On
Appeal from the 234th District Court Harris County, Texas
Trial Court Cause No. 2015-71124A
Panel
consists of Justices Wise, Zimmerer, and Spain.
MEMORANDUM OPINION
JERRY
ZIMMERER JUSTICE
Appellant
Rosa Escalona challenges the no-evidence summary judgment
rendered in favor of appellees, MC Charter, LLC and Michael
Chavez, on her negligence, defamation, and tortious
interference with contract claims. Escalona contends the
trial court erred in granting appellees' motion because
she produced sufficient evidence to show that a genuine issue
of material fact existed for each of her challenged claims.
We hold the trial court did not err by granting the
appellees' no-evidence motion for summary judgment
because Escalona failed to produce more than a scintilla of
evidence as to the each of the elements of the causes of
action in her claims that were challenged by appellees in
their motion. We therefore affirm the trial court's
no-evidence summary judgment as to both appellees.
Background
Escalona
worked as a driver for MC Charter, a charter bus company.
Escalona grew unhappy with the perceived "negative
attitude and growing hostility" displayed by Grace
Hernandez, another MC Charter employee and alleged wife of
Michael Chavez, the sole owner of MC Charter.[1] Escalona
therefore decided to change jobs. Escalona found a job as a
driver for AFC Corporate Transportation.
Christina
Lichtenstein worked as AFC's "HR manager" when
Escalona was hired as a driver. One of Lichtenstein's job
duties was to perform background checks on new hires such as
Escalona. According to Lichtenstein, once she obtained the
new hire's driver's license, she would check the
driver's criminal history and driving record. She would
also check with former employers to make certain the new hire
did not "have any positive drug screens or anything of
that nature."
According
to Lichtenstein, Escalona started working for AFC before the
background check was completed, "pending a negative drug
screen." As part of checking Escalona's background,
Lichtenstein sent a former employer questionnaire to MC
Charter, as well as her other former employers. While
Lichtenstein received prompt negative responses from
Escalona's other former-employers, she did not receive a
timely response from MC Charter. Lichtenstein then made
numerous telephone calls to MC Charter trying to get a
response to AFC's questionnaire. Lichtenstein eventually
received MC Charter's completed questionnaire regarding
Escalona's prior employment. On the completed form, dated
May 5, 2015, MC Charter answered "yes" to the
question, "Did this employee have alcohol tests with a
result of 0.04 or higher?" The completed questionnaire
was signed by Hernandez.
When
she received MC Charter's completed questionnaire,
Lichtenstein met with Escalona. When asked about the positive
test response, Escalona was "shocked," and denied
that she had ever had a positive drug or alcohol test. When
Escalona could not provide a form certifying that she had
successfully completed a drug or alcohol "recovery
program," Lichtenstein placed Escalona on suspension,
telling her that she could not let her "drive or work
here until I get this figured out." Lichtenstein
explained that AFC paid drivers such as Escalona for each
trip worked as a driver, and she did not know how frequently
Escalona would have worked but for the suspension.
Faced
with Escalona's denial that she had had a previous
positive drug or alcohol test, Lichtenstein contacted MC
Charter again to verify that the questionnaire had been
correctly filled out. Lichtenstein tried to contact MC
Charter numerous times, but she was not successful until a
"few weeks later." Lichtenstein eventually talked
to Hernandez. When asked if the positive response on the
questionnaire was correct, Hernandez responded that "she
would check because she was not sure at the moment."
When they talked again, Lichtenstein asked if there were any
"type of results that she would be able to send
over?" Hernandez answered "no," but then said
she would check again with the drug screen facility and get
back to Lichtenstein. When she once again spoke with
Hernandez, "the results were different and she did tell
me that she made a mistake." Lichtenstein received a new
completed questionnaire from MC Charter on May 18, 2015,
thirteen days after the initial questionnaire was sent. On
that form, MC Charter answered "No" to the question
asking: "Did this employee have alcohol tests with a
result of 0.04 or higher?" The May 18 questionnaire was
once again signed by Hernandez.
Lichtenstein
was asked during her deposition if anyone had ever previously
contacted her because they were confused by the alcohol-test
question. She responded that she had not. Lichtenstein also
testified that, based on her years of experience working in
"HR" at AFC, they were required to ask prior
employers about whether new employees had had prior positive
alcohol tests. Lichtenstein also testified that the meaning
of the question was commonly understood in the transportation
industry as asking whether a person had ever had a positive
alcohol test showing alcohol in their system while working
for a specific employer.
Chavez
testified that he was the sole owner of MC Charter. According
to Chavez, Hernandez completed the May 5 AFC questionnaire
while he was out of the office on a business trip. Chavez
further explained that Hernandez was not authorized to fill
out the questionnaire and that she was disciplined as a
result of her doing so. Once Chavez returned to the office,
he found the completed AFC questionnaire sitting on his desk.
According to Chavez, this occurred "around May 13."
Chavez also learned that AFC was requesting further
information regarding Escalona and that the May 5 answer was
not correct. Chavez testified during his deposition that he
then instructed Hernandez to fill out and send back a
corrected form.[2] Chavez did not recall the exact date that
the corrected form was sent to AFC. The corrected
questionnaire was the May 18, 2015 form mentioned above.
Chavez explained that he believed the AFC questionnaire was
confusing because it did not include any limitation as to
dates or any reference to the Federal Motor Carrier
regulations. As a result, Chavez testified that because they
had Escalona's driving records showing a previous
"DWI," the original answer was not necessarily
incorrect. Chavez continued that since Hernandez filled the
questionnaire out alone, she possibly could have gotten
confused about what AFC was asking. Finally, Chavez explained
that MC Charter changed the answer after Lichtenstein and
Hernandez had communicated, and Lichtenstein clarified the
type of information AFC was inquiring about.
Escalona
subsequently sued Hernandez, MC Charter, and Chavez alleging
claims for negligence, defamation, tortious interference with
contract, and breach of contract. Subsequent to filing suit,
Escalona learned that MC Charter had submitted an employment
verification form in addition to the questionnaire.
Hernandez, in addition to answering the questions posed on
the form, wrote three comments on the employment verification
form. Hernandez stated that Escalona (1) had abandoned a
charter, (2) had damaged two motor vehicles, and (3) was
deficient in filling out her log books. None of these
responses, however, were the basis of AFC suspending
Escalona. Nearly two years later, MC Charter and Chavez filed
a motion for partial no-evidence summary judgment on
Escalona's claims against them for ...