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Howerton v. Harbin Clinic, LLC

Court of Appeals of Georgia

July 16, 2015


Page 289

Tortious interference with employment contract, etc. Floyd Superior Court. Before Judge Colston.

H. L. Cromartie III, K. Drew Parrish Bennett, for appellant.

Carlock, Copeland & Stair, David F. Root, John L. Bunyan, Jennifer D. Stancil; Hudson Parrott Walker, Kevin H. Hudson, Claire A. Williamson, for appellees.

BRANCH, Judge. Miller, J., concurs. Andrews, P. J., concurs in Divisions 1 and 3 and in the judgment.


Page 290

Branch, Judge.

Following the loss of her job as a surgical technician at Floyd Medical Center, Mindy Howerton filed suit in Floyd County Superior Court against Harbin Clinic, LLC and one of its employees, Kenneth C. Sands, M.D. Howerton asserted claims against both defendants for tortious interference with her employment contract, assault and battery, and intentional infliction of emotional distress. She also asserted a claim against Harbin Clinic for the negligent hiring, retention, and supervision of Sands. Howerton now appeals from an order of the trial court granting summary judgment to Harbin Clinic as to all of the claims Howerton asserted against it and granting summary judgment to Sands on all of Howerton's claims against him, other than assault and battery. For reasons explained more fully below, we find

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that the trial court erred in granting summary judgment to Sands on Howerton's claims for tortious interference with her employment contract and intentional infliction of emotional distress. We therefore reverse that part of the trial court's order. We affirm the grant of summary judgment to Harbin Clinic on all of the claims Howerton asserted against it.

On an appeal from a grant of summary judgment, we review the record de novo, construing the evidence and all reasonable inferences that can be drawn from it in the light most favorable to the party opposing the summary judgment motion. Wright v. IC Enterprises, [333 Ga.App. 192] 330 Ga.App. 303 (765 S.E.2d 484) (2014). Moreover, the unrefuted testimony or sworn pleadings of the party opposing summary judgment must " be taken as true for purposes of deciding that motion." Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga.App. 268, 271 (684 S.E.2d 398) (2009) (citation and punctuation omitted). Additionally, where the record shows that one or more witnesses have offered conflicting testimony about a material fact, it is for the jury, and not the court, to resolve that conflict. Smith v. Tenet HealthSystem Spalding, 327 Ga.App. 878, 879 (1) (761 S.E.2d 409) (2014).

Viewed in the light most favorable to Howerton, as the non-movant, the record shows that Harbin Clinic, LLC, is a multi-specialty medical practice with locations in north Georgia, including Rome. From July 2006 through June 2011, Harbin Clinic employed Kenneth C. Sands, M.D., as an orthopedic surgeon in its Rome office. Harbin Clinic, in turn, had an agreement with Floyd Medical Center (" FMC" ) under which physicians employed by Harbin Clinic had surgical privileges at FMC. [1] The operating rooms in which Harbin Clinic doctors performed surgery were staffed by FMC personnel, including nurses and surgical technicians employed by FMC.

From April 2008 until October 2012, Mindy Howerton was employed as a surgical technician at FMC. Howerton was hired to work FMC's first shift, and it was during this shift that Sands regularly performed his surgeries. In late 2008, Howerton was assigned to one of the two FMC surgical teams that worked with Sands, and she remained on that team until approximately February 2011.

According to Howerton, the atmosphere in the operating room when Sands was performing surgery was overtly sexual, with Sands engaging in unprofessional conduct of a sexual nature. Sands behaved inappropriately toward Howerton almost immediately after they began working together, with Sands asking Howerton about her sex life and about the appearance of her breasts and her genitals. Sands groped Howerton's breasts while reaching for an instrument during surgery on at least one occasion; told Howerton he had gone into the operating room where she was undergoing a gynecological procedure following a miscarriage so he could take " a peek" at her genitals; and asked Howerton to his home to have a glass of wine and relax, explaining that his wife and children were out of town. According to Howerton, these incidents of harassment began to escalate in approximately December 2010. At about that time, following an operating room discussion about hair color, Sands, who has a shaved head, [333 Ga.App. 193] pulled down his scrub pants to expose his pubic hair and the top of his penis to Howerton, ostensibly to demonstrate that he had red hair. On one occasion between December 2010 and January 2011, Sands remarked that Howerton was so pale she would " glow in the dark in the bedroom." Sands then trapped Howerton in a corner of the scrub room and lifted her top so that he could examine her skin. Sands also lifted Howerton's shirt on a second occasion, this time so he could admire her flat stomach. Finally, in late January 2011, Sands started a conversation among the operating room staff as to whether any of them would cheat on their spouse with an ex-lover. After surgery that day, Sands followed Howerton onto the elevator where she was preparing to transport surgical instruments. When they were alone, Sands told

