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At a Glance:
Austin v. Belton
January 16, 2002
Unpublished Opinion

Austin v. Belton

United States District Court, N.D. Texas, Dallas Division.

Breshella AUSTIN, Plaintiff,


Chief Zackary N. BELTON and the City of Dallas, Defendants.

No. 3:01–CV–0421–P.


Jan. 16, 2002.

Memorandum Opinion and Order

SOLIS, District J.

*1 Now before the Court are:

1. Defendants’ Motion to Dismiss for Failure to State a Claim, filed July 13, 2001, Plaintiff’s Response, and Defendants’ Reply;

2. Plaintiff’s Memorandum in Support of Motion for Leave to File Amended Pleading, filed August 23, 2001;

3. Defendants’ Motion for Summary Judgment, filed October 4, 2001, Plaintiff’s Response, and Defendants’ Reply;

4. Defendant’s Motion to Strike Plaintiff’s Response, filed November 5, 2001, and Plaintiff’s Response.

After considering the parties’ briefing and arguments, and the relevant law, the Court GRANTS Defendants’ Motion for Summary Judgment, DENIES Defendants’ Motion to Strike Plaintiff’s Response, and DENIES AS MOOT Defendants’ Motion to Dismiss for Failure to State a Claim.

I. Preliminary Procedural Matters

Plaintiff filed a “Memorandum in Support of Motion for Leave to File Amended Pleading” on August 23, 2001. Plaintiff did not file a motion with this memorandum. The Court contacted Plaintiff’s counsel and informed her that the Court would not consider the motion until Plaintiff actually filed such a motion, as is required by Federal Rule of Civil Procedure 7 and Local Rule 7.1. However, Plaintiff never filed a motion as specifically instructed by the Court. For that reason, the Court does not consider the Second Amended Petition referenced by Plaintiff in her Response to Defendant’s Motion for Summary Judgment. Rather, the Court considers Plaintiff’s First Amended Petition when considering Plaintiff’s pleadings.

Defendants move the Court to strike Plaintiff’s Response to their Motion for Summary Judgment. Although Plaintiff did file the Response two days late, the Court DENIES Defendants’ Motion and considers the merits of Plaintiff’s Response.

Finally, the Court DENIES AS MOOT Defendants’ Motion to Dismiss for Failure to State a Claim. Because Defendants have now brought a motion for summary judgment and the Court examines evidence beyond the pleadings, the correct standard of review is that of a motion for summary judgment rather than a motion to dismiss for failure to state a claim.

II. Background

Plaintiff Breshella Austin first brought this suit against Chief Zackary Belton and the City of Dallas in state court. Plaintiff alleged defamation, violation of the Texas Civil Practice and Remedies Code section 101.021, and violation of 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendments. Pl.’s First Amend. Compl. (Feb. 8, 2001). Defendants removed this case to federal court on March 5, 2001.

Plaintiff works for the City of Dallas Temporary Help Services (THS). Defs.’ App. at 3 (Austin Dep. I at 12). In December of 1998, Plaintiff was assigned to work for the Traser Unit of the Dallas Police Department. Pl.’s First Amend. Pet. ¶ 1. Plaintiff was required to submit a time sheet to Temporary Help Services that was used to calculate her pay.

In March of 1999, Captain Belton allegedly told Sergeant Floyd Simpson that, “the Traser girls were cheating on their time sheets.” Pl.’s First Amend. Pet. ¶ 4.1 In April of 1999, Captain Belton instituted a sign-in/sign-out sheet and required Plaintiff to note when she arrived, took lunch and breaks, and left for the day. Pl.’s First Amend. Pet. ¶ 5. Plaintiff alleges that she was told by Captain Belton to sign in at 8:00 a.m. and sign out at 5:00 p.m. regardless of the actual hours Plaintiff worked. Pl.’s First Amend. Pet. ¶ 6.2 Regardless of Captain Belton’s instructions, though, a comparison of the sheets submitted to THS and the sign-in/sign-out sheets required by Captain Belton showed that Plaintiff, on three occasions, had submitted to THS more hours than she had actually worked. Defs.’ App. at 62 (Hale Aff. ¶ 7). Plaintiff admitted in her deposition testimony that she had overstated the hours she worked on April 29, 1999, May 10, 1999, and May 14, 1999 for a total of three and a half hours. Defs.’ App. at 15–18 (Austin Dep. I at 62–65).

