Opinion
CIVIL ACTION NO. SA-99-CA-0819 FB
March 2, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is a Title VII employment discrimination action brought by plaintiff, Monica Buenrostro ("Buenrostro"), against her former employer, Flight Safety Texas, Inc. ("Flight Safety"). The crux of her complaint is that she allegedly endured sexual harassment by her former immediate supervisor, Don Roney, during her eight months tenure at Flight Safety. The sexual harassment manifested itself in the form of unsolicited compliments about her physical appearance and a supposed business-related lunch invitation that turned personal, making Buenrostro uncomfortable. Buenrostro alleges that once she rebuffed Roney's sexual advances, he diminished her authority in front of other employees, showed favoritism towards another female employee who was allegedly having a consensual affair with him, and refused to provide her with the flight training promised to her prior to accepting the employment position. She further alleges that although she complained to Flight Safety's upper management about the harassment, Flight Safety failed to take prompt remedial action, forcing her to involuntarily resign from employment. In addition to her sexual harassment hostile work environment claim, Buenrostro asserts national origin and sex discrimination claims (Mexican female); a retaliation claim, premised on her contention that after she complained to management, Roney continued to harass her and gave her a "bad" 6-months performance appraisal costing her a pay increase; and a constructive discharge claim. Also, Buenrostro has pleaded a defamation claim, asserting libel per se, under Texas law.
Buenrostro has also sued Flight Safety International Inc. Since it is undisputed that Buenrostro's direct employer was Flight Safety Texas, both defendants will be collectively referred hereto as "Flight Safety." Docket Entry 34, at 1-2.
Prior to referring this case to me for the handling of all pre-trial matters, the District Court by an Order filed June 21, 2000, granted Flight Safety's motion to dismiss Buenrostro's sexual harassment hostile work environment claim, pursuant to FED.R.CIv.P. 12(b)(6), without prejudice to Buenrostro filing an amended complaint to cure her pleading deficiencies. Upon Buenrostro's filing of her First Amended Complaint on July 6, 2000, Flight Safety reurged its motion for partial dismissal of that claim, and also moved for dismissal of Buenrostro's other Title VII claims of national origin and sex discrimination, and retaliation (Docket Entry 35). Flight Safety has also filed a motion for partial summary judgment on the same claims (Docket Entry 42); a motion for partial summary judgment as to damages under Title VII (Docket Entry 43), and a motion to dismiss, or alternatively, for summary judgment on Buenrostro's defamation claim (Docket Entry 39).
Docket Entry 31.
Buenrostro has filed responses to all of Flight Safety's motions, without waiving her position that Flight Safety's summary judgment motions are premature and that farther discovery needs to be conducted. Buenrostro, again, in an attempt to cure the pleading deficiencies noted by Flight Safety's motion for dismissal of her national origin and sex discrimination claims, has moved for leave to file a Second Amended Complaint. These motions are the subject of this Memorandum and Recommendation.
Docket Entries 40, 46, 51 53.
In that regard, Buenrostro has filed a motion under FED.R.CIv. P. 56(f), seeking a 75-day continuance of her responses to Flight Safety's summary judgment motions, pending completion of discovery. Docket Entry 44. Flight Safety has filed a response to that motion. Docket Entry 54. I will address Buenrostro's motion for a continuance in a separate Order entered on the same day as this Memorandum.
Docket Entry 40. Flight Safety opposes Buenrostro's motion for leave to file a Second Amended Complaint. Docket Entry 48.
also note that in addition to the responses, both parties have filed numerous replies and sur-replies, briefing the issues in this case to exhaustion.
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.
Docket Entry 75.
After having reviewed Buenrostro's First Amended Complaint, the legal arguments and supporting authority submitted by Flight Safety in support of dismissal, or alternatively for summary judgment, and the responses filed thereto by Buenrostro, it is my recommendation that Flight Safety's motion for dismissal of Buenrostro's causes of action for sexual harassment hostile work environment and national origin/sex discrimination should be granted for failure to state a claim pursuant to FED.R.CIv. P. 12(b)(6). Moreover, I further recommend that Flight Safety's motions for summary judgment on Buenrostro's claims for retaliation, constructive discharge and defamation be granted as Buenrostro has failed to establish the existence of a genuine issue of material fact under the applicable legal standards.
II. Jurisdiction
The court has original and supplemental jurisdiction pursuant to 28 U.S.C. § 1331, 1343 and 1367.
III. Issues Presented
1. Whether Buenrostro has pleaded a viable claim of sexual harassment hostile work environment upon which relief can be granted?
2. Whether Buenrostro has pleaded a viable claim of national origin and sex discrimination under a disparate impact theory?
3. Whether Buenrostro has established her prima facie case of retaliation and/or constructive discharge under Title VII?
4. Whether Buenrostro has established a prima facie case of defamation under Texas law?
IV. Analysis
Flight Safety has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), or alternatively, for summary judgment, on all of Buenrostro's causes of action.1. Dismissal Under FED. R. Civ. P.12(b)(6)
Motions to dismiss for failure to state a claim upon which relief can be granted are disfavored and rarely granted. The standard is strict and a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle [her] to relief. In order to warrant dismissal, a complaint must show a bar to relief or a successful affirmative defense on its face. The party bringing a Rule 12(b)(6) motion bears the burden of establishing that no claim has been stated upon which relief can be granted. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." As the District Court noted in this case, to avoid dismissal for failure to state a claim, a plaintiff "must plead specific facts." Pleading mere conclusory allegations, or legal conclusions masquerading as factual allegations, would not defeat a properly brought motion to dismiss.
Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981).
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986).
Sherrell v. City of Longview, 683 F. Supp. 1108, 1110 (E.D. Tex. 1987).
