Galaviz v. Post-Newsweek Stations, San Antonio, Inc. et al

Filing 81

ORDER GRANTING 73 Motion for Summary Judgment; DISMISSING AS MOOT 75 Motion to Strike Signed by Judge Xavier Rodriguez. (ep, )

In the United States District Court for the Western District of Texas
V I R G I N I A GALAVIZ P l a i n t i ff v. P O S T -N E W S W E E K S T A T I O N S , SAN ANTONIO, IN C ., et al. D e fen d a n ts § § § § § § § § § § §

Civil Action No. SA-08-CA-305

O rder O n this date the Court considered Defendants' motion for summary ju d g m e n t (docket no. 73) and Plaintiff's motion to strike (docket no. 75). The C o u r t GRANTS the motion for summary judgment and DISMISSES as moot the m o t i o n to strike. Judgment in favor of Defendants shall issue separately

a c c o r d in g to Rule 58. Defendants are awarded costs and shall file a bill of costs in the form required by the Clerk of the Court, with supporting documentation, w ith in fourteen days of the Judgment. Background I n the live complaint, Plaintiff alleges that she was employed by D e f e n d a n t s as a television police beat field reporter from March 2001 until

D e fe n d a n ts terminated her employment on August 1, 2007.1 Most recently, P la in t iff alleges that she and the Defendants entered into a contract on February 2 8 , 2007 that provided for her continued employment with Defendants until M a rc h 11, 2010.2 Plaintiff alleges that on July 26, 2007, police responded to the s c e n e of an incident between her and her fiancé. 3 The police arrested both in d iv i d u a ls and charged Plaintiff with assault.4 On August 1, 2007, Defendants te rm in a te d Plaintiff.5 P la in t iff alleges that Defendants' conduct was discriminatory against her g e n d e r because similarly situated male employees had previously been arrested a n d /o r convicted for assault, indecency with a child, driving while intoxicated, a n d marijuana possession, but were not terminated.6 Plaintiff thus asserts d is p a ra te impact and disparate treatment causes of action under Title VII, 42 U .S .C . § 2000e.7 Plaintiff further asserts causes of action for breach of her e m p l o y m e n t contract, intentional infliction of emotional distress, libel, slander, n e g lig e n c e , and negligent hiring, supervision, training and retention.8 O n January 7, 2009, the Court entered an Order dismissing Plaintiff's
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Docket no. 5 ¶ 13. Id. ¶ 15. Id. ¶¶ 16, 25. Id. Id. ¶ 17. Id. ¶¶ 18, 21, 23-24, 27-32. Id. ¶¶ 29-32. Id. ¶¶ 34-52.

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d is p a r a t e impact claim.9

On May 7, 2009, the Court granted Plaintiff's

u n o p p o s e d motion to dismiss the libel, slander, negligent hiring, supervision, t r a in in g and retention, and negligence claims, and Plaintiff's unopposed motion t o dismiss Defendants Washington Post Company and Post Newsweek Stations, I n c .1 0 The remaining Defendants in this action, Post Newsweek Stations, San A n t o n io , Inc., Post Newsweek Stations, San Antonio GP, and Post-Newsweek S t a tio n s , San Antonio LP ("Defendants" or "KSAT"), move the Court to grant s u m m a ry judgment in their favor on the remaining claims ­ disparate treatment u n d e r Title VII, breach of employment contract, and intentional infliction of e m o t io n a l distress.1 1 S t a n d a r d of Review A summary judgment movant must show by affidavit or other evidence th a t there is no genuine issue regarding any material fact. Celotex Corp. v. C a tre tt, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as t o any material fact, the movant must either submit evidence that negates the e x is te n c e of some material element of the nonmoving party's claim or defense, o r , if the crucial issue is one for which the nonmoving party will bear the burden o f 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), cert.

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Docket no. 22. Docket nos. 62, 63. Docket no. 73.

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d e n i ed , 510 U.S. 859 (1993). Once the movant carries its initial burden, the b u r d e n shifts to the nonmovant to show that summary judgment is in a p p r o p r ia te . See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1 9 9 1 ). I n order for a court to conclude that there are no genuine issues of m a te r ia l fact, the court must be satisfied that no reasonable trier of fact could h a v e found for the nonmovant, or, in other words, that the evidence favoring the n o n m o v a n t is insufficient to enable a reasonable jury to return a verdict for the n o n m o v a n t. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.4 (1986). I n making this determination, the court should review all the evidence in the r e c o r d , giving credence to the evidence favoring the nonmovant as well as the " e v id en ce supporting the moving party that is uncontradicted and unimpeached, a t least to the extent that evidence comes from disinterested witnesses" and d i s r e g a r d in g the evidence favorable to the nonmovant that the jury is not r e q u ir e d to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 1 5 2 (2000). A n a ly s is A. P la i n t i ff' s Title VII Gender Discrimination Claim 1. D i r e c t Evidence

P la in t iff alleges that Defendants terminated her employment due to her g e n d e r , in violation of Title VII. Title VII makes it unlawful for an employer to d is c h a r g e an employee because of her sex. See 42 U.S.C. § 2000e. Gender

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d is cr im in a t i o n can be shown either by direct evidence or circumstantial e v id e n c e . Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). P la in tiff did not present any direct evidence of discriminatory intent or argue t h a t her claim is based on direct evidence. Rather, the undisputed evidence and P l a in t iff's pleadings indicate that Plaintiff bases her claim on her belief that o th e r male employees of KSAT were involved in and/or arrested for similar in c id e n ts but not terminated.12 2. C i r c u m s ta n t i a l Evidence

