Defendant's Motion for Summary Judgment: After-Acquired Evidence, Wrongful Discharge, Constructive Discharge, IIED, Retaliation, Whistleblowing

CAUSE NO. __________

___________ and § IN THE DISTRICT COURT OF

__________ §

§

VS. § ________ COUNTY, TEXAS

§

___________, INC. § _____ JUDICIAL DISTRICT

DEFENDANT’S MOTION AND BRIEF FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF THE COURT:

___________, Inc. (hereinafter “Defendant”), Defendant in this action, pursuant to Rule 166a of the Texas Rules of Civil Procedure, moves for summary judgment against Plaintiffs, ___________ and ___________ (hereinafter “Plaintiffs”), and as grounds therefore shows the Court the following:

TABLE OF CONTENTS

INTRODUCTION 4

A. Factual Background 4

B. Procedural Background 4

1. Defendant Moves for Summary Judgment on All Causes of Action 4

2. Summary Judgment Evidence 5

   APPLICABLE LEGAL STANDARD FOR GRANTING SUMMARY JUDGMENT 5

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’

   CLAIMS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 7

   A. Defendant’s Actions Were Not Extreme and Outrageous 7

1. Conducting a Departmental Audit is not Extreme and

   Outrageous Conduct 7

2. Institution of Disciplinary Proceedings is not Extreme and

   Outrageous Conduct 8

3. Yelling or Berating is not Extreme or Outrageous Conduct 9

4. Returning LVN to her LVN Position is not Extreme and

   Outrageous Conduct 10

   B. No Facts Establish Severe Emotional Distress 10

   C. No Facts Establish Intent by Defendant 11

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’

   CLAIMS OF COMMON LAW WRONGFUL DISCHARGE 12

   A. Employment in Texas is At-Will 12

   B. There is no Evidence Indicating that the Two Common Law Exceptions

   to the At-Will Doctrine are Applicable In the Case at Bar 12

   PLAINTIFFS HAVE NO EVIDENCE SUPPORTING THEIR CLAIM FOR A CAUSE

   OF ACTION UNDER ARTICLE 4525(a) OF THE NURSE PRACTICES ACT 13

   A. Defendant is not Liable Because It Did Not Suspend or Terminate

   either of the Plaintiffs 13

   B. The Actions Taken by Defendant Do Not Violate Article 4525 14

1. Constructive discharge does not violate Article 4525 14

2. Even if constructive discharge is prohibited by Article 4525,

   Plaintiffs have no cause of action because they were not

   constructively discharged 14

3. Defendant’s Actions Do Not Constitute Retaliation Under

   Article 4525 16

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON ALL

   PLAINTIFFS’ CLAIMS FOR LOST WAGES 18

   A. Lost Wages are not Available for Constructive Discharge under the

   Nurse Practices Act 18

   B. Plaintiffs were not Constructively Discharged as a Matter of Law 19

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF ONE’S

   CLAIMS FOR LOST WAGES AFTER SHE QUIT SEEKING EMPLOYMENT 19

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF TWO’S

   CLAIMS FOR LOST WAGES AFTER SHE RESIGNED FROM COMPANY THREE 20

   PLAINTIFFS ARE NOT ENTITLED TO RECOVER ANY LOST WAGES

   AFTER DEPARTMENT WAS CLOSED 21

   PLAINTIFFS ARE NOT ENTITLED TO LOST WAGES UNDER THE

   AFTER-ACQUIRED EVIDENCE DOCTRINE 22

   A. Plaintiffs Violated their Confidentiality Agreements 22

   B. Violating the Confidentiality Policy is Grounds for Immediate Termination22

   PRAYER 23

   FIAT 23

   CERTIFICATE OF SERVICE 23

   I.

   INTRODUCTION

   A. Factual Background

   [Include detailed summary of facts, referencing supporting exhibits.]

   B. Procedural Background

   Plaintiffs filed suit against Defendant on ___________, ____. Since that time, the parties have engaged in extensive discovery. [Summarize discovery conducted by parties.] An adequate period for discovery has elapsed since the time the lawsuit was initiated.

   Texas Rule of Civil Procedure 166a provides that “[a]fter adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P. 166a (West 1997).

