NO. 07-02-0172-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MAY 12, 2004

______________________________ LUCILLE W. BEAN, Appellant

v. DEENA B UFORD, M. D., JULIE GEORGE, M .D., EXXO N MOBIL CORPORAT ION, EXXO N CORPOR ATION, & EXXON CH EMICALS AMERICAS ,

Appellees

_________________________________ FROM THE 234 TH DISTRICT COURT OF HARRIS COUNTY; NO. 2000-48424; HON. BRUCE OAKLEY, PRESIDING

_______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Lucille W. Bean (Bean) appeals from a summary judgment entered in favor of Deena Buford, M.D. (Buford), Julie George, M.D. (George), Exxon Mobil Corporatio n, Exxo n Cor poration and Exx

on Chemi cals Ame ricas (co llective ly referre d to as E xxon). Via fiv e issues, Bean con tends that 1) Buford and George violated the physician/patient confid en tiality

relationship by disclosing confidential information, 2) no exception permitting disclosu re of confi dential informati on appli ed, 3) afact i ssue existed regarding her claim of i nt entional misrepresentation, 4) a fact issue existed regarding her retaliation and2

discrimination claim, and 5) her retaliation and discrimination claims were not time barred. We affirm. Background Bean was an employee of Exxon from 1988 to Nove mber 1999. In November of 1996, she filed a worker’ s compensation claim contending that she suffered from workrelated stress. She was employed as a Senior C onsumer Service Specialist at the time

. Bean was placed on disability leave from Jan uary of 1 997 to Ma rch of 199 7, however, when she returned to work she only worked part-time. This situation lasted u ntil May of 1997 whe n she wa s moved to another position out of cu stomer ser vice. In June of 1997, Bean was promoted. In Se ptember of this same year, she continued to have w

or- related stress pro blems, an d she wa s restricted to 40 hours a week withoutrequiring overtime. Furthermore, some of her responsibilities were given to other workers. However, on December 17, 1998, she was placed on short-term disability le ave due to stress. The need for this leave was confirmed by her private physicia n, Dr. Rob ert Bacon (Bacon). Exxon attempted to find her other employment before and during her absence from the jo b. On January 29, 1999 , Bean fi led a discrimination complaint with the Equal EmploymentOpportunities Commission (EEOC) alleging disabil ity and race discrim ination. In Julyof 1999, Exxon offered her a new position; however, Bacon advise d that his patient

no treturn to work, that she was “unfit for any work,” and that she shoul d applyfo r permanentdisabil ity. On N ovember 5 , 1999, a fter B ean’s sh ort-term di sability benefits exp ired and her physician advised she could not return to work, Exxon termin ated he r employme nt.3

On March 17, 2000, Bean filed another complaint wi th the EEOC alleging that she had been terminated in retaliation for filing the prio r EEOC ch arge. She then filed suit on September

25, 2000 . In her third amended petition, Bean claimed that Exxon, Buford, and George intentio nally mi srepresen ted to her material facts about the confidentiality of their communications and that Exxon retaliated against he r for filing a worker’s compensation claim and the EEOC claims. Thereafter, Exxon, Buford, and George jointly filed a traditional and no evidence motion fo r summary j udgment. The trial court granted same, and this appeal followed. Standard of Review The standard governing our review of summary judgments is well settled and need notbe reiterated. Instead, we refer the litigants to Nixon v. Mr. Prope rty Manage ment Co ., 690 S.W.2d 5 4 6, 548 (Tex. 1985) and Kimber v. Sideris , 8 S.W.3d 672, 675(Tex. Ap p.– Amarillo 1999, no pet.) for an explanation of same. We also note that because the trial court did not specify the ground upon which it relied when granting the motion, Bean was obligated to illustrate that none of the groundsall eged in the motion supported the judgment. Carr v. Brasher , 776 S.W. 2d 567, 5 69 ( Tex . 1989); see Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 473 ( Tex. 1995 ) (holding that the appellant i s obligated to attack each ground upon wh ich the s ummary jud gment cou ld have been bas ed); Malooly Bros., Inc. v. Napier

, 461 S.W. 2d 119, 1 21 (Tex. 1970) (h olding t he same); Granada BioSciences, Inc. v. Barret

t, 958 S.W.2 d 215, 224 (Tex . A pp.–Amarillo 1997, pet. denied) (stating that

a summary judg me nt will be affirmed if it rests upon an indep endent ground to which no point of error has been ass igned).

