Opinion
Civil Action No. 3:00-CV-1197-L
May 30, 2003
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment, filed September 4, 2001. After reviewing Defendant's motion, Plaintiffs response, Defendant's reply, the record, and applicable law, the court grants Defendants' Motion for Summary Judgment for the reasons herein stated.
I. Factual Background
Beatrice Gonzales ("Plaintiff" or "Gonzales") is a former employee of Fidelity Distributors Corporation ("Defendant" or "Fidelity"). She was employed at Fidelity from March 28, 1986 until November 1999. While at Fidelity, Plaintiff held several positions. When she left Fidelity in November of 1999, she held the position of compliance specialist in Fidelity's compliance department. In June 1999, Scott Forte ("Forte") was assigned as the manager of the compliance department in Dallas, Texas, of which Forte and Gonzales were the only employees.
From the beginning, Gonzales and Forte were at odds with each other. Within the first couple of months, Forte received complaints from other departments about Gonzales's work and began watching Gonzales more closely. Forte became increasingly demanding, rude, and negative towards Gonzales and was critical of her work. In August 1999, Forte presented Gonzales with a written performance improvement plan and required her to start keeping a log of the duties she performed, and they began meeting weekly to discuss Gonzales's progress. Tiring of Forte's demands, Gonzales began complaining to Judy Benavides ("Benavides"), Fidelity's human resources representative. In October 1999, Gonzales and three other compliance specialists, while in Boston, met with another Fidelity human resources representative to complain about Forte.
Forte's and Gonzales's working relationship continued to deteriorate, and Gonzales eventually stopped maintaining the log and refused to give a new hire orientation, because it was not part of her job. On October 7, 1999, Forte and Benavides presented Gonzales with a written warning, citing her general failure to comply with the terms of her performance improvement plan, her failure to maintain the log, her refusal to conduct the new hire orientation as instructed, and her unprofessional behavior for creating a disturbance when told that she would have to maintain the log. The warning advised Gonzales that her behavior was insubordinate and in violation of Fidelity's policies.
During this meeting, Gonzales indicated that she wanted to keep her job, but no longer wished to work under Forte's supervision. Benavides gave Gonzales the option to continue working for Forte in accordance with his performance expectations or take thirty days to find another position inside or outside of Fidelity. If she could not obtain another position during the thirty-day period, Gonzales would be required to resign. Believing that she had no choice, Gonzales opted to leave the compliance department and look for another position.
To assist her with her search for alternative employment, Gonzales was promised that she would be given a desk outside of the compliance department, a telephone, a computer, and e-mail access. During the thirty-day period, Gonzales did not have access to her computer or e-mail for three days because of technical difficulties, so she had to use a co-worker's computer and e-mail. Gonzales was ultimately unable to find employment, although she submitted two applications for positions within Fidelity and approximately twenty applications for positions outside of Fidelity. Her internal applications were never submitted to the appropriate hiring managers, so she was not interviewed for those positions. On April 17, 2000, she sued Fidelity in state court, alleging claims for retaliation, fraud, negligent retention, and intentional infliction of emotional distress. Fidelity removed the action to federal court on June 6, 2000, based upon diversity of citizenship. On September 4, 2001, Fidelity filed a motion for summary judgment, which is now before the court.
II. Summary Judgment Standard
Summary judgment shall be rendered when 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, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Fraud
Defendant contends that Plaintiff cannot avoid or circumvent the employment-at-will doctrine with her fraud claim. Defendant also contends that Plaintiffs fraud claim arises from a breach of a promise or a contractual relationship and cannot be asserted as a tort claim. Finally, Defendant argues that Plaintiff cannot satisfy the requisite elements of a fraud claim. Specifically, Defendant contends that Plaintiff cannot establish that: (1) the representation made by Fidelity was false when the representation was made, (2) the speaker knew it was false or that the statement was made recklessly without any knowledge of its truth, (3) Plaintiff relied on the representation, and (4) she suffered injury as a result.
