respective
motions for summary judgment, the magistrate judge recommended that
the district court deny Doctor’s motions for partial summary
judgment and grant the Clinic’s motion as to all of Doctor’s claims
other than her state law slander claim. The magistrate judge
recommended dismissal of that claim without prejudice to Doctor’s
reurging it in state court.5 The district court adopted the
magistrate judge’s recommendation in its entirety and entered an
order of dismissal. Doctor timely filed a notice of appeal.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary
judgment.6
B. Breach of Contract
5
Doctor’s slander claim was premised on four remarks
allegedly made by employees of the Clinic to Doctor’s patients
following her termination. The district court found that all but
one of these remarks were not defamatory as a matter of law and
granted the Clinic’s motion for summary judgment as to Doctor’s
defamation claim insofar as it was premised on those three remarks.
It denied the Clinic’s motion, however, as to the fourth remark
alleged —— a statement attributed to an unnamed Clinic employee
that Doctor had “suffered brain damage” —— and dismissed her
slander claim, insofar as it was based on this remark, without
prejudice to reurge it in state court. The Clinic has not appealed
this ruling, so we do not address it.
6
See Markos v. City of Atlanta, 364 F.3d 567, 570 (5th Cir.
2004).
6
Doctor argues that the Clinic breached the employment
agreement by failing to provide her either thirty-days’ written
notice prior to her last day of patient care or thirty-days’ pay
following her termination. In response, the Clinic asserts that
neither written notice nor termination pay was required in this
instance, as the employment agreement terminated ipso facto on
February 8, 2001, by virtue of the automatic termination provision;
specifically, as a result of Doctor’s “disability lasting longer
than three (3) calendar months [that] prevent[ed] her from
performing the essential functions of [her] position.”
Although Doctor concedes that her extended absence would
normally have triggered the employment agreement’s automatic
termination provision, she contends that the Clinic waived its
right to assert automatic termination of the employment agreement
through its own words and conduct —— more specifically, its
representations to Doctor in its February 15, 2001 and March 26,
2001 letters regarding her termination date. Doctor emphasizes the
fact that both letters refer to the termination of her employment
as occurring sometime in April 2001, well over a month after the
automatic termination date of February 8, 2001:7 In the February
7
In the district court, the parties disputed the precise date
on which the agreement would terminate automatically —— in the
absence of waiver —— as a result of Doctor’s inability to return to
work for a period exceeding three months: The Clinic maintained
that the employment agreement terminated automatically on February
1, 2001, the day after Doctor’s twelve week FML period expired;
Doctor argued that the date of automatic termination would have
been February 6, 2001. The district court assumed, without
7
15, 2001 letter, Moore cautioned Doctor that her employment “will
be terminated” if she is “still unable to work after April
30.”(emphasis added) Likewise, in the March 26, 2001 letter, Dr.
Hoyle advises her that “[t]he effective date of termination will be
April 1, 2001 . . . .” (emphasis added) These statements, asserts
Doctor, show that the Clinic still considered her an employee of
the Clinic after the date for automatic termination of the
employment agreement had passed, thereby evidencing the Clinic’s
intent to waive the automatic termination provision.
Doctor is correct that the element of “intent” is typically
the “prime factor” in determining whether a waiver of a contractual
right has occurred.8 It is unnecessary to reach the question of
intent in this case, however, as we conclude that Doctor has failed
to show, as a matter of law, that there was still “an existing
right” susceptible of being waived by The Clinic at the time the
alleged acts of waiver occurred. Under Texas law, “waiver is a
voluntary, intentional relinquishment of a known right or
deciding, that February 6, 2001 was the date of automatic
termination, reasoning —— correctly —— that the five-day
discrepancy did not affect the outcome of its decision. On appeal,
however, the Clinic has made clear that it accepts February 8, 2001
(the date asserted by Doctor on appeal as the date of automatic
termination in the absence of waiver) as the date of automatic
termination, for purposes of this appeal only. Thus, we assume,
arguendo, that, absent waiver, the employment agreement terminated
automatically on February 8, 2001 —— three calendar months from the
first day that Doctor was absent from work because of her injury.
8
Id.
8
intentional conduct inconsistent with claiming the right.”9 The
party claiming waiver (Doctor) must show, as to the party asserting
a right (the Clinic), “(1) an existing right, benefit, or
advantage; (2) knowledge, actual or constructive, of its existence;
and (3) actual intent to relinquish the right, which can be
inferred from conduct.”10 Here, the facts surrounding the alleged
acts of waiver —— i.e., the contents of the February 15 and March
26 letters —— are not in dispute, so the issue of waiver of the
automatic termination provision is a pure question of law for us to
decide.
