Bassey v. Zimac Care Center Inc et al
Filing
39
MEMORANDUM OPINION granting in part, denying in part 32 MOTION for Summary Judgment ( Joint Pretrial Order due by 8/1/2014., Docket Call set for 8/8/2014 at 10:00 AM in Courtroom 700 before Magistrate Judge Nancy K. Johnson)(Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ENOBONG W. BASSEY,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
ZIMAC CARE CENTER, INC.,
NKEONYEASUA OKOLIE,
Defendants.
Civil Action No. H-11-3986
MEMORANDUM OPINION
Pending before the court1 is Defendant Zimac Care Center
Inc.’s Motion for Summary Judgment (Doc. 32) and the response
thereto.
For the reasons stated below, the motion is GRANTED IN
PART, DENIED IN PART.
I.
Case Background
Plaintiff filed this action against Zimac Care Center, Inc.,
(“Zimac”
or
“Defendant”),
alleging
sex
discrimination
and
retaliation under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e-5, and unpaid overtime under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.
Plaintiff
also alleged state law claims of fraud, intentional infliction of
emotional
1
distress
(“IIED”),
negligent
hiring,
supervision,
On February 17, 2012, the parties consented to proceed before the
undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
See Doc. 14,
Consent to Proceed. At that time, Defendant Nkeonyeasua Okolie (“Okolie”) was
an unserved defendant. Plaintiff later obtained service on Okolie and moved for
a default judgment.
See Docs. 17, 31, Pl.’s Mots. for Entry of Default.
Plaintiff’s second motion for entry of default was granted, and the transfer to
the undersigned pursuant to 28 U.S.C. § 636(c) was reaffirmed. See Doc. 38, Ord.
Adopting Mem. & Recommendation & Entry of Default.
training and retention and respondeat superior liability for claims
of assault and battery and slander allegedly committed by a Zimac
supervisor, Defendant Nkeonyeasua Okolie (“Okolie”).
Presently before the court is Zimac’s motion for summary
judgment.
In support of Zimac’s motion are several documents,
authenticated as business records by Lucius Akuchie (“Akuchie”),
the chief operating officer of Zimac.2
Akuchie also avers that he
has personal knowledge of the events outlined in those documents.
Plaintiff objects to several of these documents.3
The court
will address those evidentiary issues in the context of the legal
issues, to the extent necessary.
However, the court cannot
consider the pending motion without first commenting on the paucity
of admissible evidence before the court, both in support and in
opposition, to the motion.
following
judgment
recitation
evidence
undisputed.
of
and
According, the court distills the
facts
those
from
the
authenticated
allegations
that
appear
summary
to
be
See Fed. R. Civ. P. 56(c).
Plaintiff
community-based
began
his
employment
health-care-services
with
Zimac,
agency,
as
a
a
home
and
direct-care
2
See Doc. 35-1, Ex. A to Suppl. to Def.’s Mot. for Summ. J., Aff. of
Akuchie pp. 1-5.
3
See Doc. 36, Pl.’s Resp. to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”)
p. 14.
2
worker in December 2008.4
He was paid eight dollars an hour.5
At
some point during his employment tenure, Plaintiff received a
generally favorable performance evaluation.6
On April 13, 2009, Akuchie drafted and signed a “Letter of
First
Verbal
Warning”
addressed
to
Plaintiff.7
That
letter
recounted that on April 13, 2009, Plaintiff had an argument with an
employee of Imar Enterprises, a company that contracted with Zimac
for patient-care services, and refused to apologize to the Imar
employee.8
The warning letter also stated that Plaintiff refused
to follow his supervisor’s directions on proper patient care by
talking to patients while they were eating lunch and by talking on
the phone while on duty.9
The letter reflected that Plaintiff was
“in serviced” on the importance of following instructions.10
4
See Doc. 36, Pl.’s Resp. p. 3; see also Doc. 36, Ex. E to Pl.’s
Resp., Payroll Record p. 25.
5
See id.
6
It is unclear to the court when this performance appraisal occurred.
It was dated and signed October 1, 2008, but purports to review Plaintiff’s
performance from October 1, 2008, through October 1, 2009.
