Opinion
Civil Action No. 3:01-CV-1233-N
September 29, 2003
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Teresa Fuston and Allstate Insurance Company's motions for summary judgment and Plaintiff Karla Garza's Motion To Extend Time To File Plaintiff's Expert Witness Designation.
Garza alleges that Defendants improperly retaliated against her because she filed a charge of discrimination against a former employer under Title VII of the Civil Rights Act. In addition, she claims that Defendants conspired to tortiously interfere with her employment by acting in concert with Garza's former employer to retaliate against Garza due to her filing of the discrimination charge. Because, viewed in the light most favorable to Garza, no genuine issue exists as to any material fact and Defendants are entitled to prevail as a matter of law, Defendants' motions for summary judgment are granted and Plaintiff's motion to extend time is denied as moot.
I. BACKGROUND A. Factual Background
Garza was employed by non party Prestige Ford Garland Limited Partnership ("Prestige Ford") as a car salesperson for eight working days between approximately April 22, 1999 and May 7, 1999, when Garza's employment was terminated. Following this termination, Garza filed a claim for sex discrimination against Prestige Ford with the Equal Employment Opportunity Commission ("EEOC"), and subsequently filed a lawsuit in the District Court for the Northern District of Texas against Prestige Ford, alleging that her termination constituted gender-based discrimination under Title VII (the "Ford Lawsuit"). Garza later amended her complaint to also claim that she was subjected to improper retaliation by Prestige Ford.In late February of 2000, defendant Teresa Fuston hired Garza to assist with office work in an office affiliated with defendant Allstate Insurance Company. According to Garza, shortly after she began work at the Allstate office, Prestige Ford salesperson Juan Carlos Olvera ("Olvera") contacted Fuston and told her that Garza was a "troublemaker," informed Fuston of the Ford Lawsuit, and threatened to discontinue referring clients to Fuston's office if Garza remained employed in the Allstate office. Defendants deny that any such threat was made. It is undisputed that Fuston discussed this conversation with Garza and told Garza that she would not be fired as a result of anything said by Olvera.
Garza claims that following the conversation between defendant Fuston and Olvera, Fuston instructed Garza to begin using an alias and paid her by personal check, rather than through the company payroll. In addition, Garza claims that Defendants withheld training, left her alone in the branch office from 8:00 am to 12:00 pm, and, following a particular incident with prospective clients on March 17, 2000, Fuston yelled and cursed at Garza. Following this alleged altercation, Garza claims that she became physically ill and was forced to immediately resign her position. After Garza resigned from the Allstate office, she filed a charge of retaliation against Allstate and Fuston with the EEOC and subsequently filed the instant proceeding.
B. The Ford Lawsuit
Prestige Ford moved for summary judgment in the Ford Lawsuit. On February 17, 2001, Judge Sanders heard oral argument and granted Prestige Ford's motion for summary judgment from the bench. Garza v. Prestige Ford Garland Ltd. P'ship, Civil Action No. 3-OOCVO4OO-H (N.D. Tex. Feb. 17, 2001) (Sanders, J.). Judge Sanders held that, although Garza satisfied the burden of proving her prima facie case for discrimination, Prestige Ford established that it had a legitimate, non pretextual reason for her discharge. Id. In addition, Judge Sanders granted summary judgment on Garza's retaliation claim, holding that (1) Olvera was not acting on behalf of Prestige Ford when he contacted Fuston; (2) Garza voluntarily left Allstate, leaving "no causal link . . . between what happened at the defendant, Prestige Ford, and what happened in the plaintiff's termination," Id.; and (3) Garza could not establish a claim for constructive discharge under the circumstances. Id.
On appeal, the Fifth Circuit affirmed Judge Sanders' ruling, holding upon de novo review that: (1) Garza's claim of Title VII sex discrimination was barred because no issue of material fact existed on whether Prestige Ford's stated reasons for terminating Garza were pretextual; and (2) the claim for retaliation failed because Olvera was not acting as an agent of Prestige Ford when he contacted Fuston and, "Garza quit her employment with Ms. Fuston because of an argument between the two of them relating to the handling of potential insurance customers. There is no evidence, other than Garza's claim, showing any causal connectivity whatsoever between Mr. Olvera's phone call and her decision to quit." Garza v. Prestige Ford Garland Ltd. P'ship, No. 01-10382 (5th Cir. Sep. 26, 2001), cert. denied, 535 U.S. 928 (2002).
C. Fuston and Allstate's Motions to Dismiss
Defendants Fuston and Allstate Insurance Company filed a Rule 12(b)(6) Motion to Dismiss the instant proceeding on July 20, 2001. Judge Joe Kendall denied both motions by order dated November 26, 2001, but cautioned that, "[t]he Court . . . believes this to be a close call. The Court will revisit the issues raised by the Defendants at the summary judgment stage after the parties have had full discovery." Garza v. Fuston, Civil Action No. 3:01CV1233X (N.D. Tex. Nov. 26, 2001) (order denying motions to dismiss). The Court does so at this time and grants summary judgment to Defendants.