*2 On June 16, 1999, Captain Belton sent a memo to Human Resources requesting replacements for temporary employees within the Traser Unit. Pl.’s First Amend. Compl. ¶ 16. On June 17, 1999, Plaintiff was told by Sergeant Simpson that she was going to be removed from the Traser Unit because of these time discrepancies. Pl.’s First Amend. Pet. ¶ 11. Plaintiff was returned to the pool of temporary employees available for assignment within THS. Defs.’ App. at 4 (Austin Dep. I at 16). Plaintiff alleges that during June of 1999, Captain Belton told Lou Ann Cagle, JearLynn Jackson, Beverly Booker, and Deitra Reid that Plaintiff had cheated on her time sheets. Pl.’s First Amend. Compl. ¶¶ 14–15.

However, on June 25, 1999, Deputy Chief Doug Kowalksi asked THS to reassign Plaintiff to the Traser Unit. Pl’s First Amend. Pet. ¶ 17; Defs.’ App. at 59 (Kowalski Memo to Belton, June 25, 1999). On September 7, 1999, Kowalski held a meeting with Plaintiff, her immediate supervisor, and others once Plaintiff had returned to work at the Traser Unit. Defs.’ App. at 10 (Austin Dep. I at 12). However, Plaintiff’s assignment with the Traser Unit was due to expire three days later, on September 10, 1999. Defs.’ App. a 13 (Austin Dep. I at 53).

Meanwhile, official investigations of Plaintiff had begun. Kowalski had directed Belton to request a Public Integrity Investigation if he had uncovered any proof of wrongdoing. Defs.’ App. at 59 (Kowalski Memo to Belton, June 25, 1999). During the Public Integrity investigation, Plaintiff signed a sworn statement that admitted that she had submitted more hours to THS than she had actually worked on three occasions. Defs.’ App. at 22–23 (Austin Statement). The investigation concluded that Plaintiff had submitted incorrect time sheets to THS. Defs.’ App. at 62 (Hale Aff. ¶ 7). Public Integrity reported these findings to the District Attorney’s Office, but the District Attorney’s Office declined to prosecute. Defs.’ App. at 66 (Waldrup Aff. ¶ 7).

Thereafter, Belton requested that Internal Affairs investigate. Pl.’s First Amend. Compl. ¶ 22. Internal Affairs lacked jurisdiction to investigate Plaintiff because she was not a permanent employee. Defs.’ App. at 19 (Austin Dep. I at 146).

On September 10, 1999, Plaintiff’s assignment with the Traser Unit expired. Defs.’ App. a 13 (Austin Dep. I at 53). Plaintiff remained in the temporary pool of THS until October 25, 1999. Pl.’s First Amend. Compl. ¶ 25. Eventually, Plaintiff returned to her position in the Traser Unit and continues to work there. Defs.’ App. at 47 (Austin Dep. III at 22).

III. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.

*3 Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248–50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322–23.

Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). “The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim.” Id. A party may not rely upon “unsubstantiated assertions” as competent summary judgment evidence. Id.

IV. Defamation Claim

Plaintiff brings her defamation claim based upon statements allegedly made by Captain Belton.3 Specifically, Plaintiff alleges that Belton made the statement, the “TRASER girls were cheating on their time sheets” to Sergeant Floyd Simpson, LouAnn Cagle, Beverly Booker, JearLynn Jackson, Deitra Reed, and Erik Frasier. Pl.’s First Amend. Compl. § VI at 5. Plaintiff alleges that the statement was false and its publication caused her injury.

