COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00105-CV

JANIS E. ROBERTS APPELLANT

V.

CAREFLITE APPELLEE

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Janis E. Roberts sued her former employer Appellee CareFlite 

for unlawful termination under Sabine Pilot2and for invasion of privacy. CareFlite 

filed a combined traditional and no-evidence motion for summary judgment,

which the trial court granted without specifying the grounds. In one issue, 

Roberts now appeals the grant of summary judgment on her claim of invasion of 

 

1See Tex. R. App. P. 47.4.

2Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
2

privacy by intrusion on seclusion. Because we hold that the trial court did not err 

by granting summary judgment for CareFlite, we affirm the trial court’s judgment.

CareFlite employed Roberts as a paramedic. Roberts was “friends” on the 

website Facebook.com with fellow CareFlite paramedic Robert Sumien and 

CareFlite helicopter pilot Scott Schoenhardt. Roberts posted on the Facebook 

wall of Schoenhardt that she had transported a patient who needed restraining 

and that she wanted to slap the patient.

Sheila Calvert is a compliance officer with CareFlite. Her sister, Delicia 

Haynes, is a CareFlite member. Haynes saw Roberts’s wall posting and notified 

Calvert. Calvert sent a message to Roberts through Facebook. In her message, 

Calvert stated:

I just wanted to remind you that the public sees your posts. People 

outside of CareFlite and outside of EMS. In fact, my sister saw your 

post to Scott Schoenhardt where you stated you wanted to slap a 

patient[,] and she thought she wouldn’t want anyone such as that 

taking care of her and made the comment that maybe she didn’t 

want to renew her CareFlite membership. People you don’t expect 

to see your posts do. I’ll bet Scott has many friends in EMS[,] and all 

any of them would have to do is a screen shot and send it in to the 

state and you could be looking at a suspension of your EMS license 

and fines. Believe me, I’m not trying to come down on you about

this. I’m trying to help you realize that people out there are losing 

their jobs and livelihood because of such posts[,] and I don’t want to 

see that happen to you. If you don’t believe me, just google it or if 

you like I can send you some links to articles. I hope you will 

consider removing that post.

Roberts responded with a message to Calvert that stated:

Yeah, whatever. YOU weren’t there. Whenever I have to have a 

firefighter ride in with me because of a patient’s attitude, and I fear 
3

for MY safety, I truly believe a patient needs an attitude adjustment. 

Think about that the next time YOU correct someone!!

Calvert responded to Roberts, again with a message sent through Facebook’s 

messaging feature, stating:

I was trying to be nice about the situation and provide you a 

courteous reminder of the regulations in which you practice in the 

state and the public’s perception. [Rule 157.36(b)(28) of the Texas 

Administrative Code3] states you cannot engage in activities which 

betray[] the public’s trust in EMS. I believe your comment could 

have done that. Additionally, CareFlite has policies against 

employees calling into question our honesty, integrity[,] or 

reputation. I understand you had a difficult call and patient. I’ve also 

had my share of those. That information should not be 

broadcasted[,] however. I can show you an article where a Kansas 

medic had his license suspended for 90 days, tons of legal bills, and 

had to bag groceries during that time because he posted a 

derogatory remark about his obese patient. As far as me “thinking 

about that before I correct someone[,]” . . . I’m the Compliance 

Officer for CareFlite[,] and it’s my job. We can have that 

conversation later and off [Facebook].

Roberts responded with a message stating, “[By the way], I didn’t slap the 

patient, I was not rude to the family OR the patient and the call went very 

smoothly, thank you for asking.” Roberts did delete her comment from 

Schoenhardt’s wall.

Roberts later posted on her own Facebook wall, stating

Yes, I DO get upset on some calls when my patient goes off in the 

house and I have to have a firefighter ride in with me because I fear 

for MY own safety. I think that is a valid excuse for wanting to use 

some sort of restraints. Just saying!!