W h e n there is no evidence of discrimination, Plaintiff must prove her g e n d e r discrimination claim through circumstantial evidence, using the burdens h ift in g framework established by McDonnell Douglas Corp., 411 U.S. 792, 802 ( 1 9 7 3 ) . See also Nasti v. CIBA Specialty Chems., 492 F.3d 589, 593 (5th Cir. 2 0 0 7 ). Under the McDonnell Douglas framework, a plaintiff must first e s ta b l is h a prima facie case of sex discrimination. The employer t h e n bears the burden of producing a legitimate, non-discriminatory r e a s o n for its actions. The employer is not required to convince the C o u r t that it was actually motivated by this reason; it need only r a is e a genuine issue of fact as to whether or not it discriminated a g a in s t the plaintiff. Once the employer offers a legitimate, n o n d is c r im in a to r y reason for the plaintiff's treatment, the p r e s u m p t io n s of the McDonnell Douglas framework dissipate, and t h e plaintiff bears the ultimate burden of persuading the trier of fact th a t the defendant engaged in intentional discrimination. To satisfy t h is burden, a plaintiff must produce substantial evidence that the e m p l o y e r 's proffered reasons for its actions were a pretext for d is cr im in a t io n . A plaintiff can establish pretext either through e v id e n c e of disparate treatment or by showing that the employer's

See Tr. of Deposition of Virginia Galaviz (docket no. 73, Exh. B) at 231-32; Plaintiff's First Amended Complaint (docket no. 5) ¶¶ 27-28.

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p r o ffe r e d explanation is false or unworthy of credence. T o establish a prima facie case, [the plaintiff] must demonstrate t h a t (1) she belongs to a protected group, (2) she was qualified for h e r position, (3) she suffered an adverse employment action; and (4) s h e was replaced with a similarly qualified person who was not a m e m b e r of her protected group, or in the case of disparate t r e a t m e n t , that similarly situated employees were treated more fa v o r a b ly . Nasti, 492 F.3d at 593 (internal citations and quotations omitted). a. R e p la c e m e n t

D e fe n d a n t s contend that no genuine issue of material fact exists to suggest t h a t Plaintiff was replaced by a similarly qualified male employee. The

u n d is p u t e d evidence is that Defendants have not, to date, replaced Plaintiff with a "police beat" reporter ­ male or female.1 3 Plaintiff does not address this

a rg u m e n t or present evidence that Defendants have hired a male to perform the r o le s and responsibilities Plaintiff previously held. The uncontroverted evidence t h e r e fo r e shows that Plaintiff was not replaced by a person outside of her p r o te c te d group. See, e.g., Salinas v. AT&T Corp., 314 F. App'x 696, 698 (5th C i r . 2009) ("Since Salinas was not replaced by AT&T, under the fourth element h e must demonstrate that AT&T gave preferential treatment to a non-Hispanic o r female employee under `nearly identical circumstances.'"). b. D i s p a r a te Treatment

T h e Court thus must analyze whether Plaintiff established that other

See Affidavit of James Phillip Boyle (docket no. 73, Exh. D) at 2 (News Director and Vice-President of Defendant Post-Newsweek Stations, San Antoinio, Inc., stating "I hired Virginia Galaviz to be the KSAT police beat reporter. This was a unique position and she was the only reporter who held this title. . . . KSAT has not replaced Ms. Galaviz.").

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s im ila r ly -s it u a t e d employees were treated more favorably. Plaintiff must show t h a t (1) an employee outside of her protected class was similarly situated; and (2 ) this employee was treated differently under circumstances "nearly identical" to hers. Wheeler v. BL Dev. Cor., 415 F.3d 399, 406 (5th Cir.2005); see also B e rq u is t v. Washington Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) ("In d is p a r a te treatment cases, the plaintiff-employee must show `nearly identical' c ir c u m s ta n c e s for employees to be considered similarly situated."). "When

a s s e s s in g whether employees are similarly situated, courts consider whether the e m p lo y e e s were employed in the same job position, whether the employees had d iffe r e n t job responsibilities, and whether the same supervisor was involved in t h e decision making." Puente v. Potter, Civil Action No. SA-05-CA-747-XR, 2007 W L 869584, at *6 (W.D. Tex. March 20, 2007) (citing Williams v. Gonzales, No. 1 :04 -C V -3 4 2 , 2005 U.S. Dist. LEXIS 38838, at *35-36 (E.D. Tex. Dec. 14, 2005); C o le m a n v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 608 (S.D. Tex. 2001)). i. P l a i n t i ff

W e first examine the circumstances surrounding Plaintiff's employment a n d termination. The undisputed summary judgment evidence shows that P la i n t i f f was hired and supervised by James Boyle to work as an on-air news r e p o r te r for KSAT.1 4 Specifically, Plaintiff was hired to be KSAT's only

d e s i g n a t e d "police beat" reporter.1 5 In that role, Plaintiff was to cover events

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Plaintiff's Employment Contract (docket no. 73, Exh. A); id., Exh. B at 51-52, 57. Id., Exh. B at 45-47; Deposition of James Boyle (docket no. 73, Exh. C) at 4..

