Ameen v. Merck and Co Inc

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 29, 2007
Charles R. Fulbruge III
No. 05-20068 Clerk
TAMI J. AMEEN, MARCUS ENARD,
Plaintiffs
TAMI J. AMEEN,
Plaintiff - Appellant
versus
MERCK & CO., INC., DEBORAH K.
WINN, ROBERT F. YOUNG, ALEX
N. PETROVICH, and BOBBY GRIFFIN,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
(No. 04:03-CV-3587)
Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Tami Ameen (“Ameen” or “Appellant”), a
former employee of Defendant-Appellee Merck & Co., Inc. (“Merck”),
brought an action in Texas state court against Defendants-Appellees
Merck, Deborah K. Winn, Robert F. Young, Alex N. Petrovich, and
Bobby Griffin, (collectively, “Appellees”) in which she alleged ten
causes of action under Texas law resulting from the termination of
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
her employment at Merck. Appellees removed the case pursuant to 28
U.S.C. §§ 1332 and 1441, contending that the individual defendants
had been improperly joined to defeat diversity jurisdiction. Ameen
filed a motion to remand, which the district court denied, also
dismissing all of Ameen’s state law claims against the individual
defendants. The district court later granted Merck’s summary
judgment motion to dismiss Ameen’s retaliation claim, her sole
remaining cause of action. Ameen appeals both orders. We affirm.
I. Facts and Proceedings
Merck, one of the world’s largest pharmaceutical companies,
uses sales representatives (“reps”) to sell its products to
physicians and hospitals. As part of their responsibilities,
Merck’s reps conduct health education liaison (“HEL”) programs,
which usually include social activities for doctors or other health
care providers. Merck maintains detailed policies and regulations
governing the administration of its HEL programs, including limits
on the dollar amount that may be spent per physician. One of
Merck’s policies specifies that “[t]he failure of any employee to
adhere strictly to both the letter and spirit of these general
principles will result in appropriate action, up to and including
dismissal from employment.”
Ameen, a resident of Texas, was employed by Merck for almost
fourteen years. At the time of her termination, she was an
executive senior representative, the highest sales position within
2
the company. Defendant Deborah K. Winn, Ameen’s immediate
supervisor, was responsible for screening potential candidates for
the rep positions. She set up a team to screen applicants and
asked Ameen to chair the team. Ameen has alleged that, as a member
of the screening team, she observed Winn engage in discriminatory
employment practices. On one occasion, for example, Winn indicated
she did not want to hire an applicant because he “spoke too black”;
on another, she referred to an applicant as an “old man” and
indicated that he was too old to work at Merck. These practices
ultimately led to the filing of charges by the rejected applicants
with the Equal Employment Opportunity Commission (the “EEOC”),
which investigated and substantiated the claims.
Ameen asserts that she reported discriminatory hiring
practices to Defendant Alex N. Petrovich, Winn’s supervisor, in
August or September 2000; Petrovich denies that Ameen informed him
of these practices. In February 2001, Petrovich awarded Ameen a
discretionary $3,000 bonus. In April 2001, Petrovich approved
Ameen’s overall rating of “exceeds expectations” in her performance
review. Petrovich also granted Ameen a 2-month sabbatical so that
she could spend time with her family in the summer of 2001.
At the end of May 2001, Petrovich conducted an exit interview
with a departing sales representative, who informed him that
Merck’s reps had been falsifying reports for HEL programs. After
Petrovich asked Winn to investigate, she determined that Ameen had
falsified HEL reports, enabling her to make inappropriate payments
3
to doctors. Petrovich then conducted his own investigation. Early
in August 2001, Petrovich interviewed Ameen, and she acknowledged
that she repeatedly violated Merck policy by submitting false
expense information to obtain funds that she in turn gave to
doctors. Petrovich decided that day to terminate Ameen, stating
his reason for the dismissal as Ameen’s falsifications of HEL
program expense reports in violation of Merck policy.
More than a year later, in November 2002, Ameen filed this
action in state court against Appellees seeking damages for
specified state law causes of action. The individual defendants
are, like Ameen, residents of Texas. In her complaint, Ameen
alleged retaliation, intentional infliction of emotional distress,
tortious interference with her at-will employment contract,
negligence, negligent misrepresentation, vicarious liability,
defamation, civil conspiracy, promissory estoppel, and false
imprisonment under Texas law. Appellees removed the case to
federal court based on diversity jurisdiction, contending that the
in-state defendants had been improperly joined. When Ameen filed
a motion to remand the case to state court, the district court
denied her motion without explanation.
