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At a Glance:
Braunig v. Bank of America Texas
August 27, 1998
Unpublished Opinion

Braunig v. Bank of America Texas

United States District Court, W.D. Texas, San Antonio Division.

Pamela BRAUNIG, Plaintiff,


BANK OF AMERICA TEXAS, N.A., David Barry, Wayne Brooks Drake, and Bonnie Kaul, Defendants.

No. Civ.A.SA–97–CA1248OG.


Aug. 27, 1998.


NOWAK, Magistrate J.

*1 The matters before the Court are Defendants’ Motion for Partial Summary Judgment and Motion for Summary Judgment.1 I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court’s Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.

Factual and Procedural Background

This case involves claims arising out of Pamela Braunig’s employment with Bank of America (BOA). BOA hired Braunig in 1992 as district manager for its South Texas District. According to Braunig, she was an exceptional employee, and received numerous awards for her achievements at BOA.2 Her problems began in August 1995, when BOA’s bank president, David Berry, conducted a mid-year review of the branch managers in Braunig’s district. In a sharp departure from previous practice, Berry required each branch manager to stand before his peers and the district office staff, and assign himself a letter grade reflecting his assessment of his personal performance. Berry would then indicate his agreement or disagreement with this self-assigned grade.3 Braunig considered this process humiliating to her branch managers, and contends that some of the branch managers complained to her about the process.4

After the mid-year reviews, Braunig claims that Bonnie Kaul, a BOA human resources employee, contacted her to solicit information about Berry’s conduct. Concerned about the repercussions of reporting the complaints, Braunig initially did not volunteer this information. Upon repeated reassurances of confidentiality, however, Braunig told Kaul about Berry’s conduct.5 The next day, Berry telephoned Braunig, and revealed that Kaul had indeed disclosed the contents of Kaul’s and Braunig’s conversation to Berry.6

According to Braunig, Kaul’s revelation to Berry was the genesis of her tribulations at BOA. Within a few weeks, in September of 1995, the South Texas District was eliminated, and Braunig was transferred to BOA’s Austin District, where she became the district sales manager, a demotion from the district manager’s position. Brooks Drake, the Austin District manager, was her supervisor. Braunig claims Drake created a hostile work environment by physically intimidating and assaulting female employees, as well as engaging in constant and unwelcome sexual banter both within and outside the office.7 And when she complained about Drake’s conduct, both to him and to human resources, Braunig further claims that he retaliated against her. Although Drake was counseled for his behavior, Braunig maintains that his conduct did not change.

Ultimately, Braunig left BOA’s employment when it eliminated the Austin District in late 1996. After pursuing the appropriate administrative remedies, she filed this lawsuit in state court against BOA, Berry, Drake, and Kaul, alleging that Drake’s conduct created a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964, and that she was retaliated against when she reported him. She also alleges that she was passed over for certain positions in favor of younger, less experienced individuals in violation of the Age Discrimination in Employment Act (ADEA). Under state law, she asserts claims for invasion of privacy, intentional infliction of emotional distress, negligent hiring and retention, assault and battery, breach of the duty of good faith and fair dealing, and concerted action. Defendants removed the case to this Court, and now, in two separate motions, move the Court for summary judgment on all Braunig’s claims. For the reasons discussed below, I find that Braunig has raised a triable fact issue on only her claims for hostile environment under Title VII, and assault and battery, and accordingly, recommend that her remaining claims be dismissed.

