Smith v. Diasorin Inc
Filing
17
Memorandum Opinion and Order...Deft's motion for summary judgment granted and all claims brought by pltf Vince Smith against deft DiaSorin inc are dismissed w/prej. (Ordered by Judge John McBryde on 12/17/2012) (wrb)
,
U.S. DISTRICT COURT
NORTIfERi\f DISTRICT OF TEXAS
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IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA OURT [
FORT WORTH DIVISION
VINCE SMITH,
:C ;":!'2 ]
CLERK, U.S. DISTRICT COURT
§
By---n=:=:-_ __
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Plaintiff,
Deputy
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§
VS.
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NO. 4:12-CV-102-A
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DIASORIN, INC. ,
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Defendant.
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MEMORANDUM OPINION
and
ORDER
Now before the court is the motion for summary judgment
filed in the above action by defendant, DiaSorin, Inc.
Plaintiff, Vince Smith, filed a response to the motion, and each
party filed a brief and appendix.
Having now considered the
motion, the response, the entire summary judgment record, and
applicable legal authorities, the court concludes that the motion
should be granted.
1.
Plaintiff's Claims
Plaintiff initiated this removed action by the filing of his
original petition in the District Court of Tarrant County, Texas,
48th Judicial District, asserting a cause of action for wrongful
termination under the Sabine pilot doctrine.
Service, Inc. v. Hauck, 687 S.W.2d 733
Sabine pilot
(Tex. 1985).
Plaintiff
alleges that he refused to approve an expense report that
plaintiff believed was improper or illegal, and that defendant
terminated plaintiff's as a result of such refusal.
Plaintiff
seeks damages including back pay, future pay, and mental anguish,
and seeks to recover exemplary damages and pre-judgment interest
pursuant to Sabine Pilot, as well as attorney's fees.
II.
The Summary Judgment Motion
Defendant argues for summary judgment on the grounds that
all of plaintiff's claims fail as a matter of law under the
Sabine pilot doctrine:
(1) Sabine pilot does not apply to
plaintiff because he was not asked to do anything illegal;
(2)
even if Sabine pilot applied to plaintiff, he cannot show that
the "sole reason" for his termination was his refusal to approve
the expense report.
III.
Undisputed Facts
The following facts are undisputed in the summary judgment
record:
Plaintiff was hired by defendant in June 2010, as an area
sales manager reporting to defendant's president, Carroll
streetman ("Streetman").
Plaintiff supervised the "west"
territory for defendant, which consisted of approximately eleven
states in the western region of the united States.
streetman
gave plaintiff a positive performance review for the March 8,
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2010 - January 8, 2011 review period.
In February, 2011, Joe
Wilson ("Wilson") was hired to be plaintiff's manager, and Wilson
reassigned plaintiff to the "central" territory, which included
plaintiff's state of residence, Texas.
Ray Dean ("Dean"), who
resided in Arizona, was assigned to the west territory.
The
central territory was not meeting revenue and related goals at
the time plaintiff took over, and it remained "behind plan"
during plaintiff's tenure.
One of plaintiff's duties as an area sales manager was to
review expense reports that employees who reported to him
submitted.
In August 2011, while reviewing an expense report
submitted by employee Troy Devlin ("Devlin"), plaintiff noticed a
receipt for a purchase of two bottles of liquor at the Atlanta
airport, which was not within Devlin's territory.
The report
noted that the liquor was for "LifeLabs, " which plaintiff
believed was located in Canada and also was not within Devlin's
territory.
Plaintiff also believed that it was improper for
employees of defendant to provide bottles of liquor to doctors.
Plaintiff was concerned about the purchase and receipt, and
contacted Tracie Clemmens ("Clemmens") in the human resources
office, who also was concerned and suggested reviewing Devlin's
other receipts to check for problems.
Plaintiff brought the
matter to Wilson's attention, and Wilson instructed plaintiff to
speak with Devlin to determine whether the matter could have been
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an oversight.
Wilson also instructed plaintiff not to approve
the expense and agreed that human resources should conduct an
investigation.
An investigation was then conducted, the expense
was not approved, and the investigation resulted in Devlin
receiving a final written warning.
Clemmens and Wilson both
agreed that the expense would not be approved, and neither had
instructed or asked plaintiff to approve the expense, nor had
anyone else asked plaintiff to do so.
In September 2011, plaintiff wished to raise the expense
report incident at the "Review of Talent" meeting, because this
meeting involved identifying and evaluating employees who could
potentially advance within the company, and Devlin's name was on
the list of such employees.
Plaintiff submitted to Clemmens a
review of his subordinates regarding issues to discuss at the
meeting.
Clemmens believed that the issue was not appropriate
for that meeting, and recommended to plaintiff that it be removed
from plaintiff's review.
During plaintiff's employment with defendant, several
employees complained about plaintiff.
At some point, Wilson
spoke with plaintiff regarding some of the negative comments
employees had made about plaintiff.
Clemmens also reported some
of the negative comments about plaintiff that were made by
employees during their exit interviews with defendant, conducted
by Clemmens.
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IV.
Analysis
A.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. civ.
P. 56(a) i Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324.
See also Fed. R. civ. P. 56(c)
asserting that a fact .
the assertion by
the record
("A party
. . is genuinely disputed must support
citing to particular parts of materials in
. ") .
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
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as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
B.
Plaintiff's Wrongful Termination Claim
It is well-established that an employee-at-will, such as
plaintiff, may be terminated "for good cause, bad cause, or no
cause at all."
(Tex. 2007).
Cnty. of Dallas v. Wiland, 216 S.W.3d 344, 347
The Sabine pilot doctrine is "a very narrow
exception to the employment-at-will doctrine," and "covers only
the discharge of an employee for the sole reason that the
employee refused to perform an illegal act."
