United States District Court, N.D. Texas.
William G. BRASWELL, Plaintiff,
MIDWEST EXPRESS AIRLINES, Defendant.
No. Civ.A. 3:97–CV–0564.
Jan. 21, 1998.
MEMORANDUM OPINION AND ORDER
*1 Now before the Court are the following:
1. Defendant’s Motion for Summary Judgment and Supporting Brief, filed October 28, 1997,
2. Plaintiff’s Request for Leave of Court to file Late Response to Motion for Summary Judgment, filed December 29, 1997,
3. Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Supporting Brief, filed December 29, 1997,
4. Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to File Late Response to Defendant’s Motion for Summary Judgment, and supporting Brief, filed December 31, 1997, and
5. Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion for Summary Judgment, filed January 5, 1997.
Defendant Midwest Express Airlines (“Midwest”) has filed this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as to all of Plaintiff William G. Braswell’s (“Braswell”) causes of action. The Court has thoroughly considered Defendant’s present motion and, for the reasons discussed herein, hereby GRANTS Defendant’s motion for summary judgment.
This dispute arises out of incidents surrounding Midwest’s decision to terminate Braswell’s employment. Braswell began work with Midwest at Dallas/Fort Worth International Airport (“DFW”) in December 1992, and worked as a client service representative (“CSR”) until he was discharged on September 5, 1996. In November 1995, Braswell’s previous supervisor, Tim Goodman, became Regional Manager and Beth O’Dell (“O’Dell”), who was stationed in Atlanta, was transferred to become the DFW Station Manager.
In July 1996, Dixie Baum (“Baum”), another CSR from the Atlanta station, transferred to DFW. On August 22, 1996, Baum complained to O’Dell that her car had been vandalized in the employee parking lot and that she felt employees at the DFW station were mean-spirited, vengeful and did not like her. Following Baum’s complaint, O’Dell spoke with Laura Pullen (“Pullen”), who was the Atlanta Station Manager during Baum’s tenure in Atlanta. Pullen told O’Dell that Baum had recently called her to discuss an incident with a co-worker at DFW. On August 30, 1996, O’Dell called Baum and inquired about the incident that Pullen had reported. Baum told O’Dell that recently she had expressed concern to Braswell (who kept records of overtime at the DFW station) that if she used her seniority to work overtime, it would upset a co-worker who would be bumped. Baum reported that Braswell said, “If you fuck with my money or take away food from my kids’ mouths, I’ll fucking slash your tires.” (O’Dell Depo., at 60)
After receiving Baum’s complaint, O’Dell called in Braswell on September 3, 1996, to hear his side of the story. The parties dispute what was actually said at the meeting. Defendant claims that Braswell first said he could not remember any conversation with a co-worker about overtime, but then asked, “[d] oes this have anything to do with me telling people that I’d slash their tires if they took my overtime away?” Defendant then claims that O’Dell told Braswell exactly what Baum had reported he had said; Braswell replied that he had indeed made such a statement at work, but to another employee, Karl Danielson. (Defendant’s Motion for Summary Judgment and Supporting Brief, at 6). Plaintiff disputes that he admitted this to O’Dell. Rather, Braswell claims that O’Dell told him about the statement, and that he told her that he recognized it as something that had been said in his presence. Specifically, Plaintiff claims that he, Wade Cook (“Cook”), Steve Perez (“Perez”) and Karl Danielson (“Danielson”) were gathered looking at the overtime bid sheets. Plaintiff alleges that either Cook or Perez made a statement about slashing the tires of an employee who tried to take another’s overtime, and Plaintiff admits that he then looked at Danielson and said, “[s]ee.” (Braswell’s Depo., at 35).
*2 O’Dell told Braswell that based on his admissions, she felt that he had threatened an employee, and would recommend his termination. O’Dell spoke with Karl Danielson and asked him whether Braswell had ever made a statement about slashing tires. Danielson told O’Dell that Braswell had once commented to him “that taking overtime from him was like taking food off his table and out of his kids’ mouth, and anyone that did that, he would slash their tires.” (Danielson Depo., at 8).
On September 5, 1996, O’Dell called Braswell and informed him that his employment was terminated. Later that day O’Dell held a meeting with employees at the DFW station later to address questions some employees had raised. O’Dell told employees that Braswell had been terminated for inappropriate behavior. Dixie Baum then explained that she was scared to come to work and that her car had been vandalized in the parking lot. O’Dell then stated that no one was implying that Braswell was involved.