The Clinic’s “right” —— automatic termination of the
employment agreement when Doctor’s absence exceeded three calendar
months —— was contractual in nature, stemming solely from the terms
of the agreement. Once that agreement terminated automatically, on
its terms, all rights and obligations arising from that agreement
—— including the Clinic’s right either to rely on or waive the
automatic termination provision —— evaporated along with the
agreement. That occurred on February 8, 2001, at the latest.
9
First Interstate Bank, N.A. v. Interfund Corp., 924 F.2d
588, 595 (5th Cir. 1991)(citing Edwin M. Jones Oil Co. v. Pend
Oreille Oil & Gas Co., 794 S.W.2d 442, 447 (Tex. App. —— Corpus
Christi 1990, writ denied)).
10
Id.(citing Missouri-Kansas-Texas R.R. v. Heritage
Cablevision of Dallas, Inc., 783 S.W.2d 273, 280 (Tex. App. ——
Dallas 1989, no writ)(emphasis added). “Although waiver is
ordinarily a question of fact, when the facts and circumstances are
admitted or clearly established, the question becomes one of law.”
Motor Vehicle Bd. of the Texas Dept. of Transp. v. El Paso Indep.
Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999).
9
Thus, by February 15, 2001, the date of the Clinic’s first
purported act of waiver, neither party possessed rights under the
employment agreement, without which there was nothing susceptible
of waiver. It follows that the Clinic did not —— because it could
not —— waive its right to rely on automatic termination of the
employment agreement by the representations in its February 15 and
March 26, 2001 letters to Doctor. As those representations were
made after the agreement had terminated automatically by or before
February 8, 2001, the contractual right to rely on automatic
termination no longer existed, making waiver of that right a legal
impossibility.
Once the employment agreement had thus terminated, no
subsequent behavior on the Clinic’s part, regardless of how
inconsistent with reliance on the right such behavior might appear,
could breathe life back into the dead contract.11 True, the parties
could have overtly acted to create a new contract, but they must
have done so in clear, express, and unequivocal language of
novation. They could not, however, resuscitate the terminated
employment agreement. We hold that the district court correctly
granted summary judgment in favor of the Clinic on this claim.12
11
Indeed, the Clinic’s actions to which Doctor refers as
waiver clearly appear to be gratuitous acts of kindness in
unilaterally extending her medical coverage—— yet another example
of the maxim that no good deed goes unpunished.
12
For essentially the same reason, Doctor’s assertion that the
Clinic waived its right to assert automatic termination of the
employment agreement in its responses to her interrogatories is
10
C. Retaliatory Discharge, Defamation, and Tortious Interference
with Prospective Business Relations
Doctor’s remaining claims are equally unavailing. To
establish a prima facie case of retaliatory discharge, a plaintiff
must show, inter alia, that a “causal link” exists between the
protected activity and the discharge.13 Although she asserts that
the Clinic discharged her in retaliation for the exercise of her
rights under the FMLA,14 Doctor has produced no probative evidence
of a “causal link” between her exercise of those FMLA rights and
the termination of her employment, much less any evidence that the
Clinic’s proffered reason for firing Doctor —— the automatic
termination of her employment agreement —— was a pretext for
unlawful discrimination.
without merit. The interrogatories were asked and answered long
after the employment agreement terminated on its own terms.
13
Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 769 (5th
Cir. 2001)(McDonnell-Douglas framework applies to claims for
retaliatory discharge under the FMLA). An internal Clinic email
offered by Doctor as evidence of pretext, when considered in
context, establishes nothing more than the Clinic’s desire to
follow proper procedures in handling the circumstances surrounding
Doctor’s extended absence.
14
FMLA requires employers to provide up to twelve weeks’
unpaid leave to any eligible employee who suffers from “a serious
health condition that makes the employee unable to perform the
functions of the position of such employee.” Chaffin v. John H.
Carter Co., 179 F.3d 316, 319 (5th Cir. 1999)(citing 29 U.S.C. §
2612(a)(1)(D)); see also Hunt, 277 F.3d at 762-63. After a
qualifying absence, the employer must restore the employee to the
same position or a position comparable to that held by the employee
before the leave. See id. The employer may not “interfere with,
restrain, or deny the exercise of . . . any right provided under
the FMLA.” 29 U.S.C. § 2615(a)(2).
