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noting that although the defendant did not explicitly argue that plaintiff had failed to establish a prima facie case, the defendant had satisfied its summary judgment burden by pointing to the absence of evidence to support one prong of the prima facie case
Summary of this case from Velasquez v. EAN Holdings, LLCOpinion
Civil Action No. 3:01-CV-1504-D
August 8, 2003
MEMORANDUM OPINION AND ORDER
A salesman who complained to his current employer about discrimination against African-Americans, resigned his job and filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), and unsuccessfully sought employment with another employer sues both employers for unlawful retaliation and breach of contract and sues his former employer for tortious interference with prospective employment. He also seeks a declaratory judgment that a release provision in his employment application with the prospective employer is void as against public policy, does not specify the claims to be waived, and applies only to information supplied to the prospective employer and its outside employment agency. Plaintiff moves for partial summary judgment and both defendants move for summary judgment. For the reasons that follow, the court grants in part and denies in part plaintiff's motion for partial summary judgment, grants the prospective employer's motion, and grants in part and denies in part the former employer's motion.
I A
Plaintiff Timothy Keeley ("Keeley") sues his former employer, defendant Sun Microsystems, Inc. ("Sun"), and his prospective employer, defendant Cisco Systems, Inc. ("Cisco"), contending they retaliated against him, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., for complaining about discrimination at Sun and for filing a charge with the EEOC. Keeley sues Sun and Cisco for breach of contract, and he alleges that Sun is liable for tortious interference with prospective employment based on its disclosure to Cisco of adverse information that resulted in his not being hired. Keeley seeks a declaratory judgment that the release provision in his Ciscc employment application is void as against public policy, does not specify the claims to be waived, and applies only to information supplied to Cisco and its outside employment agency.Sun employed Keeley as a salesman. During his tenure, Kevir Blair ("Blair") became his manager. Keeley had problems with Blair, complaining specifically that he had not been paid all the commissions he was due on $2 million in sales to Verio, a Sun customer. When Blair responded by scrutinizing Keeley's work and business trips, Keeley complained of retaliation. Keeley also complained that he was being treated differently from his coworkers, and he protested to Sun Human Resources about Blair' s conduct. He later learned that other African-American salesmen were experiencing similar problems, and he complained to Human Resources about unfair compensation based on race.
Although both sides have filed motions for summary judgment, because Cisco and Sun seek to dismiss all of Keeley's claims, the court will generally recount the evidence favorably to Keeley and draw all reasonable inferences in his favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Keeley decided to resign voluntarily from Sun. During his final meeting with Blair, he informed him that he intended to pursue the compensation issue. He asked Blair who his EEO representative was at Sun. Blair gave him the person's name, and Keeley contacted her concerning his complaint. On his last day of employment, he filed a charge of discrimination with the EEOC, complaining specifically about Blair's treatment of him.
Following Keeley' s resignation, Cisco contacted him concerning the position of Major Account Manager ("MAM") in the Dallas-Fort Worth area. Keeley completed an employment application. This document contained a clause under which he unconditionally released and held harmless Cisco, the outside agency it would retain to research and verify the information he had provided in his application, and entities that provided them information "from any and all causes of action that might arise from furnishing to [Cisco] and the outside agency information that they may request pursuant to this release." Sun Mar. 13, 2003 App. 170.
Because the parties have filed cross-motions for summary judgment and multiple appendixes, the court for clarity will refer to each appendix by the date filed.
Keeley interviewed initially with a sales recruiter, Michelle Joyce ("Joyce"). Joyce's functions included reviewing Keeley's resume for compliance with minimum qualifications that Dean Ash ("Ash"), the Regional Sales Manager, had established. Joyce conducted the interview by telephone and forwarded his resume to Ash. Ash then interviewed Keeley, found him to be a strong candidate, and scheduled additional interviews and meetings with other Cisco personnel. The feedback he received was positive.
Ash then scheduled an interview with Karen Ward ("Ward"), the Tulsa, Oklahoma MAM. Ward had experienced communication problems with the Dallas-Fort Worth area MAM whom Keeley would succeed. Ash did not want these problems repeated. Ward expressed satisfaction with Keeley's qualifications and experience. Although she felt uncomfortable due to Keeley's lack of eye contact during their interview, she informed Ash that she felt she could work with Keeley.
On May 30, 2000 Cisco sent Keeley a letter offering him employment as a MAM. The letter stated, in pertinent part, that if Keeley accepted the offer, Cisco would pay him every other week a base weekly salary of $2,500, "equal to $65,000 on an annualized basis," commissions, and an option to purchase shares of company stock. P. Mar. 28, 2003 App. 32. It did not expressly state that his employment would be at will. The letter also stated that the offer was "contingent on [Cisco's] completion of successful reference checks and a background investigation[.]" Id. Sun contracted with HireRight.com ("HireRight") to investigate Keeley's background and verify his references. HireRight concluded that Keeley's references were satisfactory.
The employment application that Keeley signed reflected Keeley's explicit agreement that, if hired, "the Company has the right to terminate my employment at any time for any reason, with or without my consent." P. Mar. 28, 2003 App. 6.
Keeley did not list Blair, his former Sun supervisor, as a reference. Because Ash was familiar with Blair, however, he contacted him by voice mail regarding Keeley. Blair responded by return voice mail, stating that due to company policy, he could not provide a reference, but that there were "a lot of fish in the sea." P. Mar. 28, 2003 App. 16. Ash advised the Cisco Human Resources representative that he wished to remove Keeley from consideration because he had received information from a confidential source regarding Keeley' s exit from a previous employer. Cisco declined to hire Keeley.