The next day, Braswell spoke with Regional Manager Tim Goodman, and accused Baum of lying because he had rejected her alleged sexual advances. On September 9, 1996, Midwest’s General Counsel, Carol Skornicka (“Skornicka”), interviewed Braswell and Baum. In addition, Skornicka interviewed Cook, Perez and a Mr. Simpson, who also contended that Baum had engaged in inappropriate behavior with sexual overtones. Braswell reported three incidents of “sexual harassment” by Baum. Skornicka concluded that Baum’s alleged actions did not constitute sexual harassment and that Cook, Perez and Mr. Simpson’s complaints were questionable.
Following his discharge, Braswell applied for work with U.S. Air. O’Dell knew the U.S. Air Station Manager, Jim Bowman. Following Braswell’s application for employment at U.S. Air, Defendant claims O’Dell told Bowman that “Braswell is a hard worker but there were issues with his employment and he did not leave voluntarily.” (O’Dell Afft., ¶ 16). Plaintiff claims that O’Dell also told Bowman that Braswell was a “hothead” and had been terminated for threatening an employee. (Braswell Depo., at 191).
A. PLAINTIFF’S REQUEST FOR LEAVE TO FILE LATE RESPONSE
On December 29, 1997, Plaintiff filed their motion requesting permission to file late response to Defendant’s motion for summary judgment. In the interest of addressing the merits of the action the Court hereby GRANTS Plaintiff’s Request to File Late Response.
B. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that 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, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party to identify the evidence on file in the case that demonstrates the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323.
*3 Once the moving party has made an initial showing, the party opposing the motion must offer evidence sufficient to establish the existence of essential elements of the party’s case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party defending against a motion for summary judgment cannot defeat the motion unless it provides specific facts that show the case presents a genuine issue of material fact such that a jury might return a verdict in its favor. Anderson, 477 U.S. at 256–57. This means that the nonmovant must “identify specific evidence in the record and articulate the ‘precise manner’ in which that evidence support[s] [its] claim[s].” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgement are insufficient to overcome a proper motion for summary judgment. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
All evidence and the inferences to be drawn therefrom “must be viewed in the light most favorable to the party opposing the motion,” United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). In considering the summary judgment record, moreover, the court must refrain from “weighing the evidence, assessing its probative value, or resolving any factual disputes.” Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir.1997). On the other hand, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322–23.
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
To recover for intentional infliction of emotional distress under Texas law, a plaintiff must prove that (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). In Twyman, the Texas Supreme Court adopted the Restatement’s formulation of the tort of intentional infliction of emotional distress, including the definition of extreme and outrageous conduct as conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Restatement (Second) of Torts § 46 cmt. d (1965)); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993). Liability does not extend to “mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.” Johnson v. Merrell Dow Pharms ., Inc., 965 F.2d 31, 33 (5th Cir.1992).
*4 Only in “the most unusual cases” will an employer’s conduct be regarded as so extreme and outrageous as to give rise to a claim for intentional infliction of emotional distress, even though the same conduct may well constitute a violation of Title VII. Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir.1996) (citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir.1994). Mere rude behavior also “does not equate to outrageousness.” Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 660 (Tex.App.—Corpus Christi 1994, writ denied). Further, it is well established that an intentional infliction claim normally does not lie for “mere employment disputes.” MacArthur v. University of Tex. Health Ctr., 45 F.3d 890, 898 (5th Cir.1995); Johnson, 965 F.2d at 33.
The factual circumstances of this case clearly do not show conduct so outrageous as to permit recovery under a theory of intentional infliction of emotional distress. In addition, not only did Plaintiff fail to point to specific evidence which would show the existence of a genuine issue of material fact on this issue, Plaintiff wholly failed to make any mention of this cause of action in his response to Defendant’s motion for summary judgment.
Because the Court finds that the conduct alleged by Plaintiff was not extreme and outrageous as a matter of law, Defendant is entitled to summary judgment on Plaintiff’s cause of action for intentional infliction of emotional distress.