Summary Judgment Standard

*2 A party is entitled to summary judgment upon motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.8 Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment; the requirement is that there be no genuine issue of material fact.9 A fact is material if it might affect the outcome of the lawsuit under the governing law.10 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.11 Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.12

A party seeking summary judgment bears the initial responsibility of informing the Court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.13 However, Rule 56 does not require that the moving party support its motion with evidentiary materials negating the opponent’s claim.14 Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion must be granted if the evidence before the Court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.15 Thus, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party may not rest upon the mere allegations or denials in his pleading.16 Rather, the nonmoving party’s response must set forth facts showing that there is a genuine issue for trial.17 If the nonmovant does not so respond, the Court must enter summary judgment against him.18

Objections to Braunig’s Affidavit

Defendants filed copious objections to Braunig’s affidavit, which she submitted in opposition to their summary judgment motions. The majority of these objections assert that the affidavit is: (1) hearsay; (2) conclusory; (3) unsupported by personal knowledge; or (4) an impermissible opinion by a lay witness. With regard to the claims upon which I have found a fact issue, I have not relied on Braunig’s affidavit in making these recommendations. And as to the claims upon which I have recommended that summary judgment be granted, Braunig’s affidavit adds nothing to the other summary judgment proof. Accordingly, I recommend that the District Court OVERRULE AS MOOT Defendants’ objections.19

Title VII and ADEA–Individual Liability

Kaul, Berry, and Drake move for summary judgment to the extent Braunig seeks to hold them individually liable under Title VII and the ADEA. Fifth Circuit authority is clear that individuals who do not otherwise qualify as employers cannot be held liable for a violation of either Title VII or the ADEA.20 Although Braunig disagrees with the law, she does not dispute its applicability. Accordingly, Drake, Kaul, and Berry are entitled to summary judgment on Braunig’s ADEA and Title VII claims.

Title VII–Hostile Environment

*3 Braunig’s hostile environment claim is based on Drake’s conduct. According to Braunig, Drake was a “highly offensive manager” who blamed all office problems on the menstrual cycles of female employees. In addition, Braunig claims that he made frequent references to “titty bars,” and even physically threatened and intimidated women employees. Braunig asserts that this abusive conduct occurred almost daily.

In order to support a hostile work environment sexual harassment claim, an employee must demonstrate that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; and (4) the harassment complained of affected a term condition, or privilege of employment.21 To be actionable, the challenged conduct must create an environment that a reasonable person would find hostile or abusive.22 Whether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating and the degree to which the conduct unreasonably interferes with an employee’s performance.23

BOA contends that Braunig’s claim fails because Drake’s conduct was not sufficiently severe and pervasive to affect a term and condition of her employment. BOA also asserts that Braunig cannot show that any alleged harassment occurred because of sex, since Drake was hostile and abusive toward both men and women. Both arguments ignore the summary judgment proof. Braunig testified in her deposition that Drake made comments about women’s menstrual cycles almost every day, and referred repeatedly to “titty bars”:

He is the only person I know who constantly talked about titty bars. I find that offensive.

He is the only person I know who constantly, in front of other people, talked about how difficult it was working with me or in an office full of women who had different menstrual cycles, or the same menstrual cycles, or whatever his obsession with that was. Vagina envy? I don’t know. But it was a constant thing. It was embarrassing. I never worked with anyone else in the district who made those kind of comments or remarks and constantly was embarrassing.24

This testimony regarding the frequency and nature of Drake’s comments is sufficient to support a finding that his harassment altered the conditions of Braunig’s employment. Furthermore, although BOA cites evidence of Drake’s abusive conduct towards male employees in support of its assertion that the harassment was not “because of sex,” the comments referred to above are sex-specific, and a reasonable fact finder could find that Drake was “motivated by general hostility to the presence of women in the workplace.”25

Having determined that Braunig has raised a fact issue as to whether she was exposed to a hostile environment, the Court must determine whether BOA can be held vicariously liable for Drake’s conduct. Until recently, in order to hold the employer liable, an employee was also required to show that the employer knew or should have known of the harassment and failed to take prompt remedial action.26 The Supreme Court, however, in two opinions this term, adopted a new standard governing vicarious liability for harm caused by the misuse of supervisory authority. Under the Supreme Court’s holdings in Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton:

*4 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment actions is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.27

