Vicky McKenna v. Baylor College of Medicine

ACCEPTED
01-15-00090-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/4/2015 2:52:14 PM
CHRISTOPHER PRINE
CLERK

No. 01-1S-00090-CV

FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS8/4/2015 2:52:14 PM
CHRISTOPHER A. PRINE
AT HOUSTON Clerk

VICKY McKENNA
Appellant,

v.

BAYLOR COLLEGE OF MEDICINE
Appellee.

On Appeal from the 11th Judicial District Court
Harris County, Texas
Trial Court No. 2012-74884

BRIEF OF APPELLANT

VICKY McKENNA

GLENN W. PATTERSON, JR.
SBN 15612500
11 Greenway Plaza, Suite 2820
Houston, Texas 77046
713-961-1200
713-961-0941 (Facsimile)

ATTORNEY FOR APPELLANT
 ORAL ARGUMENT REQUESTED
PARTIES AND COUNSEL

Appellant: Appellant's Counsel:

Vicky McKenna Glenn W, Patterson, JI',
Attorney at Law
11 Greenway Plaza
Suite 2820
Houston, Texas 77046

Appellees: Appellee's Counsel:

Baylor College of Medicine Shauna Johnson Clark
Attorney at Law
1301 McKinney
Suite 5100
Houston, Texas 77010-3095
 TABLE OF CONTENTS

PARTIES AND COUNSEL .............. . . .. i

TABLE OF CONTENTS . . ... . .. . . ... . .............................. 11

AUTHORITIES ................................... . ... . ... ......... v

BRIEF OF APPELLANT VICKY MCKENNA . ................ . ....... ix

STATEMENT OF THE CASE ........................................ x

STATEMENT REGARDING ORAL ARGUMENT ................. ... .. . x

ISSUES PRESENTED .......... . ........ ... ..... . ... . ............. xi

STATEMENT OF FACTS ........................................... 1

SUMMARY OF ARGUMENT ....................................... II

LEGAL ARGUMENT .............................................. 14

ISSUE ONE

THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON McKENNA'S RACE AND AGE CLAIM.

A. MCKENNA ESTABLISHED A PRIMA FACIE CASE ON HER
CLAIMS OF RACE AND AGE.

B. THE ARTICULATED LEGITIMATE REASON FOR
DISCHARGE WAS PRETEXTUAL.

C. McKENNA WAS TREATED DIFFERENTLY THAN OTHER
SIMILARLY SITUATED EMPLOYEES .. ... ... . . .. ... . 14

11
 ISSUE TWO

THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON MCKENNA'S LIBEL CLAIM .
...................................................... 24

A. McKENNA ESTABLISHED A PRIMA FACIE CASE OF
LIBEL.

B. MCKENNA'S AMENDED PLEADING IS NOT SUBJECT TO
A PLEA OF LIMITATION BECAUSE OF APPLICATION OF
THE RELATION BACK DOCTRINE.

C. BAYLOR FAILED IN ITS BURDEN TO ESTABLISH A
QUALIFIED PRIVILEGE

D. BAYLOR FAILED TO SHOW THE LIBELOUS STATEMENT
WAS MADE WITH MALICE.

ISSUE THREE

THE TRIAL COURT ERRED BY GRANTING
SUMMARY JUDGMENT ON APPELLANT'S BREACH
OF CONTRACT CLAIM BECAUSE THERE WAS
ADEQUATE CONSIDERATION AND GENUINE
ISSUES OF MATERIAL FACT EXIST FOR THE
FINDER OF FACT. . .................................... 34

PRAYER ........................................................ 37

CERTIFICATE OF SERVICE ....................................... 39

APPENDIX ...................................................... 40

iii
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEF ACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
................................................................. 41

IV
 INDEX OF AUTHORITIES

Page

FM Props. Operating Co. v. City ofAustin, 22 S.W. 3d 868, 872 (Tex. 2000) . 14

Rhone-Poulenc, Inc. v. Steel, 997 S.W. 2d 217, 223 (Tex. 1999) ........... 14

Ysleta lndep. Sch. Dist. v. Monarrez, 177 S.W. 3d 915, 917 (Tex. 2005) (pel'
curiam) ....................................................... 15, 19

Austin v. lnet Techs., Inc., 118 S.W. 2d 491,496 (Tex. App. -- Dallas 2003, no pet.
................................................................ )32

Buxaniv. Nussbaum, 940 S.W. 2d 350, 352 (Tex. App. - San Antonio 1997, no writ)
................................................................. 34

City ofHouston v. First City, 827 S.W. 2d 462, 473 (Tex. App. - Houston [1 st Dist.]
1992, writ denied) ................................................. 36

Crest Canst., Inc. v. Murray, 888 S.W. 2d 931,942 (Tex. App. - Beaumont 1994),
reversed on other grounds, 900 S.W. 2d 342 (Tex. 1995) .................. 35

Davin v. Delta Air Lines, Inc., 678 F. 2d 567, 570 (5 th Cir. 982)) ............ 19

Estate of Townes v. Townes, 867 S.W. 2d 414,419 (Tex. App.-Houston [14th Dist.]
1993, writ denied) ................................................. 36

Exparte Goad, 690 S.W. 2d 894, 896 (Tex. 1985), cert. denied, 493 U.S. 1021,
(1990) ........................................................... 30

E-Z Mart Stores, Inc. v. Hale, 883 S.W. 2d 695, 699 (Tex. App. - Texarkana 1994,
writ denied) ...................................................... 37

Gonzalezv. Champion Techs., Inc., 384 S.W. 3d 462, 466 (Tex. App.-Houston [14th
Dist.] 2012, no pet.) ............................................... 16

v
Goodman v. Gallerano, 695 S. W. 2d 286, 287-88 (Tex. App. - Dallas 1985, no writ)
................................................................. 32

Haase v. Glazner, 62 S.W. 3d 795, 797 (Tex. 2001) ...................... 14

Hallmark v. Hand, 885 S.W. 2d 471,477 (Tex. App. - El Paso 1994, writ denied) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,36

Ishin Speed Sport, Inc. v. Ruthelford, 933 S.W. 2d at 348 .............. 34,36

Jackson v. Cheatwood, 445 S.W. 2d 513,514 (Tex. 1969) ................. 32

Jackson v. Cheatwood, 445 S.W. 2d 513,514 (Tex. 1969) .............. 25,27

Knesek v. Witte, 754 S.W. 2d 814, 816 (Tex. App. - Houston [1" Dist.] 1988, writ
denied) ......................................................... 30

Lexington Ins. Co. v. Daybreak Exp., Inc., 393 S.W. 3d 242, 245 (Tex. 2013)
................................................................. 29

McCulley Fine Arts GallelY, Inc. v. "X" Partners, 860 S.W. 2d 473, 477 (Tex. App.
- El Paso 1993, no writ) ............................................ 34

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,283 n. 11, (1976) .... 18

McDonnell Douglas CO/po v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973) ................................................. 15

Moore v. N.Y. Cotton Exch., I270 U.S. 593,610 (1926) .................. 29

Navy v. Call. ofthe Mainland, 407 S.W. 3d 893,898-99 (Tex. App.-Houston [14th
Dist.] 2013, no pet.) ................................................ 15

Pelt v. American Casualty Co., 513 S.W. 2d 128, 129-30 (Tex. Civ. App. - Dallas
1974, writ refd n.r.e) ............................................... 30

VI
Providence Hosp. v. Truly, 611 S.W. 2d 127, 133-34 (Tex. Civ. App. - Waco 1980,
writdism'd) ...................................................... 31

Quantum Chem. CO/p., 47 S.W. 3d at 474 .............................. 16

Rachid v. Jack in the Box, Inc., 376 F. 3d 305, 312 (5 th Cir. 2004) ........... 16

Randall's Food Markets, Inc. v. Johnson, 891 S.W. 2d 640,646 (Tex. 1995)
......................................................... 25,27,32,33

