Brackens v. Ennis State Bank

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-10438 Summary Calendar _______________

WILLIE BRACKENS AND VIRLEY BRACKENS,

Plaintiffs-Appellants,

VERSUS

ENNIS STATE BANK; BRAMLET BEARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; PAT BEARD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; GEORGIE RICHARDSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JACQUIE RICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; AND DOROTHY HOLT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Northern District of Texas (3:98-CV-308-L) _________________________ March 12, 2001

Before SMITH, BENAVIDES, II. and DENNIS, Circuit Judges. Brackens and her husband sued, claiming, inter alia, race discrimination, retaliation, loss JERRY E. SMITH, Circuit Judge:* of consortium, misrepresentation, and intentional infliction of emotional distress I. (“i.i.e.d.”).2 The court granted summary judg- Willie Brackens, a black female, was fired ment on all claims. Brackens appeals, claiming from her job at Ennis State Bank (“ESB”).1 error in the failure to allow her to amend her During her tenure there, she performed her complaint and averring that questions of work too slowly, made numerous errors, and material fact prevented summary judgment. received multiple warnings for conducting too Finding no error, we affirm. much personal business during the work day and for excessive absences. She requested and III. received two extended medical leaves, ex- The Brackenses believe the court erred in hausting her paid vacation. Upon her return, refusing their request to amend their complaint ESB filled her position with another employee to include a “breach of oral contract.” We and moved her to a bookkeeping position with review the denial of a motion to amend for identical salary and benefits. Brackens then abuse of discretion. Whitmire v. Victus Ltd., filed a discrimination charge with the Equal 212 F.3d 885, 887 (5th Cir. 2000).3 Employment Opportunity Comm ission (“EEOC”), claiming she had been transferred The proposed amended complaint asserted, because of her race and disability. in essence, that ESB had created a contract with Willie Brackens through her reliance on After six months in the bookkeeping its promises and that ESB breached that department, Brackens refused to participate in contract by firing her without cause. Brackens a drawing to determine the order of a new shift appears to have raised a claim of promissory rotation. She called the employee estoppel, though she has not used that term. administering the draw “the Devil” and a “fake We construe pleadings liberally “to do Christian,” then left work for the rest of the substantial justice,” FED. R. CIV. P. 8(f), and day. ESB suspended her without pay for three we do not require technical forms of pleading days, then fired her. or motions. Rule 8(e)(1).

A. By its terms, rule 15(a) allows a plaintiff to * amend a complaint after a responsive pleading Pursuant to 5TH CIR. R. 47.5, the court has has been served by written consent of the ad- determined that this opinion should not be verse party or by leave of the court “when published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 Virley Brackens does not appeal the summary 1 We use “Ennis State Bank” to refer to Ennis judgment on the loss of consortium claim. State Bank, Bramlet Beard, Pat Beard, Georgie 3 Richardson, Dorothy Holt, and Jacquie Rice col- See also Zenith Radio Corp. v. Hazeltine lectively. Research, Inc., 401 U.S. 321, 331-32 (1971).

justice so requires.”4 This rule “circumscribes granted.” Stripling v. Jordan Prod. Co., 234 the exercise of the district court’s discretion; F.3d 863, 873 (5th Cir. 2000).5 Thus, in thus, unless a substantial reason exists to deny determining futility, we apply “the same stan- leave to amend, that discretion is not broad dard of legal sufficiency as applies under Rule enough to permit denial.” Shipner v. E. Air 12(b)(6),”id.SS“whether in the light most fa- Lines, Inc., 868 F.2d 401, 407 (11th Cir. vorable to the plaintiff and with every doubt 1989) (dictum). In discerning the presence of resolved in his behalf, the complaint states any said “substantial reason,” the court may valid claim for relief.” Id. (internal quotations consider such factors as “undue delay, bad omitted). faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies B. by amendments previously allowed, undue We look to state law for principles of con- prejudice to the opposing party, and futility of tract interpretation. Clardy Mfg. Co. v. amendment.” Jacobsen v. Osborne, 133 F.3d Marine Midland Bus. Loans, Inc., 88 F.3d 315, 318 (5th Cir. 1998) (quoting In re South- 347, 352 (5th Cir. 1996). “The longstanding mark Corp., 88 F.3d 311, 314-15 (5th Cir. rule in Texas provides for employment-at-will, 1996)). A denial “without any justifying rea- terminable at any time by either party, with or son,” however, “is not an exercise of that dis- without cause, absent an express agreement to cretion; it is merely an abuse of that discretion the contrary.” Ronnie Loper Chevrolet-Geo, and inconsistent with the spirit of the Federal Inc. v. Hagey, 999 S.W.2d 81, 83 (Tex. Rules.” Lowery v. Tex. A & M Univ. Sys., 117 App.SSHouston [14th Dist.] 1999, no pet.). F.3d 242, 245 (5th Cir. 1997) (quoting Foman The doctrine of promissory estoppel, however, v. Davis, 371 U.S. 178, 182 (1962)). allows reliance on statements by an employer to surmount the presumption of at-will The court deemed the Brackenses’ motion employment. See Patterson v. Leal, 942 futile because it was “without merit.” We S.W.2d 692, 694 (Tex. App.SSCorpus Christi, have interpreted “futility” in this context “to 1997, writ denied). mean that the amended complaint would fail to state a claim upon which relief could be Regardless of the merits of Brackens’s claim, she theoretically could prove some set of facts demonstrating that she relied on some 4 Rule 15(a) states in relevant part: ESB promise to her detriment. The district court “may not dismiss a complaint under Rule A party may amend the party’s pleading 12(b)(6) unless it appears beyond doubt that once as a matter of course at any time be- the plaintiff can prove no set of facts in fore a responsive pleading is served or, if the support of his claim which would entitle him to pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the par- 5 ty may so amend it at any time within 20 See also Jamieson v. Shaw, 772 F.2d 1205, days after it is served. Otherwise a party 1208 (5th Cir. 1985) (“When futility is advanced may amend the party’s pleading only by as the reason for denying an amendment to a com- leave of court or by written consent of the plaint, the court is usually denying leave because adverse party; and leave shall be freely the theory presented in the amendment lacks legal given when justice so requires. foundation . . . .”).

