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U.S. Anesthesia Partners of Texas, P.A. v. Mahana

Court of Appeals of Texas, Fifth District, Dallas

August 27, 2019


          On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-08272

          Before Justices Bridges, Brown, and Nowell



         This is an interlocutory appeal from an order denying a motion to dismiss under the Texas Citizens Participation Act (TCPA). Whitney Kelley Mahana sued U.S. Anesthesia Partners of Texas, P.A. (USAP) for damages after she was fired from her job as a nurse anesthetist. She alleged claims for breach of contract and intentional infliction of emotional distress (IIED) based in part on text messages she claims were sent by her supervisors to her co-workers stating she tested positive for illegal drugs and was being fired. USAP filed a motion to dismiss and argued that the IIED claim was filed in response to the alleged text messages and those messages were communications in connection with a matter of public concern within the definitions in the TCPA. The trial court denied the motion. We affirm.


         We take these facts from Mahana's first amended original petition. Mahana is a nurse anesthetist who went to work for USAP's predecessor company in 2013. In 2015, Mahana signed a written employment contract with USAP. The contract was for a one-year term and automatically renewed for one-year periods unless one of the parties gave timely notice of its intent not to renew. The contract contains several provisions for termination of employment, including termination for cause, immediate termination, and termination without cause, all subject to specific conditions set forth in the contract.

         Mahana alleged USAP breached the contract in several ways, specifically by requiring her to work excessive hours, at times up to thirty-six hours when she worked on-call shifts. She alleged USAP breached a promise to hire additional personnel to alleviate the excessive hours. The excessive hours and lack of breaks produced inordinate stress and extreme fatigue "which often could be considered as dangerous to both the employee and patients." The stress and fatigue from her working conditions affected Mahana's quality of life to the point where she sought professional assistance and counseling.

         On December 21, 2016, Mahana was assigned to work at Heritage Surgical Hospital. Shortly after she arrived that morning, the director of nursing for Heritage demanded she take a drug test due to "wastage of drugs" shown on pharmacy logs. The director told Mahana she would be denied privileges at the hospital if she refused to take the test. Mahana asked if USAP was aware of the demand for a drug test and the threatened loss of privileges if Mahana refused the test. The director stated USAP was aware. Mahana then submitted to the drug test. The test later turned out to be negative for any controlled substances.

         Mahana alleged:

At this time, the supervisor of the Plaintiff in violation of the privacy of the Plaintiff began to text to other employees that the Plaintiff was being removed from her duties because she had tested positive for opiates and other controlled substances. The Plaintiff at the same time begin [sic] to receive texts and telephone calls from fellow employees and Associates that rumor [sic] of alleged drug abuse and addiction were being spread by her supervisor and other employees of the Defendant and that she was being terminated and had been escorted from the building. As was later shown by the drug test conducted by the Defendant, the Plaintiff did not have any controlled substances in her body other than those prescribed by her treating physician and she had voluntarily left the hospital facility to proceed with another employee of the Defendant to take the voluntary drug test, not being escorted from the building as if she had been abruptly terminated from her employment.

         Mahana further alleged that she performed her duties in an "excellent and competent manner." No disciplinary proceedings were filed against her. She also alleged she "was never physically or mentally impaired while performing clinical duties, and never had a complaint filed against [her] for inadequate performance."

         After "the accusations of drug use and continued overwork," Mahana took a leave of absence to seek in-patient counseling. She was released to return to work on July 1, 2017. She was terminated in September 2017. She alleged USAP breached the contract by terminating her employment without following the procedures and conditions for termination set out in the contract.

         Mahana also alleged a cause of action for IIED. She claimed she "suffered loss of morale, confidence, humiliation, nervousness, and loss of reputation among her friends and fellow workers" and sought damages for those injuries. She alleged the demand for excessive and grueling hours, breach of the promise to hire additional personnel, the circumstances surrounding the demand for a drug test, and the text messages accusing her of taking illegal drugs constituted extreme and outrageous conduct by USAP that caused her damages. Specifically, she alleged:

Within a short time after the Plaintiff submitted to the drug testing by the Defendant, supervisors and other persons known and unknown to the Plaintiff at this time intentionally and with malicious intent began texting that the Plaintiff had tested positive for several illegal drugs and controlled substances and was being fired. The Plaintiff was later shown texts from agents and supervisors of the Defendant alleging she had tested positive for numerous illegal or controlled substances when in fact the Plaintiff had tested negative. The said text also stated or implied that the Plaintiff was a "drug addict" and was being terminated for illegal activity.

         Referencing the allegations in the text messages, Mahana alleged that USAP's conduct was extreme and outrageous because the results of the tests were unknown at the time and later turned out to be negative. Further, she alleged the conduct was extreme and outrageous

in light of the fact that the Plaintiff was employed in the medical field of licensure and practice where allegations of illegal or illicit drug use could be particularly damaging to the present and future ability of the Plaintiff to seek, maintain or enhance and promote her career in the [field] of medicine.

         USAP moved to dismiss the IIED claim under the TCPA based on these allegations. It argued the IIED claim was based on, related to, or filed in response to USAP's alleged exercise of the right of free speech defined by the TCPA. USAP attached Mahana's first amended petition in support of the motion. In her response to the motion, Mahana argued her claim did not fall within the scope of the TCPA and that her affidavit provided ...

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