Opinion
EP-05-CA-013-DB.
March 24, 2006
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Aaron Rents, Inc.'s ("Aaron Rents") "Motion For Summary Judgment," filed in the above-captioned cause on August 1, 2005. On August 18, 2005, Plaintiff Deborah Strickland filed a Response, to which Aaron Rents filed a Reply, on August 26, 2005. For the reasons stated below, the Court is of the opinion that Aaron Rents's Motion should be granted in part, and denied in part.
BACKGROUND
This is an employment discrimination case. Aaron Rents is a furniture manufacturer and retailer that operates "rent-to-own" retail locations across the country, including five stores in El Paso, Texas. From August 2003 until February 26, 2004, Aaron Rents employed Strickland, a woman, as a sales manager at its store located on Dyer Street ("the Dyer store"). Until January 5, 2004, Strickland's direct supervisor was a woman named Sonja Edwards ("Edwards"). In late October 2003, Alan Sanderson ("Sanderson") became Edwards's direct supervisor. Also in late October 2003, Refugio Gonzalez ("Gonzalez"), a man, became the regional accounts manager, a supervisory position over Strickland. As a sales manager, Strickland worked at least fifty hours a week.
Because the Court presently considers Aaron Rents's Motion for summary judgment, all factual questions and inferences are viewed in a light most favorable to Strickland. See Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002).
From January 2003 until August 2003, DPR Investments, an Aaron Rents franchise, employed Strickland.
Gonzalez's position in the chain of command is unclear from the pleadings. Nonetheless, it is undisputed that he supervised Strickland in some capacity.
In late 2003, the Dyer store had three female managers: Strickland, a sales manager; Edwards, who was the general manager; and Patty Nicolosi ("Nicolosi"), who served as the accounts manager. Sanderson and Gonzalez referred to the Dyer store as "the Girlie Store." Sanderson often socialized with male store managers in El Paso, while Strickland did not invite the female managers to join them.
On December 29, 2003, Gonzalez, Edwards, and Strickland had a conversation regarding the lackluster success of Aaron Rents's store on Mesa Street. Edwards commented that the store on Mesa Street might perform better if it were in a better location. Gonzalez responded, "I think it needs a female." On December 30, 2003, Gonzalez and Sanderson informed Edwards of their decision to transfer her to the store on Mesa Street. On January 2, 2004, Edwards told Sanderson that she felt the decision to move her to the store on Mesa Street was discriminatory. On January 4, 2004, Edwards informed David Buck, the divisional vice-president, that she felt she was being discriminated against on the basis of her gender, and relayed Gonzalez's comment about needing a female manager at the store located on Mesa Street. On January 5, 2004, Sanderson terminated Edwards. On January 7, 2004, Edwards filed a complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging gender discrimination and retaliation for opposing discrimination in the workplace. Mario Valles ("Valles") replaced Edwards as the new general manager of the Dyer store, and became Strickland's immediate supervisor. After Edwards's termination, Sanderson and Valles repeatedly questioned Strickland if she had been in contact with Edwards. On February 24, 2004, during one of these conversations, Sanderson informed Strickland of the complaint Edwards had filed with the EEOC.
On February 16, 2004, Valles notified Sanderson that $660.00 had been stolen from the Dyer store's safe. Sanderson instructed Gonzalez to investigate the theft. As part of his investigation, Gonzalez reviewed the Dyer store's video surveillance tapes. As a result, Gonzalez learned that on February 11, 2004, Edwards had come to Dyer store for the purpose of obtaining a big screen television. Hector Facio ("Facio") initiated the transaction, but it was completed by Strickland. Strickland allowed Edwards to sign the name "Ron Nelson," Edwards's ex-husband's name, to the agreement. Ron Nelson ("Nelson") had previously opened an account, and instructed Strickland to allow Edwards to sign his name, and place the television on his account. The transaction was approved by the accounts manager, who was a man. Neither the accounts manager nor Facio lost their respective jobs for their role in the transaction with Edwards, though Facio later received a written warning for failing to report Strickland's actions.
The Parties failed to furnish the Court with the accounts manager's name.
While reviewing the surveillance tapes, Gonzalez also noted that on Sunday, February 14, 2004, Strickland entered the Dyer store with her mother and daughter. Gonzalez showed Strickland the tapes, and questioned what she was doing in the store on a Sunday. Strickland explained that she regularly went to work on Sundays, and that she had previously spoken to both Valles and Sanderson about working on Sundays.