Neither party discusses this new standard, although it clearly appears applicable to this case. Drake was Braunig’s supervisor, and the record does not reveal that he took any tangible employment action against her. Nonetheless, BOA asserts that once it was notified of Drake’s conduct, it took prompt remedial action, and thus, is exonerated of responsibility. Once again, this argument ignores the summary judgment proof. Although BOA claims that Braunig reported Drake’s conduct only twice, Braunig testified she reported it three times. In April 1996, Braunig first complained to Ursula Frank, BOA’s director of personnel in Texas. BOA contends that Braunig did not report any sexually harassing conduct on this occasion, but Frank testified that Braunig mentioned Drake’s “menstrual cycle” comments.28 Nonetheless, Frank did not think Braunig was complaining of a hostile work environment. Frank passed Braunig’s concerns on to Berry, who counseled Drake. According to Braunig, there was some temporary improvement after Berry counseled Drake, but within two or three weeks, his harassing conduct had resumed.29 She again reported Drake’s conduct to Frank, but Frank apparently did nothing.30 Finally, in late July or early August of 1996, Braunig again complained of Drake’s conduct, which prompted a conference call on August 7, 1996, with Kaul and Frank. Kaul did initiate an investigation, but Drake left BOA before it was completed. There is no evidence in the record of a written report of Braunig’s complaint, and Frank’s and Berry’s testimony is equivocal at best as to exactly what was reported and what was said to Drake. Under Ellerth and Faragher, it is BOA’s burden to establish as a matter of law that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.31 The evidence before me raises a reasonable inference that although BOA took some token action, the exercise of reasonable care would have dictated more. Accordingly, BOA is not entitled to summary judgment on Braunig’s hostile environment claim.

Title VII–Retaliation

Braunig alleges that because she opposed Drake’s harassing conduct directly and reported him to human resources, BOA retaliated against her by failing to consider her for certain district manager positions and ultimately terminating her employment. She also claims Drake retaliated against her by diminishing her duties as district sales manager.32 A retaliation claim has three elements: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action.33 For summary judgment purposes, Braunig has satisfied the first element-she presented evidence that she complained of Drake’s harassing conduct. As BOA correctly argues, however, she has failed to raise fact issues on the second and third elements.

*5 Title VII was designed to address ultimate employment decisions, rather than every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.34 Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating.35 Drake’s alleged actions-taking Braunig’s secretary away from her, transferring unspecified job duties, and excluding her from meetings-were not ultimate employment actions, nor is there any evidence that they led to ultimate employment action. Similarly, BOA’s alleged failure to promote does not qualify as an ultimate employment action, particularly in light of the lack of evidence that Braunig expressed interest or applied for the positions, and her admission that she knew of no formal policy requiring that displaced employees be notified of vacancies.36

Finally, Braunig cannot demonstrate a causal connection between her protected activity and her ultimate “termination.” First, Braunig’s position was eliminated when the Austin and San Antonio districts were consolidated, and she admitted in her deposition that she does not think there was anything about that consolidation that was done to affect her, although it would have been “nice to have been offered some opportunities” after the consolidation.37 She also admitted that she did not have any discussions with anyone about other positions at BOA at the time of the consolidation, and that there were not any positions in the consolidated district that she felt she should have.38

At bottom, Braunig’s testimony reveals that she does not believe her problems at BOA had anything to do with her reports of Drake’s conduct. Rather, Braunig thought her entire experience in the Austin District was in retaliation for her complaints to Kaul about Berry:

Q. So, just to make sure I understand what you are saying, you are telling me that you believe because Dave Berry got mad at you in September of 1995, that he sent you to Austin, and that he specifically told Brooks Drake, Do what you can to make Pam Braunig’s life miserable so we can get rid of her?

A. Absolutely.

Q. And the reason you had a bad experience in Austin was because of the breach of confidence in September of 1995?

A. Yes. It all began with that.39

BOA is entitled to summary judgment on Braunig’s retaliation claim.