After Ameen’s motion to remand was denied, Merck filed a
motion for summary judgment. In granting Merck’s motion, the
district court held that, with respect to the surviving retaliation
claim, Ameen had not demonstrated a causal connection between any
protected activity and her termination. The court further held
4
that, even if she had been able to make a prima facie case of
retaliation for her having engaged in a protected activity, Ameen
could not defeat Merck’s legitimate nondiscriminatory reason for
termination, as she had failed to demonstrate that “but for”
retaliation she would not have been terminated. Ameen timely filed
a notice of appeal.
II. ANALYSIS
A. Subject Matter Jurisdiction
1. Standard of Review
All questions of subject matter jurisdiction, including the
denial of a motion for remand to state court and a determination
that a party is improperly joined, are questions of law reviewed de
novo.1 We review a district court’s decision to pierce the
pleadings and its procedure for determining improper joinder only
for abuse of discretion.2
2. Removal
Under 28 U.S.C. § 1441(a), a defendant may remove from state
court to federal court any civil action over which the federal
courts have original jurisdiction. When jurisdiction is based on
diversity, however, a defendant may remove “only if none of the
1
Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529,
531 (5th Cir. 2006); McDonal v. Abbott Labs., 408 F.3d 177, 182
(5th Cir. 2005).
2
Guillory v. PPG Indus., Inc., 434 F.3d 303, 309 (5th
Cir. 2005).
5
parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”3 Even
though Ameen and the individual defendants are citizens of Texas,
where this action was brought, Appellees contend that removal was
nevertheless proper because, they insist, the individual defendants
were improperly joined.
To demonstrate improper joinder of resident defendants, a
diverse defendant must demonstrate either: “(1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff
to establish a cause of action against the non-diverse party in
state court.”4 As Appellees rely only on Crockett’s second prong
in this case, we must determine whether “there is no reasonable
basis for the district court to predict that the plaintiff might be
able to recover against an in-state defendant.”5
The burden of proof is on the Appellees as the removing
parties.6 In deciding whether a party was properly joined, the
court must resolve all contested factual issues and ambiguities in
state law in the non-removing party’s favor.7 As “the effect of
3
28 U.S.C. § 1441(b).
4
Crockett, 436 F.3d at 532 (quoting Travis v. Irby, 326
F.3d 644, 646-47 (5th Cir. 2003)).
5
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573
(5th Cir. 2004) (en banc), cert. denied, 566 U.S. 992 (2005).
6
Guillory, 434 F.3d at 308.
7
Id.
6
removal is to deprive the state court of an action properly before
it, removal raises significant federalism concerns . . . .”8 The
removal statute is therefore to be strictly construed, and any
doubt as to the propriety of removal should be resolved in favor of
remand.9
3. Propriety of Removal
Ameen challenges the removal from the state court on three
principal grounds: (1) The notice of removal was not timely filed,
(2) the district court abused its discretion when it pierced the
pleadings, and (3) the district court erred in determining that
Ameen had no basis for recovery against the individual defendants.
Each of these challenges fails.
a. Timeliness of Removal
Appellees did timely remove the complaint. Under 28 U.S.C. §
1446(b),
[i]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty
days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be
ascertained that the case is one which is or has become
removable . . . .10
Although Appellees did not remove within 30 days following the
8
Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 365-66 (5th Cir. 1995) (citations omitted).
9
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.
2000); Carpenter, 44 F.3d at 366.
10
28 U.S.C.§ 1446(b) (emphasis added).
7
filing of Ameen’s complaint, they did remove within 30 days
following Ameen’s deposition.11 A deposition may “constitute[] a
new paper or event that changed the facts regarding the
removableness of the case.”12 Appellees’ contention that Ameen had
no basis for recovery against the individual defendants relies on
facts first revealed in her deposition testimony. Accordingly,
removal was timely, as Appellees removed within 30 days of becoming
aware that the case might be removable.
b. Piercing the Pleadings
Ameen challenges the procedure used to decide the motion for
remand, contending that the district court improperly conducted a
summary inquiry into the evidence.13 Ameen relies on Smallwood v.