Reeves v. Sanderson Plumbing Prods., Inc . .......................... 15,16

Roark v. Stallworth Oil & Gas, Inc., 813 S.W. 2d 492, 496 (Tex. 1991) ....... 35

San Antonio Credit Union v. O'Connor, 115 S.W. 3d 82, 99 (Tex. App. -- San
Antonio 2003, pet. denied) .......................................... 32

Smith v. Renz, 840 S.W. 2d 702, 704 (Tex. App. - Corpus Christi 1992, writ den.)
........................................................... 19,35,36

Solomon v. Greenblatt, 812 S.W. 2d 7,15 (Tex. App. - Dallas 1991, no writ) .. 35

Southwestern Elec. Power Co. v. Grant, 73 S.W. 3d 211,215 (Tex. 2002) .... 14

Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W. 3d 563
(Tex. App---- Austin 2007 pet. denied) ................................ 28

Waddill v. Phi Gamma Delta Fraternity, 114 S.W. 3d 136, 144 (Tex. App.-Austin
2003, no pet.) ..................................................... 30

WFAA-TV, Inc. v. McLemore, 978 S.W. 2d 568, 571 (Tex. 1998) ............ 24

Rule 15(c)(I)(B) of the Federal Rules of Civil Procedure .................. 29

6 Charles Alan Wright, Alihur R. Miller, & Mary K. Kane, Federal Practice &
Procedure Section 1497 (34d ed. 2010) ................................ 29

VII
section 21.001 (1) of the Texas Labor Code ....................... 16, 17, 29

Tex. Civ. Prac. & Rem. Code Ann. § 16.068 ............................. 28

Tex. Lab. Code § 21.051 ............................................ 17

VIII
 No. 01-l S-00090-CV

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON

VICKY McKENNA
Appellant,

v.

BAYLOR COLLEGE OF MEDICINE
Appellee.

On Appeal from the 11th Judicial District Court
Harris County, Texas
Trial Court No. 2012-74884

BRIEF OF APPELLANT VICKY MCKENNA

TO THE HONORABLE COURT OF APPEALS FOR THE FIRST SUPREME
JUDICIAL DISTRICT:

Appellant Vicky McKenna ("McKenna" or "Plaintiff'), respectfully submits

this brief in suppOti of her request that the Court of Appeals reverse ~he district

couli's granting of summary judgment and reverse and remand this case to the trial

court for all purposes.

IX
 STATEMENT OF THE CASE

This case was filed in District Court by Vicki McKenna "McKenna" on

December 20, 2012. (CR 4) for damages arising out of her termination as a member

of the Baylor College of Medicine faculty. ("Baylor"). Baylor filed a motion for

summary judgment on October 6,20 !4, (Cr.7!), and McKenna filed her response in

opposition to the motion on November 3,2014. (CR. 252). The trial court granted

interiocutOlY summary judgment on November 20, 2014. (CR. 488).

Appellant and Appellee entered into a Rule 11 Agreement filed with the comi

on December 18,2014. (Appendix). Therefore, pursuant to the Rule 11 Agreement,

Appellant dismissed her only remaining claim in the trial court without prejudice

(Appendix) and thereafter filed her Notice of Appeal on Janumy 22,2015. (CR. 511).

McKenna requests that this Court reverse the order of the trial comi granting

summary judgment, and remand the case for further proceedings.

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument.

x
 ISSUES PRESENTED

ISSUE ONE

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT ON McKENNA'S RACE AND
AGE CLAIM.

A. MCKENNA ESTABLISHED A PRIMA FACIE
CASE ON HER CLAIMS OF RACE AND AGE.

B. THE ARTICULATED LEGITIMATE REASON
FOR DISCHARGE WAS PRETEXTUAL.

C. McKENNA WAS TREATED DIFFERENTLY
THAN OTHER SIMILARLY SITUATED
EMPLOYEES.

ISSUE TWO

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT ON MCKENNA'S LIBEL
CLAIM.

A. McKENNA ESTABLISHED A PRIMA FACIE
CASE OF LIBEL.

B. MCKENNA'S AMENDED PLEADING IS NOT
SUBJECT TO A PLEA OF LIMITATION
BECAUSE OF APPLICATION OF THE
RELATION BACK DOCTRINE.

C. BAYLOR FAILED IN ITS BURDEN TO
ESTABLISH A QUALIFIED PRIVILEGE

D. BAYLOR FAILED TO SHOW THE LIBELOUS
STATEMENT WAS MADE WITH MALICE.

Xl
 ISSUE THREE

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT ON MCKENNA'S BREACH
OF CONTRACT CLAIM BECAUSE THERE WAS
ADEQUATE CONSIDERATION AND GENUINE
ISSUES OF MATERIAL FACT EXIST FOR THE
FINDER OF FACT.

XlI
 STATEMENT OF FACTS

Vicky McKenna ("McKenna") worked atBen Taub General Hospital as a staff

nurse prior to Baylor College of Medicine's ("Baylor") contracting to become the

provider for mid-level services at Ben Taub Emergency Department. McKenna never

received a reprimand or write-up during her many years at Ben Taub Hospital.

McKenna worked for Harris County Hospital District from 1991 to 2000 as a nurse

and left in 2000. She returned to Harris County Hospital District in 2006 and worked

as a nurse practitioner in Ben Taub's emergency room until 2008 when she began

working part-time for Baylor (CR. 293).

Baylor became the provider of Emergency Services at Ben Taub in 2008.

Employees of Harris County Hospital District were required to submit a new

application with Baylor if they wanted to continue working at Ben Taub. (CR 118).

McKenna applied for the position of nurse practitioner 2, and was hired for the

position in the fall of 2008 and was terminated on October 31,2011. ld. McKenna

began working full-time for Baylor in 2009 as a nurse practitioner and was assigned

to the emergency room at Ben Taub. (CR 119). McKenna's responsibility was to

assess and treat patients. She worked 12 hour shifts that varied depending on the shift

to which she was assigned. (CR. 50). Angela Fishel' ("Fisher") was hired by Baylor

in November 2008. Fisher is a white female who at time of hiring was less than 40

years of age. (CR 485). Mid-level providers ("MLPs") began reporting to Fisher
beginning sometime in 2009 when Fisher became medical director. Fisher supervised

all faculty, which included both physicians and mid-level providers.

Soon after being hired, Baylor reclassified McKenna as a mid-level provider.

When McKenna was terminated on October 31, 2011, Baylor employed 11 or 12

full-time mid-level providers. McKenna was the only white female MLP and the only

MLP over forty years of age, except for Trent Renfrow, a male Caucasian also stated

for termination. (CR.3 69,276,481). Mid-level providers were considered to be faculty

by Baylor. Patricia Harris, a black female 36 years of age, was the supervisor of the

mid-level providers during McKenna's employment with Baylor. (CR.297). In

September 2011, Baylor had twelve mid-level providers. (CR.450).1

In 2011, Baylor assigned a supervising physician to each of the MLPs for the

purpose of reviewing chalis on patients created by MLPs. (CR.298-299). Chati

reviews were monthly meetings with the physician faculty to address any quality or

IHarris reviewed the list of active and withdrawn employees, and confirms that
on chart (CR.369) Georgia Gibson was a moonlighter who found work elsewhere;
McKenna was terminated; Sabrina Hurl' took a job with the VA; Matiha Dickson
chose to work closer to home; Manny Vasquez chose to leave because of harassment.
Mark Shepherd was a fellow who was not hired Athena Baldwin was a moonlighter.
Leah Bayliss got a job at Texas Children's Hospital. Jennifer Cu got married and
moved out of state; Elda Ramirez did not work enough hours. Heather Weeden was
a moonlighter and did not meet the hourly requirements for shifts. Fisher states that
Heather Weeden never worked a shift and Leah Bayliss and Athena Baldwin never
worked a shift. (CR.369).

2
productivity issue of an MLP. (CR.434). Initially, McKenna's supervising physician,

Dr. Cassidy, had difficulty making time to meet with her to review and evaluate

charts. Id. McKenna advised Harris that she could not get Cassidy to meet with her

so that she could get her charts evaluated. (CR.298, 299).