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r e l a t e d to crime, public safety and the law enforcement community in the City o f San Antonio.1 6 Plaintiff testified that her duties as police beat reporter were "d iffe re n t" than those who worked as general assignments reporters.1 7 Plaintiff w o r k e d to cultivate sources within the police department and the law e n fo r c e m e n t community, directly received tips from police beat sources, and had g r e a t e r discretion than general assignments reporters in deciding what to c o v e r .18 A s is the case with all of Defendants' on-air employees, Plaintiff was r e q u ir e d to sign an employment contract.1 9 The contract specified the terms and c o n d it io n s of Plaintiff's employment with KSAT and included "Talent Contract C l a u se s ."2 0 Importantly, the Talent Contract Clauses contained the following " m o r a ls " clause: 8 . TERMINATION UNDER CERTAIN CIRCUMSTANCES ( a ) If at any time Employee fails to conduct ... herself with due r e g a r d to public morals and decency, or if Employee commits any act o r becomes involved in any situation or occurrence tending to d e g r a d e Employee in the community or which brings Employee into p u b lic disrepute, contempt, or scandal, or which materially and a d v e r s e ly affects the reputation or business interests of PNS or the s ta n d i n g of PNS as a broadcast licensee, whether or not information i n regard thereto becomes public, PNS shall have the right to t e r m in a t e the Agreement on twenty-four (24) hours notice to

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Id., Exh. B at 55-56. Id. at 57. Id. at 56-57. Id. at 47, 50-51; Affidavit of James Boyle (id., Exh. D) at 1. See Plaintiff's' Employment Contracts (id., Exhs. A, E).

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E m p lo y e e .2 1 P la in t iff's employment contract was renewed on two occasions, first on March 1 6 , 2004 and again on February 28, 2007.2 2 Each of Plaintiff's employment c o n t r a c ts was for three-year terms.2 3 S o m e t im e in the fall of 2003, Plaintiff began a romantic relationship with S a n Antonio Councilman Ron Segovia. 2 4 Over time, the relationship became t r o u b le d , and in April of 2004, Plaintiff stopped seeing Segovia for a three- or fo u r -w e e k period following an alleged violent outburst by Segovia at his home.2 5 P la in t iff nevertheless resumed dating Segovia thereafter.2 6 Plaintiff disclosed t h e relationship and the related difficulties to Boyle as early as July 19, 2004.2 7 In July of 2004, Plaintiff and Segovia were again involved in a domestic in c id e n t at Segovia's residence, resulting in the San Antonio Police being c a lle d .2 8 The police report filed by one of the responding officers indicates that, o n or about July 10, 2004, Plaintiff threw a hamburger at Segovia, and Segovia r e s p o n d e d by throwing an apple at Plaintiff, which hit her and bruised her

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Id. Id., Exh. E. Id., Exhs. A, E. Id., Exh. B at 68. Id. at 69. Id. Email from Virginia Galaviz to James Boyle, dated July 19, 2004 (id., Exh. F). Id., Exh. B at 69-70.

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b a c k .2 9 Later that day, Segovia and Plaintiff went out to dinner.

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d in n e r , the couple was involved in another argument, during which Segovia a lle g e d ly punched Plaintiff in the face and pointed a gun at Plaintiff.3 1 T h e altercation received significant press coverage, including at least nine n e w s p a p e r articles and press releases.3 2 Plaintiff was frequently identified as K S A T 's police beat reporter in these articles.3 3 At least two articles questioned K S A T 's journalistic ethics in the wake of allegations that Plaintiff was dating S e g o v i a while she covered news stories about him.3 4 KSAT nevertheless chose n o t to take any action with respect to Plaintiff's employment.3 5 Plaintiff testified t h a t she has no complaints about how KSAT treated her following the incident.3 6 O n February 28, 2006, Plaintiff was involved in a second domestic incident w it h her then-boyfriend, Nathan Alonzo.3 7 Plaintiff was at Alonzo's apartment

Id., Exh. G. The Court takes notice of the police report submitted as Exhibit G to Defendants' motion for summary judgment not for the truth of the matter asserted therein, but for the existence of the reports and the allegations made therein. See FED. R. EVID. 201.
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Docket no. 73, Exh. B at 84; Exh. H at 2. Id., Exh. B at 84; Exh. G at 2; Exh. H at 2.

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Id., Exh. B at 86; Exh. I. The Court takes judicial notice of the articles submitted as Exhibit I to Defendants' motion for summary judgment, not for the truth of the matters asserted therein, but for their existence and the allegations made therein. See FED. R. EVID. 201.
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Id., Exh. I. Id., Exhs. I-2, I-9. Id., Exh. B at 94. Id. at 95. Id. at 96-97.

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w h e n he arrived home with another woman.3 8 According to the police report file d after the incident, a brief altercation occurred between the parties c o n c e r n in g the nature of the relationships between Mr. Alonzo and the two w o m e n .3 9 After the police arrived, Plaintiff left the scene in her own vehicle w it h o u t further incident.4 0 Shortly thereafter, Boyle received word of the

in c id e n t, met with her, and expressed his displeasure in Plaintiff's involvement in the situation.4 1 Boyle notified Plaintiff that she could be fired for the incident o r if she engaged in future similar conduct.4 2 O n July 25, 2007, Plaintiff was involved in a third incident with a new b o y fr ie n d named Ronald Aguillen. According to the police report that was s u b s e q u e n t ly filed, Plaintiff and Aguillen were involved in a physical altercation a t the Cadillac Bar in downtown San Antonio.4 3
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Plaintiff left the bar and

Id. at 96-97. Id., Exh. J at 2. Id. Id., Exh. D; Exh. B at 104.