As it appears
undisputed that Plaintiff’s term of employment ran from December 2008 through
August 2009, the dates on the document do not appear to be correct. Plaintiff
authenticated the document as a copy of the original document, but neither party
provides any further explanation. See Doc. 36, Ex. D to Pl.’s Resp., Aff. of
Bassey, p. 1.
7
See Doc. 35-1, Ex. A to Suppl. to Def.’s Mot. for Summ J., Aff. of
Akuchie p. 2.
8
Doc. 32-1, List of Exs., Ex. 2, Letter Dated Apr. 13, 2009.
9
Id.
10
Id.
3
Plaintiff denies receiving this letter.11
In a memo dated May 2009, Imar Enterprises again complained to
Zimac about Plaintiff’s on-the-job behavior.12 The memo stated that
Mrs. Imar found Plaintiff to be rude and unprofessional.13
letter
further
recounted
that
Plaintiff
appeared
to
The
be
disinterested in following directions and, at one point, handed
Mrs. Imar a paper on which he had written that she should not talk
to him, rather, she should talk to his supervisor.14
As Mrs. Imar
was the manager of the facility, she objected to his refusal to
talk with her directly.15 The letter also complained that Plaintiff
had refused to communicate information about a patient to either
Mrs. Imar or other members of her staff and Plaintiff had been
observed yelling at patients.16
Mrs. Imar requested that Zimac
remove Plaintiff from working with her patients.17
As a result of that letter, on May 12, 2009, Akuchie drafted
and signed a second letter of warning.18
In the letter, Akuchie
stated that Plaintiff failed to carry out instructions from his
11
See Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey p. 2.
12
See Doc. 32-1, List of Exs., Ex. 3, Memo Dated May 2009.
13
Id.
14
Id.
15
Id.
16
See id.
17
Id.
18
See Doc. 32-1, List of Exs., Ex. 4, Letter of 2nd Verbal Warning.
4
supervisor when he talked on the phone while at work, threatened a
patient’s
mother,
refused
to
apologize
for
his
disrespectful
behavior and left work without notifying his supervisor.19
As with
the previous warning letter, the letter concluded: “Mr. Bassey was
in serviced on the importance of following instructions from his
supervisor.”20
Plaintiff denies receiving this letter and also
denies the substance of the complaints about his conduct.21
On July 23, 2009, Akuchie drafted and signed a final letter of
warning.22 The letter recounted that Plaintiff had refused to carry
out
instructions
from
his
supervisor
on
three
occasions.23
Plaintiff was again reminded that he was not to talk on the phone
while at work, he was not to be rude and disrespectful to patients’
parents, he was not to make sexual comments to other staff members
and he was not to talk to patients while they were eating.24
The
letter concluded with a notation that Plaintiff was counseled about
the importance of following instructions and that any further
incident would result in termination.25
Plaintiff admits receiving
this letter, which he refused to sign because he claimed he had not
19
Id.
20
Id.
21
See Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey p. 1.
22
See Doc. 32-1, List of Exs., Ex. 5, Letter of Final Verbal Warning.
23
Id.
24
Id.
25
See id.
5
been verbally warned before that time.26
Following receipt of the final warning letter, Plaintiff
contacted an attorney.27
On July 27, 2009, the attorney, Anne
Gbenjo, wrote a letter to Zimac in which she outlined Plaintiff’s
complaints about how he was treated by his female co-workers.28
Gbenjo stated that Plaintiff had been “consistently and perhaps
relentlessly harassed” by a co-worker, Okolie, that Plaintiff had
complained about Okolie’s behavior to Akuchie on at least three
prior occasions, and Akuchie had taken no corrective action.29
Gbenjo stated that Okolie had “almost hit” Plaintiff in the face
with
a
broom
during
the
prior
week
and
two
corroborated Okolie’s harassment of Plaintiff.30
Akuchie
that
her
client
believed
he
was
witnesses
had
Gbenjo informed
the
victim
of
discrimination.31
Supporting his opposition to summary judgment, Plaintiff
averred that he was “constantly taunted by the female staffs.”32
Plaintiff also averred that as a result of his complaints of
taunting, a female staff member, Marolayo Olayande, received a
26
See Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey pp. 1, 3.
27
See Doc. 32-1, List of Exs., Ex. 6, Letter Dated July 27, 2009.
28
Id.
29
Id.
30
See id.
31
Id.
32
See Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey, p. 3.