Illinois Central Railroad Co.’s instruction that, for purposes of
removal, use of discovery should be limited.14 It is true that,
“[o]rdinarily, if a plaintiff can survive a Rule 12(b)(6)
11
Ameen was deposed on August 7, 2003. Appellees removed
on September 8, 2003.
12
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494
(5th Cir. 1996).
13
“[A] summary inquiry is appropriate only to identify
the presence of discrete and undisputed facts that would preclude
plaintiff’s recovery against the in-state defendant.” Smallwood,
385 F.3d at 573-74. Although the district court did not
articulate a basis for the denial of a motion to remand, she
evidently did consider the exhibits.
14
Id. at 574 (discovery should be “on a tight judicial
tether”).
8
challenge, there is no improper joinder.”15 Nevertheless, there are
cases in which a summary inquiry is appropriate. In Guillory v.
PPG Industries, Inc., for example, we upheld the district court’s
piercing of the pleadings when the parties had conducted ten months
of post-removal discovery.16
Here, Ameen’s deposition testimony provided the foundation for
the removal, as her deposition was the “new paper or event that
changed the facts regarding the removableness of the case.”17 As
such, the district court would have been unable to appreciate fully
the basis for its possible jurisdiction without examining the
deposition. Smallwood does not require a different result. It and
its progeny have explicitly allowed limited discovery in
determining improper joinder, particularly when, as here, the
15
Id. at 573. As we cautioned in Smallwood,
Attempting to proceed beyond this summary process
carries a heavy risk of moving the court beyond
jurisdiction and into a resolution of the merits, as
distinguished from an analysis of the court's diversity
jurisdiction by a simple and quick exposure of the
chances of the claim against the in-state defendant
alleged to be improperly joined. Indeed, the inability
to make the requisite decision in a summary manner
itself points to an inability of the removing party to
carry its burden.
Id. at 574.
16
434 F.3d at 311.
17
S.W.S. Erectors, Inc., 72 F.3d at 494.
9
discovery forms the basis for the removal.18 Accordingly, the
district court’s decision to consider the deposition was not an
abuse of discretion. Indeed, denial of remand in this case is
consistent with our holding in Smallwood.19 There, we held en banc
that “[w]hen the only proffered justification for improper joinder
is that there is no reasonable basis for predicting recovery
against the in-state defendant, and that showing is equally
dispositive of all defendants rather than to the in-state
defendants alone, the requisite showing has not been made.”20 We
explained that when a showing “compels a holding that there is no
reasonable basis for predicting that state law would allow the
plaintiff to recover against the in-state defendant necessarily
compels the same result for the nonresident defendant, there is no
improper joinder; there is only a lawsuit lacking merit.”21
In the instant case, the district court indicated in its
decision granting summary judgment that it had considered the
moving papers on the motion for remand, and that it “now determines
18
Guillory, 434 F.3d at 311 (Smallwood “sharply limits,
but does not eliminate, discovery.”); Smallwood, 385 F.3d at 574.
19
Although the parties did not fully brief this issue, we
must consider it as it goes to whether the federal courts have
subject matter jurisdiction over this case. See McDonal, 408
F.3d at 182-83 (if court lacks subject matter jurisdiction, case
must be remanded to state court).
20
Smallwood, 385 F.3d at 575.
21
Id. at 574.
10
that Defendant Merck is also entitled to judgment as a matter of
law on all of Plaintiffs’ claims.” This case is nevertheless
distinguishable from Smallwood, as the retaliation claim against
Merck survived the motion for remand. Although Ameen sued the
individual defendants for retaliation in violation of the Texas
Commission on Human Rights Act, she concedes that she has no such
cause of action against them. Several post-Smallwood cases have
instructed that “if a district court concludes that the common
defense proffered would not dispose ‘of every claim against every
defendant, [the district court] should continue to deny remand and
proceed with the proper disposition of the case.’”22 Thus,
Smallwood’s “common defense” rule does not apply here because
Ameen’s retaliation claim against Merck was denied on grounds
independent of those for dismissing her causes of action against
all other Appellees.23
c. Basis for Recovery on State Law Claims
Ameen challenges the district court’s conclusion that she had
no basis for recovery against the individual defendants under state
law. Ameen alleged eight Texas law causes of action against the
individual defendants: (1) defamation; (2) civil conspiracy; (3)
tortious interference; (4) intentional infliction of emotional
22
McDonal, 408 F.3d at 184 (quoting Rainwater v. Lamar
Life Ins. Co., 391 F.3d 636, 638-39 (5th Cir. 2004) (per
curiam)).