relief.” Stripling, id. or legal conclusions masquerading as factual conclusions will not suffice to prevent a The theoretical possibility of presenting motion to dismiss” or, by extension, a denial of facts to support Brackens’s promissory estop- a motion for leave to amend. Fernandez-Mon- pel theory does not end the analysis. “In order tez v. Allied Pilots Ass’n, 987 F.2d 278, 284 to avoid dismissal for failure to state a claim, (5th Cir. 1993). however, [Brackens] must plead specific facts, not mere conclusory allegations . . . . We will Brackens has alleged merely the legal ele- thus not accept as true conclusory allegations ments of a promissory estoppel claim; she has or unwarranted deductions of fact.” Tuchman not pled, with sufficient particularity, the facts v. DSC Communications Corp., 14 F.3d 1061, to support these elements. Thus, even under 1067 (5th Cir. 1994) (internal quotations omit- the liberal 12(b)(6) standard, her claim would ted). not have survived dismissal. Therefore, the claim was futile, and the court did not err in The proposed amended complaint states refusing to grant leave to amend. only that Brackens had a contract with ESB that could be completed in one year, that she IV. relied on ESB’s representations in deciding to The Brackenses contend that the court er- accept employment, and that she was roneously granted summary judgment on their damaged. She alleges no facts in support of claims of race discrimination, retaliation, mis- these allegations.6 “[C]onclusory allegations representation, and i.i.e.d. We review a sum- mary judgment de novo, applying the same standards as did the district court. Uniroyal 6 Chem. Co. v. Deltech Corp., 160 F.3d 238, The relevant portion of the proposed amended complaint reads as follows:

6 38. Plaintiff Willie Brackens had a contract (...continued) will [sic] defendant Ennis State Bank that have been terminated from her job because could be completed in one year. All duties there was [sic] no violations of the rules and and responsibilities were of such a nature policies. Plaintiff Willie Brackens was that the functions were able to be performed harassed, tormented and subjected to cruel on a yearly basis. and unusual treatment by co-workers.

39. Plaintiff was told of the opportunities at 41. Plaintiff Willie Brackens was damaged Ennis State Bank and relied on the due to the reliance on the misrepresentations representation of the agents of Ennis State of the agents of Ennis State Bank. Plaintiff Bank in interviews and in subsequent gave up opportunities with other Bank reviews in making the decision to accept and employers to agree to come to Ennis State continue employment with Ennis State Bank for non existent [sic] opportunities. Bank. The complaint fails to state the terms of the 40. Plaintiff received an audit report from supposed oral contract, the representations the Texas Workforce Commission that Brackens believes ESB made to her (either states plaintiff Willie Brackens should not personally or through stated company policy), or (continued...) her foregone opportunities.