Issues On e and Two

- Physic

ian/Patient Relationship1 The pert inent code pro visi on stat es that communicati ons between a pati ent and a pro fessi onal, and the records of

the ident ity , diagnosi s, evalua ti on, or tr eatment of a pa ti ent t hat are creat ed or main tai ned by a profe ssion al, are c onfid entia l. T EX

. H EALTH & S AFETY C ODE A NN

. §611.002( a) (Vernon 2003). Furt hermore, a person a ggri eved by a vi olat ion of §611.002 m ay redress the situ ation throu gh le gal a ction “a ppro priate relief, inclu ding injunc tive relie f” as w ell as d am age s. Id. at §6 11.0 05(a ) & (c). 4 Bean’s firstand seco nd issue s purport to addres s summary judgment entered upon her claim of breached duty of confidentiality. Therein, sh e argues that she “raised a genuine issue of

material fact . . . on her claim that she had a ph ysician-patient relationship with both Dr. George a nd Dr. Buford” and as “a matter of law, the physicians di d not

co nclusivel yestablish that any disclosure was proper under the rules governing confiden tiality

of medical inform ation.” H er cl aim was founded upon §611.001 et seq. of the Texas Health and Safety Code. 1 We overrule the issues. In attacking Bean’s claim of breached duty of confide ntiality, Exxon asserted that 1)

no duty existed, 2) any disclosure made was p roper, and 3) there was no evidence that any disclosu re caused her to suffer harm. As previously noted, the trial cou rt did notspe cify anyparticular ground upon which it relied i n gr anting summary judgment. Thus, it was encumbent upon Bean to attack ea ch ground raised b y Exxon in its mo tion for s ummary judgmentand exp lain wh y none su pported t he trial court’s d ecision

. Carr v. Brasher , supra ; Star-Telegram, In c. v. Doe, supra . This she did not do. While much was said about the existence of aduty and the alleged improp riety of anydisclosures made by George and Buford, Bean sai d little, in her ap pellate brief, about the matter

of harm. Indeed, she assigned no point of error nor sp ecific issue to the ma tter. Furthermo re, the sum and substance of her argument relating to the matter consisted of the follo wing:5

The attorneys allege that Bean did not suffer any harm due to any

improper disclosures. The many disclosures prov ided by the physicians allowed ExxonMobil to conspire with the physicians in terminating Bean in retaliation for filing a worker’s compensation charge and a discrimination charge under T.C.H.R.A. As a result Be a n suffered mental anguish and her medical condition deteriorated to the point tha t she could not work and was later severed from the company due to medical reasons. Noticeablyabsent from the passage is any citation to evidence pu rp orting to illustrate a causal link be tween thedisclos ures and harm. Suc h was req uired no t only tocomply w ith Texas Rule of Appella te Proced ure 38.1( h) (statin g that a b rief mu st cont ain a clear and concis e argument for the contentions made, with appropriate citations to authorities a n d to the record) but also wi th preced ent. See In re CDK , 64 S.W.3d 67 9, 682 (Tex. App.–Amarillo 2002, no pet.) (requiring that the ap pellant cite to the record and provide substantive analysis). In short, it is not our obli gati on to par se throug h the summ ary judgmentrecord in search of evi dence alleged ly suppo rting a p articula r argumen t. Labrador Oil Co . v. Norton Drilling Co. , 1 S.W.3d 795, 803 (Tex. App.–Amarillo 1999, no pet.). Similarly absent is any explan ation as to the role, if any, the disclosures played in the decision to supposedly terminate Bean “in retaliat i on for filing a worker’s compensation cha rge and a di scrimina tion cha rge unde r T.C.H.R .A.” Inste ad, we ar e left to speculate aboutthe substance of her contention. That too falls short of complyi ng with her appella te burden. Se e In re CDK , supra . So, given that she failed to abide b y applicable r ules o f procedure, she did not carry her burden to illustrate why no ground exi sted supporting the trial court’s decision. Furth ermo re, the evidence illustrates that George and Buford were d irected by Exxon personnel to evaluate Bean for purposes of clarifying the job restrictions on which she was placed. Bean do es not di spute that. Furthermore, statute provides that a person6

“who receives information from confidential communications or records may notdisclose the information except to the extent that d isclosure is consistent with the authorized purposes

for which the person first obtained

the information .” T EX

. H EALTH & S AFETY C ODE A NN

. §611.004(d) (Vernon 2003) (emphasis added ). We know of and are cited to no

au thority which prohibits an employer from assigning medica l personnel the task o f evaluating an employe e for purp oses of jo b performa nce or jobcompatib ility. And, since George and Buf

ord were assigned such a task by B ean’s employer, §611.004(d) authorized them to disclose the purportedly confidential information received from Bean during their

me eting to her

employe r, i.e. Exxon. Thus, we cannot say that the trial court erred in granting summary judgment on the claim of improperly disclosing confidential information in violation of §611.001 et seq. of the Texas Hea lth and S afety Cod e.