 

3

25 Tex. Admin. Code § 157.36(b)(28) (2012) (Tex. Dep’t of State Health 

Serv., Criteria for Denial and Disciplinary Actions for EMS Personnel and 

Applicant and Voluntary Surrender of a Certificate or License).
4

Sumien then posted a comment on this post, which stated, “Yeah like a boot to 

the head . . . . . . ;^) Seriously yeah restraints or actual HELP from PD instead of 

the norm.”

Roberts sent Sumien an email in which she posted the text from the 

Facebook message exchange she had had with Calvert. She sent the message 

with the subject line, “Check this shit out.”

About a week later, Haynes (Calvert’s sister) sent an email to CareFlite 

CEO James Swartz. In the email, Haynes told Swartz about Roberts’s Facebook 

post about wanting to slap a patient and about Sumien’s comment about “a boot 

to the head.” CareFlite terminated Roberts’s employment a few days later. As 

grounds for termination, CareFlite noted Roberts’s post about “feeling like 

slapping a patient to get control of them” and stated that her response to Calvert 

was “unprofessional and insubordinate.”4

Roberts asserted that the real reason that CareFlite terminated her 

employment was that she had reported an employee for starting an IV on a 

patient without the proper certification for performing such a procedure, which 

Roberts asserted was a criminal act, and that she refused to participate in a 

cover up. In Roberts’s invasion of privacy claim, she asserted that CareFlite’s 

 

4Sumien’s employment was also terminated because of his comments on 

Facebook, and he also sued CareFlite and appealed from the trial court’s 

judgment in favor of CareFlite. This court affirmed the trial court’s judgment in 

that case. Sumien v. CareFlite, No. 02–12–00039–CV, 2012 WL 2579525, at *3

(Tex. App.—Fort Worth July 5, 2012, no pet.) (mem. op.).
5

use of her personal and private message postings on Facebook “that no one can 

access except the person to whom it was sent” invaded her common law right of 

privacy. Roberts asserted two different invasion of privacy torts: public 

disclosure of private facts and intrusion upon her seclusion.5 Roberts asserted 

that CareFlite’s invasion of her privacy caused her to lose her job, resulting in 

damages.

In CareFlite’s no-evidence motion on Roberts’s invasion of privacy claims, 

it set out the elements for public disclosure of private facts and for intrusion on 

seclusion and asserted that Roberts had no evidence on any of these elements. 

In its traditional motion on the intrusion on seclusion claim, CareFlite asserted 

that it had negated the element of intrusion; that as a matter of law, the subject of 

Roberts’s Facebook posting was not within the zone of her seclusion, solitude, 

and private affairs; and that as a matter of law, CareFlite’s acts were not highly 

offensive to a reasonable person. With its motion, CareFlite attached, among 

other evidence, excerpts from Roberts’s deposition; the CareFlite employee 

handbook; the Facebook exchanges between Roberts and Calvert; and the email 

from Roberts to Sumien.

In her response, Roberts asserted that “[t]he rights of CareFlite employees 

to discuss in private the issues of patient restraints which affected their safety 

 

5See Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex. App.—Corpus Christi 

1991, no writ) (discussing the different torts recognized in Texas as invasion of 

privacy), abrogated in part by Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 

1994) (holding that Texas does not recognize the tort of false light).
6

and even their very lives clearly outweigh any issues of public concern in favor of 

prospective patients.” The trial court granted summary judgment for CareFlite, 

and Roberts now appeals.

In an appeal from a traditional summary judgment, the issue is whether the 

movant met the summary judgment burden by establishing that no genuine issue 

of material fact exists and that the movant is entitled to judgment as a matter of 

law.6 A defendant who conclusively negates at least one essential element of a 

cause of action is entitled to summary judgment on that claim.7 Once the 

defendant produces sufficient evidence to establish the right to summary 

judgment, the burden shifts to the plaintiff to come forward with competent 

controverting evidence that raises a fact issue.8

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground 

that there is no evidence to support an essential element of the nonmovant’s 

claim or defense.9 The motion must specifically state the elements for which 

there is no evidence.10 The trial court must grant the motion unless the 

 

6

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

7

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

8Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).