Harris testified that in early 2011 Fisher told her that she wanted to fire

McKenna and told her to start writing up McKenna for something. McKenna had

received excellent reviews in her previous two years. (CR. 486). Harris believes that

Fisher should be removed from her position and also believes that Fisher

discriminates against some of the mid-level providers. (CR. 454).

Fisher made "old age" references on multiple occasions to McKenna about

McKenna being older than the rest ofthe MLPs and commented that she didn't think

McKenna fit in. Specifically, Fisher said that McKenna was "old school." Fisher

stated again in the termination meeting that McKenna did not fit in. (CR. 341-342).

McKenna was singled out by Harris and Fisher. She was the oldest MLP and was

treated differently than the other MLPs. (CR. 314). Harris states that Fisher preferred

to hire PA fellows. (CR.462). The only fellows at Baylor when McKenna was fired

were Kaye-Ann Christie (black female, born 6/9/86) and Mark Shepherd (white male,

born 8/3/82).

3
Harris believes Fisher should be removed from her position. (CR.281). Fisher

discriminated against some of the MLP's.

McKenna was given a written reprimand in a meeting with Fisher and Harris

on June 21, 2011. She was told she was being written up for low productivity

because her chart reviews were delinquent and because she was not seeing two or

more patients per hour. (CR.30S). After the meeting, McKenna asked the other

mid-level providers how many patients they were seeing an hour and whether they

were meeting the two patient per hour goal. No one was meeting the goal of seeing

two patients per hour. No other MLP she spoke to was written up. (CR.31S). Other

MLPs were treated better than McKenna as they were not written up for not meeting

the throughput of two patients per hour. Id. Cetiainly none were fired, except for

McKenna.

McKenna was told by Harris that as punishment for having delinquent chart

reviews, she was required to work an extra 12-hour shift without pay, which she did.

(CR.304-30S). Although Christie worked one extra 12-hour shift per month during

2012, she was paid for her overtime. (CR.406). Christie does not know of any

mid-level provider who was required to work an extra shift and was not paid. Id.

By the beginning of July 2011, less than 10 days after the June meeting,

McKenna's chart reviews were current. By that time she had met with her new

4
supervising physician Dr. Carnell, who approved McKenna's charts. McKenna was

not delinquent again in having her charts reviewed. (CR.304).

Harris acknowledged that no MLPs met the goal of treating two patients per

hour during the nine month period from April through December of20 11. There was

one exception, as one of 12 met the goal in September. (CR,446-4S1).

On July 14,2011 McKenna met with Harris and Fisher for her performance

review. McKenna had received two previous yearly performance reviews and the

reviews had been excellent. This time, she was handed another write-up. (CR.196).

McKenna was placed on 30 day probation with a review of her productivity in 30

days. ld. At the time ofthis meeting, McKenna's chart reviews were current and she

was attending all required meetings. (CRA8S). Her only deficiency was not meeting

the goal of seeing two patients an hour. (CR.196). Since June, McKenna had seen

more patients per hour, but not consistently two patients per hour (CRA8S). After 30

days, there was no follow-up meeting to discuss her productivity nor was she

terminated at the end ofthe probationary period. Id.

When McKenna was terminated on October 31, 2011, the meeting was

attended by Fisher, Harris, Letha Smith and Judy Garey. (CR.308). McKenna was

promised that she would be paid an additional 30 days of salary and benefits to permit

her to attempt to obtain employment within Baylor in another depaJiment. (CR,48S).

S
In consideration for the extra salary to be paid by Baylor, McKenna had to agree not

to come on the premises or speak with her fellow MLPs. Id. She told Harris and

Fisher that she agreed to that condition. Id

McKenna never turned in disorganized sign-out repOlis. Further, McKenna

denies that Fisher complained that she had not signed out a critical patient and denies

that this event ever took place. (Cr.308, 309). McKenna denies drinking water in a

patient area or using inappropriate language. (CR.310). After the meeting with

Fisher, McKenna spoke with Harris and informed her that Fisher was incorrect about

the occurrence of these alleged incidents. (CR.31 0-311). Fisher confirms that

McKenna advised her that she had moved the patient to the shock room because the

patient was combative and that the patient was very angry and uncooperative when

she first interacted with her. (CR.327). McKenna did not violate policy regarding

drinking liquids in the patient area. (CR.328). Fisher complained that McKenna had

moved a patient without orders, however, a patient may be moved to a different care

area with only a verbal order to a nurse by an MLP. (CR.328). There is no sign-out

fOlm for moving a patient and it is usually done by verbal order. (CR.329).

Harris observed McKenna performing herjob on almost a daily basis and never

observed any unprofessional performance on McKenna's patio (CR.453-454).

Kaye-Ann Christie never witnessed McKenna becoming angly while she was

6
working or do anything that could be considered unprofessional. Christie does not

know of any mid-level provider that did not get along with McKenna or who had

complaints about her professionalism or productivity.

At the conclusion of the termination hearing on October 31, 2011, McKelma

was escorted by a security officer to the mid-level provider's office to retrieve her

purse and books. She then left the hospital on her own. McKenna's notice of

termination stated that she had 30 days to find other employment within Baylor.

(Friend, p.30).

Baylor changed its reason for Plaintiff's discharge from performance to

misconduct and then some six months later changed its official reason back to

performance. (CR.198, 231-232, and 424).

After she was terminated, McKenna applied for many positions from

November 2011 through March 2013. It was very difficult for McKenna to find ajob

due to the fact that Baylor told her that it had changed the reason for her termination

after she had been fired. (CR.317). She applied multiple places but never received

a call back as a nurse. Jd. McKenna told employers with which she applied that she

had been fired for misconduct. Jd. None ofthose potential employers offered her a

position. (CR.486).

7
 Harris liked Kaye-Ann Christie, a black female, born 6/9/86 and recruited her

to be a fellow. (CR.455). Christie was the first mid-level provider hired after

McKenna was terminated as a mid-level provider (CR.463). Harris admits that

Baylor wanted to hire Kaye-Ann Christie as a mid-level provider, but at the time there

were no positions available (before McKenna was terminated). (CR.4S8). Christie

could not be hired as a full-time MLP unless another position became available, or

a new additional position was approved by Baylor. (CR.4S7).

Harris recommended that Baylor extend Christie's fellowship because Baylor

had to either extend her fellowship, get approval for another position, or risk losing

her to a new employer. (CR.4S9). Christie was the only fellow whose fellowship was

extended. After her one year at Baylor, her fellowship was completed. Baylor was

in the process of getting new fellows. Christie was looking for a job but reached a

verbal agreement with Baylor to extend her fellowship for two months. Id.

As far as Harris knows, no one else was interviewed for McKenna's position

besides Christie. (CR.461). There were no ads placed for a mid-level provider

position after McKenna was terminated. (CR.463). Harris confirms sending an

e-mail to Fisher to interview more people for the mid-level provider position before

hiring Christie because, for one reason, it was a velY sensitive time. (CR.469)

8
 Mark Shepherd, (white male, born 8/3/82), was also a fellow at Baylor at the

same time as Christie, but Baylor never offered him a position. (CR.462).

Dane Friend is Vice President of Human Resources and associate general

counsel for Baylor College of Medicine. (CR.424). Friend mainly deals with

employment law. Baylor's employee relations team that assisted Friend consisted of

Judy Garey, Sandy Dunn and Paula Hebert.

Because McKenna was a member of the Baylor faculty, her termination had to

be approved by Friend or bumped up the chain of command for somebody to approve

it. (CR.382). The determination to change the reason for McKenna's discharge from

"performance" to "misconduct" was made later in the day of her termination on

October 31, 2011, or the next day. (CR.383). Friend consulted by phone with Garey

as to whether the reason for discharge could be changed. Further discussion ensured

later in a face to face meeting between Friend, Garey, and an employee relations

advisor. Id. Friend authorized the change to misconduct the afternoon after

McKenna had been fired for performance or perhaps the next day. (CR.383).

Friend's understanding was that McKenna had been initially told she was being let

go for performance issues and would have 30 days to find another position within

Baylor. Id.