Keeley filed with the EEOC a retaliation claim against Cisco. He later received an EEOC determination that there was reasonable cause to believe that Sun and Cisco had retaliated against him.
Sun learned in 2002 that Keeley had been employed by one of its clients, Exodus Communications, Inc. ("Exodus"), from January 4, 2000 through January 20, 2000, the date he resigned from Sun. Consequently, he had held dual employment for a period of sixteen days, in violation of the company's Standards of Business Conduct.
B
Keeley moves for partial summary judgment on his claim against Sun for tortious interference with prospective employment. He also moves for partial summary judgment on his action for a judgment declaring that the release is void as against public policy, does not specify the claims to be waived, and applies only to information supplied to Cisco and its outside employment agency. Cisco and Sun move for summary judgment as to all claims asserted against them.
As the court explains below, the court need not reach this ground of the motion to the extent it is addressed to Cisco, because the court is not relying on the release to dismiss Keeley's breach of contract claim against Cisco.
Defendants submitted a post-briefing letter to the court on July 31, 2003 and Keeley responded to the letter on August 4, 2003. Defendants did not obtain leave of court to submit the letter, as required by N.D. Tex. Civ. R. 56.7 ("Except for the motions, responses, replies, briefs, and appendixes required by these rules, a party may not, without the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence."). Nevertheless, even if the court were to consider the matters argued in the letters, they do not affect the court's reasoning and need not be addressed.
II
Cisco seeks summary judgment dismissing Keeley's claims for retaliation and breach of contract.A
The court turns first to Keeley's retaliation action.1
The method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to Keeley's retaliation claim. See Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). Keeley must first establish a prima facie case of retaliation. The burden then shifts to Cisco to articulate a legitimate, nondiscriminatory reason for the allegedly retaliatory action taken. Cisco's burden is one of production, not of proof. If Cisco meets its production burden, Keeley must adduce evidence that would permit a reasonable trier of fact to find that the articulated reasons are pretextual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993); Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.) (holding that at summary judgment stage, plaintiff need only raise fact issue).
Although Cisco does not explicitly argue that Keeley has failed to establish a prima facie case, it does so implicitly. In the part of its brief that addresses the retaliation claim, it does not cite evidence that supports a legitimate, nondiscriminatory reason for declining to hire Keeley. See Cisco Mar. 5, 2003 Br. at 6-8. Instead, it points to the absence of evidence that would permit a reasonable finding that it knew about Keeley's protected activity — i.e., the discrimination complaints to Sun and the EEOC charge — at the time it made the employment decision. See id. at 7-8. Because Cisco will not have the burden at trial concerning the elements of Keeley's prima facie case, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support it. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Cisco does so, Keeley must go beyond his pleadings and designate specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory when the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
Because the parties have filed cross-motions that are supported or opposed by several briefs, the court will refer to each brief by its file date to distinguish a brief filed in support of a party's motion for summary judgment from one filed in opposition to the other party's motion.
Keeley interprets Cisco's motion similarly. See P. Mar. 28, 2003 Br. at 11 ("Defendant argues that summary judgment should be granted because Keeley cannot satisfy the third element of the prima facie case, the causal connection between the protected activity and the adverse employment action.").
2
To establish a prima facie case of unlawful retaliation, Keeley must demonstrate that (1) he engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Long, 88 F.3d at 304. Cisco maintains that Keeley cannot meet the third requirement — causation — because he cannot prove that Cisco knew that Keeley had engaged in protected activity at the time it decided not to hire him. It points to Keeley's admission in his deposition that he has no evidence that Cisco knew about his complaints to Sun or his EEOC charge when it declined to hire him. See Cisco Mar. 5, 2003 Br. at 7 (citing Cisco Mar. 5, 2003 App. 52). Cisco cites proof that Blair did not learn that Keeley had complained about discrimination or retaliation at Sun until sometime after July 2000, over one month after Blair responded to Ash's voice mail inquiry about Keeley. Id. (citing Mar. 5, 2003 App. 95). It posits that even had Blair known about the charge against Sun at the time Ash contacted him, and even had Blair acted with intent to retaliate when he remarked that there were "a lot of fish in the sea," it is undisputed that neither Ash nor Ward was aware that Keeley had engaged in any protected activity when Ash decided not to hire Keeley. Id. at 7-8 (citing Mar. 5, 2003 App. 6, 78). Cisco also maintains that the EEOC's determination is insufficient to establish a prima facie case. Id. at 7.
Although the initial requirement that a plaintiff show a "causal link" is less stringent than the "but for" causation that a jury must find, see Fierros v. Texas Department of Health, 274 F.3d 187, 191 (5th Cir. 2001) (quoting Long, 88 F.3d at 305 n. 4), and this court has characterized the burden as "minimal", Khanna v. Park Place Motorcars of Houston, Ltd., 2000 WL 1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.), Keeley must still demonstrate some causal connection between his complaints to Sun and his filing of the EEOC charge and Cisco's decision not to hire him. See Ackel v. Nat'l Communications, Inc., ___ F.3d ___, 2003 WL 21673750, at *8 (5th Cir. Aug. 1, 2003) ("Nevertheless, the plaintiff must produce some evidence of a causal link between the protected activity and the adverse employment action to establish a prima facie case of retaliation."). He recognizes as much in his brief. See P. Mar. 28, 2003 Br. at 12 (arguing that he "merely needs to show some connection between the protected activity and the adverse employment action in order to establish a prima facie case"). Keeley maintains that he has adduced sufficient evidence to create a genuine issue of material fact because (1) there is circumstantial evidence that Ash knew Keeley had filed the EEOC charge, (2) Ash lacks credibility, (3) there is evidence that Blair knew about Keeley's complaints of discrimination when he gave Ash a negative reference and, under Sun company policy, Blair would have been notified of the EEOC charge, (4) Blair has credibility issues that undermine his contention that he was unaware of Keeley's protected activity, and (5) the EEOC's cause determination and credibility issues concerning Ash and Blair raise a genuine issue of material fact.