Schener v. Rhodes, 416 U.S. 232, 236 (1974).
Docket Entry 31, at 4 (and case authority cited herein) (Emphasis added).
See Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278 (5th Cir. 1993).
In construing the motion, the court must presume all the well-pleaded factual allegations in the complaint to be true, and all reasonable inferences must be made in favor of the nonmoving party. Rule 12(b)(6), however, allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations will not suffice to prevent a motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the nonexistence of those facts.
Cinel v. Connick, 15F.3d 1338, 1341 (5th Cir.), cert. denied, 513 U.S. 868 (1994).
See Lovelace v. Software Spectrum. Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Diliard Dept. Stores, Inc., 818 F. Supp.983 (N.D. Tex. 1993).
2. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. 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. 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. The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, 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. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id.; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id .
Anderson, 477 U.S. at 257.
The non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.Civ.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be 'no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id., at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields, 922 F.2d at 1187.
3. Buenrostro's Sexual Harassment Claim
A cause of action for sexual harassment hostile work environment requires the existence of severe or pervasive and unwelcome verbal or physical harassment of the plaintiff due to the plaintiff's membership in a protected class. Flight Safety has reurged dismissal of this claim by arguing that by her First Amended Complaint Buenrostro failed to plead her sexual harrassment claim with sufficient factual specificity, as instructed by the District Court in its June 21, 2000 Order. In response, Buenrostro argues that she has cured the pleading deficiencies with respect to this claim. Buenrostro points to paragraph six of her amended complaint:
Id . at 66-67.
Beginning immediately after Plaintiff's employment and continuing until August 18, 1998, Roney, during working hours, subjected Plaintiff to numerous unwelcome and unsolicited actions for the purpose of currying sexual favors. Roney offered Plaintiff her job based on her appearance and without reviewing her qualifications. Plaintiff was hired by her manager with the promise of advancement in management and flight training. Shortly after being hired, she was confronted on numerous occasions by the same manager with sexual comments and proposals. Plaintiff was forced to work in a sexually charged environment with a supervisor who was a veritable sexual predator, with a history of such conduct. This created a hostile environment that affected the terms and conditions of her employment. The following are examples of sexual harassment by Roney, which include, but are not limited to:
(1) Roney would continually ask Plaintiff out to lunch;
(2) Roney frequently made personal comments to Plaintiff about her physical appearance, such as "you are a very beautiful woman;"
(3) Roney got Plaintiff to agree to one lunch meeting with the implication that it would be to discuss business and, therefore, expected of her as part of her job. Instead, Roney took Plaintiff to an intimate restaurant, steered the conversation away from work, questioned Plaintiff about details of her personal life and told Plaintiff about his failing marriage and his frustration with his wife. The clear indication at this meeting was that Roney was looking for a new female employee to have an affair with him which made Plaintiff very uncomfortable and would have made any objective person in her position feel uncomfortable;
(4) Roney's attraction to Plaintiff was obvious as Roney's current office paramour approached Plaintiff and told her she was sleeping with Roney and wanted to know if Plaintiff was having an affair with Roney;
(5) After Plaintiff rejected Roney's advances, Plaintiff's position, authority, responsibility, and financial benefit with the company that had been previously promised turned sour to the point she had no future with the company. For example she was given a bad performance review by Roney which affected her ability to receive a raise in pay;
(6) After Roney's advances were rejected by Plaintiff, Roney retaliated by: a) forcing Plaintiff to terminate valuable employees because Roney's current office paramour didn't like them, thereby removing any authority Plaintiff had, b) forcing Plaintiff to conduct a performance appraisal for his paramour and when Plaintiff gave her fair to poor marks because she was a poor employee, Roney disregarded Plaintiff's review and gave his paramour a raise with a recommendation for a promotion to Plaintiffs assistant. Roney's intent was to embarrass and humiliate Plaintiff in front of his paramour and undermine Plaintiff's authority, c) intentionally showing favoritism toward his office paramour after Plaintiff rejected his advances with the purpose of obstructing Plaintiff's ability to do her job in a successful effort to constructively fire Plaintiff by giving her no choice but to resign, which she did, and d) after Plaintiff refused Roney's advances, his attitude changed for the worse and her work environment deteriorated to the point where she realized she had no future with the company.
Specifically, Plaintiff would show that her "managerial" position was a mere fiction because she was given little or no authority. Furthermore, Plaintiff was not given the flight training opportunities that she was promised.
Docket Entry 34, at 2-5.
These pleaded assertions are substantially the same as the ones the District Court found insufficient to satisfy the necessary elements of Buenrostro's hostile work environment claim, namely, that she was subjected to unwelcome sexual harassment and that the harassment was so severe as to alter her conditions of employment and create an abusive working environment. For example, in its June 21, 2000 Order, the District Court found that plaintiff had not alleged that the actions complained of were sexual in nature:
Docket Entry 31, at 5-9 (discussing Galloway v. Matagorda County, Texas, 35 F. Supp.2d 952, 955 (S.D. Tex. 1999 and other applicable cases)).
Plaintiff complains she was asked out to lunch on several occasions and on one, supposedly a business lunch, plaintiff was questioned about her personal life and had to listen to Mr. Roney explain he was disappointed with his wife. Plaintiff does not state she was forced into going to lunch or that she was harassed or had to endure personal questions at every lunch or that she explained to Mr. Roney she did not like to discuss personal topics and he continued to discuss same, or that the questions about her personal life or the disappointment expressed in the wife were sexual in nature. Plaintiff also fails to allege that any of the compliments she was paid concerning her physical appearance were harassing or sexual in nature.
Id . at 5.