6
written warning.33
In his affidavit, Plaintiff averred that he was not paid
overtime for the hours worked over forty per week and, in support,
attached pay stubs showing that, on the occasions when he worked in
excess of eighty hours in a two-week period, he was paid straighttime for all hours.34
On August 7, 2009, Plaintiff’s employment was terminated on
the grounds of insubordination.35
On September 11, 2009, Plaintiff
filed a charge of sex discrimination and retaliation with the Equal
Employment Opportunity Commission (EEOC).36 On August 31, 2011, the
EEOC issued a right-to-sue letter to Plaintiff.37
filed this suit on November 14, 2011.
Plaintiff timely
On January 31, 2014, Zimac
filed the pending motion for summary judgment.
Discovery has
closed and the matter is ripe for determination.
II.
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R.
33
Id.
34
Id.; see also Doc. 36, Ex. G to Pl.’s Resp., Pay Stubs.
35
See Doc. 32-1, List of Exs., Ex. 8, Letter of Termination Dated Aug.
7, 2009.
36
See Doc. 32-1, List of Exs., Ex. 9, Charge of Discrimination p. 2.
37
See Doc. 32-2, List of Exs., Ex. 11, Dismissal and Notice of Rights
Letter Dated Aug. 31, 2011.
7
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir.
2003).
A material fact is a fact that is identified by applicable
substantive law as critical to the outcome of the suit.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet
Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th
Cir. 2001).
To be genuine, the dispute regarding a material fact
must be supported by evidence such that a reasonable jury could
resolve the issue in favor of either party.
Anderson, 477 U.S. at
250; TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th
Cir. 2002).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.
Celotex
Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992).
If the moving party can show an absence of record
evidence in support of one or more elements of the case for which
the nonmoving party bears the burden, the movant will be entitled
to summary judgment.
Celotex Corp., 477 U.S. at 322.
In response
to a showing of lack of evidence, the party opposing summary
judgment must go beyond the pleadings and proffer evidence that
establishes
each
of
the
challenged
elements
of
the
case,
demonstrating that genuine issues of material fact do exist that
8
must be resolved at trial.
Id. at 324.
When considering the evidence, "[d]oubts are to be resolved in
favor of the nonmoving party, and any reasonable inferences are to
be drawn in favor of that party."
Evans v. City of Houston, 246
F.3d 344, 348 (5th Cir. 2001); see also Boston Old Colony Ins. Co.
v. Tiner Assocs. Inc., 288 F.3d 222, 227 (5th Cir. 2002). The court
should not “weigh evidence, assess credibility, or determine the
most reasonable inference to be drawn from the evidence.”
Honore
v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987).
However,
the
nonmoving
party
must
show
metaphysical doubt as to the material facts.”
more
than
“some
Meinecke v. H & R
Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995).
Conclusory
allegations, unsubstantiated assertions, improbable inferences,
unsupported speculation, or only a scintilla of evidence will not
carry this burden.
Brown, 337 F.3d at 541; Ramsey v. Henderson,
286 F.3d 264, 269 (5th Cir. 2002).
The court must grant summary
judgment if, after an adequate period of discovery, the nonmovant
fails “to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex Corp., 477 U.S.
at 322.
III.
Analysis
Zimac moves for summary judgment on Plaintiff’s Title VII
claim, arguing first that it is not an employer subject to Title
9
VII and, alternatively, that Plaintiff has no evidence of either
sex discrimination or retaliation. Zimac further contends that, as
a tax-exempt charitable organization, it is not subject to the Fair
Labor Standards Act.
Zimac argues that, as Plaintiff is unable to
state claims for relief under federal law, his state law causes of
action should be dismissed.
Alternatively, Zimac addresses the
merits of Plaintiff’s state law claims.
The court first considers
Plaintiff’s federal claims.
A.
Title VII
In order to be subject to Title VII, an employer must have at
least fifteen employees “for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year.” 42
U.S.C. § 2000e(b); Juino v. Livingston Parish Fire Dist., 717 F.3d
431, 434 (5th Cir. 2013)(same). Zimac argues that it is not subject
to Title VII because during the time of Plaintiff’s employment, it
employed only eight individuals.38
In response, Plaintiff attaches a Zimac payroll record for the
last two-week pay period of 2008, which he avers is a true copy of
the
original.39
That
document
shows
Plaintiff’s
name
as
[presumably] the fourteenth employee on the list; the other names
38
See Doc. 32-1, List of Exs., Ex. 1 to Def.’s Mot. for Summ. J., List
of Zimac Employees. This exhibit was authenticated by Akuchie. See Doc. 35-1,
Ex. A to Def.’s Supplement to Mot. for Summ. J. p. 2.