9

Tex. R. Civ. P. 166a(i).

10Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
7

nonmovant produces summary judgment evidence that raises a genuine issue of 

material fact.11 If the nonmovant brings forward more than a scintilla of probative 

evidence that raises a genuine issue of material fact, then a no-evidence 

summary judgment is not proper.12

We review a summary judgment de novo.13 We consider the evidence 

presented in the light most favorable to the nonmovant, crediting evidence 

favorable to the nonmovant if reasonable jurors could, and disregarding evidence 

contrary to the nonmovant unless reasonable jurors could not.14 We indulge 

every reasonable inference and resolve any doubts in the nonmovant’s favor.15

In Roberts’s sole issue on appeal, she contends that the trial court erred by 

granting summary judgment on her claim for invasion of privacy by intrusion upon 

seclusion. We first consider whether the trial court erred by granting no-evidence 

summary judgment for CareFlite.16

 

11See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 

426 (Tex. 2008).

12Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. 

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 

(2004)

13Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

14Mann, 289 S.W.3d at 848.

1520801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

16See Lindley v. McKnight, 349 S.W.3d 113, 123 (Tex. App.—Fort Worth 

2011, no pet.) (“When a party moves for both a traditional and a no-evidence 
8

Under Texas law, “an unwarranted invasion of the right of privacy 

constitutes a legal injury for which a remedy will be granted.”17 The Supreme 

Court of Texas has expressly recognized the two separate torts relating to the 

invasion of one’s privacy that Roberts asserted in the trial court: intrusion upon 

seclusion and public disclosure of embarrassing facts.18 The tort of intrusion 

upon seclusion has two elements: “(1) an intentional intrusion, physically or 

otherwise, upon another’s solitude, seclusion, or private affairs or concerns, 

which (2) would be highly offensive to a reasonable person.”

19 In its no-evidence 

motion, CareFlite asserted that no evidence supported either element of 

Roberts’s claim.

In our review of Roberts’s brief, we did not find where Roberts directs this 

court to what summary judgment evidence she produced to raise a fact issue on 

these elements. Instead, Roberts raises arguments that do not relate to the 

elements of her claim or the evidence to support those elements. Roberts first 

argues that the Supreme Court “has recently given a very broad interpretation of 

employee privacy rights” in its recent opinion in Texas Comptroller of Public 

 

summary judgment, we generally first review the trial court’s summary judgment 

under no-evidence standards.”).

17Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973).

18Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994) (recognizing the 

torts of intrusion upon seclusion and public disclosure of embarrassing private 

facts and declining to recognize the tort of false light).

19Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
9

Accounts.

20

 She notes that the court in that case “weighed the privacy rights of 

State employees with the need of the public to know, and found in favor of the 

employees.” Roberts then argues that in this case, the rights of CareFlite 

employees to discuss in private the issues of patient restraints that affect their 

safety outweigh any issues of public concern. That case did address the privacy 

rights of state employees, but in the context of whether the Texas Public 

Information Act21 required disclosure of the birth dates of state employees or 

whether the information was exempted from disclosure under a provision 

exempting information from an employee’s personnel file, “the disclosure of 

which would constitute a clearly unwarranted invasion of personal privacy.”

22

The court applied a balancing test, weighing the employees’ right of privacy 

against the purpose of the Public Information Act.23

In this case, there was no allegation that CareFlite or any government 

entity disclosed or intended to disclose Roberts’s personal information to the 

public under a request for public information, and the tort of intrusion upon 

seclusion does not depend upon whether a person’s private information had 

 

20Tex. Comptroller of Pub. Accounts v. Att’y Gen. of Tex., 354 S.W.3d 336, 

348 (Tex. 2010).

21Tex. Gov’t Code Ann. §§ 552.001–.353 (West 2012).

22Tex. Comptroller, 354 S.W.3d at 353.

23Id. at 349.
10

been disclosed to another.24 Thus, the balancing test performed by the Texas 

Comptroller court has no application in this case, where the question is whether 

CareFlite improperly intruded upon Roberts’s seclusion and not whether 

information was exempted from public disclosure.