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Id., Exh. D; Exh. B at 104; Deposition of Deborah Barrera (id., Exh. K) at 40, 54. Plaintiff, during her deposition, testified "I do remember [Boyle] saying that because of [the Alonzo incident] you could get fired" and that Boyle may have told her that she could be fired for a similar future incident. Id., Exh. B at 104. Plaintiff later changed her testimony via her errata sheet to "I don't remember," claiming that her prior answer was inaccurate. See id., Exh. B at 157 (errata sheet). Plaintiff thus neither admits nor denies that Boyle issued such warnings. Boyle testified that he did make such statements. In light of Boyle's statements, Plaintiff's inability to recall the conversation is insufficient to create a fact issue to overcome summary judgment. See Dickey v. Baptist Mem'l Hosp., 146 F.3d 262, 266 n.1 (5th Cir. 1998) ("The mere fact that Dr. Washington does not remember the alleged phone conversation, however, is not enough, by itself, to create a genuine issue of material fact. Rule 56 requires that the party opposing summary judgment point to specific evidence that creates a genuine issue of material fact."). Id., Exh. B at 110; Exh. L. The Court takes notice of the police report submitted as Exhibit L to Defendants' motion for summary judgment, not for the truth of the matters
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r e tu r n e d home, where she discovered that she had a black eye.4 4 Plaintiff then d r o v e to Aguillen's sister's home because she "wanted [Aguillen] to see the black e y e ." 4 5 Another confrontation occurred at the residence, the police were called, a n d Plaintiff and Aguillen were arrested for assault and family violence.4 6 P l a in t iff spent the night in a holding cell in the magistrate's office and was r e le a s e d the following day.4 7 T h e Aguillen incident also received significant media coverage.4 8 P h o to g ra p h s and at least one video recording of Plaintiff being led in handcuffs t o the magistrate's office were publicized. 4 9 Boyle and KSAT's business

m a n a g e r , Debbie Barrera, witnessed the video of Plaintiff's arrest being b r o a d c a s t e d on local television news programs.5 0 Plaintiff's arrest also became t h e subject of internet and newsprint articles, again identifying Plaintiff as a K S A T television reporter.5 1 Some of the articles chronicled Plaintiff's previous

asserted therein, but for the existence of the reports and the allegations made therein. See FE D . R. EVID. 201.
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Docket no. 73, Exh. B at 109-11. Id. at 111-12. Id. at 114; Exh. L. Id., Exh. B at 124-27. Id. at 114. Id. Id., Exh. C at 9; Exh. K at 4, 14.

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Id., Exh. M. The Court takes judicial notice of the articles submitted as Exhibit M to Defendants' motion for summary judgment, not for the truth of the matters asserted therein, but for the existence of the articles and the allegations made therein. See FED. R. EV I D . 201.

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i n c id e n t s .5 2 F o llo w in g her release from jail, Plaintiff met with Boyle and Barrera so t h a t Boyle and Barrera could obtain Plaintiff's side of the story and gather fu r th e r information related to the most recent incident.5 3 Plaintiff informed B o y le and Barrera that she was already undergoing counseling.5 4 Barrera gave P la in tiff information about a counseling program to which KSAT had previously r e fe r r e d employees for psychiatric and family counseling.5 5 No evidence was p r e s e n te d that suggests that Barrera or Boyle suggested that she would retain h e r employment if she attended counseling.5 6 On the following day, Boyle and B a r r e r a again met with Plaintiff.5 7 Boyle gave Plaintiff a termination letter and in fo r m e d Plaintiff that her employment was being terminated due to her v i o l a t io n of the "morals" clause in her employment contract.5 8 ii. P la i n t i f f 's Alleged Comparators

P l a i n t iff identifies four current and former male KSAT employees who w e r e arrested and/or involved in criminal conduct and not terminated ­ Maury V a s q u e z , Erik Barajas, Robert Flowers, and Abel Alejandro.5 9
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Docket no. 73, Exh. M. Id., Exh. B at 127; Exh. C at 11-12. Docket no. 74, Exh. B at 16; Exh. D at 15.. Id., Exh. D at 15-16. See id., Exh. B at 16, Exh. D at 15-16. Docket no. 72, Exh. B at 150; Exh. C at 21. Id., Exh. B at 150, 153; Termination Letter (id., Exh. N). Id., Exh. B at 210-11, 235-36.

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M a u r y Vasquez T h e uncontroverted summary judgment evidence indicates that Maury V a s q u e z was employed by KSAT as a general assignments reporter.6 0 As such, V a s q u e z was required to sign an employment agreement like the one that g o v e r n e d Galaviz' employment and that included the "morals" clause.6 1 Vasquez w a s supervised by Boyle.6 2 B o y le testified that Vasquez was arrested for a domestic incident while he w a s employed by KSAT, that it was the first incident Boyle knew about while V a s q u e z was employed by KSAT, and that he warned Vasquez that a similar in fr a c tio n could result in his termination.6 3 Boyle opined that Vasquez' arrest r e c e iv e d "minimal media coverage," and that Vasquez was not involved in any o t h e r incidents during his employment at KSAT.6 4 KSAT's vice president and G e n e r a l Manager, James Joslyn, also testified that Vasquez' arrest received p r e s s coverage and admitted that the coverage "defamed" KSAT, but opined that t h e coverage of Vasquez' sole incident damaged KSAT less than the coverage of G a la v i z ' multiple incidents.65 P la in t iff testified during her deposition that Maury Vasquez was charged

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Id., Exh. D at 2. Id. Id. Id. Id. at 2-3. Docket no. 74, Exh. A at 6.