3
"If an employer is unaware of an employee's protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated against the employee based on that conduct." Ackel, ___ F.3d at ___, 2003 WL 21673750, at *8 (quoting Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999)). Keeley's circumstantial evidence is insufficient to permit a reasonable jury to find that Ash knew about his EEOC charge.
Keeley cites a June 6, 2000 email from Ash to Joyce, the sales recruiter, that states:
During the reference checking process on Tim Keeley, I uncovered some concerning [sic] information from a confidential source as to Tim's exit from a previous employer. Due to this, I would like to dismiss Tim as a candidate for my open MAM position in my region.
P. Mar. 28, 2003 App. 34. At his deposition, Ash stated that the only information Blair gave him was "that there were a lot of fish in the sea." Id. at 28. His concern about Keeley stemmed from this statement and the fact that Keeley was no longer employed at Sun. Id. at 28-29. He inferred that the statement about "a lot of fish in the sea" was related to Keeley's exit from Sun, but he denied that Blair told him anything about the details of his departure. Id. at 29. No reasonable jury could do anything more than speculate that the information Ash obtained about Keeley's exit from Sun included the fact that he had engaged in protected conduct. Keeley has not presented a genuine issue of fact in this respect.
For this reason, it is immaterial whether Blair knew about Keeley's complaints of discrimination and of the EEOC charge at the time he contacted Ash and whether Blair lacks credibility. If a jury could not reasonably find that Blair informed Ash about Keeley's conduct, Blair's knowledge alone, or his lack of credibility, is insufficient to raise a material fact issue.
Keeley also contends he can avoid summary judgment because Ash lacks credibility. He cites three statements that Ash made that he contends Ash changed or that have been contradicted by other information. See P. Mar. 28, 2003 Br. at 13. The first two involve differences that are so marginal they need not be discussed. The third concerns Ash's deposition testimony that he discussed during a lunch with Blair (held after Cisco had decided not to employ Keeley) the fact that Keeley had filed an EEOC charge against Sun. Keeley posits that Ash's credibility is called into question because Blair testified in his deposition that they had not discussed the charge. A reasonable jury, however, could not question Ash's credibility on this basis. According to Ash, he and Blair did discuss Keeley's charge. If Ash had a motive to lie, it would have been advantageous to have testified that they did not discuss the charge. Accordingly, Keeley cannot avoid summary judgment on this basis.
Keeley advances the conclusory contention that the EEOC's determination that Cisco discriminated against him, and credibility issues about Ash and Blair, are sufficient to raise a genuine issue of material fact. The court has already explained above why credibility issues about Blair — assuming there are any — are insufficient to raise a material fact issue. Similarly, Keeley's allegations about Ash's credibility are also insufficient. Nor are these grounds adequate when coupled with the EEOC's determination that Cisco discriminated against Keeley. Keeley cites Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir. 1984), for the proposition that the EEOC's findings and conclusions can establish a prima facie case. See P. Mar. 28, 2003 Br. at 16. Turpen relies on Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972), for that premise. Turpen, 736 F.2d at 1026. The Fifth Circuit distinguished Smith in Price v. Federal Express Corp., 283 F.3d 715 (5th Cir. 2002), on the basis that the Smith court relied on "the EEOC investigative report, as opposed to a single determination letter." Id. at 725. The panel also pointed out that it could not be determined from the summary judgment record whether the EEOC had conducted interviews with anyone other than the plaintiff. And it concluded that the EEOC's findings were not dispositive. Id. Keeley's summary judgment evidence includes the EEOC's determination letter but not its investigative report. See P. Mar. 28, 2003 App. 137-43. Although the EEOC's investigative log refers to contacts with Cisco, the only reference to a meeting is with Keeley. Id. at 140. The court holds that the EEOC determination, considered alone or in combination with Keeley's allegations about Blair's and Ash's credibility, is insufficient to raise a genuine issue of material fact.
In a recent decision, this court cited Turpen for its holding that an administrative agency's determination of probable cause is admissible to establish a prima facie case. See Howard v. Rockwell Automation, Inc., No. 3:01-CV-2172-D, slip op. at 7 (N.D. Tex. July 16, 2003) (Fitzwater, J.). It relied on Turpen to hold that the EEOC's reasonable cause determination was a sufficient additional reason to create a genuine issue of material fact concerning whether the plaintiff had proved he was qualified for the promotion he sought. Id. The defendant in Howard did not, however, attempt to distinguish Turpen on the basis of Price, and the court had no occasion to address whether Price would have altered the court's analysis.
The court grants Cisco' s motion for summary judgment dismissing Keeley's retaliation claim.
B 1
Cisco also moves for summary judgment dismissing Keeley's breach of contract claim. Keeley alleges that he and Cisco entered into a binding employment contract that Cisco breached when it declined to hire him. Cisco maintains, inter alia, that Keeley was an at-will employee whom it terminated without breaching the contract.
