Florence v. Frontier Airlines, Inc. , 149 F. App'x 237 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2005
_____________________
Charles R. Fulbruge III
No. 05-10213 Clerk
Summary Calendar
_____________________
FREDERICK FLORENCE,
Plaintiff - Appellant,
versus
FRONTIER AIRLINES, INC.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
District Court Cause No. 03-CV-387-B
_________________________________________________________________
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Frederick Florence appeals from the district court’s order
of summary judgment on his claims for defamation and wrongful
termination. For the reasons provided below, the court affirms
the district court’s judgment.
Florence began working for Frontier Airlines (Frontier) as a
commercial airline pilot in September 2000. On November 30,
2000, Florence submitted an IRS Form W-4 classifying himself as
exempt from tax withholding. On or about January 8, 2001,
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
Frontier’s Executive Vice President asked Florence to either
provide proof that he was exempt from withholding or to submit a
W-4 reflecting his status as nonexempt. Florence refused these
options. On February 1, 2001, the Vice President sent Florence a
letter telling him that he was being terminated because he failed
to submit a valid W-4 IRS Form. In the letter, the Vice
President indicated that Florence’s “refusal to follow the tax
laws casts significant doubt on [his] judgment and the likelihood
that [he] would follow Frontier’s directives for the safe and
effective operation of an aircraft.” Florence then sued Frontier
for breach of the covenant of good faith and fair dealing,
defamation, and wrongful termination. Florence alleged that
Frontier fired him for “refusing to accede to the criminal act of
signing an altered or forged record.” Florence appears to
contend that signing a W-4 that reflected his status as nonexempt
from tax withholding would constitute a criminal act of perjury.
The first judge assigned to Florence’s case dismissed
Florence’s claim for breach of the covenant of good faith and
fair dealing. The second judge assigned to the case entered
summary judgment in Frontier’s favor on Florence’s claims for
wrongful termination and defamation. Florence then appealed.
Florence’s pro se brief does not address the dismissal of his
claim for breach of the covenant of good faith and fair dealing,
and therefore, this court will consider only Florence’s
complaints about the summary judgment on his wrongful termination
2
and defamation claims.
The court reviews the district court’s summary judgment de
novo, using the same standard applied by that court.1 This court
conducts an independent review of the record, taking factual
inferences in the nonmovant’s favor, and then determines whether
the movant is entitled to summary judgment.2 The movant is
entitled to summary judgment if the documentary evidence shows
that no genuine issue of material fact exists.3
On January 12, 2005, the district court entered a well-
reasoned order that thoroughly justified its grant of summary
judgment. After considering Florence’s pro se brief and
reviewing the record, this court finds no error in the district
court’s summary-judgment rulings. Summary judgment was proper on
Florence’s wrongful termination claim because he failed to
produce evidence showing that Frontier required him to perform an
illegal act.4 Although Florence contends that Frontier ordered
1
Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).
2
Degan, 869 F.2d at 892.
3
FED. R. CIV. P. 56(c).
4
See White v. FCI USA, 319 F.3d 672, 676 (5th Cir. 2003)
(explaining that a plaintiff who alleges wrongful termination
under Texas law must produce evidence that shows his employer
required him to commit an illegal act with criminal penalties);
Sabine Pilot Serv. v. Hauck, 687 S.W.2d 733, 734-35 (Tex. 1985)
(recognizing an exception to the Texas employment-at-will
doctrine that permits an employee to bring a wrongful termination
claim if he was terminated for refusing to perform an illegal
act).
3
him to sign an altered W-4, he testified in his deposition that
he did not see the purported altered document and he did not
recall what changes the Vice President wanted him to make to his
W-4. In any case, he did not have to sign the document because
he had another option——to provide proof that he was exempt for
tax withholding. Florence, however, presented no evidence that
shows he is exempt from withholding. Thus, Florence failed to
present evidence that raised a fact question about whether
Frontier required him to perform an illegal act. Consequently,
Frontier was entitled to summary judgment on Florence’s wrongful
termination claim.
Summary judgment was also proper on Florence’s defamation
claim because he failed to produce evidence that Frontier
published a defamatory statement to a third party.5 Instead of
contending that Frontier published a defamatory statement,
Florence argues that he was required to publish defamatory
statements by being required to produce copies of his termination
letter to prospective employers.6 The defamatory statements
5
See Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 259
(Tex. App.——Austin 1993, writ granted), judgm’t aff’d as
modified, 903 S.W.2d 347 (Tex. 1995) (requiring a plaintiff who
alleges defamation to prove that a defamatory statement was
published to a third party).