Roberts next argues that the National Labor Relations Board has held that 

an employer cannot fire employees for engaging in concerted workplace related 

discussions on Facebook by posting comments about working conditions. 

Roberts appealed from the summary judgment as to her intrusion upon seclusion 

claim, not her wrongful termination claim. Roberts’s argument about whether 

CareFlite could fire her for her Facebook comments is irrelevant to the question 

of whether Roberts produced sufficient summary judgment evidence to raise a 

fact issue on the challenged elements of her intrusion upon seclusion claim.

Finally, Roberts asserts that CareFlite was “out to get” her and that “[t]he 

claim that the public saw [Roberts’s] email post is strictly an ‘in-house, put-up’ 

affair by CareFlite management.” The questions of whether CareFlite 

management was indeed “out to get” Roberts and of whether the public saw the 

email exchange between Calvert and Roberts, Roberts’s wall posting, or her 

email to Sumien are irrelevant to the question of whether Roberts produced 

sufficient summary judgment evidence on her claim. The relevant inquiry is not 

 

24See Clayton v. Richards, 47 S.W.3d 149, 153 (Tex. App.—Texarkana 

2001, pet. denied) (recognizing that liability for intrusion upon seclusion does not 

turn on publication of any kind and that the core of the offense is prying into the 

private domain of another); see also Sumien, 2012 WL 2579525, at *3.
11

whether Roberts produced evidence relating to the ability of the public to see 

Roberts’s writings or whether CareFlite was “out to get” Roberts. Rather, the 

inquiry is whether CareFlite intentionally intruded upon Robert’s solitude, 

seclusion, or private affairs or concerns and, if it did so, whether such intrusion 

would be highly offensive to a reasonable person.

As we have noted, Roberts did not direct this court to any evidence she 

produced to raise a fact issue on whether CareFlite intruded upon her 

seclusion.25 Roberts attached over 350 pages of summary judgment evidence to 

her response, and we are not required to sift through the record to determine 

what part of this record, if any, relates to her intrusion upon seclusion claim.26 

Roberts makes no argument about why CareFlite’s review of Roberts’s 

messages to Calvert or of her comments on Schoenhardt wall—comments that 

could be viewed by third parties—constituted an intrusion upon Roberts’s 

seclusion,

27 and she cites to no cases that would support such an argument. 

And in the trial court, Roberts’s response to CareFlite’s no-evidence motion 

 

25See Tex. R. App. P. 38.1(i) (requiring briefs to contain appropriate 

citations to the record).

26See Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth 

1996, writ denied) (“We are not required to search a voluminous record, with no 

guidance from Hall, to see if an issue of material fact was raised.”).

27See, e.g., Restatement (Second) of Torts § 652B cmt. c (1977) (stating 

that a defendant is liable for intrusion upon seclusion “only when he has intruded 

into a private place, or has otherwise invaded a private seclusion that the plaintiff 

has thrown about his person or affairs” and that there is no liability for observing 

or photographing someone who is out in public “and open to the public eye”).
12

consisted of essentially the same irrelevant arguments that she makes now on 

appeal. She did not point out to the trial court what evidence she had included 

with her motion that she contended raised a fact issue on the elements of 

intrusion upon seclusion.28 Accordingly, we overrule Roberts’s sole issue and 

hold that the trial court did not err by granting no-evidence summary judgment for 

CareFlite on this claim. We therefore need not consider whether the trial court 

erred by granting CareFlite’s traditional summary judgment motion.

Having overruled Roberts’s sole issue, we affirm the trial court’s judgment.

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 4, 2012

 

28See Tex. R. Civ. P. 166a(i) & cmt. (requiring the trial court to grant a noevidence motion meeting the rule’s requirements unless the non-movant 

produces summary judgment evidence raising a genuine issue of material fact 

and stating that the non-movant’s response need not marshall its proof but 

should point out evidence that raises a fact issue on the challenged elements).