11
Likewise, Doctor’s defamation claim based on the Clinic’s
representations to her former patients cannot succeed. This claim
is premised, in part, on statements allegedly made by some of the
Clinic’s employees, in response to patient inquiries, that Doctor
(1) had quit the practice of medicine, (1) was unable to practice
medicine, and (3) had moved out of the state. Because, at the time
of her termination, Doctor entertained no other professional
interests, she also grounds her defamation claim in part on Dr.
Hoyle’s statement in the April 12, 2001 letter to her patients that
Doctor had “resigned from [the] Clinic, effective April 1, 2001 .
. . to pursue other professional interests.” Even though these
statements may not be literally true, they are, at the very least,
substantially true, and therefore not defamatory.15
Furthermore, Texas law provides that statements made by
employees of a medical employer to the patients of a former
employee-physician for the purpose of explaining the whereabouts of
such former employee are protected by a qualified privilege that
15
See Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App. ——
Houston [14th Dist.] 2000, pet. denied)(statement substantially
true when not more damaging to claimant’s reputation, in mind of
average listener, than truthful statement would have been); Gulf
Constr. Co. v. Mott, 442 S.W.2d 778, 784 (Tex. Civ. App. —— Houston
[14th Dist.] 1969, no writ)(under Texas law, “[s]ubstantial truth
of the statements complained of is a complete defense to an action
[for defamation]”). See also Wehling v. Columbia Broad. Sys., 721
F.2d 506, 509 (5th Cir. 1983)(“[A] statement that is substantially
true is not defamatory.”).
12
can only be overcome by a showing of actual malice.16 As Doctor has
offered no probative evidence that would tend to show that the
alleged defamatory statements were made with actual malice, the
district court was correct in granting summary judgment in favor of
the Clinic on this claim.
Finally, Doctor’s claim of tortious interference with
prospective business relations fails as a matter of law. To state
such a cause of action under Texas law, a claimant must show, inter
alia, that (1) “the defendant’s conduct was independently tortious
or wrongful” and (2) “[she] suffered actual harm or damage as a
result of the defendant’s interference.”17 Although we agree with
Doctor that the Clinic’s conduct was “independently tortious,”18 we
16
See E. Tex. Med. Ctr. Cancer Inst. v. Anderson, 991 S.W.2d
55, 61 (Tex. App. —— Tyler 1998, pet. denied)(statements made by
clinic employees to patients of physician who had recently had his
clinic staff privileges revoked were subject to a qualified
privilege; clinic “had an interest in explaining [the physician’s]
absence to his patients [and] patients . . . had a corresponding
interest in learning the same information about their doctor”); see
also Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir.
1995)(showing of actual malice required to overcome qualified
privilege).
17
Allied Capital Corp. v. Cravens, 67 S.W.3d 486, 490 (Tex.
App. —— Corpus Christi 2002, no pet.)(citing Baty v. ProTech Ins.
Agency, 63 S.W.3d 841, 859-60 (Tex. App. —— Houston [14th Dist.]
2001, pet. denied)).
18
As noted above, the district court denied the Clinic’s
motion for summary judgment as to Doctor’s claim for slander
insofar as it was based on the alleged statement by employees of
the Clinic that Doctor had “suffered brain damage,” and dismissed
it without prejudice to Doctor’s reurging it in state court. This
surviving claim for slander, which the Clinic chose not to appeal,
thus provides an adequate basis for Doctor’s tortious interference
claim.
13
nevertheless conclude that Doctor has failed to demonstrate actual
harm resulting from this remark. Her argument is that, were it not
for this remark, many of her patients would have “sought her out”
once she opened her own practice. Given the lapse of time between
the date in April 2001 on which the statement was purportedly made
and the time in August of that year when Doctor resumed the
practice of medicine, her contention is simply too speculative to
raise a genuine issue of material fact on the element of actual
harm. Accordingly, we affirm the district court’s grant of summary
judgment dismissing Doctor’s tortious interference claim.
III. CONCLUSION
As a matter of law, the Clinic could not waive its right to
the automatic termination of the employment agreement by acts after
that agreement had already terminated automatically in accordance
with its express terms. We therefore affirm the district court’s
grant of summary judgment in favor of the Clinic, dismissing
Doctor’s claim for breach of the employment agreement. We also
affirm the district court’s grant of summary judgment dismissing
Doctor’s claims for retaliatory discharge under the FMLA,
defamation, and tortious interference with prospective business
relations, because she failed to establish that a genuine issue of
material fact exists as to each of these claims. Accordingly, the
district court’s decision is, in all respects,
AFFIRMED.
14
15