6
Florence maintains that the “Pilot Records Improvement Act
of 1996" requires him to provide a copy of his termination letter
to a prospective employer. Whether this is true is irrelevant to
whether Florence was aware of the defamatory nature of the
alleged defamatory statements. In addition, Florence waived this
4
Florence identifies are the statements that he failed to submit a
valid W-4 and that his refusal to do so cast significant doubt on
his ability to follow Frontier directives and to safely and
effectively operate aircraft. Where a plaintiff relies on self-
publication, he must produce evidence showing that he published
the alleged defamatory statements without an awareness of the
defamatory nature of the matter.7 Florence testified in his
deposition that he produced copies of the letter to prospective
employers when he applied for employment, but he presented no
evidence showing that he was not aware of the nature of the
purported defamatory statements. Florence has always maintained
that the statements in his termination letter are defamatory,
beginning with his complaint where he alleged that the letter
“falsely stated that [his] sense of judgment would render [him]
incapable of operating an aircraft in a safe and effective
manner.” In addition, Florence referred to the letter in his
deposition as a “letter of wrongful termination” through which he
was “repeatedly defamed.” These statements show that Florence
was aware of the purported defamatory nature of the statements at
the time he provided the letters to prospective employers.
argument by failing to raise it in the district court. See Vogel
v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002) (determining that
the appellants had waived an argument by failing to raise it in
the district court).
7
Austin v. Inet Technologies, 118 S.W.3d 491, 499 (Tex.
App.——Dallas 2003, no pet.).
5
Florence presented no evidence that raised a fact question about
whether he was aware of the purported defamatory nature of the
statements in his termination letter. As a result, Frontier was
entitled to summary judgment on Florence’s defamation claim.
Florence also contends that the district court’s entry of
summary judgment violated his right to have a jury decide
disputed issues of fact. Whether summary judgment violates a
litigant’s right to a jury trial is a question of law the court
reviews de novo.8 “A grant of summary judgment does not violate
the Seventh Amendment right to a jury trial. This right exists
only with respect to disputed issues of fact.”9 Here, the
district court correctly determined that no genuine issue of
material fact exists. Because no fact question exists, Florence
was not entitled to a jury trial; thus, summary judgment did not
violate Florence’s right to a jury trial.
Florence further complains that the district court denied
his motion to strike an affidavit supporting Frontier’s motion
for summary judgment——specifically, an affidavit by Frontier’s
Vice President. In his motion, Florence argued that the Vice
President was not competent to testify as an expert witness. The
8
See Bellum v. PCE Constructors, 407 F.3d 734, 738 (5th Cir.
2005) (examining a question of law de novo).
9
Harris v. Interstate Brands Corp., 348 F.3d 761, 762 (8th
Cir. 2003).
6
court reviews this complaint for an abuse of discretion.10 Here,
the record does not show an abuse of discretion. In his
affidavit, the Vice President attested to his personal knowledge
of facts contained therein. The Vice President then discussed
the events that led to Florence’s termination. He did not give
an expert opinion about any matter. Thus, the district court did
not abuse its discretion by denying Florence’s motion to strike
the affidavit.
Finally, Florence complains that the district court did not
give him an opportunity for reciprocal discovery. The court
reviews the district court’s discovery rulings for an abuse of
discretion.11 The record shows that Florence had over eleven
months to obtain discovery from Frontier. In addition to the
original nine months allowed for discovery, the district court
extended the time for discovery by two months after Florence
failed to attend his deposition and persisted in frustrating
Frontier’s attempts to obtain discovery. The record does not
reflect an abuse of discretion or any error by the district
court.
10
See Dresser-Rand Co. v. Virtual Automation, 361 F.3d 831,
841 (5th Cir. 2004) (stating that the court of appeals reviews
the district court’s rulings on the admissibility of expert
testimony for an abuse of discretion).
11
See Scott v. Monsanto Co., 868 F.2d 786, 793 (5th Cir.
1989) (explaining that because the district court has broad
discretion in discovery matters, the court of appeals will not
reverse a ruling on a discovery motion absent an abuse of
discretion).
7
Throughout this litigation, Florence has attacked the
professional integrity and character of the judges assigned to
his case. In addition, Florence has insulted Frontier’s
attorney. Although the district court was patient when faced
with Florence’s contumacious behavior, this court will not
tolerate such disrespectful and inappropriate conduct. The court
therefore admonishes Florence to cease and desist in his pattern
of filing pleadings that insult the court and its officers and
admonishes Florence about the role of civility in litigation.
“[O]ne acting pro se has no license to harass others . . . and
abuse already overloaded court dockets.12 If Florence fails to
heed this admonishment, the court will strike any pleading filed
in this court that insults a judicial officer, the court, or an
attorney.
Having determined that the district court did not err, the
court affirms the district court’s judgment.
AFFIRMED.
12
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th
Cir. 1986).
8