9
 Friend, as part of his duties as associate general counsel for Baylor, typically

handles matters with charges of discrimination against Baylor. (CR.385). Friend was

tasked to file Baylor's response to the charge of discrimination to the EEOC. Id.

Friend sent Baylor's position statement by letter dated May 25, 2012 to the

EEOC. Id. Friend advised that Baylor had terminated McKenna solely for

performance. (CR.386, 424). Friend states his letter to the EEOC was correct.

(CR.385). Friend testified in his deposition that McKenna was terminated for

misconduct on October 31,2011. The letter of November 11,2011 sent to McKenna

by Garey of Baylor asserts that McKenna was terminated for misconduct. (CR.386,

421). Friend could not explain why he changed the reason for McKenna's discharge

to misconduct in Baylor's official position statement of May 25, 2012 to the EEOC.

Id. (CR.424).

McKenna and Shauna Robertson told Harris that Fisher had inappropriately

billed for histories and physicals on patients that were not completely documented

and that Fisher coded and billed for it, even though there was not adequate

documentation to bill Medicare or insurance. (CR.261). Harris confirmed these

repolis by reviewing the patient chalis that were not adequately documented

regarding history and physical exam by Fisher.

10
 SUMMARY OF ARGUMENT

The trial court en'ed in granting summaty judgment on McKenna's race and

age claim. McKenna made a prima facie case of both age and race. McKenna was

over the age of 40 and was the only white female MLP. She was terminated on

October 31,2011 and quickly replaced by Kaye-Ann Christie, a black female born

6/9/86. Mckenna was first told she was fired for performance failing to meet the goal

to see two patients an hour. It is true she did not meet this goal for MLPs. McKenna

was treated differently than other MLPs in terms of discipline for not meeting the

goal. None ofthe other MLPs met this requirement from April through December of

2011 except one person in one month yet no one else was terminated for not meeting

the requirement.

The comt e11'ed in granting summary judgment on McKenna's libel claim. The

relation back doctrine applies to save the claim from a plea oflimitation. McKenna's

amended pleading asserting the claim of libel was not based on an entirely new,

distinct, or different transaction or occurrence. The new pleading met the

requirements of the Civil Practice & Remedies Code Section 16.068.

Baylor failed to establish facts which would entitle them to be able to claim a

qualified privilege to send an email informing all MLPs and numerous doctors that

McKenna was fired for "Misconduct." Baylor fired McKenna for performance and

11
could not re-ring the bell to fire her for misconduct. To establish a qualified

privilege, Baylor was required to prove the email and subsequent communications

with the Texas Workforce Commission were not sent with malice. Baylor failed to

meet its burden to do so.

Baylor was upset with the actions of Plaintiff after she left the termination

meeting. Garey, the Human Resources representative in the meeting, contacted Dane

Friend, the Vice President for Human Resources who agreed to change the reason for

McKenna's termination from performance to misconduct. Plaintiffhad already been

fired for performance hours before and had traveled home. Her objectionable conduct

came after she was fired. Even if the conduct was offensive, which McKenna

disputes, it could not constitute the reason plaintiff was discharged, for her

termination had already occurred on the basis of her alleged lack of performance.

Baylor sent a letter on November 2, 20 II to McKenna advising her that she had

been dismissed for misconduct. As a consequence, Plaintiff advised potential

employers that she had been told she was fired for misconduct and was not eligible

for rehire. Such action by McKenna constitutes self-defamation. Thereafter,

McKenna filed a charge of discrimination with the EEOC on the basis of race and

age. Dane K. Friend J.D. was an Assistant Vice President, Chief Human Resources

Officer and Associate General Counsel for Baylor. Friend, on behalf of Baylor filed

12
the response to the charge. In the response Friend advised the EEOC investigator that

the only reason for McKenna's discharge was performance (not misconduct). Baylor

failed to inform McKenna that Baylor had again changed the reason for her

termination, this time changing the reason back to performance from misconduct.

Friend could not explain why he had done so.

The trial court erred in granting summary judgment on McKenna's breach of

contract claim. Plaintiff, at her termination meeting on October 31, 20 J 1, was told

that she would be paid her full salary and benefits for the next thitiy days and would

have the oppOliunity to obtain a job in another department within Baylor if, in

consideration therefore, McKenna would agree not to come back on Baylor premises

during the thirty days, and not to converse with any of her fellow MLPs on site. A

promise for a promise creates adequate consideration. The issue of meeting of the

minds, assent and to the terms of the contract are questions offact for the fact finder.

13
 LEGAL ARGUMENT

ISSUE ONE

THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON MCKENNA'S RACE AND AGE CLAIM.

A. MCKENNA ESTABLISHED A PRIMA FACIE CASE ON
HER CLAIMS OF AGE AND RACE; AND

B. THE ARTICULATED LEGITIMATE REASON FOR
HER DISCHARGE WAS PRE TEXTUAL.

C. MCKENNA WAS TREATED DIFFERENTLY THAN
OTHER SIMILARLY SITUATED EMPLOYEES.

Standard of Review

An appellate court reviews the trial court's summaty judgment de novo. See

FM Props. Operating Co. v. City ofAustin, 22 S.W. 3d 868, 872 (Tex. 2000). When

reviewing a summaty judgment, the court takes as true all evidence favorable to the

nonmovant, and indulges evelY reasonable inference and resolves any doubts in the

nonmovant's favor. Southwestem Elec. Power Co. v. Grant, 73 S.W. 3d 211, 215

(Tex.2002). Under Texas Rule of Civil Procedure 166a(c), the party moving for

summary judgment bears the burden to show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. Haase v. Glazner, 62

S.W. 3d 795, 797 (Tex. 2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W. 2d 217,223

(Tex. 1999).

14
A. McKenna Established A Prima Facie Case on her Claims of Age and Race.

In resolving disparate-treatment cases, courts utilize a system of "burden

shifting" in which the burden of production shifts from the plaintiff to the defendant

and then back to the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142-43, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); McDonnell Douglas

Corp. v. Green, 411 U.S. 792,802-05,93 S. Ct. 1817,36 L. Ed. 2d 668 (1973).

In employment-discrimination cases based on circumstantial evidence, the plaintiff's

prima facie case relates to the employee's burden of presenting evidence that raises

an inference of discrimination. Russo v. Smith Intern., Inc., 93 S.W. 3d 428, 435

(Tex. App.-Houston [14th Dist.] 2002, pet. denied). A prima facie case ofracial

discrimination requires proof that the plaintiff (1) is a member of a protected class,

(2) was qualified for the employment position at issue, (3) was subject to an adverse

employment action, and (4) was treated less favorably than similarly situated

members outside of the protected class. See Reeves, 530 U.S. at 142, 120 S. Ct.

2097; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W. 3d 915, 917 (Tex. 2005) (per

curiam). Navy v. Coli. of the Mainland, 407 S.W. 3d 893, 898-99 (Tex.

App.-Houston [14th Dist.] 2013, no pet.).

Once a plaintiffhas established a prima facie case of discrimination, the burden

shifts to the defendant to show a legitimate, non-discriminatory purpose for the

15
adverse employment action. Reeves, 530 U.S. at 142, 120 S. Ct. 2097. If the

defendant presents a legitimate reason, the burden shifts back to the plaintiffto show

either (I) the stated reason was a pretext for discrimination, or (2) the defendant's

reason, while true, is only one reason, and discrimination was another, "motivating,"

factor. Gonzalez v. Champion Techs., Inc., 384 S.W. 3d 462, 466 (Tex.

App.-Houston [14th Dist.] 2012, no pet.) (citing Rachid v. Jack in the Box, Inc., 376

F. 3d 305, 312 (5 th Cit'. 2004)). A plaintiff can avoid summary judgment if the

evidence taken as a whole creates a fact issue as to whether the employer's stated

reason was not what actually motivated the employer and creates a reasonable

inference that discriminatory intent was a determinative factor in the adverse

employment action. Gonzalez, 384 S.W. 3d at 466. Although the burden of

production shifts as described, the ultimate burden of persuasion remains on the

plaintiff. Id.