"`The long-standing rule in Texas provides for employment at will, terminable at any time by either party, with or without cause, absent an express agreement to the contrary.'" Hamilton v. Segue Software, Inc., 232 F.3d 473, 478 (5th Cir. 2000) (per curiam) (quoting Ronnie Loper Chevrolet-Geo, Inc. v. Hagey, 999 S.W.2d 81, 83 (Tex.App. 1999, no pet.)). "Texas law imposes a strong presumption in favor of at-will employment." Zenor v. E1 Paso Healthcare Sys., Ltd., 176 F.3d 847, 862 (5th Cir. 1999) (citing Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501 (Tex. 1998)). In limited circumstances, employment policies may alter the at-will nature of the employment relationship and create enforceable contractual rights. Id. But to do so, "the policy must specifically and expressly limit the employer's ability to terminate the employee." Id. "The policy must contain an explicit contractual term altering the at-will relationship, and must alter that relationship `in a meaningful and special way.'" Id. (quoting Figueroa v. West, 902 S.W.2d 701, 705 (Tex.App. 1995, no writ)); see Hamilton, 232 F.3d at 478.
2
Cisco has pointed the court to an absence of evidence that the May 30, 2000 letter — the document on which Keeley relies to modify the at-will relationship — contains terms that alter the at-will relationship in a meaningful and special way. See Cisco Mar. 5, 2003 Br. at 9. Keeley is therefore obligated to demonstrate that the letter contains terms that would permit a reasonable jury to find that it does alter the at-will relationship.
Keeley posits that there is a genuine issue of material fact because the letter states an annual salary and the right to exercise stock options during the year, and it does not contain any language that reflects that his employment status was at-will. He cites Hamilton v. Segue Software, Inc., 2000 WL 631002 (N.D. Tex. May 11) (Sanders, J.), aff'd, 232 F.3d 473 (5th Cir. 2000) (per curiam), and Dallas Hotel Co. v. Lackey, 203 S.W.2d 557 (Tex.App. 1947, writ ref'd n.r.e.), to support his argument. See P. Mar. 28, 2003 Br. at 17. Keeley's reliance on these decisions is misplaced.
Keeley fails to cite the Fifth Circuit's opinion in Hamilton, in which it declined to follow Lackey's application of the English Rule and the conclusion that hiring based on an agreed annual salary is sufficient to alter the at-will relationship. See Hamilton, 232 F.3d at 479-80. The panel noted that the Texas Supreme Court had recently "reaffirmed the presumption of at-will employment in Texas, requiring employees to demonstrate an `unequivocal' intent of non-at-will status in their contracts." Id. at 479 (citing Montgomery County Hosp. Dist., 965 S.W.2d at 502). And it concluded that more recent Texas law supported the proposition that a letter that merely stated an annual salary was inadequate. Id. at 480. The offer letter in Hamilton provided: "Your base salary will be at an annual rate of $125,000.00 paid semi-monthly. Upon mutually agreed upon objectives, you will be eligible for an annual 20K MBO [bonus]." Id. at 477. The Fifth Circuit held that this language was insufficient. Id. at 480.
Keeley cites Judge Sanders' opinion but not the Fifth Circuit's opinion affirming it. See P. Mar. 28, 2003 Br. at 17.
The language on which Keeley relies in the May 30, 2000 letter does not alter the at-will employment relationship in a meaningful and special way. It simply states an "annualized" salary, provides that, subject to Board approval, Keeley will be granted an option to purchase shares of company stock, and does not contain language that states that his employment status will be at-will. Assuming arguendo that Cisco and Keeley entered into a binding employment agreement, Cisco did not breach the contract by terminating Keeley's employment. Accordingly, Cisco's motion for summary judgment as to Keeley's breach of contract claim against is granted.
Although the court does not rely on this fact, as the court notes supra at note 4, Keeley's employment application clearly provides that his employment is at will.
C
The court has dismissed both causes of action against Cisco and has not found it necessary to rely on Cisco's contention that the release in Keeley's employment application precludes him from obtaining relief. Because it has not done so, the court will also dismiss Keeley's declaratory judgment action to the extent he asserts it against Cisco.
Federal courts have broad discretion to grant or refuse declaratory judgment. See Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991). "Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants." Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). This section is "an authorization, not a command." Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962) (per curiam). It gives federal courts the competence to declare rights, but it does not impose a duty to do so. Id. Although "the district court's discretion is broad, it is not unfettered." St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir. 1994) (quoting Travelers Ins. Co. v. La. Farm Bureau Fed'n, Inc., 996 F.2d 774, 778 (5th Cir. 1993)). The court cannot dismiss a declaratory judgment action "on the basis of whim or personal disinclination." Id. (quoting Travelers, 996 F.2d at 778).
The Fifth Circuit has established certain factors to guide a district court's decision whether to dismiss a declaratory judgment action. The court may consider whether (1) there is a pending state action in which all of the matters in controversy may be fully litigated; (2) plaintiff filed suit in anticipation of a lawsuit filed by defendant; (3) plaintiff engaged in forum-shopping in bringing the action; (4) possible inequities exist in allowing plaintiff to maintain the action; (5) federal court is a convenient forum for parties and witnesses; (6) retaining the lawsuit in federal court would further judicial economy; and (7) the federal court must construe a state judicial decree involving the same parties and entered by the court before whom the parallel state suit between the parties is pending. Id. at 590-91 (quoting Travelers, 996 F.2d at 778). Because Keeley has asserted the declaratory judgment action regarding the release issue to preclude Cisco from invoking it, and because the court has not relied on the release to grant summary judgment in Cisco's favor, the court declines in its discretion to address the action insofar as it is asserted against Cisco.