In her response brief, Buenrostro disagrees with the District Court's Order in maintaining that conduct giving rise to a hostile work environment need not consist of sexual advances or have clear sexual overtones. Buenrostro argues that conduct that is non-sexual in nature that ridicules women or treats them as inferior can constitute prohibited sexual harassment. Even, assuming, arguendo, that Buenrostro's legal argument is correct, this argument runs contrary to Buenrostro's general premise that Roney was sexually interested or attracted to her. Moreover, there is also no factual assertion in her complaint that Roney ridiculed her or treated her as inferior because of her sex. Further, using "buzz" phrases such as "sexual favors," "sexual comments and proposals," "sexually charged environment" and referring to Roney as a "veritable sexual predator," without more, does not relieve Buenrostro of her burden to plead her claim with sufficient specificity.
Docket Entry 40, at 3-4.
Buenrostro has failed to plead with sufficient specificity her sexual harassment claim. She continues to rely on mere conclusory allegations, or onlegal conclusions masqueraded as factual allegations. Accordingly, the law of the case with respect to this claim as it was established by the District Court's June 21, 2000 Order should remain and Flight Safety's reurged motion to dismiss should be granted. Even though Buenrostro may have considered Roney's unsolicited compliments regarding her personal appearance inappropriate, or even if his discussions about personal matters offended her, those actions as pleaded do not rise to the level of unlawful conduct under Title VII.
Docket Entry 42, at 3.
In addition, Buenrostro devotes a substantial part of her sexual harassment complaint to the theory of sexual favoritism. This theory is not actionable under Title VII. As discussed by the Fifth Circuit Court of Appeals, and more recently by a district court in the Southern District of Texas, most circuit courts "refuse to extend Title VII to employment decisions that are not related to impermissible gender-based distinctions." Alleged favoritism to a paramour generally has been held not to constitute discrimination in violation of Title VII because the alleged discrimination is not based on plaintiffs sex. "Title VII does not protect employees from hostile conduct that is not based on their protected status." Accordingly, the alleged preferential treatment of Roney's office paramour, while perhaps unfair, is not discrimination on the basis of sex in violation of Title VII.
Docket Entry 34, at ¶¶ 4 6 (a-d).
Ellert v. University of Texas, 52 F.3d 543, 546 n. 11 (5th Cir 1995); and Harvey v. Chevron, U.S.A., Inc., 961 F. Supp. 1017, 1029 (S.D. Tex. 1997).
Harvey, 961 F. Supp. at 1029 (and case authorities cited therein). See also EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, EEOC Notice No. 915-048, at 2 (Jan. 12, 1990), as cited in Harvey, which provides in relevant part:
An isolated instance of favoritism toward a 'paramour' (or spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.
Harvey, 961 F. Supp. at 1030 (case citation omitted).
2. Buenrostro's National Oriain/Sex Discrimination Claim
In attempting to plead a claim for national origin/sex discrimination Buenrostro incorporates paragraphs 6-14 of her amended complaint and further states:
Plaintiff had opposed the discriminatory employment practices described above to the management of Defendants, Flight Safety [. . .], on several occasions but Plaintiff either received either [sic] no response from her reports or meaningless responses. Plaintiff reasonably believes upper management failed to assist her because of her Hispanic origin and because of her sex, female. In addition, the Director of Training at Flight Safety told the Plaintiff when she asked about possible advancement opportunities that Mr. Ueltschi [President of the company] is "not much into girls."
Docket Entry 34, at 7.
Flight Safety in seeking dismissal of this claim, argues that the incorporated paragraphs deal with sexual harassment, retaliation and constructive discharge claims, and make no reference to her national origin. Further, Flight Safety contends that her allegation referencing to national origin discrimination is wholly conclusory and devoid of any factual support. With respect to Buenrostro's sex discrimination claim, Flight Safety contends it should be dismissed as well because she fails to plead the necessary elements of her prima facie case, namely that Flight Safety intentionally discriminated against her and that she suffered an adverse or ultimate employment action.
Docket Entry 36, at 2-5.
Surprisingly, in her response, Buenrostro asserts that she does not need to prove intentional discrimination because she is not alleging disparate treatment on the bases of her national origin and sex. Instead, she is proceeding under a disparate impact theory. Buenrostro states in her response: "Plaintiff has not alleged a disparate treatment claim which requires proof of the framework articulated in McDonnell Douglas and which Defendants claim Plaintiff has failed to plead. Instead, Plaintiff's claim is based on a disparate impact theory." I construe this statement as Buenrostro's effective abandonment of her disparate treatment claim. To that extent, Buenrostro has requested leave to amend her First Amended Complaint to add the following sentence to the above-quoted paragraph: "Plaintiff further alleges, upon information and belief, that Defendants' hiring practices have a disparate impact on Hispanic females because of the composition of mainly Non-Hispanic male employees at Flight Safety in San Antonio." Buenrostro farther argues that since she has sufficiently pleaded a disparate impact claim of discrimination, leave to amend should be granted and "she should be permitted to conduct discovery of Defendants [sic] employment practices to prove it." I cannot agree with Buenrostro's position.
Docket Entry 40, at 3.
Id . at 3 and Exhibit A, Plaintiff' Second Amended Original Complaint received on July 24, 2000, at 7.
Id .
First, because, as noted by Flight Safety, Buenrostro failed to assert a disparate impact theory of discrimination in her charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"); and as such, her disparate impact claim should be dismissed for failure to exhaust her administrative remedies. Second, a review of fluenrostro's proposed sentence by which she attempts "to cure any pleading deficiencies" with respect to her disparate impact claim, fails because she has not identified the specific neutral hiring practices conducted by Flight Safety that purportedly had a discriminatory impact on Hispanic female employees, such as herself. Buenrostro's pleading assertion based "upon information and belief," does not even comply with the standards of "notice pleadings" under FED.R.CIv.P. 8, which requires "a short and plain statement of the claim" that gives the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.