23
See Rainwater, 391 F.3d at 638.
11
distress; (5) negligence; (6) negligent misrepresentation/
promissory estoppel; (7) false imprisonment; and (8) retaliation.24
(i) Defamation
To state a claim for defamation of a non-public figure under
Texas law, a plaintiff must demonstrate that the defendant
published a defamatory statement about him while acting with
negligence regarding the truth of the statement.25 To recover on
such a claim, the plaintiff must identify the alleged defamatory
statement and the speaker.26 Texas defamation claims are subject
to a one-year statute of limitations,27 which period begins to run
when a plaintiff discovers, or should have discovered, that the
defamatory statement was made.28
Ameen points to numerous allegedly defamatory statements made
by the individual defendants and known to Ameen in or around August
2001. Ameen did not file her complaint until November 2002, more
than a year after she discovered these statements had been made.
24
Ameen concedes that she has no cause of action against
the individual defendants on her retaliation claim.
25
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998).
26
See Abbott v. Pollock, 946 S.W.2d 513, 520 (Tex.
App.——Austin 1997, pet. denied) (holding that appellants failed
to raise material issue of fact when they relied on their belief
that appellee or his employees had spoken disparagingly about
them).
27
TEXAS CIV. PRAC. & REM. CODE § 16.002.
28
Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.——Houston
[1st Dist.] 2002, no pet.).
12
Her claim is therefore time-barred to the extent that it is based
on the August 2001 statements.
Ameen nevertheless relies on a conversation she had during an
appointment with her personal physician early in 2002, when he told
her that Merck representatives had made disparaging statements
about her. Ameen asserts that her defamation claim survives,
because she filed suit within one year following her discovery of
these statements. The 2002 conversation with her doctor, however,
does not save Ameen’s defamation claim. First, the statement by
the doctor is inadmissible as hearsay.29 Second, even if it were
admissible, the doctor did not identify the speaker or the specific
nature of what was said, so his comments are too vague to support
Ameen’s defamation claim.30
Ameen further relies on a self-publication theory of
defamation based on the disclosures she made to potential employers
about statements made by Merck employees. Assuming arguendo that
Texas law recognizes such a theory, the statements made by Ameen to
potential employers cannot be considered defamatory. Ameen
reported to each of these potential employers that, although Merck
ascribed her termination to her violation of company policy, she
29
See Patton v. United Parcel Serv., Inc., 910 F. Supp.
1250, 1274 (S.D. Tex. 1995) (citing Wells v. Shop Rite Foods,
Inc., 474 F.2d 838, 839 (5th Cir. 1973)).
30
See Abbott, 946 S.W.2d at 520 (granting summary
judgment when plaintiff failed to specify facts of alleged
defamation).
13
believed that the true reason for her termination was retaliation
for her reporting employment discrimination. To make out a
defamation claim based on self-publication, however, a plaintiff
must believe the statement was in fact true at the time she
disclosed it.31 As the gist of her revelations to her potential new
employers was that she believed the allegedly defamatory statements
were false, Ameen cannot make out a defamation claim against the
individual defendants based on a theory of self-publication.
(ii) Civil Conspiracy
Civil conspiracy occurs when (1) two or more persons (2) with
an objective to be accomplished (3) have a meeting of the minds on
the objective of the conspiracy or course of action and (4) commit
one or more unlawful, overt acts (5) that proximately results in
damages.32 To state a claim of civil conspiracy against an employee
or agent of a principal, the employee or agent must have been
acting outside the scope of his employment or agency.33
Appellees have met their burden of demonstrating that Ameen
cannot make out her claim of civil conspiracy. First, her theory
that the individual defendants conspired to mislead Merck about the
31
Martineau v. ARCO Chem. Co., 203 F.3d 904, 914 (5th
Cir. 2000) (discussing Texas law).
32
Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983).
33
Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 100
n.7 (Tex. App.——Houston [14th District] 1995, pet. denied) (“Nor
can a parent and subsidiary corporation, or their employees or
agents acting within the scope of their employment, conspire.”).