Cisco is therefore entitled to a Fed.R.Civ.P. 54(b) final judgment in its favor, and such a judgment is filed contemporaneously with the filing of this memorandum opinion and order.
III
Sun moves for summary judgment on Keeley's retaliation, tortious interference with prospective employment, and breach of contract claims. Alternatively, it argues that the after-acquired evidence doctrine limits Keeley's damages. Keeley moves for partial summary judgment on his declaratory judgment and tortious interference with prospective employment claims. Because the motions overlap substantially, the court will consider them together.
A
Sun seeks summary judgment dismissing Keeley's retaliation claim on the ground that he cannot establish a prima facie case. Sun maintains that there is no causal link between Keeley's protected activities and Blair's comment to Ash because Blair did not know at the time about Keeley's internal complaints of race discrimination or his EEOC charge. Sun argues that even if Keeley can meet his prima facie burden, he cannot adduce evidence that shows that Sun's legitimate, nondiscriminatory reason is pretextual. It posits that Keeley cannot demonstrate "but for" causation, that is, that Blair's comment to Ash prevented Keeley from obtaining employment at Cisco.
1
Concerning Keeley's prima facie case, Sun maintains that the instant case is like Price v. City of Terrell, 2001 WL 1012697 (N.D. Tex. Aug. 15, 2001) (Fitzwater, J.), aff'd, 37 Fed. Appx. 91 (5th Cir. May 13, 2002) (per curiam) (unpublished table decision), in which this court granted judgment as a matter of law, after the jury found in plaintiff's favor, where the uncontradicted evidence showed that the plaintiff did not advise her supervisor of her EEOC charge until well after he discharged her. Sun contends the affidavits of four witnesses demonstrate that Blair did not know about Keeley's complaints at Sun or his EEOC charge until two months after he communicated with Ash.
As the court notes supra at § II (A)(2), the initial requirement that a plaintiff show that a "causal link" existed between the protected activity and the adverse employment action is less stringent than the "but for" causation that a jury must find. See Fierros, 274 F.3d at 191; Long, 88 F.3d at 305 n. 4. Although Keeley's proof is thin, it is sufficient to meet his minimal burden. Keeley has introduced evidence that would permit the finding that he complained to Human Resources at Sun about not being compensated fairly due to his race, and that during his last meeting with Blair before leaving Sun's employment he informed Blair that he would be pursuing the compensation issue and requested the name of his EEO representative. See P. Apr. 2, 2003 App. 2, 114-15. Viewed favorably to Keeley, this evidence meets his prima facie burden of establishing a causal link between Blair's knowledge of complaints about discrimination and the negative reference he gave in response to Sun's inquiry.
Sun acknowledges the distinction between the standards of proof for a prima facie case and the ultimate issue of retaliation but maintains that the standards "differ slightly." See Sun Mar. 13, 2003 Br. at 27 n. 3. This court, however, has viewed the differences as more than "slight." It has characterized the standards as distinct. "Federal courts applying federal anti-retaliation laws separate the distinct role of causation at the prima facie stage from causation at the persuasion stage by holding that the initial requirement that a plaintiff show a `causal link' is less stringent than the `but for' causation that a jury must find." Anderson v. Corrugated Servs., Inc., 2001 WL 585760, at *3 n. 2 (N.D. Tex. May 24, 2001) (Fitzwater, J.) (citing Long, 88 F.3d at 305 n. 4). And the court has held that the prima facie showing is "minimal." See Khanna, 2000 WL 1801850, at *4.
Among other things, much of Keeley's evidence centers on race-neutral complaints he made about the unfair manner in which he believed he was being compensated. This proof says nothing, however, about discrimination in compensation based on race. See, e.g., P. Apr. 2, 2003 App. 111-12. The federal anti-retaliation laws — including Title VII — do not proscribe retaliation in response to complaints about compensation rather than discrimination.
The court's holding regarding Sun is consistent with its conclusion above that Keeley did not meet his burden concerning Cisco. Regarding Cisco, the court has relied on Ash's lack of knowledge of Keeley's protected activities, not Blair's alleged lack of knowledge.
2
Sun next argues that Keeley cannot refute Sun's business justification for Blair's statement to Ash that "there are a lot of fish in the sea" and cannot demonstrate that the statement mentioned any protected activity.Sun has met its burden of production by introducing evidence that Blair's statement was truthful and factual. Blair was experienced dealing with Sun employees and other persons who sought employment, and he believed there were better-qualified salesmen available. He had an extensive history working with Keeley and observed that he had failed to make his sales goals, failed to document business expenses, and lied about his sales and other business activities. On these grounds, Blair made the "fish in the sea" comment to Ash.
Although Sun has produced evidence that Blair's statement related to Keeley's job performance, the court holds infra at § III(B)(2) that there is a genuine issue of material fact whether the statement was in fact performance related. The existence of such a fact issue does not, however, mean that Sun has failed to meet its burden of production in the context of Keeley's retaliation claim.
The burden therefore has shifted to Keeley to demonstrate pretext. He has introduced proof that he was not disciplined orally or in writing during his tenure at Sun and received continuous praise from his supervisor. He also received stock compensation designed to reward and retain good employees. See P. Apr. 2, 2003 App. 1. Keeley points out that, had performance-related issues been present, they would have been noted and addressed before he began complaining about compensation and discrimination. This evidence is sufficient to create a genuine issue of material fact whether Blair's reasons for his comment to Ash are pretextual.