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w it h possession of marijuana.6 6 Plaintiff says that she learned this through a b a c k g r o u n d check of Vasquez.6 7 However, there is no evidence that KSAT was a w a r e of the charge or that the charge occurred while Vasquez was employed by K S A T .6 8 Mere evidence of the fact of the charge, by itself, cannot support

P la in t iff's assertion that she was treated less favorably than Vasquez because n o evidence was presented to indicate that KSAT actually knew about the charge b u t nevertheless retained him. E r ik Barajas T h e uncontroverted summary judgment evidence indicates that Erik B a r a ja s was employed by KSAT as a weekend news anchor.6 9 Like Vasquez, B a r a ja s was required to sign an employment agreement like the one that g o v e r n e d Galaviz' employment and that included the "morals" clause.7 0 Vasquez w a s likewise supervised by Boyle.7 1 Boyle testified that Barajas was arrested for d r iv in g under the influence of alcohol.7 2 The incident made the news, and Boyle t e s t if ie d that the publicity brought disrepute to KSAT's reputation.7 3 To Boyle's

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Docket no. 73, Exh. B at 236. Id.

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In fact, Boyle indicated that he was unaware of any incidents Vasquez was involved in while he was employed at KSAT. Id., Exh. D at 3.
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Id. at 2. Id. Id. Id. Docket no. 74, Exh. D at 19-20.

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k n o w le d g e , this was the first and only incident of the type involving Barajas w h ile Barajas was employed at KSAT. 7 4 As with Vasquez, Boyle warned Barajas t h a t further instances of similar conduct could result in termination, and like V a s q u e z , Boyle was unaware of any further incidents involving Barajas during B a r a ja s ' employment at KSAT.7 5 Although KSAT decided to retain Barajas, B arrera and Boyle conditioned his continued employment on Barajas' attendance in a counseling program.7 6 R o b e r t Flowers T h e undisputed summary judgment evidence indicates that Robert F lo w e r s worked in production, did not have an employment contract, was not ona ir talent, and was not supervised by Jim Boyle, and that Boyle did not p a r t ic ip a t e in employment decisions regarding Flowers.7 7 Plaintiff suggested t h a t Flowers, while employed by KSAT, was arrested.7 8 The parties have not d ir e c te d the Court to evidence that explains what Flowers was arrested for. His im m e d i a t e supervisor, Scott Laird, reviewed the incident with Debbie Barrera a n d James Joslyn, and decided to retain him.7 9 KSAT recommended that

F lo w e r s attend counseling. Barrera could not recall whether Flowers' continued

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Docket no. 73, Exh. D at 2. Id. Docket no. 74, Exh. B at 9-10. Docket no. 73, Exh. C at 21, Exh. K at 28, 32-34, Exh. D. Id., Exh. B at 210-11. Docket no. 74, Exh. A at 1, 8-9; Exh. B at 7-9.

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e m p l o y m e n t was conditioned upon his attending counseling, but she testified t h a t she believed Flowers attended counseling voluntarily.8 0 A b e l Alejandro L i k e Flowers, the undisputed summary judgment evidence indicates that A b e l Alejandro worked in production, did not have an employment contract, was n o t on-air talent, and was not supervised by Jim Boyle, and that Boyle did not p a r ti c ip a t e in employment decisions regarding Alejandro.8 1 Plaintiff makes f a ir ly vague allegations that Abel Alejandro was involved in some indecent act.8 2 P la in t iff stated that Alejandro told her about the incident, but she could not r e m e m b e r details about the conversation and did not know if the incident o c c u rr e d while Flowers was employed by KSAT.8 3 iii. P la in tiff's S itu a te d Comparators were not Similarly

P la in t iff has failed to identify a similarly situated male employee who r e c e iv e d favorable treatment. Most significantly, Plaintiff was involved in

m u lt ip le domestic incidents that were either of a public nature or involved the p o l ic e , while, to KSAT's knowledge, each of the alleged comparators was involved in one incident during his respective employment. KSAT's decision-makers id e n t if ie d this distinction as an important factor in their decision to terminate

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Id., Exh. B at 9. Docket no. 73, Exh. B at 235-36, Exh. C at 21, Exh. K at 28, 32-34, Exh. D. See id., Exh. B at 235-36. Id.

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P la in t if f's employment.8 4 In fact, just like her alleged comparators, Plaintiff's e m p lo y m e n t was not terminated after her first incident. Further, Flowers and Alejandro each worked in production, were not ona ir talent, were not in the public eye, did not have employment contracts c o n ta in in g the morals clause, were not supervised by Boyle and, similarly, Boyle d i d not participate in decisions regarding the decision to retain the individuals. F lo w e r s and Alejandro therefore cannot be described as similarly situated to P la in tiff . See, e.g., Puente, 2007 WL 869584, at *6 ("When assessing whether e m p l o y e e s are similarly situated, courts consider whether the employees were e m p l o y e d in the same job position, whether the employees had different job r e s p o n s ib ilit ie s , and whether the same supervisor was involved in the decision m a k in g ."); Lee v. Exxon Mobil Corp., Civil Action No. H-07-2800, 2008 WL 5 1 5 8 1 8 1 , at *4 (S.D. Tex. Dec. 9, 2008) ("Moreover, the `alleged comparator e m p lo y e e s [must have been] similarly situated from the perspective of their e m p l o y e r at the time of the relevant employment decision [ ],' and the c o m p a r a to r employees' position in organization- e.g., job title, duties, s u p e rv is o r -s h o u ld be roughly the same.") (quoting Perez v. Tex. Dept. of Criminal J u s tic e , 395 F.3d 206, 213 (5th Cir. 2004)). F u r t h e r , none of Plaintiff's purported comparators served in a specialized, o n -a ir role as police beat reporter. Although Barajas and Vasquez were on-air t a le n t and were employed pursuant to an employment contract that contained

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Docket no. 73, Exh. C at 25; Exh. K at 49-52.