14
facts relevant to her termination is belied by her admissions that
she violated Merck policy. Second, to the extent that this claim
rests on the apparently rampant violations of HEL policy by Merck
employees,34 this did not proximately cause Ameen’s damages. Third,
Ameen has not alleged any facts suggesting that the individual
defendants acted outside the scope of their employment in reporting
the facts of Ameen’s misconduct to Merck.
(iii) Tortious Interference with Ameen’s At-Will
Employment Contract
To state a tortious interference claim, a plaintiff must prove
(1) the existence of a business relationship subject to
interference, (2) the occurrence of a willful and intentional act
of interference, (3) that was the proximate cause of the
plaintiff’s injury, and (4) actual damages or loss occurred.35 A
business’s agent can be held liable for interference with an
employment contract when he acts willfully and intentionally to
serve his own personal interest at the company’s expense.36
Nevertheless,
[b]ecause a corporate officer's acts on the corporation's
behalf usually are deemed corporate acts, a plaintiff
34
Despite the existence of the HEL policy, several sales
representatives testified that Merck policies were routinely
broken, as Merck representatives competed with other
pharmaceutical companies to attract physicians as customers.
35
Hill v. Heritage Res., Inc., 964 S.W.2d 89, 109 (Tex.
App.——El Paso 1997, pet. denied).
36
Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex.
1998).
15
must show that the agent acted solely in his own
interests. . . . A corporate officer's mixed motives-to
benefit both himself and the corporation-are insufficient
to establish liability. . . . [I]f a corporation does
not complain about its agent's actions, then the agent
cannot be held to have acted contrary to the
corporation's interests.37
Merck does not object to the conduct of the individual defendants.
As the individual defendants’ actions cannot therefore be
considered contrary to Merck’s interest, Ameen’s tortious
interference claim likewise fails.
(iv) Intentional Infliction of Emotional Distress
“To recover for intentional infliction of emotional distress,
a plaintiff must prove that (1) the defendant acted intentionally
or recklessly; (2) the defendant's conduct was extreme and
outrageous; (3) the defendant's actions caused the plaintiff
emotional distress; and (4) the emotional distress suffered by the
plaintiff was severe.”38 The courts of Texas have adopted the
Restatement (Second) of Torts’ definition of extreme and outrageous
conduct as “conduct that is ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.’”39 The alleged “extreme and outrageous”
37
Id. (emphasis added and citations omitted).
38
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995).
39
Id. (quoting Twyman v. Twyman, 855 S.W.2d 619, 621
(Tex. 1993)).
16
conduct proffered by Ameen is her treatment by the individual
defendants during the investigation process and their role in
“persuad[ing] Merck to fire Plaintiff under false pretenses.”
To the extent that this claim is based on Ameen’s allegedly
retaliatory termination, it fails. The Texas Supreme Court has
instructed that intentional infliction of emotional distress is a
“judicially created [cause of action] 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.”40 The conduct Ameen relies on —— the allegedly pretextual
explanations for her termination in retaliation for her complaints
of discrimination —— is the same as the conduct underlying her
retaliation claim. As Ameen had the ability to bring a retaliation
claim for this conduct, her intentional infliction of emotional
distress claim based on the same action cannot stand.41
Ameen also impugns the treatment she received during the
interview by Petrovich as inflicting distress. She claims that
Petrovich and Young persisted in questioning her in a hotel room
about her violations of company policy until she broke into
40
Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438,
447 (Tex. 2004).
41
Id. at 448 (“If the gravamen of a plaintiff's complaint
is the type of wrong that the statutory remedy was meant to
cover, a plaintiff cannot maintain an intentional infliction
claim regardless of whether he or she succeeds on, or even makes,
a statutory claim.”).
17
“hysterical tears.” She says that they then put her in another
room and told her not to leave, forbidding her from using the phone
or talking to anyone; that she remained in the room for
approximately thirty to forty minutes; and that although the door
to the room remained open at all times, a guard was stationed
there.
To the extent that Ameen’s claim relies on the individual
defendants’ investigation of the complaint, including their
instruction that she not leave the room or use the telephone,
Appellees have demonstrated that there is no reasonable basis to
predict Ameen’s claim might succeed, as such conduct falls far
short of that considered “extreme or outrageous” under Texas Law.