S.W.2d at 735.
Sabine pilot, 687
The plaintiff has the "burden to prove by a
preponderance of the evidence that his discharge was for no
reason other than his refusal to perform an illegal act."
Id.
Sabine pilot specifically protects employees "who are asked to
commit a crime, not those who are asked to report one."
Ed
Rachal Found. v. D'Unger, 207 S.W.3d 330, 332 (Tex. 2006)
(emphasis in original).
"The Sabine pilot doctrine applies only
if the plaintiff was forced to choose between committing a
criminal act and being discharged."
Ran Ken, Inc. v. Schlapper,
963 S.W.2d 102, 105 (Tex. App.--Austin 1998, pet. denied).
"[T]he Sabine pilot cause of action protects law-abiding
employees from retaliation from their law-breaking employers and
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superiors."
Riddle v. Dyncorp Int'l, Inc., 666 F.3d 940, 943
(5th Cir. 2012).
There is no evidence anywhere in the record that could raise
an issue of fact that plaintiff was ever asked to do anything
illegal.
Defendant specifically points out that plaintiff
admitted in his deposition that no one in defendant's employ
instructed or asked him to approve the expense, and there is no
indication that Wilson or Clemmens ever believed that the expense
should be approved.
Def. 's Br. at 6, 9-10; Def. 's App. at 23-24,
29-30; Smith Dep. 23:13-24:1; 113:2-15.
The record reflects that
plaintiff noticed the problem in Devlin's expense report and
reported the problem to Clemmens and Wilson.
Clemmens began an
investigation, Wilson agreed that such an investigation should
occur, and both Clemmens and Wilson agreed that the expense
should not be approved.
The expense was never approved, Devlin
was formally reprimanded with a final written warning, and Devlin
resigned his employment with defendant around September 13, 2011.
Plaintiff does not appear to contest that he was never asked
to do something illegal, which is at the core of Sabine pilot.
Yet, plaintiff still argues that his firing was based on his
refusal to approve the expense by describing his talents and
experience and by attacking defendant's stated reasons for
terminating his employment.
Plaintiff spends a great deal of
time providing information about the performance evaluations he
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received prior to Wilson's arrival, but the court sees little
relevance between such information and plaintiff's Sabine pilot
contention.
The fact that plaintiff's previous supervisor gave
him high scores on an evaluation may indicate that such
supervisor thought plaintiff's performance was satisfactory, but
does not reflect Wilson's appraisal of plaintiff's work.
Plaintiff also contends that there was no documentation in
his personnel file of poor leadership skills, that Wilson "did
not express significant concern" about the employees' negative
comments about plaintiff, that Wilson "showed very little
interest" in investigating Devlin's expense, and that defendant,
most likely through Wilson, created a spreadsheet documenting
plaintiff's travel schedule which plaintiff claims was prepared
"to bolster allegations that Plaintiff was not meeting with his
direct reports."
Pl. 's Br. at 11.
Plaintiff refers to Wilson's
deposition, in which Wilson testified that he made the decision
to terminate plaintiff in late September 2011, and that the
reason was "a cumulation of all the factors I've already
mentioned," which included plaintiff's leadership skills,
employees' complaints about plaintiff, Wilson's personal
observations of plaintiff's interactions with others and
presentations at company meetings.
Pl. 's Br. at 15i Def. 's Br.
at 3-4.
In attempting to demonstrate that his refusal to approve the
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expense was the sole reason for his firing, plaintiff relies
heavily on the temporal proximity between his notification to
superiors about the expense report and his termination,
approximately two to three months. 1
The Fifth Circuit has held,
in the context of retaliation, that temporal proximity must be
"very close" to be considered persuasive evidence.
univ. Healthcare Sys., LLC, 482 F.3d 802, 808
Strong v.
(5th Cir. 2007).
Further, the Fifth Circuit "affirmatively reject [ed] the notion
that temporal proximity standing alone can be sufficient proof of
but for causation.
employers."
Id.
Such a rule would tie the hands of
Here, plaintiff must show more than "but for"
causation; he must show that the "sole reason" he was fired was
because of his refusal to commit an illegal act.
As noted above,
plaintiff has not identified any evidence that he was asked to do
anything illegal, or that he was forced to choose between
committing a crime and keeping his job.
The mere fact that his
employment was terminated within two or three months of reporting
the expense report cannot create a material fact issue.
The fact remains that plaintiff was an at-will employee, and
defendant had the right to terminate plaintiff's employment for a
number of reasons, or for no reason at all.
The court need not
The record reflects that plaintiff reported the expense issue in early August 2011, that Wilson
had made a decision to terminate plaintiff at the end of September 2011, and that plaintiff was officially
terminated on October 31, 2011. It is unclear which dates and events plaintiff is relying on to establish
sufficient temporal proximity to support his claim.
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determine exactly why plaintiff's employment was terminated, only
whether plaintiff has identified evidence that could allow a
rational factfinder to conclude that plaintiff's employment was
terminated solely because he refused to approve Devlin's expense,
and that approving such an expense was illegal.
Plaintiff
provides little more than suppositions, arguments, and beliefs to
attempt to fit within the extremely narrow Sabine pilot doctrine.
Again, no one asked him to approve the report, all relevant
individuals agreed that the expense should not be submitted, the
individual who submitted the report received a final written
warning and resigned shortly thereafter.
V.
Order
Therefore,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all such claims and
causes of action brought by plaintiff, Vince Smith, against
defendant, DiaSorin,
Inc., be, and are hereby, dismissed with
prejudice.
SIGNED December 17, 2012.
Judge
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