On February 26, 2004, Sanderson sent Strickland a fax informing her that she was fired. The fax stated that Strickland was being terminated for: (1) being in the store after hours without authorization; (2) bringing non-employees into the store after hours; (3) lying to management about her reasons for being in the store after hours; and (4) knowingly executing a fraudulent agreement. Strickland was replaced by a man.
While the Parties failed to present any evidence regarding the name of the individual who replaced Strickland, the record is clear that it was a man.
After her termination, Valles told Gonzalez that Strickland appeared to have used her credit card to make payments on customer accounts, and then taken possession of store merchandise, including five televisions, a computer, and a microwave. While investigating the matter, Valles asked Rogelio Perez ("Perez"), a delivery driver, whether he had ever delivered items from the store to Strickland or if he knew if Strickland had stolen any items. Sanderson instructed Gonzalez to make a criminal complaint against Strickland, which Gonzalez did. The police department elected not to present the case to the district attorney and Strickland was never arrested or indicted. Aaron Rents also filed a petition with the justice of the peace court seeking to have any merchandise in Strickland's possession returned. Strickland appeared for trial, while no one appeared to represent Aaron Rents. As a result, the judge entered judgment in Strickland's favor.
Strickland began this action on October 29, 2004. In her First Amended Complaint, Strickland claims that Aaron Rents terminated her because of her gender and in retaliation for her investigating another female employee's complaints of discrimination, in contravention of the Texas Commission on Human Rights Act ("TCHRA"). See TEX. LAB. CODE ANN. § 21.051, et seq. (Vernon 2006). Strickland further alleges that Aaron Rents defamed her and maliciously prosecuted her for theft. The instant Motion followed.
Strickland's First Amended Original Complaint also avers defamation and malicious prosecution claims against Defendant Mario Valles. Because the Court presently considers Aaron Rents's Motion for Summary Judgment, it does not address Strickland's claims against Defendant Mario Valles.
STANDARD
Summary judgment should be granted only where "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex, 477 U.S. at 325. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates 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 evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
If the movant meets this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of fact for trial. See, e.g., Celotex, 477 U.S. at 324. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954. The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Through its instant Motion, Aaron Rents insists that there are no genuine issues of material fact regarding any of Strickland's claims, and prays that the Court grant it summary judgment as a matter of law regarding them. Through her Response, Strickland counters that the Court lacks jurisdiction to consider Aaron Rents's instant Motion, and should rather grant Strickland's Motion to remand the instant cause to state court. Alternatively, Strickland urges that triable issues of fact exist as to every one of her claims. As an initial matter, the Court notes that it has already denied Strickland's Motion to remand, rejecting her assertion that the Court lacks jurisdiction over the instant cause. See Strickland v. Aaron Rents, Inc., No. EP-05-CA-13-DB, 2005 WL 2035528 (W.D. Tex. August 22, 2005). Having disposed of Strickland's quarrel with the Court's jurisdiction to rule on Aaron Rents's instant Motion, the Court proceeds to consider the Motion. The Court first assesses the merits Strickland's gender discrimination claim. The Court then turns to Strickland's retaliation claim, before finally addressing Strickland's averments of defamation and malicious prosecution.Under Erie R. Co. v. Tompkins, a federal court must apply state law to cases not governed by federal law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Thus, a federal court exercising diversity jurisdiction over state law claims must apply the substantive law of the state in which it sits. See Hulin v. Fibreboard Corp., 178 F.3d 316, 318 (5th Cir. 1999) (citing Erie R. Co., 304 U.S. at 78). Because the Court exercises diversity jurisdiction over the instant cause, the Court applies Texas law to each of Strickland's claims. See id. A. Gender Discrimination
The Texas Commission on Human Rights Act prohibits an employer from discharging an employee because of the employee's gender. TEX. LAB. CODE ANN. § 21.051(1). Because the Texas legislature intended to correlate state employment law with federal employment law, federal case law may be cited as authority, including the burden-shifting analysis established by the United States Supreme Court. See Wal-Mart Stores, Inc., v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
In employment discrimination cases, it is imperative that a nonmovant plaintiff "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. A plaintiff can prove such discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802; Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).
The prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its action. See Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). Thus, a defendant must merely set forth, through admissible evidence, "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). The employer need only articulate a legitimate, nondiscriminatory reason for its actions, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 966. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant are pretext for discrimination. Burdine, 450 U.S. at 253. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256. In attempting to satisfy this burden, the plaintiff must be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. The Fifth Circuit has held that a plaintiff must produce substantial evidence of pretext. See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001). An employee's "subjective belief of discrimination" alone is insufficient to warrant judicial relief. Bauer, 169 F.3d at 967.
a. Prima Facie Case
In order to establish a prima facie case, Strickland must show that she: (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or that similarly situated others outside her protected were treated more favorably. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). Strickland has provided the Court with sufficient evidence to establish that she, as a woman, is a member of a protected class, that she was qualified for her job as a sales manager, that her discharge constitutes an adverse employment action, and that she was replaced by someone outside of her protected class. Moreover, Aaron Rents does not challenge these contentions. As such, the Court finds that Strickland has met the initial burden of establishing a prima facie case of discrimination. See id.