Regarding Sun's contention that Blair's statement did not mention protected activity, although a jury could rather easily find that Blair's statement to Ash that "there are a lot of fish in the sea" was simply so innocuous and benign that it evinced no intention to retaliate, the jury could also find circumstantially that Blair knew about Keeley's complaints and intended to retaliate. To constitute retaliation under Title VII, it is not required that a person mention protected activity. Although such a reference could make a plaintiff's proof more persuasive, retaliation can be established by circumstantial evidence. For example, mere close proximity in time between an employer's receiving notice that its employee has complained of discrimination, and the date of the employee's discharge, can support an inference of retaliation. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 726 (8th Cir. 2000) (reversing summary judgment because, inter alia, jury could infer that retaliation was true reason for discharge based on close proximity between plaintiff's filing of EEOC charge and her discharge); Love v. Re/Max of Am., Inc., 738 F.2d 383, 386 (10th Cir. 1984) ("The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." (quoting Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982))). In such instances there may be no mention at the time of termination that the employee engaged in protected activity, but the circumstantial evidence would permit the reasonable inference that the two events are causally related. The evidence on which Keeley relies presents a genuine issue of material fact that must be resolved by the jury.
3
Sun argues that Keeley cannot demonstrate "but for" causation because he cannot adduce evidence that would permit a reasonable jury to find that he would have been hired but for Blair's comment to Ash. Sun cites summary judgment evidence that Blair did not know about Keeley's internal complaints at Sun or his EEOC charge when he communicated with Ash, and that Cisco did not base its hiring decision solely upon Blair's comment. Instead, Ash also based his decision on Ward's (the Tulsa, Oklahoma MAM) concerns about Keeley stemming from her interview with him.
The court has already concluded that there is sufficient circumstantial evidence that Blair knew of internal company complaints before he communicated with Ash. Keeley also points out that, when Ash informed Joyce, the Cisco sales recruiter, that he no longer wished to consider Blair, he cited only the information he had received "from a confidential source as to Tim's exit from a previous employer." See P. Apr. 2, 2003 App. 72. Ash stated that, "[d]ue to this, I would like to dismiss Tim as a candidate for my open MAM position in my region." Id. (emphasis added). He did not cite any other reason for removing Keeley from consideration. See id. at 30 (acknowledging in his deposition that he did not cite any reservations that Ward had as an additional concern about hiring Keeley). Accordingly, there is a genuine issue of material fact whether Blair's communication to Ash was the "but for" cause for the decision not to hire Keeley.
Sun's motion for summary judgment dismissing Keeley's retaliation claim is therefore denied.
B
Sun next moves for summary judgment as to Keeley's tortious interference with employment cause of action. It contends that Keeley cannot demonstrate a prima facie case of tortious interference with prospective contract or actual contract, and that he waived this claim by signing a release in his Cisco employment application. Keeley opposes Sun's motion, and he moves for summary judgment on the ground that he has established this cause of action. He also opposes Sun's motion and moves for summary declaratory judgment on the grounds that the release (1) does not specify the claims to be waived, (2) applies only to information supplied to Cisco and the outside agency, (3) is contrary to public policy, and (4) fails for inadequate consideration.1
Sun maintains that Keeley cannot demonstrate a prima facie case of tortious interference with prospective contract because he cannot establish that Blair's statement to Ash was independently tortious or unlawful, as required under Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001). In Wal-Mart the Texas Supreme Court held that "to establish liability for interference with a prospective contractual or business relation the plaintiff must prove that it was harmed by the defendant's conduct that was either independently tortious or unlawful." Id. at 713. Sun seems to acknowledge that an act of retaliation that violates Title VII can satisfy this requirement, although it contends, of course, that Blair did not retaliate. See Sun Mar. 13, 2003 Br. at 35; Sun Apr. 21, 2003 Rep. Br. at 9. Because the court has held above that there is a genuine issue of material fact whether Blair retaliated, Sun is not entitled to summary judgment on this basis.2
Sun also contends that Texas Labor Code Ann. § 103.004(a) (Vernon Supp. 2003) insulates it from liability. Section 103.004(a) grants immunity to an employer who discloses information about a current or former employee under § 103.003. Section 103.003(a) provides that "[a]n employer may disclose information about a current or former employee's job performance to a prospective employer of the current or former employee on the request of the prospective employer or the employee." Id.(emphasis added). Section 103.002(3) defines "[j]ob performance" as "the manner in which an employee performs a position of employment and includes an analysis of the employee's attendance at work, attitudes, effort, knowledge, behaviors, and skills." Id.Keeley argues, inter alia, that Sun cannot rely on § 103.004(a) because Blair's comment about Keeley did not relate to his job performance, or that there is at least a material fact question whether it did. The court agrees with Keeley that there is a genuine issue of material fact whether Blair's comment that there were "a lot of fish in the sea" related to Keeley's job performance — i.e., his attendance at work, attitudes, effort, knowledge, behaviors, or skills. According to the summary judgment evidence, Blair appears to have disclaimed any intention of providing an evaluation of Keeley's job performance, stating that company policy precluded him from giving a specific reference. The statement he made about Keeley could be construed as a gratuitous comment. See Cisco Mar. 5, 2003 App. 92. And Ash testified that he inferred that Blair's statement related to Keeley's exit — i.e., the circumstance of his departure — from Sun, see P. Mar. 28, 2003 App. 29, which may or may not relate to Keeley's attendance at work, attitudes, effort, knowledge, behaviors, or skills. Accordingly, Sun cannot obtain summary judgment based on the immunity conferred by § 103.004(a).