Because the federal courts are closely divided on the issue, the Texas cOUlis

follow the plain meaning of section 21.001 (1) of the Texas Labor Code, which

provides that a plaintiff establishes an unlawful employment practice by showing that

discrimination was a "motivating factor" for the practice. See Quantum Chem. COlp.,

47 S.W. 3d at 474.

16
 The Texas Labor Code prohibits discrimination in employment based on "race,

color, disability, religion, sex, national origin, or age." Tex. Lab. Code § 2 1.051 . The

relevant parts of the Act are patterned after Title VII of the federal Civil Rights Act.

Texas Courts look to federal precedent for interpretive guidance to meet the

legislative mandate that the Act is intended to "provide for the execution of the

policies of Title VII ofthe Civil Rights Act of 1964 and its subsequent amendments."

The A.·ticulated Legitimate Reason ro.· Discharge Was Pretextual.

In early 2011, approximately 10 months before McKenna was terminated,

Fisher came to Harris and told her she wanted to fire McKenna and to start

documenting McKenna's productivity as a reason to terminate her (CR.451-452).

McKenna had not been written up in the many years she had been working at Ben

Taub Hospital (CR.484).

In her first write up in June 2011 , Baylor complained that McKenna was

delinquent on chart reviews. McKenna had the chait reviews current within 10 days.

Because McKenna was delinquent, she was punished by being ordered to work an

additional 12-hour shift without pay (CR.484). Two other mid-levels were also

delinquent on charts but they were not written up, nor were they required to serve an

additional 12-hour shift, much less work without pay. Id.

17
McKenna Was Treated Differently Than Other Similarly Situated Employees.

McKenna was similarly situated in all respects to the other MLPs in the

depatiment. The MLPs in the department are the comparators for McKenna in this

McKenna and all other MLP's worked under the same standards, the same

supervisors (Harris and Fisher), and were subject to the same standards of conduct.

It is undisputed that McKenna was terminated for performance for failing to met the

requirement of seeing two patients a hour. It is established that none of the other

MLPs were meeting this standard. And all MLPs failed to meet the standard for the

seven months that Baylor kept charts on the productivity ofthe MLPs except for MLP

in one month. McKenna's "performance" was nearly identical to the other MLPs, yet

no other MLP was terminated for that reason.

COUtis have stated that to prove discrimination based on disparate discipline,

the disciplined and undisciplined employees' misconduct must be of "comparable

seriousness." although "precise equivalence in culpability between employees is not

the ultimate question," McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,283

n. 11, (1976). The Fifth Circuit has held that to prove discrimination based on

2 Dr. Fisher was not a similarly situated employee to McKenna. References to
Fisher and her misconduct and falsification of records evidence her lack of
credibility.

18
disparate discipline, the plaintiff must usually show "that the misconduct for which

[he] was discharged was nearly identical to that engaged in by a [female] employee

whom [the company] retained." Smith v. Wal-Mart Stores, Inc., 891 F. 2d ll77,

1180 (5 th Cir. 1990) (quoting Davin v. Delta AirLines, Inc., 678 F. 2d 567, 570 (5 th

Cir. 982)). See also, Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W. 3d 915,917-18

(Tex. 2005).

This is a classic case of disparate discipline. Monthly reports showing the

numbers of patients seen by mid-level providers were created by Baylor

Administration and distributed monthly. (CR.439-440). Harris informed her

superiors that it would be difficult for MLP's to meet the goal of seeing two patients

an hour because the MLP's did not have the resources (staffing, computers, support,

and transportation) to be successful. (CR. 441). Harris was correct in this assessment.

Harris confirms that the reports (charts) prepared for April 2011 show that not

one of the MLP's were seeing two patients an hour. (CR.48). Harris confirms no

MLP was meeting expectations of seeing two patients per hour during the following

month of May 2011. (CR.447). Harris confirms the chatis are correct and that the

productivity charts are what Baylor makes its employment decisions on. (CR.448).

Harris acknowledges and confirms that not one MLP saw two patients per hour in the

19
same months of June, July, or August. Only one MLP out of the whole staff saw two

patients per hour in September. (CR.448-449).

During this time, Harris states there were 12 MLP's in the section. Again, in

October, and in November (when McKenna was fired for "performance relating to not

seeing two patients per hour"), not one MLP saw two patients per hour. The same was

true for December and January of2012. (CR.450-451).

This was the basis on which McKenna was fired - not seeing two patients two

per hour. The criterion is bogus, fellow MLP's were not meeting this goal. Finally,

there is evidence that McKenna was the only employee that was "punished" by having

to work an extra 12 hour shift without pay. There is evidence that her fellow

employee Christie did work extra shifts, treated differently. Baylor has no adequate

explanation for the disparate discipline based on performance.

McKenna did not conduct herselfin an unprofessional manner. (CR.453,454).

Harris, Director of MLP's observed McKenna interacting with other MLP's

performing her job duties almost on a daily basis. (CR.453,455). Christie also

observed McKenna working and never witnessed McKenna becoming angry or doing

anything that would be considered unprofessional. Christie does not know of any other

mid-level provider that did not get along with McKenna or who had complaints about

her professionalism or productivity. And, perhaps most importantly, Friend in

20
explaining the reason for termination to the EEOC, does not mention professionalism

as a cause or reason for termination. (CR.403). Only Fisher made any complaints and

Harris, McKenna and Christie all dispute her unfounded allegations.

McKenna took pride in her work and disputes the allegation of lack of

professionalism on her part. (CR.486). The evidence that McKenna did act in a

professional manner is required to be accepted as true and all evidence to the contrary

must be disregarded. Nixon v. M Property Management Co. Inc., 690 S.W.2d 546

(Tex.-1985). McKenna submits that the allegations of unprofessional ism were false

and simply a pretextual reason utilized by Fisher to terminate McKenna and create an

open position for an MLP so that Christie could be hired in place of McKenna. It is

a fair to conclude that Fisher's agenda was to terminate the oldest, white MLP Baylor

had in the depmiment and hire Christie, the 25 year old black female in her place.

Christie was the first mid-level provider hired after McKenna was terminated.

(CR.456). Harris had already interviewed Christie for mid-level provider position yet

there was not a position available at Baylor when she was interviewed. (CR.457 -458).

The evidence points to the conclusion that Baylor had made the decision to hire

Christie as a mid-level provider even before terminating McKenna (CRA58). Tiffany

Patterson, another supervisor, stressed to Harris that she already had the discussion

with Fisher and they wanted to bring Christie in as a full-time mid-level provider.

21
Telling Harris they wanted Clu'istie hired was a reminder to Harris that Christie

couldn ' t be hired as a full -time MLP because no position for a full -time mid-level

provider had been approved- "no open position." (CR.4S8). Harris confirms that after

October 31, 20 II when McKenna was fired, no one else other than Christie was

interviewed for McKenna 's now open full-time mid-level provider position. Baylor

didn't bother to advertise or place any ads. (CR.460-46I ). Harris, well knew that such

facts made McKenna's termination appear to be illegal discrimination. Recognizing

that, Harris fired off an email to Fisher advising her that Baylor should interview

others because it was a "sensitive time." (CR.46S). Further, Harris confirmed that

Fisher liked to hire younger MLP's. Harris confirms that Fisher "preferred to hire

from 'the fellowship.'" (CR.461-482). In fact, the fellows hired by Baylor were quite

young. Shepherd was born August 3, 1982 and Christie on June 9, 1986. (CR.369).

However, the warning to Fisher by Harris to mask the signs of illegal discrimination

was ignored. Only Christie was interviewed, and she was quickly hired as the next

full-time MLP after McKenna was fired.