FED. R. Clv. P. 8(a)(2).
Buenrostro's request for leave to amend her complaint to include a disparate impact claim is governed by FED. R. Clv. P. 15(a). That Rule provides that once a responsive pleading is filed. a party may amend his pleadings only by leave of court or by written consent of the adverse party and that leave "shall be freely given when justice so requires." While amendments should be liberally allowed, leave to amend is "by no means automatic." The decision to grant or deny a motion for leave to amend lies within the sound discretion of the trial court. Reasons which would justify denial of a motion to amend include unnecessary delay, bad faith or dilatory motive on the part of the party seeking the amendment, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party caused by the allowance of the amendment, and futility of the amendment. A proposed amendment is futile if the claim, as amended, would be subject to dismissal. The futility question is "functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim" under FED.R.CIv.P. 12(b)(6). With this standard in mind, I will determine whether Buenrostro should be denied leave to amend to add a disparate impart claim in light of her failure to exhaust administrative remedies.
FED. R. Civ. P. 15(a). See F.D.LC. v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994).
Halbert v. City of Sherman, Texas, 33 F.3d 526, 529 (5th Cir. 1994); Addinfton v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098 (1981); Clauder v. Sears, Roebuck and Copmany, 805 F. Supp. 445, 447 (E.D. Tex. 1992).
Id. See also Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir. 1990).
Foman v. Davis, 371 U.S. 178, 182 (1962).
Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999).
Id .
Even though Buenrostro asserts in her proposed Second Amended Complaint that she has satisfied all the procedural and administrative requirements set forth in Title VII, by timely filing a charge of discrimination with the EEOC, a review of the EEOC charge dated May 4, 1999, proves otherwise, at least with respect to her newly asserted claim of disparate impact. The description contained in her EEOC charge states:
Beginning on or about December 27, 1997, I was subjected to sexual harassment by Don Roney, Center 120 Manager. Although I reported Mr. Roney's actions to upper management, no action was taken regarding my complaint. I believe no action was taken because I am female and Mexican. Almost immediately after rejecting his advances, Mr. Roney began to make my work environment intimidating and hostile. I was later required to provide the Corporate office with a copy of my I9 form with supporting documents. There are numerous other examples of his and the company's conduct towards me. Because of the hostile and intimidating work environment created by Mr. Roney and the retaliation for having reported Mr. Roney's actions, I felt I was compelled to resign on August 19, 1998. I believe that I have been discriminated against because of my sex, female, my national origin, Mexican, and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended.
Docket Entry 48, Exhibit A.
This description clearly asserts a disparate treatment claim of discrimination on the bases of her national origin and sex, but it does not assert, nor can it reasonably relate to, a claim of disparate impact.
A district court may assume jurisdiction only over complaints containing allegations that are "reasonably related" to the allegations in the EEOC complaint. A claim of discrimination is reasonably related to a charge filed with the EEOC if: a plaintiff presents it to the EEOC; or the EEOC investigates the claim; or the EEOC investigation of the original charge could be expected to encompass the claim.
See Simms v. Oklahoma ex rel. Dep't of Mental Health Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
Because Buenrostro has failed to attach her EEOC charge and right to sue letter to her original complaint, it is unclear at this time whether the EEOC issued a right to sue letter after it investigated the charge or whether it issued the right to sue letter at the request of Buenrostro prior to concluding its investigation.
Simms , 165 F.3d at 1327. See also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989); and McKinney v. Eastman Kodak Co., 975 F. Supp. 462, 464 (W.D.N.Y. 1997) (dismissing employee's disparate impact age discrimination claims because they were not reasonably related to employee's EEOC charge).
As the quoted description in her EEOC charge demonstrates, Buenrostro has stated no facts in her EEOC charge that would cause the EEOC to investigate a disparate impact claim. The facts asserted in the charge relate solely to Buenrostro's treatment on an individual basis. Buenrostro's EEOC charge made no complaint of an specific company policy or practice, or impact on any other employee. Because Buenrostro failed to assert her disparate impact claim in her EEOC charge, her claim is subject to dismissal for failure to exhaust administrative remedies. Based on these findings, I hereby deny Buenrostro's request for leave to amend to file herSecond Amended Complaint, on the basis that allowing the proposed amendment to add a new claim of disparate impact discrimination, would be futile.
See Dobson v. Aida Alvarez, Administrator U.S. Small Business Administration, No. CA3:98-CV-0187-R, 1999 WL 134371, at *5 (N.D. Tex. Mar. 10, 1999) (dismissing plaintiff's disparate impact claim due to his failure to exhaust administrative remedies).
Even assuming, arguendo, that Buenrostro has exhausted her administrative remedies and her disparate impact claim is properly before this court, her proposed pleaded claim fails to state a claim upon which relief can be granted. As Buenrostro has correctly noted, disparate impact claims do not require proof of intent to discriminate. In order to establish a prima facie case of disparate impact under Title VII, plaintiff must: (1) identify the specific employment practices or selection criteria being challenged; (2) show disparate impact; and (3) prove causation, that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. The evidence will focus on the degree of statistical disparity between protected and non-protected employees in regards to employment or promotion.
See Muñoz v. Orr, 200 F.3d 291, 299-300 (5th Cir). cert. denied, 121 S.Ct. 45 (2000).
Id .
Buenrostro's proposed disparate impact statement does not cure her failure to plead a specific practice by Flight Safety that has purportedly excluded Hispanic females. In fact, it appears, based on Buenrostro's motion for a continuance that she is seeking to conduct a "fishing expedition" type of discovery into Flight Safety's hiring practices to see if she can find one that would support her case. Without identifying which specific hiring practice she is challenging in this case, Buenrostro should not be allowed to proceed.