The essential elements of fraud and intentional misrepresentation are: (1) a material representation was made, (2) the representation was false, (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion, (4) the speaker made the representation intending that the other party act upon it, (5) the party acted in reliance on the representation, and (6) the party thereby suffered injury. Formosa Plastics Corp. USA v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). As the nonmovant, Plaintiff had the burden of establishing the essential elements of her fraud claim; however, Plaintiff, in responding to Defendant's summary judgment motion, failed to produce evidence of any kind that she suffered injury as a result of the alleged misrepresentation. Moreover, Plaintiff did not attempt to address Defendant's contention that there is no evidence of this element. She therefore failed to establish an essential element of her fraud claim, and "summary judgment must be granted" as to this claim. Celotex, 477 U.S. at 322-23. Having determined that Plaintiff failed to establish an essential element of her claim or raise a genuine issue of material fact regarding this element, the court need not address Defendant's remaining arguments regarding employment-at-will and breach of contract.
B. Intentional Infliction of Emotional Distress
Defendant contends that the Texas Workers Compensation Act ("TWCA") bars Plaintiffs claims for intentional infliction of emotional distress. Defendant also contends that Plaintiffs claim for intentional infliction of emotional distress fails, as a matter of law, because she cannot demonstrate that Defendant engaged in extreme or outrageous conduct or that she suffered severe emotional distress as a result. Plaintiff responds that the harassment she sustained by Forte, the material misrepresentations by Fidelity that she would have thirty days to look for a job, and the failure of Fidelity to forward her job applications to the appropriate agencies collectively rise to the level of extreme and outrageous conduct. The court disagrees.
To maintain a claim for intentional infliction of emotional distress, Plaintiff must show: (1) Defendant acted intentionally or recklessly; (2) Defendant's conduct was extreme and outrageous; and (3) and Defendant's conduct caused Plaintiff severe emotional distress. Ward v. Bechtel Corp., 102 F.3d 199, 203 (5th Cir. 1997) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Conduct is "outrageous," for purposes of an intentional infliction of emotional distress claim, "if it surpasses all bounds of decency, such that it is utterly intolerable in a civilized community." Ugalde v. WA. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993). "Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions." Id. at 243. Viewed in a light most favorable to Plaintiff, her allegations and evidence simply do not rise to the level necessary to support an intentional infliction of emotional distress claim. See Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 3334 (5th Cir. 1992) (noting that denial of promotion and salary disputes are "mere employment disputes" insufficient to establish a claim for intentional infliction of emotional distress); see also Webster v. Bass Enters. Prod. Co., 192 F. Supp.2d 684, 697 (ND. Tex. 2002) (male supervisor's conduct toward female employee, including throwing objects at her, raising his eyebrows and sticking his tongue out in a sexually suggestive manner, asking her if she wanted to get drunk, yelling at her in front of co-workers, telling her that all single women were fair game, denying her raises, and pushing her and her chair into the desk while he reviewed her computer screen from behind her, was not so vile and reprehensible as to be intolerable in a civilized society, as required for employee's claim of intentional infliction of emotional distress); Antoine-Tubbs v. Local 513, Air Transport Div., Transport Workers Union of Am., AFL-CIO, 50 F. Supp.2d 601, 611 (N.D. Tex. 1998), aff'd, 190 F.3d 537 (5th Cir. 1999) (pregnant employee who was allegedly yelled at by male manager did not suffer distress so severe that no reasonable person could be expected to endure it; although employee became upset and her blood pressure was elevated, within a few minutes after being taken to employer's medical department, her blood pressure dropped and stabilized). Moreover, Plaintiff presented no evidence to establish that Defendant's alleged conduct caused Plaintiff severe emotional distress. Plaintiff has thus failed to raise a genuine issue of material fact regarding these two essential elements, and Defendant is entitled to summary judgment on her intentional infliction of emotional distress claim. Having determined that Defendant is entitled to summary judgment on this ground, the court need not address Defendant's alternative ground that Plaintiffs claim is barred by the TWCA.