Blair testified in his deposition:
I told [Ash] that in fact I did know [Keeley] and that he actually reported to me for a period of time at Sun. And told him our policy was not to give specific references. And also made a — added a comment that, you know, sorry I couldn't give the reference but there are a lot of fish in the sea. Something to that tone.
Cisco Mar. 5, 2003 App. 92.
The court suggests no view on whether Sun can establish such immunity at trial.
3
Sun also moves for summary judgment on the ground that Keeley released this claim. The Cisco employment application that Keeley signed contained the following release provision:
I understand that in connection with my application for employment (including contracts for service), Cisco Systems, Inc. will use an outside agency to research and verify the information I have provided on my application for employment, including my personal background, professional standing, work history and qualifications. This agency will provide a report to Cisco Systems, Inc.
I understand that an outside agency will obtain information (unless otherwise noted on the application form) it deems appropriate from various sources including, but not limited to, the following: current and past employers, criminal conviction records, Department of Motor Vehicle records, military records, school records, and professional and personal references. I authorize, without reservation, any individual, corporation or other private or public entity to furnish to Cisco Systems, Inc. and the outside background agency all information about me. I unconditionally release and hold harmless any individual, corporation, or private or public entity from any and all causes of action that might arise from furnishing to Cisco Systems, Inc. and the outside agency information that they may request pursuant to this release.
Sun Mar. 13, 2003 App. 170. Sun maintains that Keeley released his tortious interference claim against it because Cisco requested the information that Blair furnished to Ash and it did so under the terms of the release. Keeley argues, inter alia, that the release applies only to information supplied to Cisco and the outside agency, not, as here, information that a Sun employee provided directly to a Cisco employee.
"A release is a contract between, or among, the parties. Hence, the well-established Texas rules, concerning the interpretation and effect of contract law apply." Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561, 574 (Tex.App. 1988), reh'g denied, 766 S.W.2d 316 (Tex.App. 1989, writ denied), overruled on other grounds, Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000). "Under Texas law, the court's primary concern when interpreting a contract is to ascertain the parties' true intentions as expressed in the instrument." Bank One, Tex., N.A. v. FDIC, 16 F. Supp.2d 698, 707 (N.D. Tex. 1998) (Fitzwater, J.). "To achieve this objective, the court should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless." Id. "No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument." Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). "No phrase, sentence, or section of a contract should be isolated and considered apart from the other provisions." Trinity Prof'l Plaza Assocs. v. Metrocrest Hosp. Auth., 987 S.W.2d 621, 625 (Tex.App. 1999, pet. denied). A court also "must recognize that the parties to a writing will not include a clause in the writing unless they intend it to have some effect." Praeger v. Wilson, 721 S.W.2d 597, 601 (Tex.App. 1986, writ ref'd n.r.e.). "A construction of the writing which renders a clause meaningless is unreasonable and, therefore, is not preferred by the court." Id.
Viewing the employment application in its entirety, it is clear that the release on which Sun relies applies to information accumulated through the outside agency information gathering process, not to information that a Cisco employee obtained directly from a Sun employee. This intent is apparent for at least two reasons. First, the release itself contemplates that Cisco would use an outside agency to obtain information, research and verify information that Keeley provided, and furnish a report to Cisco. Keeley authorized such entities to furnish information to Cisco and the outside agency, and he unconditionally released and held them harmless in furnishing information that Cisco and the outside agency requested. The plain intent is to immunize from liability entities that furnish information to Cisco and the outside agency as part of the information gathering process that the outside agency conducts.
Second, the employment application contains a separate provision that releases Cisco from liability for information that it obtains directly. It provides:
I hereby declare that my statements on this application and on my resume or documents provided to me by Cisco Systems, Inc. are true and correct to the best of my knowledge. I acknowledge and agree that providing any false information may result in a decision not to hire me or if hired, may result in the termination of my employment. I also authorize investigation of these statements. This investigation may include employment history, reasons for leaving previous employers, criminal record, driving record, social security number investigation, and degree verification. I hereby release Cisco Systems, Inc. from all liability for any damages resulting from the information obtained.
Sun. Mar. 13, 2002 App. 169.
Reading the two releases together, it is clear that Keeley intended to release entities that provided information to Cisco as part of the outside agency's information gathering function and to release Cisco when it obtained information directly. Because Blair (a Sun employee) did not provide Ash (a Cisco employee) the information in question as part of the outside agency process that HireRight conducted, and because the other release clause applies only to Cisco and not to other entities, Sun's reliance on the employment application lacks merit.
4
Keeley moves for summary judgment on his tortious interference claim, contending he has established it as a matter of law. Because he will have the burden of proving this cause of action at trial, to obtain summary judgment, he "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). He has not met this burden for several reasons-at a minimum, he has not established without genuine and material dispute that Blair committed an intentional and malicious act of interference — and the court denies his motion in this respect.
For the reasons stated above, however, the court grants Keeley's motion for partial summary judgment to the extent of declaring that the release provision applies only to information supplied to Cisco and the outside agency as part of the outside agency process and therefore does not preclude Keeley's claim for tortious interference with prospective employment.