39
See Doc. 36, Ex. D to Pl.’s Resp., Aff. of E. Bassey; Doc. 36, Ex.
E. to Pl.’s Resp., Zimac’s Resps. & Objs. to Pl.’s Reqs. for Prod. & Interrogs.
p. 25.
10
are blacked out. Plaintiff offers no other evidence concerning the
number of employees employed by Zimac during either 2008 or 2009.
The Supreme Court has stated, “[T]he threshold number of
employees
for
application
of
Title
VII
is
an
element
of
a
plaintiff’s claim for relief, not a jurisdictional issue.” Arbaugh
v. Y & H Corp., 546 U.S. 500, 516 (2006).
Crediting Plaintiff’s
evidence, as the court must, Plaintiff fails to meet his burden of
raising a fact question on whether Zimac employed more than fifteen
employees for the requisite twenty workweeks in either 2008 or
2009.
Based on the evidence before it, the court finds that Zimac
is not subject to Title VII for those years.
Zimac’s motion for
summary judgment on Plaintiff’s Title VII claims is GRANTED.40
2.
FLSA
The FLSA provides that “no employer shall employ any of his
employees who in any workweek . . . is employed in an enterprise
engaged in commerce . . . for a workweek longer than forty hours
unless such employee receives compensation for his employment in
excess of [forty hours] at a rate not less than one and one-half
times the regular rate at which he is employed.”
29 U.S.C. §
207(a)(1).
The FLSA defines an enterprise engaged in commerce as an
40
Based on this determination, the court does not reach Zimac’s
alternative argument that Plaintiff has failed to state claims of discrimination
and retaliation under Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). See Doc. 32, Def.’s Mot. for Summ. J. pp. 16-17
11
enterprise that “has employees engaged in commerce . . . and is an
enterprise whose annual gross volume of sales made or business done
is not less than $500,000 . . . .” 29 U.S.C. § 203(s)(1)(A)(i),
(ii).
The definition also includes “the operation of a hospital,
an institution primarily engaged in the care of the . . . mentally
ill or defective who reside on the premises of such institution, a
school for mentally . . . handicapped . . . children,” or is “an
activity of a public agency.”
29 U.S.C. § 203(s)(1)(B), (C).
Zimac challenges the law’s applicability, arguing that it is
not an “enterprise engaged in commerce.” Citing no case law, Zimac
contends that it is a “public charity” and not engaged in commerce
or the production of goods for commerce.41
Zimac makes no averment
about the amount of its annual revenue or whether it conducted the
work of a public agency during the years in question. In response,
Plaintiff argues, without legal or factual support, that Zimac was
an enterprise engaged in commerce and that he was employed as
direct care staff for mentally challenged patients.
Whether or not an employer is an enterprise engaged in
commerce is a nuanced determination based on both facts and law.
Neither party has briefed the law in this area and each makes only
the most conclusory of arguments.
Without case law in support,
Zimac has not established that, as a public charity, it is not
subject to the FLSA.
41
Doc. 32, Def.’s Mot. for Summ. J. p. 15.
12
On the other hand, it is worth noting that at trial, Plaintiff
will bear the burden of establishing that Zimac was subject to the
FLSA during 2008 and 2009.
Svs., Inc.,
Wilson v. K & K Best Care Ambulance
No. 4:13-CV-2509, 2014 WL 1761227, at *1 (S.D. Tex.
Apr. 28, 2014)(slip copy); Brown v. Constant Care, Inc., No.5:04CV-165,
2004
WL
1836732,
at
*2
(N.D.
Tex.
Aug.
17,
2004)(unpublished). This will require Plaintiff to elicit evidence
that he or his employer either engaged in interstate commerce,
engaged in the activity of a public agency, or engaged in the care
of mentally challenged individuals who resided on the premises.