Randall's Food Markets, Inc. v. Johnson is instructive. There, the
plaintiff brought a claim of intentional infliction of emotional
distress against her former employer and supervisors based on their
conduct during an investigation of her theft of an item from the
store where she worked. She alleged that her supervisors’ tone and
manner of inquiry was “severe and curt,” which resulted in her
crying, and that she believed that she was unable to leave because
her supervisor instructed her to stay put.42 The Texas Supreme
Court found that she had failed to demonstrate intentional
infliction of emotional distress. In so holding, the court noted,
“[e]mployers act within their legal rights in investigating
42
Randall’s Food Mkts., Inc., 891 S.W.2d at 644.
18
reasonably credible allegations of dishonesty of their employees.”43
The Randall’s court found that the supervisors’ conduct was “not
‘beyond all possible bounds of decency,’ ‘atrocious,’ and ‘utterly
intolerable in a civilized community’; rather, it [was] a
managerial function that is necessary to the ordinary operation of
a business organization.”44
Although there are discrete factual differences between the
treatment received by the plaintiff in Randall’s Food Markets and
that received by Ameen,45 the cases are remarkably similar. As in
Randall’s Food Markets, the supervisors’ conduct here is not
“beyond all possible bounds of decency.”
(v) Negligence
To establish actionable negligence, a plaintiff must show
that: (1) the defendant owed him a duty; (2) that duty was
breached; and (3) he suffered damages as a proximate result of the
breach.46 Individual employees and managers may be held personally
liable for on-the-job negligence only if the alleged duty is one
that is owed to the employee distinct from that owed by the
43
Id.
44
Id. (citing Wornick Co. v. Casas, 856 S.W.2d 732, 735
(Tex. 1993)).
45
In Randall’s Food Markets, no guard stood outside of
the room, but the plaintiff remained in the room for several
hours. Id. at 644-45.
46
Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).
19
employer.47 Ameen conceded that the only duty the individual
defendants owed to her arose from their employment at Merck. She
cites no duty separate and apart from the duty they owed as
employees of Merck. Her negligence claim against the individual
defendants therefore fails.
(vi) Negligent Misrepresentation and Promissory Estoppel
The elements of a negligent misrepresentation claim are:
(1) the representation is made by a defendant in the
course of his business, or in a transaction in which he
has a pecuniary interest; (2) the defendant supplies
”false information” for the guidance of others in their
business; (3) the defendant did not exercise reasonable
care or competence in obtaining or communicating the
information; and (4) the plaintiff suffers pecuniary loss
by justifiably relying on the representation.48
The elements of promissory estoppel are (1) a promise, (2)
foreseeability by promissor of reliance on that promise, and (3)
substantial detrimental reliance by the promisee.49
The alleged promise/false information pointed to by Ameen is
that Winn allegedly promised her that if she refrained from
disclosing that she had violated Merck policy, Winn would protect
her job. Negligent misrepresentation claims, however, cannot rest
47
Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).
48
Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442
(Tex. 1991).
49
Pegram v. Honeywell, Inc., 361 F.3d 272, 288 (5th Cir.
2004) (applying Texas law).
20
on future events.50 Similarly, with respect to promissory estoppel
claims, vague oral assurances of future job security, such as that
alleged here, are insufficient to modify an employee’s at-will
employment status.51 Further, Ameen’s reliance on such a statement
—— one that directly contradicted Merck’s written policies —— that
she would not be terminated if she did not disclose the violations
of the HEL policy is simply not reasonable.52
(vii) False Imprisonment
“The essential elements of false imprisonment are: (1) willful
detention; (2) without consent; and (3) without authority of law.
A detention may be accomplished by violence, by threats, or by any
other means that restrains a person from moving from one place to
another.”53 When a plaintiff alleges that the detention was
accomplished by a threat, “the plaintiff must demonstrate that the
threat was such as would inspire in the threatened person a just
50
Allied Vista, Inc. V. Holt, 987 S.W.2d 138, 141 (Tex.
App.——Houston [14th Dist.] 1999, pet. denied).
51
See Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 559
(Tex. App.——San Antonio 1998, no writ). Ameen concedes that she
was an at-will employee.
52
Cf. DRC Parts & Accessories, L.L.C v. VM Motori,
S.P.A., 112 S.W.3d 854, 858 (Tex. App.——Houston [14th Dist.]
2003, pet. denied) (relying on oral promise that directly
contradicts written contract cannot be justifiable).
53
Randall's Food Mkts., Inc., 891 S.W.2d at 644-45
(internal citations omitted).
21
fear of injury to her person, reputation, or property.”54
Ameen’s false imprisonment claim stems from the manner in
which she was interviewed about the violations of HEL policy.