Docket Entry 44, at 3.
5. Buenrostro's Retaliation/Constructive Discharge Claims
Since Flight Safety refers to matters outside the pleadings in seeking dismissal of these claims, I will analyze the parties' positions in accordance with the summary judgment standard.
According to her amended complaint and responsive pleadings, Buenrostro alleges that, sometime in April of 1997, she reported to Flight Safety's upper management Roney's harassment towards her and his office affair with another female employee. Buenrostro alleges that Flight Safety's management failed to take any remedial action. Subsequent to her internal complaint, Roney, according to Buenrostro, began to retaliate against her by giving her a "bad" six months performance appraisal, costing her a pay increase and trumping her career prospects with the company. Buenrostro further alleges that because of Roney's continued harassment and Flight Safety's failure to address her complaints choosing instead to condone Roney's sexual proclivities, her working conditions became so intolerable that she was forced to involuntarily resign from employment on August 19, 1998.
Docket Entry 34, at 5-7 and docket entry 51, at 9-13.
Flight Safety has moved for summary judgment on this claim alleging that Buenrostro has not met her prima facie case of retaliation, that is, that she engaged in protected activity, that she suffered an adverse employment action within the meaning of Title VII. and that a nexus existed between her protected activity and Flight Safety's adverse employment action against her. In support of its motion, Flight Safety relies on the following summary judgment evidence: Buenrostro's six months performance appraisal dated July 14, 1998 and related documents, and excerpts of Buenrostro's deposition testimony taken September 18, 2000.
Docket Entry 42, at 7-9.
Docket Entry 42, Exhibit A.
Docket Entry 78, Exhibit A-1 through A-3.
Buenrostro counters these arguments by stating that she engaged in protected activity by reporting to Flight Safety's management not only of Roney's harassing and retaliatory behavior towards her, but also of his illicit office affair with another employee. Buenrostro also maintains that she has established that she suffered an adverse employment action i.e., she was constructively discharged, and that the adverse employment action was causally related to her protected activity. In support of herprima facie burden, Buenrostro has submitted her sworn declaration.
Docket Entry 51, Exhibit A.
a. Flight Safety's Objections to Buenrostro's Declaration
Flight Safety has filed separate objections to the admissibility of Buenrostro's eight paragraph declaration (which includes an almostverbatim recitation of her pleaded allegations from her amended complaint), arguing that it should be excluded in its entirety because it includes legal/factual conclusory statements, speculation, hearsay and has specifically been controverted by Flight Safety's competent summary judgment, such as the Affidavit of Amparo Calatayud, Flight Safety's current Center Manager, the Customer Support Performance Appraisal of Buenrostro by Roney and Buenrostro's own subsequent deposition testimony. When affidavits are used to support or oppose a motion for summary judgment they "shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Affidavits that are not based on personal knowledge or that are based merely on information and belief do not satisfy the requirements of Rule 56(e), and those portions of an affidavit that do not comply with Rule 56(e) are not entitled to any weight and cannot be considered in deciding a motion for summary judgment. Neither shall conclusory affidavits suffice to create or negate a genuine issue of fact.
Docket Entry 56. Buenrostro filed a response to Flight Safety's motion to exclude, docket entry 62, to which Flight Safety replied, docket entry 68. Both parties have also filed sur-replies, docket entries 71 72.
FEn. R. Civ. p. 56(e); Beijing Metals Minerals Imnort/Exuort Corp., v. American Bits. Center, Inc., 993 F.2d 1178, 1182 (5th Cir. 1993).
Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5th Cir. 1994).
See Travelers Ins. Co., v. Liljeberg Enterprises, Inc., 7 F.3d 1203, 1207 (5th Cir. 1993); Salas v. Cawenter, 980 F.2d 299, 305 (5th Cir. 1992).
Even though Buenrostro's declaration strays on occasion from personal knowledge and includes legal conclusions and hearsay, for the most part it includes statements of her personal knowledge. Instead of excluding the declaration in its entirety, my reliance on it in making this recommendation will be limited to those statements reflecting Buenrostro's personal knowledge. Thus, Flight Safety's request to exclude Buenrostro's declaration in its entirety is denied. I further deny Flight Safety's request to exclude this evidence to the extent that it bases its objections on the weight of the evidence and not on its admissibility.
Docket Entry 56.
b. Buerirostro Has Failed to Establish a Prima Facie Case of Retaliation
To establish a prima facie case of retaliation, Buenrostro must demonstrate that: (1) she engaged in an activity protected under Title VII; (2) Flight Safety took an adverse action against her; and (3) a causal connection exists between the protected activity and the adverse employment action. "Protected activity" under Title VII includes making a charge against the employer or participating in any manner in a hearing concerning the charge. "Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave, but not events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future."
See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 118 S.Ct. 336 (1997); Burner v. Central Apartment Management Inc., 168 F.3d 875, 878 (5th Cir, 1999); and Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999).
Id .
It is well-settled that the analytical framework applicable to Title VII disparate treatment cases, as set forth in McDonnell Douglas Corp. v. Green, is also applicable to Title VII unlawful retaliation cases. i. Analytical Framework
411 U.S. 792 (1973).
See Biters v. The Dallas Morning News, 209 F.3d 419, 427 (5th Cir 2000).
A plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Absent direct evidence of discriminatory intent, as is in this case, proof via circumstantial evidence is evaluated using the framework set forth in McDonnell Douglas Corp . "First, the plaintiff must establish a prima facie case of discrimination." Second, the employer must respond with a legitimate, nondiscriminatory reason for its decision. The burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the "mandatory inference of discrimination" created by the plaintiff's prima facie case, "drops out of the picture" and the fact finder must "decide the ultimate question: whether [the] plaintiff has proven [intentional discrimination]."
Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000).
See McDonnell Douglas, 411 U.S. at 802.
See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Id . at 256 n. 10.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 51-12 (1993).
In making this showing, the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" However, as the United States Supreme Court stated in Hicks, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. It is "not enough . . . to disbelieve the employer; the [fact finder] must believe the plaintiff's explanation of intentional discrimination. This statement in Hicks apparently caused confusion as to whether intentional discrimination could be inferred from a showing of pretext.
See McDonnell Douglas, 411 U.S. at 804.
Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n. 10).
Hicks, 509 U.S. at 524.
Id . at 519 (Emphasis in original).
Reeves, 120 S.Ct. at 2 104-05 (describing the circuit conflict resulting from the confusion).
The United States Supreme Court recently resolved the circuit split in Reeves v. Sanderson Plumbing Prods., Inc . by rejecting the "pretext-plus" approach, thus overruling the Fifth Circuit's decision in that case. A unammous Court held that the Fifth Circuit had "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence." "Thus, a plaintiff's prima fade case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."
Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir 1999); and Reeves, 120 S.Ct. at 2108.
Reeves, 120 S.CT. at 2108.
Id . at 2109.
The Court in Reeves further stated that, more likely than not, a showing of pretext will lead to an inference of discrimination: "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."
Id . at 2108-09.
The Reeves Court also cautioned that there may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination. Such a situation would occur "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted indenendent evidence that no discrimination occurred."
Id . at 2109 (emphasis added).
With this framework in mind, I will proceed to analyze Buenrostro's evidence in support of her prima facie case of retaliation under Title VII.
ii. No Evidence of Protected Activity
An individual engages in protected activity under Title VII when the individual "has opposed any practice made an unlawful employment practice by [Title VII] . . . ." In addition, the individual must establish that she had an objectively reasonable belief that the employer's practices were unlawful.
42 U.S.C. § 2000e-3(a) (Emphasis added).
Harvey, 961 F. Supp. at 1032.
Besides Buenrostro's general assertions that in April of 1998 she reported "the comments Roney made to [her] about [her] appearance, the retaliatory conduct and his office affair with another employee," and that she "kept Human Resources apprised [sic] of [her] situation until [she] was discharged," she has failed to come forward with competent summary judgment evidence to rebut Flight Safety's contention that she did not engage in protected activity. "Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial."
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be 'no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the noninoving party's case necessarily renders all other facts immaterial."). Id . at 323.
For instance, it appears from the assertions made in Buenrostro's amended complaint, that she mainly complained about the favoritism exhibited by Roney to his office paramour. In Harvey v. Chevron, U.S.A., Inc., a district court from the Southern District of Texas granted summary judgment in favor of the employer finding that the employee, who complained about sexual favoritism, an activity not actionable under Title VII, failed to show that she engaged in protected activity in support of her retaliation claim.
Docket Entry 34, at ¶ 6.
Moroever, even assuming, as Buenrostro contends, that Roney's six months performance evaluation was retaliatory, there is no evidence that Buenrostro considered it as such at the time. On the contrary, a review of her performance evaluation indicates that in fact Roney gave her a favorable overall rating of 80.6%, only noting that Buenrostro needed some formal training in some customer support areas. Roney even recommended that due to Buenrostro's supervision of nine employees, her job title be changed from "Customer Support Manager" to "Customer Support Manager III." Roney's recommendation was in response to a memorandum from Buenrostro dated June 22, 1998. In that memorandum, Buenrostro not only mentions her proposed change in job title but she also discusses the goals and objectives that she needs to accomplish following her six months performance period. In that document, there is not even a hint of Buenrostro's objections to Roney's purported harassment and/or discrimination. In fact, in light of the subsequent six months performance appraisal, they both appeared to be in agreement as to Buenrostro's needed areas of improvement. Even though I conclude that Buenrostro has failed to make a showing sufficient to establish her first element of her prima facie case of retaliation, that is, that she engaged in protected activity by opposing an employment practice made unlawful by Title VII, I will proceed with my analysis of Buenrostro's second prima facie element.
It should be noted that her performance appraisal was conducted three months after Buenrostro purportedly complained to management about Roney's harassing and retaliatory behavior towards her. Moreover. I fail to see how an otherwise favorable performance appraisal, with a change in job title to the benefit of Buenrostro, can be viewed as an "adverse" or "ultimate" employment action under Title VII, as Buenrostro attempts to argue in this case.
Docket Entry 42, Exhibit A, Customer Support Performance Appraisal, dated July 14, 1998 and Manager's Comments Regarding Monica Buenrostro (6 Months Performance Appraisal), dated July 17, 1998.
Id . at Exhibit A, Memorandum from Buenrostro to Don Roney in reference to Customer Support Manager Six Months Performance Appraisal.
Id .
Id .
iii. No Evidence of Adverse Employment Action
According to her amended complaint and response to summary judgment, Buenrostro attempts to argue that she has met her burden of establishing that Flight Safety took an adverse employment action against her by asserting she was constructively discharged from employment. To prove that she was constructively discharged, Buenrostro must show that a "reasonable person in [her] shoes would have felt compelled to resign." Significantly, a constructive discharge claim further requires a "greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment."
Docket Entry 34, at ¶¶ 10 11 and docket entry 51, at 10. Buenrostro's position is supported by Benningfield v. The City of Houston . 157 F.3d 369, 378 (5th Cir 1998) (where the court noted that constructive discharge can constitute a tangible or adverse employment action in the proper factual scenario). This, however, is not such case.
Benningfield 157 F.3d at 378 (quoting Landgraf v. USI Film Products, 968 F.2d 427, 429-30 (5th Cir. 1992)).
Id .