Braunig next alleges that BOA discriminated against her because of her age on two occasions: (1) when it appointed LaVonda Vincik as district manager of the San Antonio District when the San Antonio and South Texas districts were consolidated; and (2) when it appointed LaVonda Vincik district manager of the San Antonio District when the San Antonio and Austin districts were consolidated .40 In order to establish a prima facie case of discrimination under the ADEA, a plaintiff must demonstrate that she was: (1) discharged, demoted, or denied a position; (2) qualified for the position; (3) within the protected class; and (4) either (i) replaced or passed over for someone outside the protected class, or (ii) otherwise discharged, demoted, or denied a position because of her age.41 Once the plaintiff establishes a prima facie case, the defendant must offer a legitimate, non-discriminatory reason for its decision.42 If the defendant is successful, the presumption of discrimination created by the prima facie case disappears and the plaintiff must prove that the employer’s articulated reason is a pretext for unlawful discrimination.43

*6 Defendants first argue that Braunig’s claim regarding the elimination of her position in South Texas is barred by limitations. Under the ADEA, Braunig had 300 days to file a charge of discrimination after the unlawful employment practice occurred.44 Braunig’s position in the South Texas District was eliminated when it was consolidated with the San Antonio District in September 1995. Therefore, because she did not file her charge of discrimination until February 3, 1997, she cannot base her ADEA claim on this event.

Braunig does not dispute that the position was eliminated more than 300 days before she filed her charge with the Equal Employment Opportunity Commission, but rather argues that her claim is actionable under the continuing violation theory. Courts have utilized the continuing violation theory in certain exceptional circumstances when applying the limitations period under the ADEA.45 This equitable exception arises where the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.46 I agree with BOA, however, that when Braunig was demoted to district sales manager and Vincik was named district manager, Braunig should have been on notice of all the facts necessary to make a claim of age discrimination. Thus, her duty to protect her rights arose in September of 1995, and because she failed to timely assert her claim, it is now barred.

With respect to the elimination of the Austin district sales manager position, Braunig cannot establish a prima facie case of age discrimination, because her position was eliminated, and thus, she was not replaced by someone younger or outside her protected class. In addition, BOA has articulated a legitimate, non-discriminatory reason for the consolidation and consequent elimination of Braunig’s position-the Austin District was too small and several attempts to increase its size had failed.47 As discussed above, Braunig admitted that the consolidation was a good business decision, and that there was no position in the consolidated district appropriate for her. Finally, Braunig has presented no evidence that her age was the real reason for either the consolidation or the elimination of her position, other than her own subjective belief that she was better qualified for the job than Vincik. Therefore, BOA is entitled to summary judgment on Braunig’s ADEA claim.

Assault and Battery

Braunig charges Drake with assault and battery based upon the following incident which occurred during a conference call in August of 1996:

[Drake] screamed at me, “You shut up,” and he jumped up and came flying down over my desk. I was leaning forward on the desk. Came flying down with his arm coming through the air, and I thought he was going to hit me, and I fell back in my chair. He turned off the speaker button and continued leaning over the desk, and shaking his finger in my face, telling me that I would sit there and shut up and not say a word.

*7 After the conference call was over, he jumped up to slam my door, which had been open until that time. And I got up and opened it and told him I would not have a conversation with him-a one-on-one conversation with him alone behind closed doors. An he grabbed my arm, and then threw his arms back up in the air, when he realized what he had done, and stepped back to try to close the door again.48

Drake claims entitlement to summary judgment arguing that there is no evidence that he had the requisite intent. His argument ignores both the evidence and the law. Assault requires that a person: (1) intentionally, knowingly, or recklessly cause bodily injury to another; (2) intentionally or knowingly threaten another with imminent bodily injury; or (3) intentionally or knowingly cause physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.49 Battery only requires an offensive touching, not an intent to injure.50 Under Braunig’s testimony, a fact finder could reasonably infer that when Drake came across her desk, he intentionally or knowingly threatened her with injury. Similarly, the act of grabbing her arm could lead a reasonable fact finder to conclude that Drake was guilty of battery. Braunig has presented evidence of assault and battery sufficient to survive Drake’s summary judgment motion on this claim.