Texas law defines defamation as “a defamatory statement orally communicated or published to a third person without legal excuse.” Halbert v. City of Sherman, 33 F.3d 526, 530 (5th Cir.1994); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). In order to prevail on a defamation claim, the plaintiff must show that the person publishing the allegedly defamatory statement knew or should have known that the statement was false. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex.1976). Truth represents an absolute defense to a cause of action for defamation which, if proved, entirely defeats the plaintiff’s claim. See Randall’s Food, 891 S.W.2d at 646; McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990).

Defendants argue that Plaintiff’s defamation claim fails as a matter of law because Plaintiff has not established the requisite elements of a defamation claim, and in the alternative, Belton is protected from liability under various immunity and privilege doctrines. The Court finds that Plaintiff has failed to establish the elements of defamation claim.

*4 First, Plaintiff fails to provide evidence of either the statement or the publication of the statement to Sergeant Floyd Simpson, LouAnn Cagle, Beverly Booker, JearLynn Jackson and Deitra Reed. The only competent summary judgment evidence provided by Plaintiff regards Belton’s statement to Eric Frasier. See Pl.’s App. (Frasier Dep. at 38).4 The statement is also defamatory; the words chosen by Belton were “reasonably capable of a defamatory meaning.” Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 654 (Tex.1987). Although Plaintiff can show that Belton made a potentially defamatory statement to Frasier regarding her time sheets, Plaintiff’s claim fails because Belton’s statement was true.

Texas law provides that truth is an absolute defense to defamation claims. See Tex. Civ. Prac. & Rem.Code § 73.005. In applying Texas law, the Fifth Circuit Court of Appeals has held that “[t]he truth of a communication is a complete defense to libel ... whether or not made with malice.” Davis v. West Community Hospital, 755 F.2d 455, 465 (5th Cir.1985).

Plaintiff has conceded that there are discrepancies between the time sheets submitted to THS and the sign-in/sign-out sheets required by Captain Belton. Plaintiff has further admitted that she was aware that such discrepancies existed. In her sworn statement written during the course of the Public Integrity investigation, Plaintiff wrote:

Sgt. Simpson ask [sic] me did I understand the sign in & sign out sheets also did I get pay for those hours. Yes I did get pay of those hours that I know. Yes I understand the sign in sheets. Sgt. Simpson ask me did I work those hours. No I did not.

Defs.’ App. at 22–23 (Austin Sworn Statement, Sept. 29, 1999) (emphasis in original). Thus it is undisputed that the three and a half hour discrepancy existed.

However, Plaintiff argues that the statement is defamatory because Belton stated that Plaintiff had been “cheating.” Plaintiff relies on Texas law which holds that a statement which omits an important fact to create a defamatory impression can be actionable. “[A] publication can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation were literally true or non-defamatory.” Turner v. KTRK Television, Inc. 38 S.W .3d 103, 114 (Tex.2000). While it is true that Belton failed to add that the time discrepancy totaled only three and a half hours, the Court finds that such omission does not create a defamatory impression. Instead, given Plaintiff’s admissions, the Court finds that the converse is true, and that Belton’s statement was substantially true. Under this analysis, the Court “examine[s] each statement in question, in its entirety, and decide[s] whether the summary judgment record conclusively shows that the ‘gist’ of the statement is substantially true.” Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex.App.-Waco, July 2, 1997, writ denied); see also Turner, 38 S.W.3d at 115; Randall’s Food, 891 S.W.2d at 646.

*5 Even if the Court determined that Belton’s statement was false, Belton is still protected by a qualified privilege. “Accusations or comments about an employee by his employer, made to a person having an interest or duty in the matter to which the communication relates, have a qualified privilege.” ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 442 (5th Cir.1995); Washington v. Naylor Indus. Servs., Inc., 893 S.W.2d 309 (Tex.App.—Houston [1st Dist.] 1995, no writ)(an employer’s accusations are privileged when made to a person having a business interest in the information). This qualified privilege protects these kinds of communication in the absence of actual malice. ContiCommodity, 63 F.3d at 442. In the context of defamation, actual malice means “the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989). “Reckless disregard” means that a statement is made with “a high degree of awareness of probable falsity.” Id. To find actual malice, there must be “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” ContiCommodity, 63 F.3d at 442–43 (quoting Hagler v. Proctor & Gamble Mfg., Co., 884 S.W.2d 771, 771–72 (Tex.1994)).