C. Negligent Retention
Defendant contends that the TWCA bars Plaintiffs negligent retention claim. Alternatively, Defendant argues that even if her claim is not barred, Plaintiff still cannot recover for negligent retention, because she acknowledged in her deposition that Fidelity did not owe her any legal duty with respect to her complaints about Forte, and her complaints to human resources about Forte did not put Defendant on notice that Forte posed an unreasonable risk of harm to others. Defendant also maintains that it cannot be held liable for negligently hiring, training, or retaining Forte as an employee, because there is no evidence Forte engaged in any legally cognizable tortious behavior. Defendant therefore maintains that it had no legal obligation to do anything in response to Plaintiffs complaints about her supervisor.
Plaintiff, on the other hand, contends that the TWCA does not bar her negligent retention claim. She further contends that Defendant had a duty to protect her from an unfit supervisor, that her complaints and the complaints of other compliance specialists regarding Forte's rude conduct put Fidelity on notice that he was unfit. Plaintiff asserts that Defendant breached this duty by doing nothing about Forte's conduct and allowing "Plaintiff to remain under the direction and control of Scott Forte to be subjected to his writ-up's [sic], probation, and retaliation." Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an employer's direct negligence rather than on vicarious liability. Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). The elements of a negligence action are a duty, a breach of that duty, and damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Generally, the employer-employee relationship creates a duty on the part of the employer to control the employee's conduct. See Otis Eng'r Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). An employer also has a duty to adequately hire, train, and supervise employees, and the negligent performance of those duties may impose liability on an employer if the complainant's injuries are the result of the employer's failure to take reasonable precautions to protect the complainant from misconduct of its employees. See Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.-Corpus Christi 1987, writ denied). An employer, however, cannot be held liable for negligently hiring or retaining an employee unless the employee committed an actionable tort. See Gonzales v. Willis, 995 S.W.2d 729, 738 (Tex.App.-San Antonio 1999, no pet.). This rule comports with the fundamental principle that a person cannot be held liable for negligence, no matter how egregious, unless the negligence causes a legally compensable injury. Id.
In the present case, the conduct or misconduct that Plaintiff relies upon to support her claim is Forte's rude conduct and his strict scrutiny of her work. The court has already determined that this alleged conduct is insufficient to support a claim of intentional infliction of emotional distress. Consequently, there is no underlying actionable tort to support Plaintiffs negligent retention claim, and Defendant is entitled to summary judgment on this claim. As the court has determined that Defendant is entitled to summary judgment on this basis, it need not address Defendant's alternative grounds that Plaintiffs claim is barred by the TWCA, that it did not owe Plaintiff a legal duty, and that there is no evidence it had notice that Forte posed an unreasonable risk of harm to others.
D. Retaliation
Defendant contends that Plaintiff cannot prevail on her claim of unlawful retaliation, because she cannot show that she was engaged in protected activity or suffered an adverse employment action. Defendant further contends that none of the conduct complained of by Plaintiff constitutes unlawful discrimination on the basis of race, color, religion, sex, or national origin under Title VII or any similar state statute.
To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001); Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001). To establish that the defendant committed an unlawful employment practice, a plaintiff "need not prove that [the defendant's] practices were actually unlawful, but only that [s]he had `a reasonable belief that the employer was engaged in unlawful employment practices.'" Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (citing Payne, 654 F.2d at 1140).
In response to Defendant's contention that she cannot show that she was engaged in protected activity or suffered an adverse employment action, Plaintiff argues that she is only required to demonstrate that she had a reasonable belief that Fidelity was engaged in unlawful employment practices, regardless of whether the employment practices were actually unlawful. She therefore asserts that she "had a reasonable subjective belief that the actions of Forte were unlawful employment practices, and that the failure of [Fidelity] to do anything about his conduct was unlawful as well." Plaintiff cites Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130 (5th Cir. 1981), cert. denied, 455 U.S. 1000 (1982), for the proposition that she need only establish that she had a reasonable belief that her employer was engaged in unlawful employment practices to maintain a claim of retaliation. For evidence that her belief that Forte's and Fidelity's actions were unlawful employment practices, Plaintiff relies on her declaration in which she states that
I tried to work with Scott Forte; however, the hostility got worse. I went to Human Resources accompanied by the other compliance specialists to advise them that they, along with the problems that I was having with Scott, were also having problems with Scott Forte. We told Eileen Bevens, in the Boston office, our concerns, specifically stating that Scott Forte is not helpful, he can be rude and negative, and when the specialist needs answers and Scott does not know the answer, he makes something up. Eileen Bevens was supposed to follow up with Debra Gast regarding the Compliance specialist concerns and get back with them. However, nothing was ever done to correct the situation nor was any action taken against Scott Forte. Neither I nor the other compliance specialists heard from Eileen Bevens until October 13, 1999, some two months after the Compliance Specialists complained about Scott Forte. I believe that the actions were unlawful.