Intentional Infliction of Emotional Distress

Braunig asserts that Drake’s conduct, and BOA’s alleged failure to take serious corrective measures, caused her severe emotional distress.51 In order to recover on a cause of action for intentional infliction of emotional distress, a plaintiff must show:

(1) the defendant acted intentionally or recklessly;

(2) the conduct was extreme and outrageous;

(3) the actions of the defendant caused the plaintiff emotional distress; and

(4) the emotional distress suffered by the plaintiff was severe.52

Conduct is “outrageous” for purposes of an intentional infliction of emotional distress claim only if it surpasses all possible bounds of decency, such that it is utterly intolerable in a civilized community.53 In the employment setting, the conduct complained of must be particularly outrageous. Thus, a claim for intentional infliction of emotional distress ordinarily will not lie in the employment context, even though the conduct may be deplorable and even though it may rise to the level of illegality.54

Defendants assert that Braunig has not presented evidence that their conduct was sufficiently outrageous to support an intentional infliction of emotional distress claim. Texas law dictates that it is for the Court to determine, in the first instance, whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.55 Although the articulated standard for extreme and outrageous conduct is somewhat nebulous, two Fifth Circuit cases are instructive.

*8 In Dean v. Ford Motor Credit Co.,56 plaintiff presented evidence that (1) when she expressed interest in transferring to a higher paying position in the collection department, she was told that “women don’t usually go into that department”; (2) she was denied a transfer to the collection department, and a lesser qualified man was selected; (3) the defendant’s attitude toward the plaintiff changed after she complained about alleged discriminatory treatment; (4) management began to transfer her from desk to desk within the administrative department; (5) a coworker testified she believed management was trying to “set ... [the plaintiff] up”; (6) she was called upon to do more work that the other clerks “and subjected to unfair harassment”; and (7) management used “special” annual reviews (that only the plaintiff received) to downgrade her performance. The Court found that this evidence, standing alone, constituted only an “ordinary employment dispute.” However, the plaintiff also proved that a supervisor, who had access to the employer’s checks, intentionally placed checks in the plaintiff’s purse in order to make it appear that she was a thief, or to put her in fear of criminal charges for theft. It was the “check incidents” that took the case “beyond the realm of an ordinary employment dispute and into the realm of an outrageous one.”57

Similarly, in Wilson v. Monarch Paper Co.,58 plaintiff, at one time an executive with defendant and an employee of defendant for 30 years, presented evidence that: (1) his duties as vice president and director of physical distribution were assigned to a younger person; (2) defendant’s president deliberately refused to speak to him in the hallways in order to harass him; (3) certain portions of defendant’s long-range plans expressed a desire to move younger persons into sales and management positions; (4) defendant’s president wanted to replace plaintiff with a younger person; (5) other of defendant’s managers would not work with plaintiff, and he did not receive his work directly from the president; (6) plaintiff was re-assigned to one of defendant’s warehouses as a “supervisor”, which was “demeaning”; and (7) plaintiff was harassed about being “old.”59 The Court found this evidence insufficiently outrageous to support liability based upon intentional infliction of emotional distress. Only the additional evidence that plaintiff was stripped of his duties and demoted from an executive manager to an entry level warehouse supervisor with menial and demeaning duties raised defendant’s conduct to the level of “outrageous”:

Wilson, a college graduate with thirty years experience in the paper field, had been a long-time executive at Monarch. His title was Corporate Director of Physical Distribution, with the added title of Vice–President and Assistant to the President. He had been responsible for the largest project in the company’s history, and had completed the project on time and under budget. Yet, when transferred to the warehouse, Wilson’s primary duty became housekeeping chores around the warehouse’s shipping and receiving area. Because Monarch did not give Wilson any employees to supervise or assist him, Wilson was frequently required to sweep the warehouse. In addition, Wilson also was reduced to cleaning up after the employees in the warehouse cafeteria after their lunch hour. Wilson spent 75 percent of his time performing these menial, janitorial duties.