See 29 U.S.C. § 203(s)(1)(A), (B), (C); see also Martin v. Bedell,
955 F.2d 1029, 1032 (5th Cir. 1992)(either individual or enterprise
coverage is sufficient to invoke FLSA protection).
Based on the absence of factual or legal support, Zimac’s
motion for summary judgment on Plaintiff’s FLSA claim is DENIED.42
3.
Assault and Battery/Respondeat Superior
Zimac moves for summary judgment on Plaintiff’s assault and
battery claim on the ground that “Plaintiff has offered no evidence
to support this allegation other than to state that Okolie swung a
broom at him.
It is instructive here that Okolie denied that this
42
Defendant, anticipating the grant of summary judgment in its favor
on Plaintiff’s Title VII and FLSA claims, moved to dismiss Plaintiff’s state law
claims for lack of jurisdiction. See id. p. 18. As the court has determined
that Plaintiff’s FLSA claim may proceed to trial, the court need not consider
whether to decline supplemental jurisdiction over Plaintiff’s state law claims.
See 28 U.S.C. § 1367(c)(3).
13
happened.”43
Zimac also complains that Plaintiff failed to allege
that he suffered bodily injury from the alleged assault and that he
has no evidence that Zimac either authorized or ratified Okolie’s
conduct.44
In support of his claim, Plaintiff avers that Okolie
lifted a broom to hit him, and he blocked the blow with his elbow.45
Texas courts have recognized that the elements of civil and
criminal assault are the same. Waffle House, Inc. v. Williams, 313
S.W.3d 796, 801 n. 4 (Tex. 2010); Forbes v. Lanzl, 9 S.W.3d 895,
900 (Tex. App. - Austin 2000, pet. denied); Hogenson v. Williams,
542 S.W.2d 456, 458 (Tex. Civ. App. - Texarkana 1976, no writ).
In
a recent Texas Supreme Court case, the court discussed the melding
of the common law elements of assault and battery into the present
Penal Code, in the context of an excessive force allegation.
See
City of Watauga v. Gordon, ___ S.W.3d ___, 2014 WL 2535995, at *3
(Tex. June 6, 2014). The Penal Code provides that a person commits
an assault if the person either:
(1) intentionally, knowingly, or recklessly causes bodily
injury to another . . .
(2) intentionally or knowingly threatens another with
imminent bodily injury . . . or
(3) intentionally or knowingly causes physical contact
with another when he or she knows or should reasonably
believe that the other will regard the contact as
offensive or provocative.
43
Doc. 32, Def.’s Mot. for Summ. J. p. 20.
44
Id.
45
See Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey p. 2.
14
Tex. Pen. Code § 22.01(a).
The Texas Supreme Court found that the second definition was
consistent with the traditional notion of a common-law assault and
the first and third definitions were consistent with a common-law
battery.
Gordon, 2014 WL 2535995, at *3.
In Fisher v. Carrousel
Motor Hotel, Inc., 424 S.W.2d 627, 628-29 (Tex. 1967), a motel
manager refused to serve a black man who stood in line for a
buffet, snatching the plate from his hands.
Id.
The court found
the motel manager’s conduct to be actionable as a battery because
of the offensive nature of the contact.
Id. at 630.
The court
stated, “Personal indignity is the essence of an action for
battery; and consequently the defendant is liable not only for
contacts with no actual physical harm, but also for those which are
offensive and insulting.”
Id.
Plaintiff’s affidavit testimony that Okolie attempted to swat
him with a broom and that he deflected the blow with his elbow
could satisfy either the second or third definition of assault and
batter without the need to prove bodily injury.
Thus, Zimac’s
first argument that there is no evidence of an assault or battery
is without merit.
Under Texas law, an employer may be held liable for the
intentional tort of an employee under two alternative theories:
respondeat
superior
and
ratification.
Skidmore
v.
Precision
Printing & Packaging, Inc., 188 F.3d 606, 614 (5th Cir. 1999).
15
In
order
to
impose
liability
under
the
doctrine
of
respondeat
superior, Plaintiff must show: (1) an agency relationship existed
between the Zimac and Okolie; (2) Okolie committed a tort; and (3)
the tort was in the course and scope of Okolie’s authority.