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a morals clause, Boyle remarked that the irony surrounding publicity of the a r r e s t of KSAT's police beat reporter reflected particularly poorly on KSAT.85 A d d it io n a lly , prior to her final incident, Plaintiff had been warned that a fu r th e r similar incident could result in her termination. While similar

a d m o n is h m e n t s were made to her alleged comparators, KSAT is unaware of any s u b s e q u e n t incidents involving the purported comparators. See Gallow v

A u to z o n e , Inc., 952 F. Supp. 441, 446 (S.D. Tex. 1996) ("Nor is there any evidence th a t, like Plaintiff, Hilton received a warning concerning her behavior."). F in a lly , the extent and nature of the media coverage Plaintiff received fu r th e r distinguishes her. The Segovia and Aguillen incidents received, in B o y le 's words, a "fire storm of coverage." 8 6 Although Barajas and Vasquez r e c e iv e d coverage, Boyle believed such coverage was minimal.87 F o r all of the foregoing reasons, Plaintiff fails to present a genuine issue o f material fact as to whether similarly situated employees were treated more fa v o r a b ly than Plaintiff. Summary judgment is therefore granted in favor of D e fe n d a n ts on Plaintiff's gender discrimination claim. B. P la i n t i ff' s Breach of Contract Claim I n the amended complaint, Plaintiff alleges that "Defendants defaulted a n d breached the employment contract by terminating Plaintiff and failing to

85

Id., Exh. C at 30. Id., Exh. C at 22. Id., Exh. C at 18-19, 30, 39; Exh. D.

86

87

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c o m p e n s a te Plaintiff as set forth in the Employment Contract." 8 8

In their

su m m ary judgment briefing, the parties focus on two breach-of-contract theories: (1 ) that grounds did not exist under the morals clause for terminating Plaintiff p r io r to the expiration of the three-year term of employment, and (2) that D e fe n d a n t s did not provide the required twenty-four hours' notice of termination s p e c ifie d by the morals clause. 1. G r o u n d s for Terminating Plaintiff under Paragraph 8(a)

P la in t iff argues that her termination prior to the expiration of the threey e a r term of her employment contract constituted a breach of the employment c o n t r a c t. Texas is an employment at will state. Molder v. Southwestern Bell

T e l. Co., 665 S.W.2d 175, 177 (Tex. App.­Houston [1st Dist.] 1983, writ ref'd n .r .e .). Thus, when a term of service is left to the discretion of either party, or t h e term is left indefinite, or terminable by either party, either may end the e m p lo y m e n t at will without cause. Webber v. M.W. Kellog Co., 720 S.W.2d 124, 1 2 7 (Tex. App.­Houston [14th Dist.] 1986, writ ref'd n.r.e.) (quoting East Line & R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888)). However, in the absence of s p e c ia l circumstances, Texas also follows the rule that a contract of employment fo r a term, as opposed to "at will," can only be terminated upon a showing of good c a u s e for the discharge. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 578 (Tex. A p p .­H o u sto n [1st Dist.] 1992, no writ). P l a in t iff was told she was being terminated for violating Paragraph 8(a)

88

Docket no. 5 ¶ 35.

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o f the Terms and Conditions of her employment contract (the "morals" clause), a n d all KSAT decision-makers involved in the decision testified that this was, in fact, the reason for her decision.8 9 Again, that paragraph provided that KSAT m a y terminate Plaintiff if, at any time, Plaintiff "fail[ed] to conduct ... herself w it h due regard to public morals and decency, or if [Plaintiff] commit[ted] any a c t or [became] involved in any situation or occurrence tending to degrade [P la in t iff] in the community or which [brought Plaintiff] into public disrepute, con tem pt, or scandal, or which materially and adversely affect[ed] the reputation o r business interests of [KSAT] or the standing of [KSAT] as a broadcast lic e n s e e ...."90 A s discussed above, the undisputed evidence was that Plaintiff was in v o lv e d in three incidents involving domestic disputes. At least two incidents r e c e iv e d significant publicity in the local media. In news articles about the in c id e n t s , Plaintiff was identified as KSAT's police beat reporter. Plaintiff's jo u r n a lis tic ethics were questioned. Video images of Plaintiff being led in

h a n d c u ffs into the magistrate's office were publicized. The undisputed summary ju d g m e n t evidence establishes, at a minimum, that Plaintiff was involved in s it u a t io n s or occurrences which brought Plaintiff into public disrepute or s c a n d a l. Grounds thus existed for terminating Plaintiff pursuant to the morals c la u s e , and good cause existed for terminating Plaintiff prior to the expiration

Docket no. 73, Exh. B at 150-153; Exh. N; Docket no. 74, Exh. A at 4-8; Exh. B at 1214; Exh. D at 29-36.
90

89

Docket no. 73, Exhs A, K.