The only statement as issue here is Belton’s statement to Frasier, Plaintiff’s supervisor, that the “TRASER girls were cheating on their time sheets.” Although Plaintiff alleges that Belton had a “personal vendetta” against her, there is no proof that Belton acted with malice, especially given the fact that a three and a half hour time discrepancy did exist. Therefore, even if the statement was not wholly true, it is still protected by Belton’s qualified privilege.

Considering Plaintiff’s admissions, the Court finds that the statement made by Belton to Frasier was substantially true. Plaintiff herself concedes the time discrepancy and the fact that she was paid for more hours than she actually worked. Even if the statement was not true, it was protected by a qualified privilege. Therefore, Defendants’ motion for summary judgment on the defamation claim is GRANTED.

V. Negligence Claim

Plaintiff also brings a claim asserting a violation of Texas Civil Practice and Remedies Code section 101.021. Plaintiff alleges that damages from the City are proper “due to the fact that all times Captain Belton was an employee and/or agent of this entity. Plaintiff alleges that the City of Dallas was negligent in its supervision of Captain Zachary N. Belton which was a direct and proximate cause of her damages.” Pl.’s First Amend. Compl. § XII at 8.

Defendants argue that Plaintiff’s claim is barred as a matter of law by the Texas Tort Claims Act. Defendants argue that the negligent supervision claim is prohibited by the provision that prevents a governmental unit from being held liable for a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” Tex. Civ. Prac. & Rem.Code § 101.057(2).

*6 Although Texas courts have found that this provision does not apply to claims based on negligent employment or negligent entrustment, the Texas Supreme Court has found that exceptions apply to this general rule. Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio, 1999, no writ). “The Texas Supreme Court [held] ... that the intentional tort exception could not be circumvented merely by alleging that the government was negligent in supervising the employee-tortfeasor.” Id. (citing Delaney v. University of Houston, 836 S.W.2d 56, 59–61 (Tex.1992)).

Defendants argue that Plaintiff is trying to bring suit against the City through this negligent supervision claim only because she is barred from suing the City directly on her defamation claim. Indeed, Plaintiff fails to allege any specific facts that would tend to show that the City was negligent in either hiring or supervising Belton. See Medrano, 989 S.W.2d at 144–45 (“Without any specific factual allegations, the [Plaintiffs] merely allege negligent hiring, negligent training, and negligent failure to train in connection with their intentional tort claim.... No additional summary judgment evidence was admitted to support these negligence claims.”). Further, Plaintiff herself admits that she believes that Belton was adequately supervised. See Defs.’ App. at 46 (Austin Dep. III at 19). Although Plaintiff provides the affidavit of Chief Kowalski, who testified that during this period he was out of the office supervising the Texas State Fair, there is no allegation that Kowalski’s absence was improper or lead to Plaintiff’s alleged injury. See Pl.’s App. (Kowalski Dep.)

Even if Plaintiff’s claim is not barred by the Texas Tort Claims Act, Plaintiff cannot recover because the claim is barred by the Texas Workers’ Compensation Act. Plaintiff is an employee covered by the Act. Defs.’ App. at 72 (Bridges Decl. ¶ 4). The Workers’ Compensation Act bars negligence claims based on work-related injuries. Jones v. Legal Copy, Inc., 846 S.W.2d 922, 925 (Tex.App.Houston [1st Dist.] 1993, no writ). “The Act’s remedy is exclusive, and an employee has not other right of action against the employer in the case of a work-related injury.” Id. at 926.

Because the Court finds that Plaintiff’s negligence claim is barred by the Texas Tort Claims Act and the Texas Workers’ Compensation Act, Defendants’ motion for summary judgment on the negligence claim is GRANTED.