Ogunbanjo v. Don McGill of West Houston, Ltd., Case No. 01-13-406CV, 2014 WL 298037, at *3 (Tex. App. - Houston [1st Dist.] Jan. 28,
2014)(no pet.)(citing Zarzana v. Ashley, 218 S.W.3d 152, 159 (Tex.
App. - Houston [14th Dist.] 2007, pet. struck)).
In order to show that Okolie acted within the course and scope
of her employment, Plaintiff must show that the conduct occurred
(1) within Okolie’s general authority; (2) in furtherance of
Zimac’s business; and (3) for the accomplishment of the object for
which Okolie was employed.
Zarzana, 218 S.W.3d at 159.
Generally, assaultive conduct is not within the course and
scope of an employee’s authority unless the employer places the
employee in a position that involves the use of force.
Knight v.
City Streets, L.L.C., 167 S.W.3d 580, 583 (Tex. App. - Houston [14th
Dist.] 2005, no pet.).
There is no evidence in the record that suggests that Okolie
was authorized to use force in any aspect of her employment.
Celotex Corp. counsels that the party opposing a “no evidence”
summary judgment must go beyond the pleadings and proffer evidence
that establishes each of the challenged elements of the case.
Celotex Corp., 477 U.S. at 324.
Plaintiff has failed to meet his
16
burden on this claim.
Zimac’s motion for summary judgment on the
issue of respondeat superior liability for Okolie’s alleged assault
and battery is GRANTED.
Turning
to
Plaintiff’s
alternative
theory
of
liability,
ratification, Zimac may be liable for Okolie’s assault if it
approved of the act after it occurred. See Shearson Lehman Hutton,
Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex. App. - Corpus Christi
1991, writ dism’d w.o.j.)(holding that a principal who ratifies his
agent’s act is directly culpable).
It is not enough that Zimac
retained Okolie after the alleged assault because mere retention
will not establish ratification.
See Skidmore, 188 F.3d at 615
(citing Durand v. Moore, 879 S.W.2d 196, 203 (Tex. App. - Houston
[14th Dist.] 1994, no writ); Prunty v. Ark. Freightways, Inc., 16
F.3d 649, 653-54 (5th Cir. 1994)). On the other hand, an employer’s
silence may be evidence of ratification where the employer has all
material facts and opts to take no action.
See Sw. Bell Tel. Co.
v. Wilson, 768 S.W.2d 755, 764 (Tex. App. - Corpus Christi 1988,
writ denied).
Admittedly, the summary judgment evidence on this claim is
sparse.
Plaintiff avers that Okolie lifted a broom to hit him and
he blocked the blow with his elbow.46
Zimac offers a letter from
Plaintiff’s attorney in which she complains that “Ms. Okolie has
consistently and perhaps relentlessly harassed Mr. Bassey,” and
46
Doc. 36, Ex. A to Pl.’s Resp., Aff. of E. Bassey p. 2.
17
“[S]he almost hit Mr. Bassey in the face with a broom on Thursday
last week.”47
that
Zimac
There is no evidence in the record before the court
took
any
disciplinary
action
against
Okolie
or
disassociated itself from Okolie’s actions.
Thus, Plaintiff has raised a fact issue that an assault took
place and that Zimac was on notice that Plaintiff believed he had
been assaulted by a supervisor.
A jury will have to determine if
Plaintiff was assaulted, whether Plaintiff suffered a compensable
injury from the assault and whether Zimac’s conduct amounted to
ratification of Okolie’s action.
Zimac’s motion for summary
judgment on the issue of ratification is DENIED.
4.
Fraud
Zimac moves for summary judgment on Plaintiff’s fraud claim,
arguing that Plaintiff has no evidence that it defrauded Plaintiff.
In support, Zimac points to Plaintiff’s complaint wherein Plaintiff
merely alleges that Zimac made a false representation to Plaintiff
with the intent that Plaintiff rely on the representation.
The
complaint’s fraud allegation concludes: “Defendant told Plaintiff
that he was unable to satisfy his wife sexually, that is why the
47
Doc. 32-1, Ex. 6 to Def.’s Mot. for Summ. J. p. 1. In Defendant’s
motion for summary judgment, it argues that Okolie denied swinging a broom at
Plaintiff and cited its response to the Equal Employment Opportunity Commission
in support. Doc. 32, Def.’s Mot. for Summ. J. p. 20. Okolie’s statements in the
document are hearsay and cannot be considered by the court. See Fed. R. Evid.