Nonetheless, Aaron Rents asserts that Strickland has failed to establish a prima facie case because she did not identify others outside her protected class who were similarly situated, but received more favorable treatment. For a brief discussion of that argument, see infra note 8.
b. Legitimate Non-Discriminatory Reason/Pretext for Discrimination
Having found that Strickland has met her initial burden, the burden of production shifts to Aaron Rents to articulate a legitimate, nondiscriminatory reason for terminating Strickland's employment. See Meinecke, 66 F.3d at 83. Aaron Rents's stated reasons for firing Strickland are four-fold: (1) being in the store after-hours without authorization; (2) bringing non-employees into the store after-hours; (3) lying to management about her reasons for being in the store after-hours; and (4) knowingly executing a fraudulent agreement. Aaron Rents argues that it is entitled to summary judgment because Strickland cannot rebut its proferred, legitimate, nondiscriminatory reasons for taking the challenged action, and hence, that Strickland cannot sustain her ultimate burden of proof.
The Court must now determine whether Strickland has raised genuine issues of material fact as to the pretextual nature of Aaron Rents's proferred nondiscriminatory reasons, and if so, Aaron Rents's Motion for summary judgement on Strickland's gender discrimination claim must be denied. See FED. R. CIV. P. 56(c); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134-135 (2000). Strickland contends that there exist genuine issues of material fact regarding Aaron Rents's stated reasons for firing her because her conduct did not violate any written policy and was consistent with Aaron Rents's practices. The Court examines the four reasons given by Aaron Rents, and ultimately agrees with Strickland that a jury question exists as to the credence of each purported bases for Strickland's termination.
The fax that Strickland received on February 26, 2004, enumerated four reasons for her termination. Aaron Rents asserts that it fired Strickland because she: (1) was in the store after-hours without authorization; (2) brought non-employees into the store after-hours; (3) lying to management about her reasons for being in the store after-hours; and (4) knowingly executed a fraudulent agreement. In order for Strickland's claim of gender discrimination to surviving summary judgment, Strickland must create a fact issue as to the validity of each reason Aaron Rents asserts. See Wallace v. Methodist Hospital Sys., 271 F.3d 212, 221-22 (5th Cir. 2001). The Court discusses the former three of these reasons together, as they all stem from Strickland's presence in the Dyer store on February 14, 2004, before it analyzes the final one.
Through its Motion, Aaron Rents stresses that Sanderson, the decision maker, considers it a violation of company policy for Strickland to have been in the store on February 14, 2004, a Sunday, to have taken her mother and daughter to the store after-hours, and to have lied about why she was there. First, it is worth noting that Aaron Rents fails to explain or provide any evidence as to whom Strickland purportedly lied about her purpose for going to the Dyer store on a Sunday. Moreover, as Strickland highlights, there are no written company policies which prohibit employees from working after-hours, on Sundays, or taking non-employees with them to the store. Further, Strickland suggests that, because as a sales manager she was expected to work at least fifty hours a week, she often worked after-hours. Additionally, she had previously informed Valles and Sanderson that she occasionally worked on Sundays. All of these facts taken together raise a genuine issue of material fact regarding whether Aaron Rents's offered reasons were not its true reasons for terminating Strickland, but mere pretext for discrimination. See Okoye, 245 F.3d at 512.
Aaron Rents further argues that it is entitled to summary judgment on Strickland's gender discrimination claim because, by failing to identify other similarly situated men who were treated more favorably after working after-hours or taking a non-employee into the store, Strickland has failed to establish the fourth element of her prima facie case of gender discrimination. Aaron Rents mistakenly cites Okoye for that proposition. When enumerating the elements of a prima facie case, the Okoye court was clear that a plaintiff pursuing a gender discrimination claim need to establish that she "`(4) was replaced by someone outside the protected class,' or, in the case of disparate treatment, shows "that others similarly situated were treated more favorably." Okoye, 245 F.3d at 513 (citations omitted) (emphasis added). Strickland has proved up that she was replaced by a man, thus she need not prove that similarly men were treated more favorably to establish a prima facie case.
