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Escalona v. MC Charter, LLC

Court of Appeals of Texas, Fourteenth District

August 1, 2019


          On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2015-71124A

          Panel consists of Justices Wise, Zimmerer, and Spain.



         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.


         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 ...

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