VI. Section 1983 Claim

Finally, Plaintiff alleges that both Belton and the City of Dallas violated 42 U.S.C. § 1983 for a violation of Plaintiff’s liberty interest. Defendants argue that Plaintiff’s claim fails as a matter of law because she has not established the elements of this cause of action, and in the alternative, that Belton and the City are entitled to immunity. The Court finds that Plaintiff has not alleged the requisite elements of this cause of action and does not reach the question of whether Belton and the City are immune.

*7 The Fifth Circuit Court of Appeals has set out the elements of a section 1983 liberty claim that grows out of wrongful discharge. Plaintiff must show: “(1) that she was discharged; (2) that stigmatizing charges were made against her in connection with the discharge; (3) that the charges were false; (4) that she was not provided notice or an opportunity to be heard prior to her discharge; (5) that the charges were made public; (6) that she requested a hearing to clear her name; and (7) that the employer refused her request for a hearing.” Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir.2000). Plaintiff’s claim fails on multiple elements.

First, Plaintiff was never discharged. Although her temporary assignment in the Traser Unit expired, she remained available for assignment in the pool of temporary employees, and returned to work in the Traser Unit. Such reassignment is not considered a discharge for these purposes. See Richards v. City of Weatherford, 145 F.Supp.2d 786, 792 (N.D.Tex.2001) (Mahon, J.), aff’d ____ F.3d ____, 2001 U.S.App. LEXIS 23364 (5th Cir. Oct. 16, 2001).

Plaintiff’s claim also fails because the charges made were not false. Plaintiff was accused of submitting more hours to THS than she had worked. Plaintiff has repeatedly acknowledged that she did so.

Plaintiff’s claim fails because there is no evidence that she ever requested a hearing to clear her name, or that Belton or the City denied her such a hearing. In fact, in her deposition testimony, Plaintiff admits that she returned to the Traser Unit, was in a meeting with Chief Kowalski, and other co-workers and supervisors, and had the opportunity to clear her name. See Defs .’ App. at 10 (Austin Dep. I at 32).5

Because Plaintiff has not provided any evidence supporting her claim of a section 1983 liberty violation, the Court does not reach the issues of whether Belton and the City are entitled to immunity defenses. The Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s section 1983 claim.


Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment, DENIES Defendants’ Motion to Strike Plaintiff’s Response, and DENIES AS MOOT Defendants’ Motion to Dismiss for Failure to State a Claim.

It is so ordered.



Plaintiff provides no evidence supporting this allegation in her pleadings or her Response to Defendants’ Motion for Summary Judgment.


Plaintiff relies heavily on this assertion is her Response to Defendants’ Motion to Summary Judgment. See Pl.’s Resp. to Defs.’ Mot. at 13 (citing depositions of Breshella Austin, Tammy Targton, Eric Frasier, Ron Hale). However, the only evidence actually in Plaintiff’s Appendix comes from the deposition of Eric Frasier, who says that it was only after an unspecified incident with another Traser Unit worker, Tammy Targton, that Captain Belton told Frasier that Traser workers could only sign in between those hours. Pl.’s App. (Frasier Depo. at 39–40).


It is unclear from Plaintiff’s First Amended Petition whether the defamation cause of action is brought against Belton alone, or Belton and the City of Dallas. It is clear from Plaintiff’s Answer to Interrogatories that the claim is brought solely against Belton. See Defs.’ App. at 76 (Pl.’s Resp. to Defs.’ Second Set of Interrog., Interrog. No. 3).


“Q. Did you know whether or not Captain Belton told anyone else that the girls were cheating on their time sheets?

A. I don’t know specifically who else the captain told anything, ma‘am.

Q. But did he tell you that?

A. Oh, yeah.

Q. On more than one occasion or one?

A. Just when he was requesting their records.”

Pl.’s App. (Frasier Dep. 38:14–21).


Austin testified: “Chief Kowalski wanted to know what was going on because he felt that by us being working with the Police Department for three years he felt that we should have a chance to clear ourselves, clear our name. And he did, during the meeting he asked what was going on, and we told him what was going on.” Defs.’ App. at 10 (Austin Dep. I at 32:16–21).

End of Document