None of the MLPs that worked with McKenna at Baylor were Caucasian

or over the age of 40 except for Trent Renfrow. The Emergency Department was also

targeting Renfrow for termination. (CR.481). Renfrow quit before he was fired to take

a job with the Veteran 's Administration. (CR.480). The chart below identifies the

22
 MLPs working with McKenna, their hire date, birth date and termination date.

(CR.369)
-------

HIRE BIRTH TERM
NAME RACE
DATE DATE DATE
[MARIA RODRIGUEZ 1O/28/0S-- 10/25/71 HISPANIC
I 1--------

MARTIN LUKE 3/16/09 3/9/78 ; ASIAN
---- -~, ----- - - - - - 1 -----

CHARLES 9114/09 6/2/74 iAFRICAN-
DANGERFIELD , iAMERICAN
----- ----+---- --------

ALICIA NASH 5/3/1 0 7112/75 •AFRICAN-

1---
I
----- ------8/23/10
TRENT RENFROW i 6/7/69
AMERICAN
'CAUCASIAN

~~~~:::J\-i i~:I~:OI8 ~;;~:: ilOl31nl !:~;ASIAN.
IMANUEL'\1ASQU~Z! 10112/08 ~!~1/16/57_--+_ 3121/12_~HISPANIC
i JENNIFER CU 2/9/09 3/13/82 6/29/12· ASIAN
~ - -----

!
i
KAYE-ANN8/9/1 0 6/9/86 : JAMAICAN
: CHRISTIE
. MARK SHEPHERD 3/28/11 8/3/82 3/31112 . CAUCASIAN .

23
 ISSUE TWO

THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT ON MCKENNA'S LIBEL
CLAIM.

A. McKENNA ESTABLISHEDA
PRIMA FACIE CASE OF LIBEL.

B. MCKENNA'S AMENDED
PLEADING IS NOT SUBJECT TO A
PLEA OF LIMITATION BECAUSE
OF APPLICATION OF THE
RELATION BACK DOCTRINE.

C. BAYLOR FAILED TO ESTABLISH
A QUALIFIED PRIVILEGE.

D. BAYLOR FAILED TO SHOW THE LIBELOUS
STATEMENT WAS MADE WITH MALICE.

A. Prima Facie Case of Libel Established

The Elements of defamation.

To recover for defamation, the plaintiff must prove that the defendant (1)

published a statement, (2) that was defamatory concerning the plaintiff, and (3) the

defendant acted with either actual malice, if the plaintiffwas a public official or public

figure, or negligence, if the plaintiff was a private individual, regarding the truth of the

statement. WFAA-TV, Inc. v. McLemore, 978 S.W. 2d 568, 571 (Tex. 1998).

McKenna met her burden to establish a prima facie case of libel because there is

24
evidence that (1) the Defendant published a statement regarding the Plaintiff after she

was fired to her fellow MLPs, then to the Texas Workforce Commission, (2) the

publication was defamatOlY because it accused her of "Misconduct" which is defined

inBCM Policies and Procedures, 02.5.41 - Discharge-Misconduct. (CR. 442). Even

though the statements are defamatory, a plaintiffhas no burden to establish this when

a defendant moves for summary judgment, in fact it is the defendant's burden to show

that the statements were not made with malice. Randall's Food Markets, Inc. v.

Johnson, 891 S.W. 2d 640, 646 (Tex. 1995) citing Jackson v. Cheatwood, 445 S.W.

2d 513, 514 (Tex. 1969).

The various types of misconduct are set out in Baylor's employee policy

manual. (CR.422,423):

"Dishonesty, theft or illegal business activities;" (No allegations of such
conduct against McKenna by Baylor).

"Falsification of records;" (No allegations of such conduct against
McKenna by Baylor).

"Willful Neglect of job duties;" (No allegations of such conduct against
McKenna by Baylor).

"Insubordination, refusal to perform work as assigned or directed;" (No
allegations of such conduct against McKenna by Baylor).

"Unauthorized or excessive absenteeism or tardiness;" (No allegations
of such conduct against McKenna by Baylor). (McKenna had only one tardy in three
years and not given as reason for discharge).

25
 "Fighting (verbal or physical), yelling 01' other disruptive aggressive
behavior;" (No allegations of such conduct against McKenna by Baylor when she was
terminated either orally 01' through final write up).

"Gambling in the work place;" (No allegations of such conduct against
McKenna by Baylor).

"Drinking on the job, or reporting to work while intoxicated;" (No
allegations of such conduct against McKenna by Baylor).

"Repeated violation of department of College 'rules or policies;" (No
allegations of such conduct against McKenna by Baylor).

"Actions on or off duty which is injurious to the College." (No allegations
of such conduct against McKenna by Baylor). (CR.422,423).

Appellant submits that being falsely accused and fired by your employer

for misconduct is defamatOlY. McKenna need not establish that the statement was

made with malice since she was not a public official. The publication was untrue as

the official reason for McKenna's discharge was "Performance" as and confirmed by

Fisher and Harris. It was only after she was fired and no longer an employee that the

reason for termination of McKenna was changed to misconduct. Friend as Vice

President of Baylor represented to the EEOC in May 2012 that the reason for

discharge for McKenna was "solely for her performance." (CR. 424,425). McKenna

has no duty to prove malice. But, the existence of actual malice with respect to a

qualified privilege, defamation may be inferred from the relationship ofthe patiies, the

circumstances attending publication, the language used, and from words or acts of the

26
 defendant before, at, or after time of communication. Steams v. McManis, 543 S. W.

2d 659 (Tex. Civ. App. - Houston [1 st Dist.] 1976), dismissed (Mar. 9, 1977).

Importantly, the court has opined that proving ill will regarding disparaging references

are questions of fact for the jury in resolving the issue of malice in a suit for slander.

ld.

To invoke the conditional 01' qualified privilege on summary judgment,

an employer must conclusively establish that the allegedly defamatory statement was

made with an absence of malice. Randall 's Food Markets, Inc. v. Johnson, 891 S.W.

2d 640, 646 (Tex. 1995) citing Jackson v. Cheatwood,445 S.W. 2d 513, 514 (Tex.

1969). Thus, even assuming that Baylor established other elements of the privilege,

which it has not, it failed to produce any evidence that the defamatory statement was

made with the absence of malice. As a result, Baylor failed to establish the elements

. of qualified privilege. This COUlt should reverse the case on the issue of defamation.

B. McKenna's Amended Pleading Is Not Subject To A Pleas Of
Limitation Becasuesof Application of the Relation Back Doctrine.

McKenna filed her original petition December 20, 2012 . She filed her

first amended petition adding a cause of action for libel on May 19,2014. While libel

has a limitation period of one year from the time a plaintiff knew of the publication,

27
the facts in this case dictate that the cause of action for libel survives by virtue of the

application of the relation back doctrine.

Tex. Civ. P. & Rem. Code sec. 16.068 provides:

Ifafiled pleading relates to a cause ofaction,
cross action, counterclaim, or defense that is
not subject to a plea of limitation when the
pleading is filed, a subsequent amendment or
supplement to the pleading that changes the
facts or grounds of liability or defense is not
subject to a plea of limitation unless the
amendment or supplement is wholly based on
a new, distinct, or different transaction or
occurrence. Tex. Civ. Prac. & Rem. Code
Ann. § 16.068.

The relation back doctrine applies in this case because the libel claim is

not based on a new, distinct, or different transaction or occurrence. The transaction

upon which the claim of discrimination is based arises out of the termination on

October 31, 2011. The determination to change the reason for termination occurred

on the same day or next day. The transaction or occurrence is the same, to wit, the

firing and the reason ascribed to the event. McKenna's case is unlike the cases relied

on by Baylor. In Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219

S.W. 3d 563 (Tex. App--- Austin 2007 pet. denied), the claim of defamation did not

occur until after the original petition had been filed and each communication was

addressed to a different audience about specific issues. Notably they were issued