Aaron Rents's final articulated nondiscriminatory reason for terminating Strickland's employment was her allowing Edwards to sign a contract for her ex-husband, Nelson. Aaron Rents argues that Strickland was aware that proper lease purchase agreements are critical to Aaron Rents's business, and that allowing Edwards to sign for Nelson violated company policy. Strickland proffers summary judgment evidence that she and other employees would regularly allow spouses to sign for each other and that she did nothing out of the ordinary by allowing Edwards to sign the contract after receiving Nelson's permission to do. Further, Strickland bolsters her contention that her actions were within store policy by noting that two other employees were involved in the transaction: Facio, who initiated the transaction, and the accounts manager who approved the transaction. Thus, it is the Court's opinion that a fact question exists regarding the Dyer store's accepted policy, and the validity of Aaron Rents's fourth stated reason for Strickland's termination. A jury could find that this stated reason for the employment decision was pretextual. See West v. Nabors Drilling, USA, Inc., 330 F.3d 379, 390 (5th Cir. 2003).
Having carefully reviewed the arguments of the Parties and the record in this case, the Court concludes that Strickland's evidence is sufficient to raise genuine issues of material fact as to the pretextual nature of Aaron Rent's stated reasons for terminating her employment. See Auguster, 249 F.3d at 402.
B. Retaliation
Through its Motion, Aaron Rents also contends that it is entitled to judgment as a matter of law on Strickland's retaliation claim because Strickland is unable to make out a prima facie case of retaliation. To establish a prima facie case of retaliation under the TCHRA, Strickland must show that (1) she engaged in a statutorily protected activity; (2) Aaron Rents took adverse employment action against her; and (3) a causal connection exists between her protected activity and the adverse employment action. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 41 (5th Cir. 1992); see also, Martin v. Kroger, Co., 65 F. Supp. 2d 516, 554 (S.D. Tex 1999), aff'd 224 F.3d 765 (5th Cir. 2000). Specifically, Aaron Rents asserts that Strickland is unable to prove that she engaged in any statutorily protected activity, the first element of a prima facie case. The Court agrees with Aaron Rents.
Under the TCHRA, an employer commits an unlawful employment practice if the employer retaliates against a person who opposes a discriminatory practice, makes or files a charge, files a complaint or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing under the TCHRA. See TEX. LAB. CODE ANN. § 21.055. Strickland does not contest that she never engaged in such protected activity. Rather, she argues that federal courts "uniformly conclude" that an employer violates the law by taking adverse action against an employee because of the protected activity of a friend or relative. Strickland bases her claim of retaliation on her association with Edwards, and Edwards's opposing her transfer to the Mesa Street store because she perceived it as discriminatory and Edward's filing her claim of discrimination with the EEOC. Essentially, Strickland invites the Court to ignore that while the law of most other Circuits supports her contention, that is not so in the Fifth Circuit. See Holt v. JTM Industries, Inc., 89 F.3d 1224 (5th Cir. 1996) (holding that husband could not rely on wife's protected activity to establish retaliation claim under the Age Discrimination in Employment Act, because to find otherwise contradicts plain language of the statute).
Here, as in Holt, the plain language of the statute under which relief is sought plainly states that it is unlawful for an employer to "retaliate . . . against a person who" engages in enumerated protected activities. See TEX. LAB. CODE ANN. § 21.055. The TCHRA does not deem associating with a person who engages in protected activity itself a protected activity. Id. Thus, it is the Court's opinion that Strickland is unable to show that she engaged in protected activity, the first element of a retaliation prima facie case, and cannot rely on the protected activity of a friend to establish that element. See Holt, 89 F.3d at 1226. Consequently, Aaron Rents is entitled to judgment as a matter of law on Strickland's retaliation claim. C. Defamation
In its Motion, Aaron Rents asserts that Strickland bases her defamation claim on four separate incidents: (1) Aaron Rents's justice of the peace lawsuit accusing Strickland of theft; (2) the police report Aaron Rents filed with the police department accusing Strickland of theft; (3) the theft allegation included within Aaron Rents's position statement submitted to the EEOC; and (4) Valles asking Perez whether Strickland had stolen merchandise, or if he had delivered any merchandise to Strickland's home. Aaron Rents contends that even if any of the statements made were defamatory, all of them are privileged, and thus cannot serve as the basis of Strickland's defamation claim. Ultimately, the Court agrees with Aaron Rents, and concludes that Aaron Rents is entitled to summary judgment on Strickland's defamation claim.