241 (5th Cir. 1998). A party is entitled to She is black and therefore a member of a pro- summary judgment when “the pleadings, de- tected class, and she was terminated, an ad- positions, answers to interrogatories, and ad- verse employment action. The employee with missions on file, together with the affidavits, if whom she had the altercation triggering her any, show that there is no genuine issue as to suspension and termination was not any material fact and that the moving party is disciplined. Thus, the burden shifted to ESB entitled to judgment as a matter of law.” FED. to “‘produc[e] evidence [of] . . . a legitimate, R. CIV. P. 56(c). A dispute over a material nondiscriminatory reason’” for her fact is genuine “if the evidence is such that a termination. Reeves v. Sanderson Plumbing reasonable jury could return a verdict for the Prods., Inc., 530 U.S. 133, ___, 120 S. Ct. nonmoving party.” Anderson v. Liberty Lobb- 2097, 2106 (2000) (quoting Burdine, 450 U.S. y, Inc., 477 U.S. 242, 248 (1986). We must at 254).8 view all inferences from the facts in the light most favorable to the nonmoving party. ESB produced evidence that it terminated Matsushita Elec. Indus. Co. v. Zenith Radio, Brackens for her uncooperative behavior to- 475 U.S. 574, 587 (1986). ward her co-worker and for calling her “the Devil” and a “fake Christian.” Brackens then A. bore the burden to show that ESB’s The Brackenses contend that the district articulated reason for the employment decision court erred in granting summary judgment on was pretextual. Id.; Burdine, 450 U.S. at 253; her claim of race discrimination under 42 McDonnell Douglas, 411 U.S. at 804. U.S.C. § 1981. Brackens must show four ele- ments to establish a prima facie case of The district court concluded that Brackens employment discrimination under title VII: “utterly failed” to present such evidence and (1) that she is a member of a protected class; that she “merely testifie[d] to her subjective (2) that she was qualified for the position; belief that she was terminated due to her race (3) that she suffered an adverse employment through conclusory statements that her action; and (4) that similarly situated termination ‘was because I was black,’ and employees not in the protected class were that the ‘entire City of Ennis is racist.’” treated differently under nearly identical Brackens’s subjective beliefs do not present circumstances. Rutherford v. Harris County, genuine issues of material fact sufficient to 197 F.3d 173, 184 (5th Cir. 1999).7 This survive summary judgment.9 standard also applies to cases brought under § 1981. See Chaline v. KCOH, Inc., 693 F.2d 8 477, 479 (5th Cir. 1982). See also McDonnell Douglas, 411 U.S. at 802. Brackens established a prima facie case. 9 See Duffy v. Leading Edge Prods. Inc., 44 F.3d 308, 312 (5th Cir. 1995) (“[C]onclusory alle- gations unsupported by concrete and particular 7 See also St. Mary’s Honor Ctr. v. Hicks, 509 facts will not prevent an award of summary judg- U.S. 502, 515 (1993); Tex. Dep’t of Cmty. Affairs ment.”); Waggoner v. City of Garland, 987 F.2d v. Burdine, 450 U.S. 248, 253-56 (1981); McDon- 1160, 1164 (5th Cir. 1993) (observing that nell Douglas Corp. v. Green, 411 U.S. 792, subjective beliefs alone cannot establish a claim of 802-04 (1973). (continued...)

Brackens argues that because the event pre- tion. Long v. Eastfield College, 88 F.3d 300, cipitating her suspension and termination “was 308 (5th Cir. 1996); Shirley v. Chrysler First, investigated without affording Ms. Brackens Inc., 970 F.2d 39, 42 (5th Cir. 1992). To es- due process to state her case” and because the tablish a prima facie case of retaliation, Brac- timing of the discharge “came just days after kens must show that (1) she engaged in Willie Brackens had been subjected to a hostile protected activity; (2) she suffered an adverse work environment and had been harassed by employment action; and (3) there was a causal senior and fellow employees,” a trier of fact connection between the protected activity and might find for the Brackenses. Both facts, the employment action. E.g., Mattern v. East- even when construed most favorably to Ms. man Kodak Co., 104 F.3d 702, 705 (5th Cir. Brackens, are immaterial. To settle 1997); Shirley, 970 F.2d at 42. grievances, private parties need not satisfy the constitutional requirements of due process. The parties do not dispute that Brackens See, e.g., Bures v. Houston Symphony Soc’y, engaged in a protected activity or that she suf- 503 F.2d 842, 843 (5th Cir. 1974). Thus, its fered an adverse employment action within the presence or absence has no bearing on this meaning of title VII. To demonstrate causal case. connection, Brackens proffers her belief that she verbally accosted a co-worker rather than The timing of the discharge also has little a supervisor, a diagnosis that she had post relevance, because Brackens has not alleged traumatic stress disorder while at ESB, the facts that connect her strained working bank president’s suggestion that her work relationships with a discriminatory motive. performance was very good, and the fact that Indeed, she admits making the statements for only she was disciplined after the incident that which ESB says she was fired. Thus, the triggered her termination. Brackenses failed to present evidence that the articulated reason for firing was pretextual. None of these facts remotely connects her The district court did not err in granting termination with her EEOC filing. Thus, she summary judgment for ESB on this issue. did not meet her burden of production, so the court did not err in granting summary B. judgment on the retaliation claim. Brackens contends the district court erred in granting summary judgment on her title VII C. claim that she was terminated in retaliation for The Brackenses contend that the district filing with the EEOC. The analysis of a retal- court erred in granting summary judgment on iation claim resembles that of the their intentional misrepresentation claim.10 To discrimination claim above.