28
months apart from the other communications. Thus, each of the communications in

that case were treated as separate transactions.

"Transaction is a word of flexible meaning. It may comprehend a series

of many OCCUlTences, depending not so much upon the immediateness of their

connection as upon their logical relationship." Moore v. N. Y Cotton Exch., 270 U.S.

593,610 (1926). Rule 15(c)(1)(B) ofthe Federal Rules of Civil Procedure employs

a standard similar to Section 16.068, allowing relation back of a claim, pleaded by

amendment, "that arose out of the conduct, transaction, or occurrence set out-or

attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1 )(B). "[T]he

Search ... is for a common core of operative facts in the two pleading." 6 Charles Alan

Wright, Arthur R. Miller, & Maty K. Kane, Federal Practice & Procedure Section

1497 (3rd ed. 2010). In Lexington Ins. Co. v. Daybreak Exp., Inc., 393 S.W. 3d 242,

245 (Tex. 2013) the COUlt discussed the relation back doctrine and concept of

"transaction or occurrence" as a concept fundamental to modern civil procedure. See,

e.g., Tex. R. Civ. P. 38 (third-party practice), 40 Uoinder), 50(pleading),

97(counterclaims and cross-claims); Tex. Civ. Prac. & Rem. Code § 1497 (3rd ed.

2010).

29
 Baylor in its motion for summary judgment cites Waddill v. Phi Gamma

Delta Fraternity, 114 S.W. 3d 136, 144 (Tex. App.-Austin 2003, no pet.), in support

of its position that Section 16.068 does not apply. However, the facts were far

different in that case. In Waddill, the plaintiffhad two entirely distinct claims, the first

for hazing while he was a member of the fraternity and the latter for slander, which

were not tied together in time or to one event. The two claims arose over a year apart.

Waddill sought to relate to his hazing claim, which arose during his pledgeship to

conduct a year after his departure from the fraternity. Contrary to the Waddill case,

McKenna's claim oflibel all arose out of the core facts surrounding her termination

of October 31, 20 lion which her other claims are based.

The whole purpose of section 16.068 is to limit the application of the

statute of limitations to amended pleadings. The test is as follows: if the amended

pleading does not allege a wholly new distinct or different transaction, then it relates

back to the original filing, and is not subject to a limitations defense. Ex parte Goad,

690 S.W. 2d 894, 896 (Tex. 1985), cert. denied, 493 U.S. 1021, (1990); It is

immaterial that the later pleading asserts a different cause of action. Knesek v. Witte,

754 S.W. 2d 814, 816 (Tex. App. - Houston [1 st Dist.] 1988, writ denied)(citing PeZt

v. American Casualty Co., 513 S.W. 2d 128, 129-30 (Tex. Civ. App. -Dallas 1974,

writ ref d n.r.e)). Even ifthe amended petition contains new causes of action, the new

30
causes are not barred by the statute of limitations unless they arise from wholly

different transaction. Providence Hasp. v. Truly, 611 S.W. 2d 127, 133-34 (Tex. Civ.

App. - Waco 1980, writ dism'd).

The statute of limitations does not bar McKenna's claims because her

amended petition asserting the additional cause of action of libel is based upon the

same transaction or occurrence as her cause of action for illegal and discriminatory

discharge under the Texas Labor Code. The transaction at issue, her termination, and

the reasons ascribed to it are inextricably inteltwined.

The cases relied upon by Baylor in its motion for summary judgment

regarding the relations back are simply quite different from the facts of this case.

McKenna believed she was compelled to inform prospective employers

because she had been told that she was terminated for "misconduct" by Baylor.

(CR.31 7,486,). Not surprisingly, she received no offer of work from any employer to

which she made the disclosure. Id.

The case law makes clear the broad scope of the relation back doctrine

and its applicability to McKenna to her termination. Application of the relation back

doctrine saves the claim from being barred by the statute of limitations.

31
Baylol' Had No Qualified Privilege

To establish the affirmative defense of qualifi ed privilege, Baylor was

required to show that the alleged defamatory statement: (I) was made without malice;

(2) concerned a subject matter of sufficient interest to the author or was in reference

to a duty owed by the author; and (3) was communicated to another party with a

corresponding interest or duty. See Id. (citing Saudi, 176 S.W. 3d at 118; Austin v.

Inet Techs., Inc., 118 S.W. 2d 491, 496 (Tex. App. - Dallas 2003, no pet.); San

Antonio Credit Union v. O'Connor, 115 S.W. 3d 82, 99 (Tex. App. - San Antonio

2003, pet. denied)). Baylor failed to produce any evidence to establish it met these

requirements to claim a qualified privilege.

D. Baylol' Failed to Show The Libelous Statement Was Made With

Malice.

FUlther, to invoke the privilege on summary judgment, an employer must

conclusively establish that the allegedly defamatory statement was made with an

absence of malice. Randal/ 's Food Markets, Inc. v. Johnson, 891 S.W. 2d 640, 646

(Tex. 1995) citing Jackson v. Cheatwood, 445 S.W. 2d 513, 514 (Tex.1969);

Goodman v. Gallerano, 695 S.W. 2d 286, 287-88 (Tex. App. -Dallas 1985, no writ).

Baylor has no evidence that the communication was made without malice. Its

affirmative defense fails.

32
 The communications which are libelous were not made during an

investigation. There was no investigation and Baylor makes no claim of performing

one. The communication was made shOlily after Plaintiff was fired. (CR,421). The

communication was not an e-mail regarding an investigation. The e-mail advising of

the discharge for misconduct was sent to every mid-level provider in the department.

Id. There is no evidence that any of those mid-level providers were involved in an

investigation regarding McKenna. No mid-level provider could be considered to be

a person "with a need to know." They were not Plaintiff's supervisor. The mid-level

providers worked separately and independently to see patients. Communications that

pass beyond those with an interest or duty in the subject matter are not privileged.

Randal/'s Food Mkts., Inc., 891 S.W. 2d at 646. (Tex. 1995). Because there was no

investigation either before or after she was fired and no reason to advise her fellow

employees that Baylor allegedly fired McKenna for misconduct, the defense claim of

qualified or conditional privilege fails.

33
 ISSUE THREE

THE TRIAL COURT ERRED BY
GRANTING SUMMARY JUDGMENT ON
APPELLANT'S BREACH OF
CONTRACT CLAIM BECAUSE THERE
WAS ADEQUATE CONSIDERATION
AND GENUINE ISSUES OF MATERIAL
FACT EXIST FOR THE FINDER OF
FACT.

Parties enter into a binding contract when the following elements exist:

(1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a

meeting of the minds; (4) each party's consent to the terms; and (5) execution and

delivery of the contract with the intent that it be mutual and binding. Buxani v.

Nussbaum, 940 S.W. 2d 350, 352 (Tex. App. - San Antonio 1997, no writ); McCulley

Fine Arts GalleJY, Inc. v. "X" Partners, 860 S.W. 2d 473,477 (Tex. App. - El Paso

1993, no writ). The determination of a meeting of the minds and thus offer and

acceptance, is based on the objective standard of what the parties said and did and not

on their subjective state of mind. See Ishin Speed Sport, Inc. v. Rutheliord, 933 S.W.

2d 343, 348 (Tex. App. - Ft. Worth 1996, no writ) (stating that whether conduct

exhibits acceptance is a question of fact for the trier offact.); Hallmark v. Hand, 885

S.W. 2d 471, 477 (Tex. App. - El Paso 1994, writ denied). Granted, consideration is

34
a fundamental element of any valid contract. Smith v. Renz, 840 S.W. 2d 702, 704

(Tex. App. - Corpus Christi 1992, writ denied).