*9 ... We find it difficult to conceive a workplace scenario more painful and embarrassing than an executive ... being subjected before his fellow employees to the most menial janitorial services and duties of cleaning up after entry level employees: the steep downhill push to total humiliation was complete.60

In her response to Defendants’ motion, Braunig asserts that Drake’s sexually hostile behavior, an alleged crank call he placed to Braunig’s home, his stripping of her responsibilities, and his surreptitiously filing adverse performance reviews in her file constituted outrageous behavior. I disagree. Even assuming Braunig’s allegations are true, this conduct does not even approach the extremity of the conditions endured by the plaintiffs in Dean and Wilson. Therefore, Defendants are entitled to summary judgment on Braunig’s intentional infliction of emotional distress claim.

Invasion of Privacy

Braunig asserts that Kaul, BOA, and Berry invaded her privacy when Kaul disclosed the substance of their conversation to Berry. Texas recognizes a cause of action for willful, unwarranted invasion of privacy.61 The elements of the cause are: (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.62 Generally, the injury exists only where there has been a physical invasion of a person’s property or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.63

Braunig asserts that Kaul’s inquiry regarding Berry’s conduct during the mid-year review constituted an intrusion into her privacy, and Kaul’s publication to Berry of the information Braunig revealed would be considered highly offensive to a reasonable person. Two essential problems doom Braunig’s claim. First, the questions Kaul asked, and the information she solicited from Braunig had nothing to do with Braunig’s privacy, but rather were, by Braunig’s own admission, business-related matters about another bank employee.64 Second, Braunig attempts to convert Kaul’s publication of the information to Berry into an intrusion, which it clearly was not. The intrusion is what must be offensive, not any subsequent publication. Accordingly, BOA, Kaul, and Berry are entitled to summary judgment on Braunig’s invasion of privacy claim.

Breach of the Duty of Good Faith and Fair Dealing

BOA moves for summary judgment on Braunig’s claim of breach of the duty of good faith and fair dealing, arguing that Texas does not recognize such a duty in the employment relationship. I agree. The tort duty of good faith and fair dealing has been found only in certain “special relationships,” and Texas courts have declined to recognize a general duty of good faith and fair dealing between employer and employee.65 Braunig argues that two special relationships exist in her case:

The relationship between a manager and the company’s human resource office presents the necessary “special relationship.” The company’s interests are best served when the human relations office encourages and creates an atmosphere of trust and confidentiality....

*10 The second special relationship alleged focuses on the special relationship between BOA and its employees where discriminatory conduct exists.66

Braunig presents no authority to support her arguments, nor does she give any good reason to ignore the Texas courts’ long-standing reticence to impose this implied duty on an at-will employment relationship. Accordingly, BOA is entitled to summary judgment on this claim.

Negligent Hiring and Retention

BOA and Berry argue, and Braunig concedes, that these claims are preempted by the Texas Workers’ Compensation Act.67 The Act provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.68 Therefore, BOA and Berry are entitled to summary judgment on these claims.69

Concerted Action

Finally, Braunig alleges that Berry, Drake, and “through them” BOA, agreed that Drake would create a hostile environment for Braunig, and that “in pursuance of the common scheme, Drake assaulted and battered [Braunig], intentionally inflicted emotional distress, engaged in illegal discrimination, surreptitiously filed false and derogatory performance reviews, and falsely reported her alleged incompetence throughout the BOA organization.”70 This claim, essentially one for conspiracy, must fail. An actionable conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means .71 To establish a civil conspiracy, a plaintiff must be able to show a meeting of the minds of two or more persons on the object or course of action.72 The acts of a corporate agent, however, are the acts of the corporation, and a corporation cannot conspire with itself.73 Because Berry and Drake were acting as agents of BOA, Braunig cannot maintain a claim for conspiracy.