Braswell’s complaint also asserts a vague cause of action for negligence and, apparently, negligent defamation. (Plaintiff’s Original Petition, at 3). In its motion, Defendant argues that Plaintiff’s negligence claims are barred by the Texas Workers’ Compensation Act (“TWCA”), and that Braswell can not establish negligence by Midwest. With respect to their second argument, Defendant specifically alleges that Plaintiff can not produce any evidence which indicates that Midwest either owed him a legal duty or breached a legal duty. As with his claim for intentional infliction of emotional distress, Plaintiff has neither addressed Defendant’s arguments nor pointed to any evidence which would indicate the existence of a material fact as to at least one element of his negligence claims. Therefore, Defendant’s motion for summary judgment is hereby GRANTED with respect to all of Plaintiff’s negligence claims.
Finally, Defendant moves for summary judgment as to Plaintiff’s slander and defamation claims. While Braswell’s complaint is, as noted above, somewhat unclear, Plaintiff appears to allege that Defendant defamed him by: 1) terminating his employment; 2) informing his co-workers of the reasons for Braswell’s termination; and 3) by informing a separate employer that he had been terminated for threatening another employee. Each allegation will be discussed in turn.
Initially, Plaintiff alleges that Defendant defamed him by terminating his employment. (Braswell Depo., at 164). Under Texas law, “slander is a defamatory statement orally communicated or published to a third person without legal excuse.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). Braswell’s termination can not form the basis of a defamation claim, however, because his discharge was an act, not a statement. Hardwick v. Houston Lighting and Power Co., 943 S.W.2d 183, 185 (Tex.App.—Houston [1st Dist.] 1997, no writ) (holding that the discharge of an employee is not an oral statement, but rather an act which could not be considered slanderous). Consequently, Plaintiff’s claim that he was defamed by his termination fails as a matter of law.
*5 Second, Plaintiff contends that Midwest defamed him by “... publishing a defamatory statement about Plaintiff harassing and threatening a female employee, knowing this fact to be untrue.” (Plaintiff’s Original Petition, at 2). In particular, Plaintiff alleges that Defendant made the defamatory statement at a meeting which was held to explain the reason for Braswell’s termination. (Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Supporting Brief, at 5). In response, Defendant asserts that the doctrine of qualified privilege bars this defamation claim. (Defendant’s Motion for Summary Judgment, at 15). Specifically, Defendant argues that the statements made at the employee meeting concerning the reasons for Braswell’s termination are privileged.
Under Texas law, a communication made on a subject matter in which the person making it has an interest is privileged if made to persons having a corresponding interest or duty. Danawala v. Houston Lighting and Power Co., 14 F.3d 251, 254 (5th Cir.1993) (citing Boze v. Vranstetter, 912 F.2d 801, 806 (5th Cir.1990)). In Danawala, the Fifth Circuit noted that the privilege protects statements or accusations made by an employer concerning an employee. Danawala 14 F.3d at 254 (citing Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App.—Tyler 1980, no writ) (“Accusations against an employee by his employer, made to a person having a corresponding interest or duty in the matter to which the communication relates, are qualifiedly privileged.”)).
While Plaintiff recognizes the existence of the common law privilege, he contends that Defendant acted with “full and actual malice which would defeat the asserted ‘qualified privilege’.” (Plaintiff’s Response to Defendants Summary Judgment and Supporting Brief, at 6). Qualified privilege is lost if the plaintiff can show that the defendant acted with actual malice. Danawala, 14 F.3d at 254 (citing Gaines v. CUNA Mutual Ins. Soc’y, 681 F.2d 982, 986 (5th Cir.1982). The Texas Supreme Court explained that in the defamation context a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth. Randall’s Food Market, Inc., 891 S.W.2d at 646 (citing Hagler v. Procter & Famble Mfg. Co., 884 S.W.2d 771 (Tex.1994)). Reckless disregard means a high degree of awareness of probable falsity. Duffy v. Leading Edge Products, Inc. ., 44 F.3d 308, 313 (5th Cir.1995) (citing Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989). Actual malice has a higher standard than common law malice; only clear and convincing proof will support recovery. Duffy 44 F.3d at 313 (citing Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.—Dallas 1991, writ denied).
While Texas law requires the defendant to prove the absence of malice to prevail at the summary judgment stage, under Federal law the plaintiff is required to prove that there is a fact issues as to the existence of malice in order to survive a proper summary judgment motion. Duffy, 44 F.3d at 314. Consequently, Braswell is required to show that a fact issue exists as to whether O’Dell published the statement knowing it to be false, or with a high degree of awareness of its probable falsity. See Danawala, 14 F.3d at 255 (citing Seidenstein v. National Medical Enter., 769 F.2d 1100, 1103–03 (5th Cir.1985). The focus, therefore, is on O’Dell’s state of mind at the time of publication. Id.