In addition, Plaintiff contends that she suffered an adverse employment action when she was moved from her position, and told "deal with [Forte] or resign" after she complained about Forte's rude and demanding conduct.
Plaintiff is correct that she need only show she had a "reasonable belief" that her employer was engaged in unlawful employment practices; however, Plaintiffs subjective belief that Defendant engaged in unlawful employment practices is insufficient, because the Fifth Circuit applies an objective standard in determining whether a plaintiffs belief is reasonable. Byers, 209 F.3d at 428-29 (citing Harvey v. Chevron USA, Inc., 961 F. Supp. 1017, 1032 (S.D. Tex. 1997), which held that a showing of subjective good faith alone is insufficient). Moreover, the court is uncertain whether Plaintiff is asserting her retaliation claim under federal or state law.
Title VII provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2 (a)(1). Similarly, § 21.051 of the Texas Commission on Human Rights Act prohibits employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.051 (Vernon 1998). Forte's rudeness and his demands that Plaintiff improve her performance, and Fidelity's failure to take action in response to Plaintiffs complaints, however, fall under no category of unlawful employment practices of which the court is aware, and Plaintiff has not alleged discrimination based on any federal or state law. In other words, she has neither alleged nor established that Defendant violated any anti-discrimination statute under state or federal law.
Although Plaintiff maintains that she complained to human resources about what she reasonably believed was unlawful, there is no evidence to support this contention since she has not identified or established any unlawful employment activity. The court cannot understand how Plaintiff could have reasonably believed that she was complaining of unlawful discriminatory practices when she has not alleged any unlawful discriminatory conduct. The court has been unable to find any case where the plaintiff alleged that she was retaliated against without stating a statutory basis for the retaliation.
To prevail on a claim of retaliation, there must be a nexus between the retaliation and some anti-discrimination statute. While it is enough that a plaintiff erroneously believed that an alleged employment practice was illegal, Plaintiff could not have reasonably believed that the conduct she complained of constituted an unlawful employment practice, because she alleges no basis for her belief. Consequently, Plaintiffs belief that Forte's rigorous demands and Fidelity's decision to back Forte's management decisions violated some undisclosed federal or state law is objectively unreasonable. Byers, 209 F.3d at 428-29. Moreover, as the court in Payne observed
not all activity purportedly done in opposition to perceived unlawful employment practices is protected; nor does such activity "immunize insubordinate, disruptive, or nonproductive behavior at work . . . management prerogatives are to be left undisturbed to the greatest extent possible . . . [and an] employee is not immune from discharge merely by claiming that she was opposing discriminatory practices. . . .Id. at 366. Even viewing the evidence in the light most favorable to Plaintiff, the court determines that she failed to present sufficient evidence to establish that her belief regarding the unlawfulness of Forte's and Fidelity's conduct was objectively reasonable. Accordingly, Plaintiff has failed to establish a prima facie case of unlawful retaliation, and Defendant is entitled to summary judgment on Plaintiffs retaliation claim. establish a prima facie case of unlawful retaliation, and Defendant is entitled to summary judgment on Plaintiffs retaliation claim.
VII. Conclusion
For the reasons herein stated, there is no genuine issue of material fact regarding Plaintiffs claims of fraud, negligent retention, retaliation, and intentional infliction of emotional distress. Accordingly, Defendant's Motion for Summary Judgment is granted, and Plaintiffs claims are dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.