802. This is also true of the statements of Zimac’s chief executive officer, Dr.
Akuchike contained in that document as they are being offered for the truth of
the matter asserted.
18
left.”48
wife
The
court
assumes
that
this
is
the
false
representation of which Plaintiff complains.
In order to state a claim for fraud, a plaintiff must show:
(1) that 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 as a positive assertion; (4) the
speaker made the representation with the expectation that the other
party would act upon it; (5) the party acted in reliance on the
representation; and (6) the party thereby suffered injury. Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d
323, 337 (Tex. 2011).
Plaintiff has failed to respond to Zimac’s motion for summary
judgment on this claim. Plaintiff must go beyond the pleadings and
support his fraud claim with evidence that supports each element of
a fraud claim.
As Plaintiff has failed to meet his burden,
Zimac’s motion for summary judgment on Plaintiff’s fraud claim is
GRANTED.
5.
IIED
Zimac moves for summary judgment on Plaintiff’s IIED claim,
arguing
that
Plaintiff
outrageous conduct.
has
no
evidence
that
it
engaged
in
Zimac also contends that Texas law does not
allow an IIED claim where the factual basis for such a claim is the
same as for another tort claim.
48
See Doc. 1, Pl.’s Orig. Compl. p. 5.
19
In order to recover for IIED, Plaintiff must prove that (1)
Zimac acted intentionally or recklessly; (2) Zimac’s conduct was
extreme
and
outrageous;
(3)
Zimac’s
actions
caused
Plaintiff
emotional distress; and (4) the emotional distress suffered by
Plaintiff was severe. Randall’s Food Markets, Inc. v. Johnson, 891
S.W.2d 640, 644 (Tex. 1995).
The Texas Supreme Court has stated
that the IIED tort was “judicially created for the limited purpose
of allowing recovery in those rare instances in which a defendant
intentionally inflicts severe emotional distress in a manner so
unusual that the victim has no other recognized theory of redress.”
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.
2004).
Plaintiff did not respond to Zimac’s motion on this issue and
therefore has not met his burden under Federal Rule of Civil
Procedure 56(e).
The court has reviewed Plaintiff’s complaint and
the summary judgment record and can find no allegation of either
extreme or outrageous conduct or extreme emotional distress as a
result of such conduct that would satisfy the second or fourth
elements of an IIED action. Zimac’s motion for summary judgment on
this claim is GRANTED.
6.
Negligent Hiring, Supervision, Training and Retention
Defendant moves for summary judgment on Plaintiff’s negligent
hiring, supervision, training and retention claim on the ground
that Plaintiff has no evidence that there was anything in Okolie’s
20
background that would have caused a reasonable employer not to hire
or retain Okolie.
Defendant also argues that Plaintiff has no
evidence that it negligently supervised or trained Okolie and that
such oversights caused Plaintiff harm.
In a negligent hiring or retention case, a plaintiff must show
that the risk that associated with the hiring, supervision or
retention of a co-worker also proximately caused his injuries.
Fifth
Club,
Inc.
v.
Ramirez,
196
S.W.3d
788,
796
(Tex.
2006)(stating “[n]egligence in hiring requires that the employer’s
‘failure to investigate, screen, or supervise its [employees]
proximately caused the injuries the plaintiffs allege’” (quoting
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex. 1995)).
A plaintiff must also show that an investigation of
the co-worker would have revealed this risk.
Doe, 907 S.W.2d at
477.
An employer who negligently supervises an incompetent employee
may
be
directly
liable
to
a
third
party
whose
injury
was
proximately caused by the employee’s negligent or intentional act.
Wrenn v. G.A.T.X. Logistics, Inc., 987 S.W.2d 90, 97 (Tex. App. Fort Worth 2002, no pet.).
The duty of the employer extends only
to prevent the employee from causing physical harm to a third
party.
Id. (citing Sibley v. Kaiser Found. Health Plan of Texas,
998 S.W.2d 399, 403 (Tex. App. - Texarkana, 1999)).
Plaintiff did not respond to Zimac’s motion for summary
21
judgment on this issue and therefore has not met his burden under
Federal Rule of Civil Procedure 56(e).
judgment
record
supports
supports this claim.
the
A review of the summary
determination
that
no
evidence
Zimac’s motion for summary judgment on this
claim is GRANTED.