   1. Defendant Moves for Summary Judgment on All Causes of Action

   Defendant moves for summary judgment on:

1. Plaintiffs’ Intentional Infliction of Emotional Distress cause of action;

2. Plaintiffs’ Common Law Wrongful Discharge cause of action;

3. Plaintiffs’ cause of action under the Nurse Practices Act; and

4. In the alternative, on the following categories of damages:

   a. Plaintiffs are barred from recovering any damages for lost wages under a common law discharge theory or under the retaliation statute because they resigned and were not constructively discharged.

   b. Lost wages by Plaintiff One after the time Plaintiff One quit looking for work because at that time she failed to mitigate her damages.

   c. Lost wages by Plaintiff Two after the time Plaintiff Two voluntarily resigned from Defendant, Inc. because at that time she failed to mitigate her damages.

   d. Plaintiffs are barred from recovering any damages for lost wages after [date] when Defendant discovered Plaintiffs removed proprietary and confidential documents from Defendant and used Defendant resources to copy same under the after acquired evidence theory.

   2. Summary Judgment Evidence

   In support of this motion for summary judgment, Movant relies on the Affidavit of ________ attached hereto, the Affidavit of ________ attached hereto, the entire deposition of Plaintiff One, some of the exhibits to the deposition of Plaintiff One, the entire deposition of Plaintiff Two, some of the exhibits to the deposition of Plaintiff Two, excerpts from Director deposition attached hereto, excerpts from the deposition of HR Director attached hereto, some of the exhibits to the deposition of HR Director, the entire deposition of ___________ attached hereto, some of the exhibits to the deposition of __________ attached hereto, all of the pleadings and papers filed by Plaintiffs, including but not limited to Plaintiffs’ answers to interrogatories, Plaintiffs’ First Original Petition and all amendments thereto, all of the instruments and items listed above are incorporated herein by reference the same as if set forth verbatim herein.

   II.

   APPLICABLE LEGAL STANDARD FOR GRANTING SUMMARY JUDGMENT

   A party is entitled to summary judgment upon a showing that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is entitled to summary judgment if the defendant disproves at least one element of each of the plaintiff’s causes of action as a matter of law. Id. A summary judgment for a defendant is proper if, as a matter of law, the plaintiff cannot recover under any of her theories plead. See Delgado v. Burns, 626 S.W.2d 428, 429 (Tex. 1983).

   After adequate time for discovery, a defendant, without presenting summary judgment evidence, may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the plaintiff would have the burden of proof at trial. Tex. R. Civ. P. 166a(I). The court must grant the motion unless the plaintiff produces summary judgment evidence raising a genuine issue of material fact. Id.

   III.

   DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’

   CLAIMS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

   Plaintiffs allege that the same acts giving rise to their claims of retaliation and wrongful discharge also give rise to a claim for intentional infliction of emotional distress. (See Plaintiffs’ Third Amended Original Petition XXI (“[t]he acts of Defendant in this instance”)). However, as a matter of law, none of the actions alleged in the petition or outlined in Plaintiffs’ answers to interrogatories, even if true, gives rise to a cause of action of intentional infliction of emotional distress.

   Plaintiffs’ complaints of Defendant’s alleged wrongdoing may be summarized into four categories:

   (1) Defendant’s decision to audit the entire department.

   (2) Institution of disciplinary action.

   (3) Claims that Director badgered and harassed Plaintiffs regarding their reporting to the State Board of Nursing; and

   (4) Defendant management’s decision to return the LVN (“Licensed Vocation Nurse”) in question to her original position.

   See Plaintiffs’ Third Amended Original Petition and Exhibit E, Plaintiffs’ Responses to Interrogatories 22, 23, 24.

   None of these alleged actions, even if true, would support a finding of intentional infliction of emotional distress. To recover for intentional infliction of emotional distress, a plaintiff must prove that:

   (1) The defendant acted intentionally or recklessly;

   (2) The defendant’s conduct was extreme and outrageous;

   (3) The defendant’s actions caused the plaintiff emotional distress; and

   (4) The emotional distress suffered by the plaintiff was severe.

   Randall’s Food Markets, Inc., 891 S.W.2d at 644.

   A. Defendant’s Actions Were Not Extreme and Outrageous

   In interpreting the element of extreme and outrageous conduct, Texas courts have applied the following standards:

   Outrageous conduct is that which ‘[goes] beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. . . . [I]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. . . .’

   Wornick Company v. Casas, 856 S.W. 2d 732, 734 (Tex. 1993) (quoting Restatement (Second) Torts Section 46, comments (d) and (h)). See also, Dean v. Ford Motor Credit, Co., 885 F.2d 300, 306 (5th Cir. 1989); Bushell v. Dean, 781 S.W.2d 651, 657 (Tex. App. -- Austin 1989), rev’d on other grounds, 803 S.W.2d 711 (Tex. 1991).

   Defendant...