Besides her mere conclusory allegations, which as discussed earlier, do even meet the pleading requirement for asserting a viable hostile work environment claim, Buenrostro has not produced competent summary judgment evidence showing that a reasonable person in her shoes would have felt compelled to resign. "When a motion for summary judgment is made and supported as provided in [FED.R.CIv.P. 56(e)], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Buenrostro essentially contends that she resigned because she believed, based on Roney's and Flight Safety's discriminatory actions against her, that she had no future in the company. Evidence of a plaintiff's subjective beliefs, with no supporting summary judgment evidence, however, is typically considered to carry little weight in the discrimination inquiry under the applicable legal standards. Buenrostro's fear of a future adverse employment action is not sufficient to support her claim of constructive discharge and/or the second element of her prima facie case for retaliation.
Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190-91 (5th Cir 1991).
Docket Entry 34 at ¶ 10 Docket Entry 51, Exhibit A, at ¶ 6.
See Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985) (court held that "employee's subjective belief that she was terminated because of her age and sex could not be the basis for judicial relief where adequate nondiscriminatory reason for discharge was presented."); and Elliott v. Group Med. Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984).
iv. No Evidence of Causation
In order to establish the third prong of her prima facie case, that is, that a causal link existed between the protected activity and the illegal employment action, the evidence must show that the employer's decision to terminate was based in part on knowledge of the employee's protected activity. Buenrostro has failed to present competent summary judgment evidence establishing a causal connection between any protected activity and any adverse employment action. In fact, according to Buenrostro's own deposition testimony, the event leading up to her resignation from employment on August 19, 1998, was an argument Buenrostro had with her supervisor, Flight Safety's Assistant Center Director Amparo Calatayud, concerning an incident involving a temporary employee, which was completely unrelated to Roney or any of her allegations of discrimination.
See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
Docket Entry 78, at 5-8 Exhibit A-3.
In her response, Buenrostro also attempts to argue that the timing, between her internal complaints to management in April of 1998 and her subsequent resignation, on August 19, 1998, establishes the causal link necessary to establish her prima facie case. This argument is not persuasive because four months had passed since her supposed protected activity and her resignation from employment. Thus, a juror could reasonably conclude that her resignation, four months after having complained to management, had nothing to do with her protected activity.
Docket Entry 51, at 11-12.
After having reviewed the competent summary judgment evidence on record, assuming arguendo, that Buenrostro has met her first two prima facie elements of retaliation, I conclude that Buenrostro has not brought forth sufficient evidence to support a finding that "but for" her protected activity, she would have not have resigned from employment. Because Buenrostro has failed to establish her prima facie case of retaliation or constructive discharge, the burden-shifting analysis under McDonnell Douglas is not invoked.
See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir 1983); Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir 1984) (noting that prima facie retaliation requires "but for" causation); and Long v. Eastfield College, 88 F.3d 300, 304-05 n. 4 (5th Cir. 1996) ("even if plaintiff's protected conduct is a substantial element in a defendant's [adverse employment] decision . . ., no liability for unlawful retaliation arises if the [same decision would have been made] even in the absence of the protected conduct.").
6. Buenrostro's Defamation Claim
Flight Safety has moved for summary judgment on Buenrostro's allegation that its e-mail dated November 11, 1998, three months after her departure from the company, was libelous per se. Following is the text of the e-mail made the basis of Buenrostro's claim:
From: Dixon, Duane Sent: Wednesday, November 11, 19998 10:07 p.m. To: Sim Tech-020 Subject: Security
As per Don Roney's request, he would like for all to be watching for Monica Buenrostro. It is believed she is coming in on weekends and nights and using the Sims with the Litoral Instructors. If this is happens (sic] you need to log the incident in the book, which sim she is using and with who, do not confront her, but notify Don, Ampy [Amparo Calataynd] or Rod.
Docket Entry 39, Exhibit A.
A statement is defamatory if the words tend to injure a person's reputation. Furthermore, "[b]ecause all words are not actionable, a plaintiff must prove either special damages (slander per quod) or that the words impute the commission of a crime, injure the plaintiff officially, professionally, or occupationally, or impute unchastity to a woman (slander per se)." Significantly, whether the words are capable of a defamatory meaning is a question of law for the court. The court must consider the statement in context and in light of the circumstances surrounding its publication, based upon how a person of ordinary intelligence would perceive the entire statement. Only when the court determines the language is ambiguous or of doubtful import should a jury then decide the statement's meaning and the effect the statement's publication would have on an ordinary reader. Statements must be viewed in their context. Just because the statements may be false, abusive, unpleasant, or even objectionable to the plaintiff, it does not mean they are defamatory. Importantly, the court must look at the entire communication and not just isolated sentences or portions. The court should also remember that its task is not to determine what the statement meant to the plaintiff, but whether it would be considered defamatory to the average reader.
TEX. Civ. PRAC. REM. CODE ANN. § 73.001 (Vernon 1999)
Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 310 (5th Cir. 1997).
Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 654-55 (Tex. 1987).
San Antonio Exuress News v. Dracos, 922 S.W.2d 242, 248 (Tex.App.-San Antonio 1996).
Id .
Id . (citing Musser, 723 S.W.2d at 654).
Id .
Id .
Based on the content of the e-mail in question, it is evident that it relates to an investigation of whether or not the flight instructors of one of Flight Safety's customers, Aerolitoral, were using after hours and weekend simulator time to provide flight training that had not been recorded. It does not impute any wrongdoing to Buenrostro, nor does it accuse her of committing a crime or a dishonest act. It simply alerts those employees who work at Flight Safety's simulator department, who are supposedly in charge of monitoring simulator usage by the company's customers, to make sure they log every user, including former employee Buenrostro.