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o f the three-year term of the employment contract. P l a in t iff argues without clarification or support that Paragraph 8(a) c o n ta in s ambiguities. A determination of whether a contract is ambiguous and th e interpretation of a contract are questions of law. Reliant Energy Servs. v. E n r o n Can. Corp., 349 F.3d 816, 821 (5th Cir. 2003). Plaintiff has not attempted t o demonstrate actual ambiguity; rather, Plaintiff states in conclusory fashion t h a t the contract was ambiguous. Nevertheless, the Court disagrees that

P a r a g r a p h 8(a) contains any ambiguities that may alter the conclusion that P la in tiff violated the morals clause. 2. Lack of Notice

P a r a g r a p h 8(a) permits KSAT to terminate an employee in violation of the m o r a ls clause "on twenty-four (24) hours notice to" the employee.9 1 Plaintiff's t e r m in a t io n letter, dated August 1, 2007, states that Plaintiff's employment was t e r m in a t e d "effective immediately." 9 2 Plaintiff testified that her termination m e e t in g occurred on August 1, 2007.9 3 Plaintiff thus argues that her termination v io la t e d Paragraph 8(a)'s requirement that Defendants provide her 24 hours' n o tic e . While the summary judgment evidence suggests Defendants may have fa ile d to comply with this requirement, summary judgment in favor of D e fe n d a n t s is still appropriate. T h e essential elements in a suit for breach of contract are: (1) the existence

91

Id., Exhs. A, E. Id., Exh. N. Id., Exh. B at 133, 146, 149-50.

92

93

22

o f a valid contract; (2) that the plaintiff performed or tendered performance; (3) t h a t the defendant breached the contract; and (4) that the plaintiff was damaged a s a result of the breach. Hussong v. Schwan's Sales Enterprises, Inc., 896 S .W .2 d 320, 326 (Tex. App.­Houston [1st Dist.] 1995, no writ). Under Texas law, " w h e n an employment contract requires a certain period of notice, the e m p lo y m e n t may be cancelled on shorter notice or upon none at all if the e m p lo y e e is paid wages or salary for the specified notice period." Id.; see also C u s h m a n & Wakefield, Inc. v. Fletcher, 915 S.W.2d 538, 545 (Tex. App.­Dallas 1 9 9 5 , writ denied) (same). The summary judgment evidence indicates that Plaintiff was payed her s a la ry through August 2, 2007.9 4 Therefore, the Plaintiff cannot prove that she s u ffe r e d damages in the form of lost wages because she was payed through the p e r io d for which she was entitled. See Cushman, 915 S.W.2d at 545-46 ("C & W c o u ld terminate Fletcher for no reason at all if Fletcher was given fourteen days' w r it t e n notice.... Thus, the actual benefit Fletcher received from the employment c o n tr a ct was a two-week notification before termination.... C & W breached the

Id., Exhs. P, Q. KSAT's payroll records indicate that Plaintiff received sick pay for August 2, 2007. Id., Exh. P. KSAT's business manager confirmed this, stating "Virginia Galaviz was paid through August 2, 2007. She was paid her regular salary for July 26 and 27, 2007, even though she did not work those two (2) days. Furthermore, she was granted sick pay for July 30, 2007 through August 2, 2007, as indicated on her final timesheet. Virginia Galaviz was also paid the value of her ninety-six (96) hours of accrued vacation time." Id., Exh. Q. Plaintiff points to a statement Boyle made that Galaviz was not given any "future pay." Docket no. 74, Exh. D at 23. However, given the context of the statement, the statement clearly referred to KSAT's decision not to offer Galaviz any kind of severance package to account for the lengthy term of employment that remained under Galaviz's contract. See id. From the context of the conversation, it is not reasonable to infer that Boyle intended to testify that Galaviz was not paid for August 2, 2007. Therefore, no genuine issue of material fact exists on the issue.

94

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e m p lo y m e n t agreement, and Fletcher was then entitled to the benefit of the b a rg a in , fourteen days' notice."). I n her response brief, Plaintiff states that "Defendants fought [Plaintiff's] a t te m p t s to get unemployment benefits." 9 5 Yet Plaintiff submitted no evidence t o support her claim or to suggest that she did not receive benefits through A u g u s t 2, 2007, as it was her burden to prove. Nor did Plaintiff provide evidence t o suggest that any alleged premature termination of benefits damaged her. A c c o r d i n g ly , the Court grants summary judgment in favor of Defendants on P la in t iff's breach of contract claim. C. P la i n t i ff' s Intentional Infliction of Emotional Distress Claim In her amended complaint, Plaintiff alleges that Defendants intentionally in flic te d emotional distress by: (a) intentionally publicizing inaccuracies r e g a r d in g Plaintiff's arrest and termination and the nature of Plaintiff's previous in c id e n t s , and (b) leading Plaintiff to believe that her job was secure prior to t e r m in a t in g her employment.9 6 U n d e r Texas law, the elements of intentional infliction of emotional d i s tr e s s are: (1) the defendant acted intentionally or recklessly; (2) the conduct w a s extreme and outrageous; (3) the defendant's actions caused the plaintiff e m o tio n a l distress; and (4) the emotional distress that the plaintiff suffered was s e v e r e . Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999). Regarding

95

Docket no. 74 at 10-11. Docket no. 5, ¶¶ 38-40.