For the reasons discussed above, I recommend that the District Court GRANT Defendants’ Motion for Partial Summary Judgment. I further recommend that the District Court DENY Defendants’ Motion for Summary Judgment as to Braunig’s claim for assault and battery against Drake and her claim under Title VII against BOA for sexual harassment. On all other causes of action, I recommend that the District Court GRANT Defendants’ motion.

Instructions For Service and Notice of Right To Appeal/Object

The United States District Clerk shall serve a copy of this Memorandum and Recommendation on all parties either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. Under 28 U.S.C. § 636(b)(1), and Rule 4(b) of the Local Rules for the Assignment of Duties to United States Magistrates (Appendix C to the Local Court Rules for the Western District of Texas), any party who desires to object to this report must file written objections to the Memorandum and Recommendation with the Clerk of this Court, and serve the Magistrate Judge and all parties, within ten (10) days after being served with a copy of this Memorandum and Recommendation.74 A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections .75 A party’s failure to file written objections to the proposed factual findings, legal conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court.76 Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within ten (10) days after being served, shall bar the aggrieved party from appealing the factual findings and legal conclusions that are accepted or adopted by the District Court, except on grounds of plain error.77



Docket Entry Nos. 28 and 30.


Docket Entry No. 38, Affidavit of Pamela Braunig at ¶¶ 8–11.


Id., at ¶ 19.


Id., at ¶ 24.


Id., at ¶¶ 26–28.


Id., at ¶ 29.


Docket Entry No. 1, Plaintiff’s Original Petition at ¶ 47.


Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir.1995); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995).


Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).


Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir.1994).


Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Wise v. E.I. DuPont De Nemours & Co., 58 F.3d 193, 195 (5th Cir.1995); MacMillian v. U.S., 46 F.3d 377, 380–81 (5th Cir.1995).


Anderson v. Liberty Lobby, Inc., 477 U.S. at 249; Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir.1995); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 15 1198.


Celotex Corp. v. Catrett, 477 U.S. at 323 (1986); Wise v. E.I. DuPont Nemours & Co., 58 F.3d at 195; Burfield v. Brown, Moore, & Flint, Inc., 51 F.3d 583, 588 (5th Cir.1995).


Edwards v. Aguillard, 482 U.S. 578, 595, n. 16 (1987); Celotex Corp. v. Catrett, 477 U.S. at 323.




Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U .S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir.1995).


Celotex Corp. v. Catrett, 477 U.S. at 324; Neff v. American Dairy Queen Corp., 58 F.3d at 1065; Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir.1995).


Lujan v. National Wildlife Federation, 497 U.S. 871, 884 (1990); Celotex Corp. v. Catrett, 477 U.S. 323.


My citation to Braunig’s affidavit in the factual recitation should not be taken as either an implied finding that it is proper summary judgment proof or an endorsement of her version of the facts.


Stults v. Conoco, Inc., 76 F.3d 651, 655 (5 th Cir.1996); Grant v. Lone Star Co., 21 F.3d 649, 651–53 (5 th Cir.1994), cert. denied, 513 U.S. 1015 (1994).


Farpella–Crosby v. Horizon Health Club, 97 F.3d 803, 806 (5 th Cir.1996); Long v. Eastfield College, 88 F.3d 300, 309 (5 th Cir.1996).




Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591, 594 (5 th Cir.1995), cert. denied, 516 U.S. 974 (1995).


Id., at 494.


Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 1002 (1998).


Farpella–Crosby v. Horizon Health Club, 97 F.3d at 806.


Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292–93 (1998). These cases left undisturbed the standard applicable to harassment by co-workers.