In the present case, a review of The American Heritage Dictionary reveals that the dictionary definition for the word "watching" — a word to which Buenrostro seems to take particular exception — means "to look or observe attentively or carefully; be closely observant." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, NEW COLLEGE EDITION 1447 (1979).
According to the undisputed sworn testimony of Calatayud, Flight Safety's Center Manager, the core of Flight Safety's business is to provide flight simulator pilot training to customers. Customers can rent "dry" simulator time, which means they provide their own instructors. When these instructors provide training, they are required to fill out a simulator log in order to account for simulator time used so that Flight Safety can charge their accounts accordingly. It is undisputed that Aerolitoral, one of Flight Safety's customers, has on a consistent basis purchased dry simulator time. In 1998, at the time of the alleged incident (and continuing through the present), it is undisputed that Aerolitoral used dry simulator time for pilot training.
According to Calatayud. in the Fall of 1998, months after Buenrostro's resignation from employment, a report was made to management that Buenrostro was seen in the simulators with an Aerolitoral instructor. After checking the simulator logs, Flight Safety discovered that Aerolitoral had not been scheduled to use the simulators during the time that Buenrostro was spotted at the premises. In other words, no simulator utilization had been logged for the reported usage. Therefore, since there was no record of Aerolitoral's simulator usage, Flight Safety was unable to charge the account. As a result, according to Calatayud's sworn testimony, Flight Safety began an investigation on whether Aerolitoral had failed to record its simulator usage, and if so, what Flight Safety needed to do to correct any failure in its logging procedures to ensure accurate recording. It was within Flight Safety's business interest to determine if the simulators, were in fact, being used for training without a corresponding log entry.
Moreover, it is undisputed that the e-mail in question was forwarded from the San Antonio computer network administrator to "Sim Tech 020." This designation refers to the San Antonio Center, and more particularly, a group of employees that are responsible for monitoring the usage for such simulators. The e-mail was not directed to Aerolitoral nor any other third party. It is within this context, and not the fact that the e-mail was purportedly drafted at the request of the individual who Buenrostro now accuses of harassment, that I deem the e-mail at issue was not reasonably capable of the defamatory meaning Buenrostro has attributed to it.
Even though Buenrostro denies ever using Flight Safety's simulators, she has failed to provide corroborating summary judgment evidence in her support. Also, her position is contrary to her pleaded assertion in her amended complaint that she was "asked to participate in the flight simulations with the Aero Literal [sic] instructors." Even though she has asserted in her response that her amended complaint contains a "misstatement" and that she intends to request leave from the court to file yet another amended complaint, no such effort has been made to date. Even if she were to request the court for leave to amend, such amendment would be futile considering that as a matter of law, the e-mail at issue, which was drafted in furtherance of an internal investigation and thus was conditionally privileged, is not defamatory. Furthermore, the summary judgment evidence fails to show that Flight Safety may have acted maliciously in authoring this e-mail. On the contrary, the evidence shows that Flight Safety acted in good faith by promptly investigating and putting its employees on notice of possible unrecorded simulator usage by one of its customers.
Docket Entry 34, at ¶ 20.
Docket Entry 46, at 5. In that regard, I also note that Buenrostro's proposed Second Amended Complaint contains the same statement. Docket Entry 40.
See Campbell v. American Psychological Association, 68 F. Supp.2d 768, 781.82 (W.D. Tex. 1999); and Randall's Food Markets, Inc., v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Further, it should be noted that the e-mail is substantially true, at least with respect to Aerolitoral instructors' use of Flight Safety's simulators during the period the e-mail was issued.
Finally, it should be noted that although Buenrostro has asked for additional time in which to respond to Flight Safety's summary judgment motion by arguing that she needs to locate a former Aerolitoral employee who apparently heard of the e-mail at issue and can support Buenrostro's theory that it was defamatory, Buenrostro has failed to provide the court with any supplementary summary judgment evidence including a sworn statement of this witness.
Docket Entry 44, at 3.
Based on the foregoing, it is my recommendation that summary judgment begranted to Flight Safety with respect to Buenrostro's defamation claim, because as a matter of law, the email at issue is not reasonably capable of defamatory meaning.
VIII. Recommendation
Based on the foregoing, I recommend that the District Court GRANT, IN PART, Flight Safety's motion for partial dismissal (Docket Entry 35) with respect to Buenrostro's sexual harassment hostile work environment and national origin/sex discrimination under a disparate impact theory. Because Buenrostro failed to exhaust her administrative remedies by not asserting her disparate impact claims of discrimination before the EEOC, her request for leave to file a Second Amended Complaint (Docket Entry 40) is hereby DENIED .
I further recommend that the District Court GRANT, IN PART, Flight Safety's motion for partial summary judgment on Buenrostro's claims for retaliation and/or constructive discharge (Docket Entry 42). Buenrostro has failed to allege facts sufficient to entitle her to relief such that there is no genuine issue of material fact under the applicable legal standards. Flight Safety's motion to exclude (Docket Entry 56) Buenrostro's declaration in support of her response to partial summary judgment is hereby DENIED . Consistent with my recommendation that no claims under Title VII survive either dismissal or summary judgment, Flight Safety's motion for partial summary judgment as to Title VII damages (Docket Entry 43) and Flight Safety's motion to exclude Buenrostro's declaration on Title VII damages, as well as the affidavit and report of her expert witness, Gene Trevi~no, on that issue (Docket Entries 55, 56 57) should be DENIED AS MOOT .
Finally, regarding Flight Safety's motion to dismiss, or alternatively, for summary judgment on plaintiff's claim for defamation (Docket Entry 39), which I have converted for all purposes as a summary judgment motion, it is my recommendation to the District Court that it should also be GRANTED . As a matter of law, the e-mail at issue is not reasonably capable of defamatory meaning.
IX. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).