Once Brackens establishes a prima facie 10 The court correctly found that because case, the burden shifts to ESB to articulate a Brackens testified that only Richardson and Rice legitimate, non-retaliatory reason for the ac- had made misrepresentations to her, the Brackens- es’ claims of misrepresentation against Bramlet Beard, Pat Beard, and Dorothy Holt must fail, 9 (...continued) because a material representation is an essential el- discrimination). (continued...)

support this tort claim, Brackens must show Even taking all of Brackens’s statements as that (1) a material representation was made; true, her claim fails as a matter of law. First, (2) it was false; (3) the speaker knew it was the statements regarding a raise and false or made it recklessly without any advancement merely explained the normal knowledge of the truth and as a positive course of events, contingent on her assertion; (4) the speaker made it with the performance. “There is nothing wrong with intention that it should be acted upon by the assuring a potential employee that he will party; (5) the party acted in reliance upon it; advance if he performs well and then refusing and (6) the party thereby suffered injury.11 to advance him if he does not.” DeSantis v. Wackenhut Corp., 732 S.W.2d 29, 38 (Tex. In district court, Brackens alleged that App.SSHouston [14th Dist.] 1987), aff’d in Richardson and Rice made three part, rev’d in part on other grounds, 793 misrepresentations during her job interview: S.W.2d 670 (Tex. 1990). These (1) that employees normally get a raise after a representations were not definite promises, so year of employment; (2) that ESB would be even if Brackens did rely on them to her flexible with respect to school issues and detriment, she cannot prevail.12 illnesses; and (3) that competent employees would have opportunities to advance. In Second, Brackens admitted in deposition addition, Brackens believed that her sick leave that ESB allowed her to leave work to take was “secretly held against” her. On appeal, care of her children “the same as any other em- she claims that ESB president Bramlet Beard ployee.” Thus, by her own admission, ESB cited excessive absences as a partial reason for did not misrepresent to her its willingness to her termination, yet she believes all leave was be flexible. Brackens alleges that Beard approved and that Beard did not indicate that “made representations that suggested her job her job was at stake. was not at risk,” yet he cited excessive absences as a reason for her termination. She does not say, however, whether these representation occurred before or after she had 10 (...continued) exhausted her leave. Moreover, she has ement of the claim. See Green Int’l, Inc. v. Solis, alleged no facts that indicate that Beard’s 951 S.W.2d 384, 390 (Tex. 1997). On appeal, the comments, whatever they may have been, were Brackenses do not distinguish among these more than vague assurances. defendants. Therefore, Brackens failed to provide evi- Moreover, at trial the Brackenses presented dence of any definite representation, correct or claims for both negligent and intentional otherwise. Without evidence of a specific misrepresentation. Although they do not distinguish the two on appeal, their argument covers only issues related to intentional 12 misrepresentation. See Gilmartin v. KVTV—Channel 13, 985 S.W.2d 553, 558 (Tex. 1998) (explaining that 11 Collins v. Morgan Stanley Dean Witter, 224 detrimental reliance on a promise may establish a F.3d 496, 501 n.7 (5th Cir. 2000); Ins. Co. of N. fraud claim only when the plaintiff reasonably and Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998); justifiably relies on a definite promise, not vague Green Int’l, 951 S.W.2d at 390. assurances).

material representation, we need not reach the claim. other five elements of the standard. The court correctly granted summary judgment on this AFFIRMED.13 claim.

D. Brackens contends the court erred in granting summary judgment on her Texas law claim for i.i.e.d. She must establish four ele- ments: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused emotional distress; and (4) the emotional dis- tress was severe. Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996). “[T]he level of atrociousness to which [the behavior] must [rise] is quite high. Simply put, it must exceed all possible bounds of decency and be utterly intolerable in a civilized society.” Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 613 (5th Cir. 1999) (quoting Franklin v. Enserch, Inc., 961 S.W.2d 704, 710 (Tex. App.SSAmarillo 1998, no writ)).

Brackens alleged that ESB employees caused her distress because they accused her of taking too much sick leave, working slowly and inaccurately, and using company time for personal business. Ordinary employment dis- putes are not adequate to support i.i.e.d. claims. Estate of Martineau v. ARCO Chem. Co., 203 F.3d 904, 913 (5th Cir. 2000). Brac- kens offers no evidence that ESB’s conduct was anything more.

Further, although Brackens notes on appeal that she was diagnosed with post traumatic stress disorder and was placed on medication and therapy, she utterly fails to draw any con- nection between this emotional strain and any action traceable to ESB. Thus, the court did 13 We decline ESB’s suggestion that we impose not err in granting summary judgment on this sanctions for frivolous appeal under FED. R. APP. P. 38.