McKenna has presented evidence of each element.

McKenna explains the contract was formed during the termination

meeting on October 31, 2011. (CRA85). An offer was made by Baylor to pay

McKenna her full sa1my and benefits for 30 days after termination on the condition

that she not come back on the premises during that period or make any contact with

any mid-level provider at the work place. Id. Secondly, McKenna verbally assured the

Baylor representatives that she would comply with those conditions. Id. Whether the

actions and communication of the parties established a meeting ofthe minds, or assent

to be bound is a question of fact for the jury.

Consideration is a present exchange bargained for in return for a promise.

Roark v. Stallworth Oil & Gas, Inc., 813 S.W. 2d 492, 496 (Tex. 1991). It can be

either a benefit to the promisor or a detriment to the promise. Id. It may consist of

some right, interest, or profit, or benefit that accrues to one party, or, alternatively, of

some forbearance, loss or responsibility that is undertaken or incurred by the other

pmiy. Solomon v. Greenblatt, 812 S.W. 2d 7,15 (Tex. App. - Dallas 1991, no writ).

A promise for a promise is sufficient consideration in Texas. Crest Canst., Inc. v.

35
Murray, 888 S.W. 2d 931, 942 (Tex. App. - Beaumont 1994), reversed on other

grounds, 900 S.W. 2d 342 (Tex. 1995).

Here there was a promise for a promise. Baylor promised to pay

McKenna full salary and extend benefits for thirty days. In return McKenna promised

to not come on the premises or speak with her fellow MLPs. (CR.495, para. 11). The

evidence presented by McKenna establishes through what she said and did that she

accepted the offer and intended to be bound. Whether the conduct of both parties

exhibited acceptance to be bound is a question offact for the jUly. Ishin Speed Sport,

Inc. v. Ruthelford, 933 S.W.2d at 348 (stating that whether conduct exhibits

acceptance is a question offact for the trier offact); Hallmark v. Hand, 885 S. W. 2d

471, 477 (Tex. App. - El Paso 1994, writ denied).

Even if an offer and acceptance are not recorded on paper, dealings

between pmties may result in an implied contract where the facts show that the minds

of the parties met on the terms of the contract without any legally expressed

agreement. Smith v. Renz, 840 S.W. 2d 702, 704 (Tex. App. - Corpus Christi 1992,

writ den.). City ofHouston v. First City, 827 S.W. 2d 462, 473 (Tex. App. - Houston

[1st Dist.] 1992, writ denied). Accordingly, the parties' conduct may convey an

objective assent to the terms of an agreement, and whether their conduct evidences

their agreement is a question to be resolved by the finder of fact. Estate of Townes v.

36
Townes, 867 S.W. 2d 414, 419 (Tex. App.- Houston [14th Dist.] 1993, writ denied).

If the finder of fact determines that one party reasonably drew the inference of a

promise from the other party's conduct, then that promise will be given effect in law.

E- Z Mart Stores, Inc. v. Hale, 883 S,W. 2d 695, 699 (Tex. App, - Texarkana 1994,

writ denied) ,

Here there is sufficient evidence to at least create an issue of fact for the

jury on the element of meeting of the minds and consent. The court should reverse the

trial court's summary judgment on the issue of contract as a material issue of fact has

been presented which requires the fact finder to make the determination,

PRAYER

Appellant Vicky McKenna requests that the Court of Appeals find that

the trial court erred in granting summary judgment in favor of Baylor College of

Medicine and prays that the court reverse the summary judgment order of the 11 th

Judicial Court and remand the case to the trial court for further proceedings.

37
Respectfully submitted,

lSI Glenn W. Patterson. Jr.
Glenn W. Patterson, Jr.
State BarNo. 15612500
11 Greenway Plaza, Suite 2820
Houston, Texas 77046
(713) 961-1200
glenn@patterson-adr.com

Attorney For Appellant
Vicky mckenna

38
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument
was sent to opposing counsel and all patties of interest on July 31, 2015.

Via Fax:
Shauna Johnson Clark
Attorney at Law
1301 McKinney
Suite 5100
Houston, Texas 77010-3095

/S/ Glenn W. Patterson. Jr.
Glenn W. Patterson, Jr.

39
 APPENDIX

Two documents appear in the Appendix, each of which are referred to

in the Statement of the Case. Appellant has filed a Request for Documents To Be

Included in the Clerk's Record. The documents are: (1) Rule 11 Agreement,

marked as "A-I", and Notice of Partial Non- Suit Without Prejudice, marked as A-

2. The Clerk's date for compliance is August 15,2015, a date that is beyond the

date this brief is due to be filed with the Court.

40
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This brief complies with the word limit limitations of Tex. R. App. P.
9.4 (i) (2) because this brief contains 8,645 words, excluding parts of
the brief exempted by Tex. R. App. P. 9.4 (i) (1).

2. This brief complies with the form requirements of Tex. R. App. P. 9.4.

/S/ Glenn W. Patterson. Jr.
Glenn W. Patterson, Jr.
Attorney for Applicant

Dated: July 31, 2015.

41
 121181201411:08:55AM
eillis Oanlel . Dishicl Clmk HarrIs County
Envelope No. 3531135
By: GABlliELA COX
Filed; 12/10/2014 11:0a:55 11M

CAUSE NO. 20 12-7,1884

VICKY MCKENNA § IN THE DISTRICT COURT or
Plaintiff, §
§
VS. § HARRIS COUNTY, TEXAS
§
BAYLOR COLLEGE OF MEDICINE §
Defendant § 11th JUDICIAL D~~luCT
. .~
UULE 11 AGUEEMENT
\~
0
Attached hereto is the Rule 11 Agreement of Counsel. ;q
~, .
Respectfully SUbIllW~~

< ~
;;;!
~
i'}j.
By: /s/ G'ellll~ IC. Paltel'sofl. Jr.
nrfti( allerson,1r.
Gle.~~/, .
Stpl@-jar No. 15612500

~
~eenway Plaza, Suite 2820
Couston, Texas 77046
\~ 713) 961-1200
a (713) 961-0941 (Fax)
rtJyi@J glenn@patterson-adr.colll
q~~
O~ ATfORNEY FOR PLAINTIFF

~\
VICKY MCKENNA

05
0
~
;{f!'
~
[)
o~
A1

...:...:==-----_. - - -_.- - -
 CERTIFICATE OF SERVICE;

This is to certifY that a true and correct copy of the above and foregoing instrulllent was
served on all counsel of record, pursuant to the Texas Rules of Civil Procedure on December 18,
2014.
Via Fax (713) 651·5246
Shauna Clark
Heather Sherrod
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010
A1
 GLENN W, PA1TEIlSON, ,In,
ATrOHNE\' AT I,A\\'
II mml':NWA \' PI,/\ZA , Sl1l'm 2XIU
1I0{)STON, 'I'EX,\~710j6

(713) %1·?6RH 'I'I':I.EI'1I0NR
(713)961.0941 JI,\CSIMII.I~

December 11,2014

Shnllna CIn l' k Vi{f Ell i{f if: WV'","!!II!!.III!i!(I""c",,'/(",II",·I(~!'k'-!!!!.==""'''-$:.!lli,C.!!l'''
Flltbright & Jaworski, (.. U', off?
130 llv!cKinney, SlIite 5100 Q
HOllslon, 'l'c~ns 770 I0 ~ ,
, ,@j
Rc: Cuuse, No, 2012.748M; V/elIY McJ(elllllll'~'fOI' Col/age o/frlediciue; In the
II II, Dislric! Conl'l of Hul'l'Is cOllnty:()~

Dem'Ms, Clllrk; 0 ci@
~
,Please lei this letter lllcmoriolizc OIll't,Il~~)lellt l'cgm'ding cstoi;Jlishillg of II method 1'01'
hnving lhe, PII./"tilll SlIllll,llory jndgment g,l'llllltii~ the COIIl't beeOlllc til,tnl,SO Ihnl tl,w elise nlR)' be
IIppealed withont delllY, We agree that P/fII~ili[r Illay disllliss her reillaining eloim of brench,of
contmct without preJudice, Upon issllh~ol'fhc mOlidllte by the COllrl of Appellls, I'egm'dless of !he
CO\ll't's decisioll, Plnlnti,fr mill' rcvS~9t this cillim ror breach of contract olld, in so doing,
D?,'rCnd,ont :lgl'~CS l,lOt to ,osser! tl~, '1i),;;>,~I"ill1 is balT~d for lIIiY,I:ea~oll, i'eliltingto the dislIlis,sal.
wltho\!tpreJu Houston, Texas 77046
'0) (713) 961-1200
(713) 961-0941 (Fax)
A2

g)&lIu@patterson-adr.com

ATTORNEY FOR PLAINTIFF
VICKY MCKENNA
 CERTIFICATE OFSERYICE

This is to certify that a true and correct copy of the above and foregoing instrument was
served on all counsel of record, pursuant to the Texas Rules of Civil Procedure on January 22,
2015 ..

Via Fax (7131 651-5246
Shauna Clark
Heather Sherrod
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010
A2

2