7. Slander
Under the Texas Civil Practice and Remedies Code § 16.002(a),
a claim for slander must be brought within one year of the
defamatory statement.
Here, Zimac argues that any claim Plaintiff
may have for slander is barred by limitations. In support, Zimac
states that it is undisputed that Plaintiff was terminated from his
employment in August 2009 and did not file this lawsuit until
November 12, 2011.
Thus, any statement made during Plaintiff’s
employment would fall outside of the limitations period.
Plaintiff failed to respond to Defendant’s motion for summary
judgment on this claim and has failed to identify an allegedly
slanderous statement that occurred within the limitations period.49
Thus, Plaintiff has not met his burden under Federal Rule of Civil
Procedure 56(e).
As the court determines that any statement made
by Okolie during Plaintiff’s employment is time-barred, the court
49
Plaintiff’s complaint merely alleges that “Okolie made a false
statement of fact referring to Plaintiff which imputed a disease against
Plaintiff and imputed sexual misconduct against Plaintiff. This was done with
actual malice.” See Doc. 1, Pl.’s Orig. Compl. pp. 6-7. Based on the other
allegations contained in Plaintiff’s complaint, the court assumes that Okolie’s
statement was made during Plaintiff’s employment and occurred prior to August
2009.
22
need not consider Defendant’s alternative grounds for judgment on
this claim.
Zimac’s motion for summary judgment on Plaintiff’s
slander claim is GRANTED.
8.
Statutory Attorney’s Fees
Zimac seeks attorney’s fees from Plaintiff pursuant to Section
38.001 of the Texas Civil Practice and Remedies Code (“Section
38.001").
That
section
permits
the
recovery
of
reasonable
attorney’s fees if the claim is for “rendered services,” or
“performed labor,” among other claims.
Code. §§ 38.001 (1), (2).
See Tex. Civ. Prac. & Rem.
Citing no case law, Zimac simply argues
that it is entitled to attorney’s fees because it successfully
defended against Plaintiff’s state law claims and its attorney
rendered services or performed labor that achieved that result.
Zimac misapprehends the law.
In order to obtain an award of attorney’s fees under Section
38.001, “a party must (1) prevail on a cause of action for which
attorney’s
fees
are
recoverable,
and
(2)
recover
damages.”
Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 417 S.W.3d 46, 60
(Tex. App. - Houston [1st Dist.], 2013)(quoting Green Int’l, Inc.
v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)).
Here, Zimac has not shown that attorney’s fees are recoverable
for claims of intentional infliction of emotional distress, fraud,
negligent hiring, supervision, retention and training and slander,
and it has asserted no claim for damages.
23
Zimac is therefore not
entitled to an award of attorney’s fees pursuant to Section 38.001.
See MBM Fin. Corp. v. Woodlands Operating Co. L.P., 292 S.W.3d 660,
666 (Tex. 2009)(denying the ability to recover attorney’s fees
under Section 38.001 where a party prevailed but failed to recover
damages).
Zimac’s motion for summary judgment on this claim is
DENIED.
IV.
Conclusion
The court GRANTS Zimac’s motion for summary judgment on
Plaintiff’s
Title
VII
claims
for
sex
discrimination
and
retaliation, as well as Plaintiff’s state law claims for IIED,
fraud, negligent hiring, supervision, retention and training, and
slander.
Zimac’s motion for summary judgment is DENIED with
respect to Plaintiff’s FLSA and assault and battery claims and its
claim for attorney’s fees.
Docket Call is set for August 8, 2014, at 10:00 a.m. in
Courtroom 700.
As this action was filed almost three years ago, no
request for a continuance based on a need for additional discovery
will be considered by the court.
The Joint Pretrial Order and motions in limine are due August
1, 2014.
Plaintiff is responsible for timely filing the complete
joint pretrial order.
The court will not accept separate versions
of the pretrial order.
No instrument filed within seven days of docket call shall be
considered.
All pending motions may be ruled on at docket call,
24
and the case will be set for trial.
At trial, the court also will
hear damage evidence in connection with the entry of default
against Okolie.
SIGNED this 11th day of July, 2014.
______________________________
U.S. MAGISTRATE JUDGE
25
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