Petrovich and Griffin allegedly questioned her about violations of
company policy for about 45 minutes, in a hotel room, during which
she cried “pretty hysterically.” After the initial interview,
Ameen was moved to another hotel room, where she was instructed
that she should not leave, use her cell phone, or talk to anyone.
She was under the watch of a security guard, whom she believed
would prevent her from leaving even though the door to the hotel
room was open. She remained in this room for approximately 30-45
minutes before she was formally discharged.
Despite these facts, Ameen acknowledged that she did not feel
threatened, and that no one told her she would be restrained to
prevent her leaving. And, she was compensated for the time she
spent in the hotel room. Although there was a security guard
standing outside of the room, the door remained open the entire
time that Ameen was in the room. She was not locked in the room,
and at no time did she attempt to exit. Indeed, Ameen admitted
that the thought of leaving “didn’t even cross [her] mind.” She
wanted to leave, but she had been asked to stay and she knew that
her future at the company was being determined.
In Safeway Stores, Inc. v. Amburn, an intermediate Texas
54
Id. at 645.
22
appellate court was presented with similar facts. In dismissing
the case, the court noted that
[w]hile employers should be admonished that their dealing
with employees should always be reasonable and humane, we
cannot adopt a rule which would constantly place an
employee in jeopardy of a charge of false imprisonment.
The interview with Amburn had a direct bearing upon his
duties as an employee. He was compensated during the
time that he was in the area. Under the circumstances,
it cannot be said that his requested presence for
purposes of interrogation constituted false imprisonment
unless he was unlawfully detained. We accept at face
value Amburn's testimony that he was scared. It is not
unlikely that any person being confronted with questions
concerning his personal integrity would relish such an
interview. This, however, is not the same as false
imprisonment.55
In the framework established by the Texas courts’ rejections of
similar claims in Amburn and Randalls Food Markets,56 Ameen’s false
imprisonment claim cannot succeed against the individual
defendants.
-----
Defendants-Appellees met their burden of demonstrating that
Ameen has no basis for recovery against the individual defendants
under any of the state law causes of action that she advanced.
Thus, the district court did not err in denying her motion to
remand.
B. Summary Judgment
1. Standard of Review
55
Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443, 446
(Tex. Civ. App. 1965)
56
891 S.W.2d 640.
23
We review the district court’s decision to grant summary
judgment de novo.57 A motion for summary judgment should be granted
only when there is no genuine issue of material fact.58 In
determining whether there is a genuine issue of material fact, the
reviewing court views all facts and draw all inferences therefrom
in favor of the non-moving party.59
2. Retaliation
To establish retaliation under the Texas Commission on Human
Rights Act (“TCHRA”), the employee must demonstrate that (1) he
engaged in protected activity, (2) the employer took an adverse
employment action, and (3) there is a causal link between the
protected activity and the adverse employment action.60 If the
employee meets his prima facie burden, “the burden then shifts to
the [employer] to demonstrate a legitimate nondiscriminatory
purpose for the employment action.”61 If the employer does so, the
burden shifts back to the employee to demonstrate that the stated
57
American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).
58
Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
59
Id.
60
Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)
(Title VII action). As the TCHRA was designed to align Texas
state law with federal law, courts look to federal law
interpreting Title VII when analyzing TCHRA claims. Quantum
Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
61
Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487
(5th Cir. 2004) (quoting Gee, 289 F.3d at 345).
24
reason is a pretext for retaliation.62 To demonstrate pretext, the
employee must show that the adverse employment action would not
have occurred “but for” his protected conduct.63
a. Prima Facie Case
Ameen has satisfied the first two elements of her prima facie
case: She engaged in protected activity, and she was terminated.
She fails to satisfy the third element, however, as she presented
no probative evidence of a causal connection between her
termination and her protected activity. Assuming arguendo that
the decision-maker, Petrovich, was even aware that some activity
Ameen engaged in was “protected,”64 we nevertheless conclude that
she has failed to demonstrate that such activity was the reason for
her termination. The timing of Ameen’s termination, eleven months
after she allegedly complained to Petrovich, casts significant
doubt on the claim that her termination was in retaliation for that
62
Id.
63
Id. at 488-89 (holding that “but for” standard applied
to retaliation case brought under Texas law).