*6 After examining the evidence in the light most favorable to the nonmovant, the Court finds that Plaintiff has failed to show the existence of a fact issue as to whether O’Dell acted with actual malice. Plaintiff has failed to come forward with any evidence to indicate that O’Dell either knew her statement was false, or had a high degree of awareness of its probable falsity. Initially, it is undisputed that Baum claimed that Plaintiff had made the threatening statement. In addition, it is undisputed that Danielson told O’Dell that Braswell had made the “tire slashing” statement to him. Further, Plaintiff admits that O’Dell told him in response to his inquiry that “... she felt that I had probably threatened an employee and I was terminated.” (Braswell Depo., at 40). While Plaintiff disputes that he told O’Dell that he made the comment, he did admit in his deposition that he made reference to it in speaking with Danielson.1 This undisputed evidence supports O’Dell’s testimony that she believed that Braswell had made the “tire slashing” statement.
In spite of this undisputed evidence, Plaintiff argues that O’Dell’s statement was motivated by personal animosity she felt toward Braswell. (See Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Supporting Brief, at 4–5). In support of this argument, Plaintiff submits Cook’s affidavit. Among other things, Cook stated that O’Dell “did not apply the company’s policies and procedures fairly and equally in the areas of dress code, employee altercations with no reprimands, and violations of attendance policies.” (Cook Aff., at ¶ 5). Plaintiff argues that this statement reveals O’Dell’s malicious intent. However, when determining the existence of actual malice, proof of falsity in fact is not enough, nor is proof of a combination of falsehood and general hostility. Danawala, 14 F.3d at 255 (citing Seidenstein v. National Medical Enter., 769 F.2d 1100, 1103–03 (5th Cir.1985). Therefore, while the affidavit might, when combined with Braswell’s testimony, indicate that there was animosity between O’Dell and Plaintiff, the Court finds that this evidence is insufficient to show actual malice. Consequently, O’Dell’s statements made at the employee meeting fell within the scope of Defendant’s qualified privilege.
Finally, Plaintiff claims that Defendant defamed him by communicating to a possible employer that Braswell was a “hot head” and that he had threatened an employee. (Braswell’s Depo., at 164). In its motion, Defendant argues that, if O’Dell did communicate these concerns with a separate employer, that those statements were also subject to qualified privilege. Under Texas law, qualified privilege does extend to statements made in good faith by a former employer to a prospective employer. Burch v. Coca–Cola Co., 119 F.3d 305, 323 (5th Cir.1997) (citing Pioneer Concrete of Texas, Inc., v. Allen, 858 S.W.2d 47, 49 (Tex.App.—Houston 1993, writ denied). In this context, the privilege can be defeated by showing actual malice or an abuse of the privilege. Burch v. Coca–Cola Co., 119 F.3d 305, 323 (5th Cir.1997) (citations omitted). In light of the previous discussion, and the fact that Plaintiff failed to produce any evidence to show an abuse of the privilege, the Court finds that the alleged communication between O’Dell and a separate employer, fell within the scope of Defendant’s qualified immunity.
*7 Given that Plaintiff’s defamation claim based upon his termination fails as a matter of law, and that O’Dell’s statements to employees and alleged statement to a separate employer fell within the scope of Defendant’s qualified privilege, the Court finds that Defendant’s motion for summary judgment should be GRANTED as to all of Plaintiff’s defamation claims.
Having carefully considered the parties’ arguments, the summary judgment evidence, and pertinent authorities, the Court concludes that:
1. Plaintiff’s Request for Leave of Court to file Late Response to Motion for Summary Judgment should be GRANTED.
2. Defendant’s Motion for Summary Judgment should be GRANTED.
Q: ... I’m just asking, had you ever made that sort of statement to someone in the past prior to September 3, 1996?
A: I had said something along those lines to a friend of mine named Karl Danielson, yes.
A: And there were several of us looking at the bid sheets, and I believe there was a comment—I said something about not being able to pick up overtime; and I think I said, Damn, I can’t pick up any overtime. And I don’t remember if it was Steve or Wade. They were present in the room. And they said, well, you know, there’s a way to get even with that; You can slash—you can slash his tires, and kind of laughed. And I looked at Karl and I said, See. That’s about the extent of it.
(Braswell Depo., at 34–35).