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Howerton that it was not an ex-lover her husband should be worried about; instead, her husband should be concerned about someone Howerton currently had contact with. Howerton believed that Sands was referring to himself, and she interpreted his comment as meaning that he wanted to have an affair with her.

At some point during her employment at FMC, Howerton began filling in as a surgical technician on the second shift, and in early 2011 she began discussing with her superiors the possibility of transferring to the second shift full time. On January 27, 2011, Howerton had a telephone conversation with Lee Ford, the assistant director of FMC, in which she asked about the possibility of moving to a permanent position on second shift. During that same conversation, Howerton told Ford of several specific instances of Sands's sexually harassing conduct.[2] According to Howerton, Ford responded by telling her not to worry about Sands, because Howerton would be given a position on second shift.

Before Howerton's transfer to the second shift could be completed, a confrontation occurred between Sands and Howerton's husband, Scott. Shortly after midnight on February 17, 2011, Sands began texting Howerton. Sands told Howerton that he needed to speak with her and asked if she could talk or if her husband was home. When Howerton responded that she could communicate by text, Sands replied that he wanted to speak with her and that he [333 Ga.App. 194] would call her the next day. At approximately 1:40 a.m., Scott Howerton texted Sands, identified himself, and told Sands that he had recorded the message Sands left on " the 27th" ; [3] that he believed Sands had threatened Howerton's job in that message; that because of Sands's " inappropriate actions lately" he had allowed his wife " to keep my digital recorder with her" ; and that Howerton had recorded the conversation in which Sands had intimated that he wanted to have an affair with Howerton. Shortly after Scott sent that message, Sands called Howerton's cell phone, and Scott answered. The two men had an argument, during which Sands allegedly told Scott that his wife was fired. After Scott told Sands that he was recording their conversation, Sands abruptly ended the call.

During his deposition, Sands admitted that he may have told Scott he could have Howerton fired. He further testified that during their conversation Scott accused Sands of inappropriate conduct toward Howerton and that throughout his " rantings," Scott " kept coming around to why he sent [his wife] to the hospital with a tape recorder." Sands admitted that he never followed up with Howerton to determine whether she had used the tape recorder Scott referred to while at work and, if so, where she had used it.

As a result of his conversations with Scott, at approximately 7:00 a.m. the morning of February 17, Sands contacted Gia Pyles, the charge nurse at FMC who was responsible for scheduling staff in the operating rooms and who served as Howerton's direct supervisor, Sands told Pyles that he had learned that Howerton was recording conversations that were occurring in the operating room. Although Sands testified that he spoke only to Pyles about Howerton's allegedly making recordings in the operating room, Howerton produced evidence showing that Sands had contacted everyone on both of his operating room teams and told them that Howerton would no longer be working with them.[4]

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Sands reportedly told some team members [333 Ga.App. 195] that Howerton had been bringing a tape recorder into the operating room. He told other team members that Howerton had been fired from the team because she had saved some messages Sands had sent her and that she was now accusing Sands of harassment.

Also on the morning of February 17, Howerton received a call from Lee Ford, asking her to come to the hospital to fill out the paperwork necessary for Howerton to begin work on the second shift. When Howerton arrived for that meeting she found both Ford and Dr. Becky Lowrey, the FMC director of surgical services, waiting for her. Instead of discussing Howerton's transfer, however, both women questioned Howerton about what had happened with Sands. Lowrey also told Howerton that she had been informed that Howerton " was wearing a wire" in the operating room and that such conduct " was a HIPAA violation and grounds for termination." When she realized that Ford and Lowrey wanted to discuss the situation with Sands, Howerton called her husband to come to the meeting because she wanted him to explain his conversation with Sands. While they were waiting for Scott to arrive, Howerton asked if they could discuss her transfer to the second shift. Lowrey responded that she was unsure as to whether they could make the transfer, as FMC did not believe Howerton's skill level was " up to par." This was the first criticism Howerton had ever heard of her job ...

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