Docket Entry No. 48, Exhibit E at 66.


Id., Exhibit A at 210.


Id., Exhibit A at 497.


Crescent Towing & Salvage Co., Inc. v. M/V ANAX, 40 F.3d 741, 744 (5 th Cir.1994)(defendant moving for summary judgment based on affirmative defense must establish each element of the defense as a matter of law).


In her original petition, Braunig also complained that she was not notified of the “In Store” district manager position, and in their motion, Defendants argue that because Drake took over the In Store position more than 300 days before Braunig filed her charge of discrimination with the Equal Employment Opportunity Commission, she is barred from basing her retaliation claim on this event. Braunig does not argue otherwise, and thus, appears to have abandoned this claim.


Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5 th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 336 (1997); Dollis v. Rubin, 77 F.3d 777, 781 (5 th Cir.1995).


Mattern v. Eastman Kodak Co., 104 F.3d at 707; Dollis v. Rubin, 77 F.3d at 781–82.




Docket Entry No. 48, Exhibit A at 372–74; 561. See Dollis v. Rubin, 77 F.3d at 779–80 (employee’s allegations that she was refused a consideration for a promotion; was refused attendance at a training conference; had her work criticized to a government vendor; and was given false information regarding aspects of her employment did not constitute ultimate employment decisions).


Docket Entry No. 48, Exhibit A at 350.


Id., Exhibit A at 352.


Id., Exhibit A at 499.


As with her retaliation claim, Braunig appears to have abandoned certain allegations in her petition with respect to her ADEA claim, as she has neither argued nor presented evidence on these allegations in opposition to the summary judgment motion. See, Docket Entry No. 1, Plaintiff’s Original Petition, ¶ 93.


Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5 th Cir.1997).






29 U.S.C. § 626(d)(2).


Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 537 (5 th Cir.1998).




Docket Entry No. 48, Exhibit A at 74; 147–48; 255.


Id., Exhibit A at 235.


Tex. Pen.Code § 22.01 (Vernon 1994); Wal–Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex.App.-San Antonio 1996, writ denied) (recognizing that civil and criminal definitions of assault are identical).


Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, no writ).


Although her response implicates only Drake and BOA in this claim, Braunig’s petition names Defendants collectively in this cause of action. See, Docket Entry No. 1, Plaintiff’s Original Petition, ¶¶ 75–81.


Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 195 (5 th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 682 (1997); Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993).




Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir.1992); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991).


Wornick Co. v. Casas, 856 S.W.2d at 734.


885 F.2d 300 (5th Cir.1989).


Id., at 307.


939 F.2d 1138.


Id., at 1139, 1144.


Id., at 1145.


Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993); Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973).


Valenzuela v. Acquino, 853 S.W.2d at 513.


Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 85 (5 th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 69 (1997); Wilhite v. H.E.Butt Co., 812 S.W.2d 1, 6 (Tex.App.-Corpus Christi 1991, no writ).


Docket Entry No. 48, Exhibit A at 508.


Federal Express Corp v. Dutschmann, 846 S.W.2d 282, 284, n. 1 (Tex.1993).


Docket Entry No. 39, at 5–6.


Tex. Lab.Code § 408.001 (Vernon 1996); Ward v. Bechtel Corp ., 68



Id. (negligent hiring, supervision, and retention claims preempted by Workers’ Compensation Act).


Docket Entry No. 1, Plaintiff’s Original Petition, ¶¶ 133–136.


Elliott v. Tilton, 89 F.3d 260, 264 (5 th Cir.1996).






United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.1989), cert. denied, 492 U.S. 918 (1989).


Battle v. U.S. Parole Commission, 834 F.2d 419, 421 (5th Cir.1987).


Thomas v. Arn, 474 U.S. 140, 150–55 (1985); United States v. Raddatz, 447 U.S. 667, 673–76 (1980); 28 U.S.C. § 636(b)(1).


Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415 (5th Cir.1996).

End of Document