To maintain a cause of action for defamation under Texas law, a plaintiff, who is a private individual, must state facts which would show that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with negligence regarding the truth of the statement. Fields v. Keith, 174 F. Supp. 2d 464, 473 (N.D. Tex. 2001) (applying Texas law), aff'd 273 F.3d 1099 (5th Cir. 2001); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). However, statements made in judicial and quasi-judicial proceedings are absolutely privileged and cannot be used to support a defamation claim. James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982); 5-State Helicopters, Inc. v. Cox, 46 S.W.3d 254, 256 (Tex.App. 2004). Similarly, a defamation claim may also be avoided if the defendant's statements are qualifiedly privileged. See, e.g., Pioneer Concrete of Texas, Inc. v. Allen, 858 S.W.2d 47 (Tex.App. 1993). Accusations or comments made by an employer about an employee to one with a common interest enjoy a qualified privilege. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 313 (5th Cir. 1995). Nonetheless, a statement, though privileged, may be actionable if a plaintiff shows by clear and convincing evidence that the publisher was motivated by actual malice at the time the statement was made. Id.
The Court begins by discussing Aaron Rents's statements accusing Strickland of theft made in the course of pursing its justice of the peace lawsuit and contained within Aaron Rents's position statement submitted to the EEOC. Assuming that Strickland could prove up the elements of a defamation claim, these statements were made in judicial and quasi-judicial proceedings and are absolutely privileged. See James, 637 S.W.2d at 916. An absolutely privileged communication is one for which no civil remedy exists. 5-State Helicopters, 46 S.W.3d at 256. Thus, Strickland's defamation claim cannot prevail based on these statements.
Through its Motion, Aaron Rents further claims that the statements made to Perez and to the police are privileged. Strickland counters that those statements enjoy only a qualified privilege, which Aaron Rents lost because the statements were made with malice. In a federal forum, under a summary judgment standard, Strickland bears the burden of adducing clear and convincing proof of actual malice in order to avoid summary judgment. Duffy, 44 F.3d at 313. In an effort to prove up that these statements were made with malice, Strickland asserts that Valles should have better investigated his reasons for believing Strickland had stolen merchandise from the store. Strickland's contention falls short of proving by clear and convincing evidence that Aaron Rents statements were made with knowledge of their falsity or with reckless disregard for the truth. See id. Rather, because Aaron Rents's statements were made in the course of an investigation following a report of employee wrongdoing, and passed only to persons with an interest or duty in the matter — the police and another employee — Aaron Rents's privilege remains intact. See id. Therefore, Strickland also cannot base a defamation claim on the statements made to the police and Perez, and Aaron Rents is entitled to summary judgment on this claim. D. Malicious Prosecution
Through its Motion, Aaron Rents finally contends that there is no issue of material fact surrounding Strickland's malicious prosecution claim, and that it is entitled to judgment as a matter of law. Under Texas law, to establish a claim of malicious prosecution, a plaintiff must show: (1) commencement of criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of action by defendant; (3) termination of prosecution in plaintiff's favor; (4) plaintiff's innocence; (5) absence of probable cause for proceedings; (6) malice in filing the charge; and (7) damage to plaintiff." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Both Parties acknowledge that criminal prosecution was never initiated against Strickland. As such, the Court concludes that Aaron Rents has carried its initial burden of pointing out that the evidence on record is insufficient to support an essential element of Strickland's claim. See Lavespere, 910 F.2d at 178. Moreover, because Strickland concedes that she was never indicted or arrested, it is clear that Strickland will be unable to establish a malicious prosecution claim. See Richey, 952 S.W.2d at 517. Thus, the Court further determines that Aaron Rents is entitled to judgment as a matter of law on Strickland's defamation claim.
CONCLUSION
In conclusion, the Court finds that the summary judgment evidence is such that it creates a genuine issue of material fact with regard to the pretextual nature of Aaron Rents's stated reasons for terminating Strickland. Thus, the Court is of the opinion that Aaron Rents's Motion for summary judgment should be denied as to Strickland's gender discrimination claim. However, with regard to Strickland's retaliation, defamation, and malicious prosecution claims, the Court finds that the there is no question of material fact, and that Aaron Rents is entitled to judgment as a matter of law on each of those claims. Aaron Rents's Motion for summary judgment, therefore, must be granted as to Strickland's retaliation, defamation, and malicious prosecution claims.
Accordingly, IT IS HEREBY ORDERED that Defendant Aaron Rents, Inc.'s "Motion For Summary Judgment" is GRANTED IN PART and DENIED IN PART, as set forth above.
IT IS FURTHER ORDERED that Plaintiff Deborah Strickland's retaliation, defamation, and malicious prosecution claims against Defendant Aaron Rents are DISMISSED.