II. ANALYSIS A. Rule 56 Standard
Summary judgment is appropriate under Rule 56 when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits presented, 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, 322-23 (1986). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must demonstrate the absence of any genuine issue of material fact, Celotex, 477 U.S. at 322-23, and the Court construes all evidence in favor of the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962), Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994), citing Celotex, 477 U.S. at 323.
B. Retaliation Claim
Garza alleges that following Olvera's telephone call to defendant Fuston, Garza was subjected to acts of retaliation that eventually led to her constructive discharge. In particular, Garza claims following the conversation between Olvera and Fuston, she was forced to conceal her identity, was not placed on the company payroll, was denied training, and was treated harshly following an incident with prospective customers, all of which caused her to become physically ill and forced her to resign her position. Because Garza cannot establish that any actions allegedly taken by defendants Fuston or Allstate Insurance Company resulted in a constructive discharge or rise to the level of an "adverse employment action," summary judgment must be granted on her claim for retaliation.
Defendants argue that the holdings of Judge Sanders and the Fifth Circuit in Garza v. Prestige Ford bar Garza's claim for retaliation. While this Court is inclined to agree with Defendants, it is possible that the judges' holdings concerning Fuston were not "necessary to support the judgment in the first action." See U.S. v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994). Accordingly, because Garza's claim of retaliation so clearly fails to satisfy the Rule 56 standard, this Court will not consider the topic of issue preclusion.
A plaintiff alleging retaliation must demonstrate that (1) she engaged in an activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997) (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)). While Garza clearly engaged in an activity protected by Title VII by instituting a sex discrimination charge against Prestige Ford, Defendants did not take any action that rises to the level of an "adverse employment action" under Fifth Circuit precedent.
It is well-settled in this Circuit that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781, 781-82 (5th Cir. 1995). Ultimate employment decisions include "hiring, discharging, promoting, compensating, or granting leave," Messner v. Meno, 130 F.3d 130, 140 (5th Cir. 1997), 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." Mattern, 104 F.3d at 707-08 (emphasis in original).
The Fifth Circuit has repeatedly held that allegations of mistreatment similar to those made by Garza are not sufficient to constitute an "adverse employment action" and support a claim for retaliation. In Mattern v. Eastman Kodak Co., 104 F.3d at 707-08, the Fifth Circuit reversed a lower court's judgment for an employee on her retaliation claim, holding that the instances of alleged retaliation failed to constitute an "adverse employment action." There, the Court held that hostility from fellow employees, having tools stolen, unannounced visits to an employee's home, verbal threats of being fired, verbal reprimands, a missed pay increase, and being placed on "final warning," did not constitute actionable "adverse employment actions." Id. Similarly, the Court in Dollis v. Rubin held that an employee who was denied consideration for promotion, was refused attendance at a training conference, had her work criticized to a government vendor, and was given false information regarding aspects of her employment, had not shown an "ultimate employment decision" sufficient to support a charge of retaliation. Dollis, 77 F.3d at 779-80. In the instant proceeding, Garza's allegations of mistreatment similarly fail to rise to the level of actionable retaliation.
Garza's allegations that defendant Fuston's actions constituted a constructive discharge are similarly misplaced. A party claiming constructive discharge must prove that the "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir. 1980). Whether a reasonable employee would feel compelled to resign depends on the facts of each case; however, the following factors have been deemed relevant:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994); see also Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) ("Constructive discharge requires a greater degree of harassment than that required by a hostile environment claim"). It is undisputed that the only allegations supporting Garza's claim of constructive discharge are that in the time between approximately late February and March 17, 2000, Defendants: (1) forced Garza to use an "alias" consisting of her birth name; (2) paid Garza outside the company payroll; (3) denied Garza training; (4) left Garza unattended in the office; and (5) treated Garza harshly directly following the March 17, 2000 incident. Garza does not allege demotion, reduction in salary, reduction in job responsibilities, reassignment, or an offer for early retirement. She appears to only claim "badgering, harassment, or humiliation . . . calculated to encourage the employee's resignation." Barrow v. New Orleans S.S. Ass'n, 10 F.3d at 297. It is not clear that this factor alone can support a claim of constructive discharge. See Ginn v. Tex. Wired Music, Inc., No. Civ.A.SA-99-CA-553FB, 2000 WL 33348246, at *15 (W.D. Tex. Aug. 10, 2000) (Biery, J.) ("the Court has found no authority nor has any been provided in which the single factor of `badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation' resulted in a finding of constructive discharge"). Even were this factor sufficient, Garza's allegations fail to suggest an environment so intolerable that a reasonable employee would feel compelled to resign. See Bourque v. Powell Elec. Mfg. Co., 617 F.2d at 65-66; See also Ginn v. Tex. Wired Music, Inc., 2000 WL 33348246, at *16 (allegations of severe criticism and threats of termination not sufficient to establish constructive discharge. "[T]he mere fact an employee experiences pressure or feels `nitpicked' does not rise to the level necessary to establish working conditions which are so intolerable as to result in constructive discharge"). Because no genuine issue exists regarding the lack of adverse employment action in the instant proceeding, summary judgment is granted on Plaintiff's retaliation claim.