96

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t h e second element, the fact that an action is intentional, malicious, or even c r im in a l does not, standing alone, mean that it is extreme or outrageous for p u r p o s e s of intentional infliction of emotional distress. Id. It has not been e n o u g h that the defendant has acted with an intent which is tortious or even c r im in a l, or that he has intended to inflict emotional distress, or even that his c o n d u c t has been characterized by malice, or a degree of aggravation which w o u l d entitle the plaintiff to punitive damages for another tort. Id. at 215-16 (in t e r n a l quotations omitted). "The conduct must be so outrageous in character, a n d so extreme in degree, as to go beyond all possible bounds of decency, and to b e regarded as atrocious, and utterly intolerable in a civilized community." Id. a t 216 (internal quotations omitted). Further, "it is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be r e g a r d e d as so extreme and outrageous as to permit recovery." Id. (internal q u o ta tion s omitted). D e f e n d a n t s ' actions do not rise to the level of extreme and outrageous c o n d u ct . While "[t]ermination of an employee is never pleasant, especially for t h e employee, .... the mere fact of termination of employment, even if the t e r m in a t io n is wrongful, is not legally sufficient evidence that the employer's c o n d u c t was extreme and outrageous." Id. at 216 (quoting Wornick v. Casas, 856 S .W .2 d 732, 734 (Tex. 1993) and Sw. Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 5 2 , 54 (Tex. 1998)). F u rth er, even if the conduct Plaintiff complains of could constitute extreme

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a n d outrageous conduct, Plaintiff presented no evidence in support of the a lle g a t io n s in the complaint. Namely, Plaintiff presented no evidence to suggest th at Defendants intentionally publicized inaccuracies regarding Plaintiff's arrest a n d termination and the nature of Plaintiff's previous incidents, or led Plaintiff t o believe that her job was secure prior to terminating her employment. For the fo r e g o in g reasons, summary judgment in favor of Defendants is granted on P la in t iff's claim for intentional infliction of emotional distress. D. P l a in t i f f 's Other Objections F in a lly , Plaintiff argues that summary judgment is inappropriate because: (1 ) Defendants improperly relied on interested witness testimony, and (2) D e fe n d a n t s failed to present evidence by a corporate representative necessary fo r a proper summary judgment response. With respect to the first objection, Plaintiff complains that Defendants rely o n unspecified interested witnesses. The Court presumes Plaintiff refers to D e fe n d a n ts ' reliance upon the testimony of KSAT employees, including Debbie B a r r e r a and Jim Boyle. The Supreme Court instructs that "the court should g iv e credence to the evidence favoring the nonmovant as well as that evidence s u p p o r t in g the moving party that is uncontradicted and unimpeached, at least t o the extent that that evidence comes from disinterested witnesses." Reeves v. S a n d e r so n Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). Nevertheless, n e ith e r KSAT nor the Court relied upon any interested witnesses as the term is u n d e r s to o d in this context. "The definition of an interested witness cannot be

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s o broad as to require us to disregard testimony from a company's agents r e g a r d in g the company's reasons for discharging an employee.... [T]o so hold w o u ld foreclose the possibility of summary judgment for employers, who almost in v a r ia b l y must rely on testimony of their agents to explain why the disputed a c t io n was taken." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th C ir . 2002); see also Wiley v. Am. Elec. Power Serv. Corp., 287 F. App'x 335, 339 (5 th Cir. 2008) ("[T]he plaintiffs fail to provide any reason why Koeppel is an in t e r e s t e d witness other than her status as a decision-maker at AEP. We have p r e v io u s ly stated that this is not sufficient to be considered an interested w i t n e s s ." ) . The testimony of Defendants' employees will therefore not be

s t r ic k e n on this ground. R e g a r d in g Plaintiff's second objection, Plaintiff argues that summary ju d g m e n t is premature because Barrera, designated as Defendants' corporate r e p r e s e n t a tiv e for certain topics related to human resources, could not answer m a n y questions presented. Plaintiff does not cite to specific testimony in

B a rr e ra 's deposition which allegedly violated the mandates of Rule 30(b)(6). F u r th e r , Plaintiff does not identify how she has been prejudiced by Defendants' a lle g e d failure ­ specifically, Plaintiff does not identify any information she was n o t able to obtain or how that information may have changed the summary ju d g m e n t analysis. Nevertheless, the Court has reviewed Barrera's deposition t r a n sc r ip t and concludes that, although Barrera lacked knowledge regarding s o m e issues raised by Plaintiff, Barrera generally was able to discuss the issues

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r a is e d by Plaintiff. Further, this is the first time Plaintiff has lodged this complaint. Plaintiff n e v e r brought the Defendants' alleged failure to the Court's attention via an a p p r o p r ia t e discovery motion. Nor did Plaintiff move for a continuance under R u le 56(f). Nor has Plaintiff provided grounds upon which the Court could d e te r m in e that a continuance under Rule 56(f) is appropriate. See Joseph v. City o f Dallas, 277 F. App'x 436, 443-44 (5th Cir. 2008) ("[A]t a minimum, a party m u s t show: (1) why he needs additional discovery; and (2) how that discovery w o u ld create a fact issue that would defeat summary judgment."). Accordingly, P la in t iff has not convinced the Court that Ms. Barrera's designation as a c o r p o r a t e representative provides grounds for denying summary judgment. C o n c lu s io n T h e Court finds that Plaintiff failed to raise a genuine issue of material fa c t. Accordingly, Defendants' motion for summary judgment (docket no. 73) is G R A N T E D . Without deciding the merits of Defendants' motion to strike, the C o u r t considered all evidence submitted by Plaintiff, including the evidence o b je c te d to by Defendants, before reaching its decision on the motion for s u m m a ry judgment. d is m is s e d as moot. Judgment in favor of Defendants shall issue separately according to Rule 5 8 . Defendants are awarded costs and shall file a bill of costs in the form r e q u i r e d by the Clerk of the Court, with supporting documentation, within Defendants' motion to strike (docket no. 75) is thus

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fo u r te e n days of the Judgment. It is so ORDERED. S I G N E D this 13th day of July, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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