Issue Three - Intentional Misrepresentation that Statements

to George and Buford were Confidential Bean relies on Exxon’s polici es entitled “‘Standards of Business Cond uct ’” for her contention that Exx

on, G eorge a nd Buford had represented to her that any communications regarding her medical condition would be kept confidential. Specifically, she relies on the following paragraph: provide voluntary health promotion programs designed to enhance employ ees’ well be ing, prod uctivity, and pers onal saf ety. Thes e progra m s should supplem ent, but not interfere with, the responsibility of employees for their own health care or their relationship with personal physicians. Information about employees obtained through the implementation of these programsshould be considered confidential and should not be reve aled to non-medical personne l excep t: at the request of the employee concerned, when required by law, when dic tated by overridin g public health considerations, or wh en necessary to implement the guidelines of the A lcohol and Drug Use policy.7

Bean contends tha t George and Buford violated this policy by rele asing confidential information to non-me dical pe rsonnel, e.g. , other Exxon employees. We overrule the issue for several reasons. First, Bean cites us to no evidence ill ustrating that either George or Buford drafted the policy or disseminated it to her. If they did n either , then it cannot be said that the purported misrepresentation contained in it was made by them. And, unless they made a supposed misrepresentation, they cannot be charged with decei ving Bean. Second, the policy in question spe a ks of information “obtained through the implementation of” a “vol untary he alth prom otion pro gram.” B ean aga in cites us to no evidence suggesting or from which it could be reasonably inferred that her communications to anymedical health person were part of such a he alth promotion program. Indeed, she does noteven attempt to explain what such a program i s. Given that the restriction upon which s he relies arises only in certain situations, it was incumbent upon Bean to provide

some evidence indicating that such a situation was invo lved here. And, simply put, she did not. Third, and regarding the contentio n that B uford and George committed misrepresentation through omission, we note that Bean’sappellate argument is conclus ory atbest. Indeed, she cites no authority for the proposition that either d octor “owed [her] a duty to inform her that her me dical con dition and confidential information was being discussed with ExxonMobil management.” Yet, since the duty to which s he re ferred is apparently that imposed by Exxon’s “Standar ds of Bus iness Co nduct” (as they rel ated to voluntar yhealth p romotion programs), Bean ag ain had to illus trate that he r confidences8

were imparted during her involvement in such a program. A nd, as discussed i n the precedin g paragra ph, she d id not. Issue Fo ur - Retal

iation complaint for filing a worker’s compensat ion claim and for filing an EEOC complaint Bean next contends that the trial court erred in granting summary judgment on her claim of retaliation. The grounds alleged by Exxon in support of its motion were several. Theyin cl uded, among other things, 1) Bean’s inability to show a causal relationship between her fili ng of a worke r’s compensation claim (due to job-related stress) and the EEOC claims and her

subsequent treatment and terminati on and 2 ) her ina bility to perform the essential function s of her job. In granting summary judgment on the claim, the trial

c ourt aga in mentioned no specific ground upon whi ch it relied. Now, Bean argues that there existed of record sufficie nt evide nce to es tablish the requi site caus al link. We overrule the issue. Because the trial court spe cifi ed no particular ground as the basis for granting summary

judgment on the retaliation claims, Bean was obl igated to show why none of the

reasons proffered by Exxon warran ted such relief. And, while she devoted a large pa rt of her brief to the matter of causation, she said nothing about her being ab le to perform the essential elements of her job. That is, nowhere did she present argument or record citation purporting to illustrate that she could work at any job. This may be due to the undisputed evidence that her own doctor ultima tely opi ned that she was “ u nfit for any work.” Yet , whatever

the reason, it was her bu rden to attack the summary judgment ground in her appella te brief, and she did not. Thus, we are una ble to say that she succeeded in disprovi ng the va lidity of every gr ound upo n which the trial court cou ld have relied.9 Issue Five – Limitations In her fif th and fi nal issu e, Bean a sserts tha t the tria l court could not have granted summary

judgment on her re taliatio n claimson the b asis of l imitatio ns. We ne ed not address this iss ue given o ur disposition of Issue Four. Simply put, whether li mitations barred suit matters not given that she failed to illustrate that summary judgment was improper on each of the othe r grounds asserted by Exxon. Having ov erru led each issue presented to us, we affirm the judgment of the trial court.

Brian Quinn Justice