The Court notes that when faced with identical evidence in Garza v. Prestige Ford, Judge Sanders stated that, "Should there be [a claim of constructive discharge], there's no way that it can be established under the circumstances that here exist." Garza v. Prestige Ford Garland Ltd. P'ship, Civil Action No. 3-00CV0400-H (N.D. Tex. Feb. 17, 2001). Similarly, the Fifth Circuit held that, "Garza quit her employment with Ms. Fuston because of an argument between the two of them relating to the handling of potential insurance customers," rather than because Olvera's phone call. Garza v. Prestige Ford Garland Ltd. P'ship, No. 01-10382 (5th Cir. Sep. 26, 2001), cert. denied, 535 U.S. 928 (2002).
C. Conspiracy Claim
Garza further alleges that Defendants participated in a conspiracy with Prestige Ford to tortiously interfere with Garza's employment relationship and force her to resign. Under Texas law, a claim for conspiracy requires (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983), Meineke Discount Muffler v. Jaynes, 999 F.2d 120, 124 (5th Cir. 1993). Garza cannot sustain this burden, and therefore summary judgment is appropriate.
Because there was no co-conspirator, this claim for conspiracy must fail. The holdings of Judge Sanders and the Fifth Circuit preclude Garza's allegations that Prestige Ford conspired with Fuston or Allstate to tortiously interfere with Garza's employment relationship. Both courts held that Olvera was not acting as an agent of Prestige Ford when he contacted defendant Fuston, the only act alleged to be in furtherance of a conspiracy. Because this issue was fully considered in the first action against Prestige Ford, was necessary to the earlier judgments, and no special circumstances exist to render preclusion inappropriate or unfair, this Court is bound by the holdings of Judge Sanders and the Fifth Circuit and conclude that Prestige Ford was not a member of a conspiracy against Plaintiff. See U.S. v. Shanbaum, 10 F.3d at 311. Thus, Garza's allegations that Defendants conspired with "non-party co-conspirator" Prestige Ford are precluded.
Allstate cannot be found to have conspired with Fuston. It is well-settled that a corporation cannot conspire with its employees acting within the scope of employment. See Suttles v. U.S. Postal Serv., 927 F. Supp. 990, 1001-02 (S.D. Tex. 1996); Fojtik v. First Nat'l Bank of Beeville, 752 S.W.2d 669, 673 (Tex.App.-Corpus Christi 1998, writ denied, 775 S.W.2d 632 (Tex. 1989)). Had Garza alleged a conspiracy between Defendants and Olvera, no remedy would lie, since there was no meeting of the minds between Fuston and Olvera to retaliate against or constructively terminate Garza, she was not terminated, and no action was taken toward an unlawful object.
In addition, Garza is unable to point to any unlawful object to be accomplished or unlawful overt act toward a lawful objective. Tilton v. Marshall, 925 S.W.2d 672, 680-81 (Tex. 1996) (explaining that a claim for conspiracy requires the existence of an underlying tort). Garza cannot make out a claim for unlawful retaliation against Defendants. See supra. Similarly, no claim for tortious interference can lie. Like Judge Sanders and the Fifth Circuit concluded in Garza v. Prestige Ford, this Court too holds that Garza left her employment at the Allstate office because of the March 17, 2000 incident, and not because of the phone call with Olvera. Because Garza left Allstate on her own accord and was not constructively discharged, she cannot satisfy the elements of tortious interference, even in the unlikely event that a jury concluded that defendant Fuston acted willfully and intentionally against the interests of Allstate in her dealings with Garza. See Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex. 1995) (although a party cannot tortiously interfere with her own contract, an agent acting "in a fashion so contrary to the corporation's best interests that his actions could only have been motived by personal interests" can be guilty of tortiously interfering with the corporation's contract). Because no unlawful act or object can be found, Garza's claim for conspiracy fails. Therefore, summary judgment is granted on this claim.
D. Plaintiff's Motion to Extend Time
Because Defendants' motions for summary judgment are granted as to all claims, Plaintiff's motion to extend time to file expert witness designation is moot. It is therefore denied.CONCLUSION
The Court's review of the summary judgment proof indicates that there are no fact questions on Plaintiff's claims for retaliation and conspiracy and Defendants are entitled to judgment as a matter of law. Defendants' motion for summary judgment is therefore granted in its entirety.