Although Keeley's motion also refers to a request for a declaratory judgment that the release applies only to information supplied to Cisco and the outside agency, see P. Mar. 5, 2003 Br. at 9, the court is satisfied that he sufficiently asserted the request that the court now grants. He posits in his brief that "the language of the release, as well as the essence of the release, specifically applies to background investigations to be conducted by an outside agency as well as the report produced by the agency." Id. at 10. Accordingly, he gave Sun sufficient notice that he was advancing the argument on which the court is granting declaratory judgment. The court suggests no agreement with any other interpretation of the release, including Keeley's assertion that it covered only information that a provider furnished both to Cisco and to the outside agency.
5
In sum, the court denies Sun's motion for summary judgment as to Keeley's claim for tortious interference with prospective employment and denies Keeley's motion in which he seeks affirmative relief on this claim. It grants Keeley's motion concerning his declaratory judgment action to the extent he seeks judgment declaring that the release provision applies only to information supplied to Cisco and the outside agency as part of the outside agency process and does not preclude his claim for tortious interference with prospective employment.C
Sun next moves for summary judgment on Keeley's breach of contract claim.
Sun argues that it paid Keeley the commissions owed him under the relevant Americas-US FY `99 and FY `00 Sales Compensation Plans and that he cannot recover any amount greater than what Sun paid him for FY99. Sun has introduced affirmative evidence that it paid him what he was owed. See Sun Mar. 13, 2003 Br. at 41 (citing Sun Mar. 13, 2003 App. 173-76, 175, 228). As permitted under summary judgment procedure, it has also pointed the court to an absence of evidence that it failed to pay him fully. Id.
The burden has therefore shifted to Keeley to introduce evidence that he is owed unpaid commissions. In his summary judgment response, Keeley asserts that he is suing for commissions earned but unpaid under the Americas-US FY `99 Sales Compensation Plan. See P. Apr. 2, 2003 Br. at 36. He maintains that he is entitled to over $60,000 in unpaid commissions on $2 million in sales to Verio. Id. The evidence that he cites in support of this claim consists of the following: (1) the Americas-US FY `99 Sales Compensation Plan, P. Apr. 2, 2003 App. 181-308; (2) his goal sheet concerning the FY `00 Sales Compensation Plan, id. at 335-36; (3) an email message concerning the purchase orders for sales to Verio, id. at 174-76; (4) email correspondence concerning unpaid compensation, id. at 178-80; and (5) his affidavit evidence, in which he testifies that he was not adequately paid for the Verio sales, id. at 1-2. See P. Apr. 2, 2003 Br. at 36-37. Sun argues in its reply that Keeley "has not provided one scintilla of evidence to demonstrate that he is entitled to unpaid commission from sales on the Verio Account in FY99." Sun Apr. 21, 2003 Rep. Br. at 11. The court sees it differently and concludes that he has introduced sufficient evidence to raise a genuine issue of material fact. Not only has Keeley presented his own sworn testimony that he is owed unpaid commission income, he has produced an internal company document that suggests he is owed compensation on Verio sales. See P. Apr. 2, 2003 App. 1-2, 178-80.
The court denies Sun's motion for summary judgment concerning the breach of contract claim.
D
Sun moves in the alternative for summary judgment under the after-acquired evidence doctrine. It posits that Keeley's recovery of damages for back pay and front pay must stop on May 24, 2002, the date Sun discovered that he had been employed for a period of sixteen days in 2000 by both Sun and Exodus. "Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999) (quoting McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995)).
Sun has presented extensive evidence that Keeley's dual employment violated company policy and would have resulted in immediate termination had it been discovered. Keeley opposes this ground of Sun's motion only on the basis that the after-acquired evidence doctrine is inapposite as a matter of law. He maintains that on May 24, 2002 he would already have been employed by Cisco, not Sun; he is complaining about employment that he lost with Cisco, and Sun would have lacked the authority to terminate his employment with Cisco; and under such circumstances, the underlying rationale of the after-acquired evidence doctrine would not be served because Sun would have lacked authority over him. See P. Apr. 2, 2003 Br. at 38.
Keeley also contends the doctrine should not be applied to his breach of contract claim. See P. Apr. 2, 2003 Br. at 38. It does not appear that Sun seeks this relief. Although it asserts that Keeley's damages should be constricted, it refers specifically to "back or front pay," see Sun Mar. 13, 2003 Br. at 46, a term that is relevant to Keeley's Title VII cause of action rather than to his pendent state-law claims. The court will not address this argument.
Sun's evidence is undisputed, and Keeley's opposition arguments are misplaced. The after-acquired evidence doctrine at least generally presupposes that a plaintiff has already been discharged when wrongdoing is discovered by a former employer. Indeed, the formulation of the defense assumes that it is being raised by a former employer who discharged the plaintiff and who no longer has authority to terminate him anew. See Smith, 165 F.3d at 395 (noting that where employer seeks to rely on after-acquired evidence of wrongdoing, it must first establish wrongdoing "of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." (emphasis added)). Accordingly, the court grants partial summary judgment limiting Keeley's recovery of back pay under Title VII to that which he would have received through May 24, 2002. Because this date precedes the date of trial, he cannot recover front pay under Title VII.
* * *
Keeley's March 5, 2003 motion for partial summary judgment is granted in part and denied in part, Cisco's March 5, 2003 motion for summary judgment is granted, and Sun's March 13, 2003 motion for summary judgment is granted in part and denied in part. A final judgment in favor of Cisco is filed contemporaneously with the filing of this memorandum opinion and order.