64
Although Ameen contends in her brief that she testified
at her deposition that she reported Winn’s discriminatory conduct
to Petrovich, the portions of her deposition cited to in her
brief contain no such testimony. Rather, it appears that Ameen’s
complaint of discrimination to Petrovich was limited to a
complaint about the “Spares” program, a Merck program that
required its employees to travel. It is far from clear that her
complaint about this program rises to the level of protected
activity.
25
complaint.65 Additionally, Ameen received favorable treatment from
both Petrovich and Winn in the months following her putative
protected activity: She received positive reviews and
discretionary bonuses in the year following her lodging of those
complaints, and she was even granted a two-month sabbatical so that
she could spend the summer with her children. This sort of
treatment is “utterly inconsistent with an inference of
retaliation.”66
Ameen also tries to rely on the so-called “cat’s paw” theory
to establish a causal link, asserting that Winn unduly influenced
Petrovich’s decision. “[T]he discriminatory animus of a manager
can be imputed to the ultimate decisionmaker if the decisionmaker
‘acted as a rubber stamp, or the “cat's paw,” for the subordinate
employee's prejudice.’”67 “To invoke the cat’s paw analysis, [the
employee] must submit evidence sufficient to establish two
conditions: (1) that a co-worker exhibited [retaliatory] animus,
and (2) that the same co-worker ‘possessed leverage, or exerted
65
See Grizzle v. Travelers Health Network, Inc., 14 F.3d
261, 268 (5th Cir. 1994) (10-month lapse in time suggested that
retaliatory motive was unlikely).
66
Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424
(5th Cir. 1997).
67
Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003)
(quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227
(5th Cir. 2000)).
26
influence, over the titular decisionmaker.’”68
Even assuming arguendo that Winn influenced Petrovich’s
decision to terminate Ameen, her claim still fails, as “the causal
link between the protected conduct and termination is broken where
the [decision-maker] . . . conducts an ‘independent investigation’
in the course of reaching his or her decision.”69 After Winn’s
initial investigation, Petrovich asked Human Resources personnel to
investigate the matter further. In addition, he conducted his own
investigation. As part of this independent investigation,
Petrovich interviewed Ameen, and she acknowledged that she had
violated Merck policy on multiple occasions. In Wallace v.
Methodist Hospital System,70 we rejected a Cat’s Paw theory of
causation under similar circumstances. Discussing Wallace, we have
previously explained that “[t]he final decisionmakers in Wallace .
. . did not rely on the Wallace [discriminatory supervisor’s]
factfinding to terminate the plaintiff because the plaintiff in
that case freely admitted to the final decisionmakers that she
committed the violation for which they fired her.”71 Similarly,
even if we were to assume that Winn recommended Ameen’s
termination, Petrovich cannot be said to have acted on that
68
Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th
Cir. 2004) (quoting Russell, 235 F.3d at 227).
69
Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001).
70
271 F.3d 212, 218 (5th Cir. 2001)
71
Laxton, 333 F.3d at 584.
27
recommendation, given Ameen’s direct admission of her misconduct to
Petrovich.
b. Pretext
Ameen’s retaliation claim is further doomed by her inability
to demonstrate that Merck’s non-discriminatory reason for her
firing is pretextual. Merck asserted that the legitimate
nondiscriminatory reason for Ameen’s termination was her admission
that she repeatedly violated Merck’s HEL policies. We have
consistently held that in retaliation cases where the defendant has
proffered a nondiscriminatory purpose for the adverse employment
action the plaintiff has the burden of proving that “but for” the
discriminatory purpose he would not have been terminated.”72 Ameen
was therefore required to demonstrate that “but for” the alleged
retaliatory purpose, she would not have been terminated. This she
has failed to do. Ameen admitted violating Merck’s policy by
misdirecting to doctors thousands of dollars she obtained by filing
fraudulent reports. Ameen was aware of Merck’s stated policy that
the failure of any employee to adhere strictly to both the letter
and spirit of these general principles would result in appropriate
action, up to and including dismissal from employment. Based on
her conceded conduct, Ameen cannot satisfy her burden of
demonstrating that Merck’s legitimate nondiscriminatory reason is
pretextual.
72
Pineda, 360 F.3d at 487 (analyzing retaliation claim
brought under the TCHRA).
28
III. CONCLUSION
The orders of the district court denying Ameen’s motion to
remand and dismissing her action are
AFFIRMED.
29