IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________________
No. 95-50889
___________________________________
GARY L. SOUTER,
Plaintiff-Appellant,
versus
SCOTT & WHITE MEMORIAL HOSPITAL,
SCOTT, SHERWOOD & BRINDLEY FOUNDATION,
SCOTT & WHITE CLINIC, and ROBERT MASON,
Defendants-Appellees.
_______________________________________________
Appeals from the United States District Court
For the Western District of Texas
(94-CV-104)
_______________________________________________
December 31, 1996
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Gary L. Souter, appeals the district
court’s (1) summary judgment for Defendant-Appellee, Robert S.
Mason, holding that as a matter of Texas law, Mason could not be
liable for tortious interference with Souter’s employment contract
and (2) judgment, based on the jury’s verdict, that Souter take
nothing from Defendants-Appellees Scott & White Memorial Hospital;
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Scott, Sherwood & Brindley Foundation; and Scott & White Clinic
(collectively, S & W). Agreeing that Mason cannot be held
personally liable for tortious interference with Souter’s
employment contract, we affirm the district court’s grant of
summary judgment. Additionally, as the district court properly
instructed the jury on the elements of pretext and causation and
did not abuse its discretion in its evidentiary rulings, we affirm
the take nothing judgment in favor of S & W.
I.
FACTS AND PROCEEDINGS
Souter was employed by S & W as Assistant Administrator of
Personnel from July 1990 until his employment was terminated by S
& W, effective November 1993. Souter’s direct supervisor at the
Hospital was Mason, and his direct supervisor at the Clinic was
Chuck Gendron.
While employed at S & W, Souter became concerned about (1)
certain employment practices that he, in good faith, believed
discriminated against minority applicants and employees insofar as
they disproportionately affected such persons when they sought
employment and advancement at S & W, (2)individual complaints of
discrimination brought to his attention by his department’s
employees, and (3) the absence of an affirmative action plan at S
& W. In an attempt to ameliorate the situation at S & W, Souter
developed personnel policies that standardized the creation of
positions, the assignment of salary grades, the posting and
2
advertising of positions, the screening of applicants based on
qualifications, and the tracking of candidates for positions.
Souter alleged that Mason and other S & W administrators resisted
the implementation of these policies and frequently violated them.
In the summer of 1993, Mason announced his retirement,
effective September 1993. S & W hired Gary Morrison as Mason’s
successor, and Morrison began to work in that position one month
before Mason left. At about the same time that he announced his
impending retirement, Mason began an investigation of Souter. Dr.
Robert Myers, President of Scott & White Hospital, participated in
portions of the investigation and encouraged Mason to write a
report on Souter before leaving S & W. Mason submitted a memo to
Myers in which Mason recommended a “thorough discussion before
considering Mr. Souter’s continued employment.”
Myers then appointed Gendron and Morrision to conduct an
investigation into the advisability of continuing Souter’s
employment. Souter was not notified of the investigation by Mason,
Myers, Gendron, or Morrison. After hearing rumors that his
employment was in jeopardy, however, Souter confronted Myers who
acknowledged, without revealing any specific information, that an
investigation was pending but denied that any written document had
precipitated the investigation. Souter expressed his opinion to
Myers that any complaints that Myers may have received were
undoubtedly related to personnel policies that Souter had created
and enforced. After consulting with the Hospital’s legal counsel,
3
Myers wrote a letter to Souter in which he refuted Souter’s
concerns and advised that the investigation was department-wide
rather than individually directed.
But by October 1993, Souter had learned of the existence of
Mason’s memo and of the mendacity of Myers’ denial of its
existence. Before commencing any substantive litigation, Souter
filed a petition in Texas state court to perpetuate Mason’s
deposition testimony, as Souter was aware of Mason’s impending move
to California and anticipated that Mason’s actions or statements
ultimately could cost Souter his job at S & W.
Meanwhile, Gendron and Morrison, who were still unaware of
Souter’s “lawsuit,” met and decided to allow Souter’s employment
with S & W to continue. They informed Myers of their decision that
day. Myers subsequently learned of Souter’s “lawsuit,” however,
and after a second meeting, Gendron and Morrison informed Souter
that his employment was being terminated. The reason for his
termination ultimately became the subject of the instant
litigation. According to S & W, it terminated Souter’s employment
after concluding that Souter’s perpetuation of Mason’s testimony
reflected poor judgment, vindictiveness, and a breach of trust with
the management team, thereby destroying the ability of the
management team to work effectively with Souter. According to
Souter, however, S & W’s proffered reason was pretextual, and he
was actually fired for opposing employment practices that he deemed
to be unlawfully discriminatory.
4
Souter filed his original complaint in the district court
against Mason, individually, alleging tortious interference with
employment, defamation, and retaliation under Title VII. Souter
later amended his complaint to add S & W as a defendant, alleging
Title VII claims of retaliation and compensation discrimination.
The district court originally granted Mason’s motion for summary
judgment on all claims except the claim of tortious interference,
but subsequently granted Mason’s second motion for summary judgment
on the tortious interference claim as well as S & W’s motion for
summary judgment on Souter’s Title VII discrimination claims.
The remainder of the case, consisting only of Souter’s Title
VII retaliation claim against S & W, was tried to a jury. It
returned a verdict that S & W did not terminate Souter in
retaliation for opposing allegedly discriminatory employment
practices at S & W. The district court entered judgment that
Souter take nothing from S & W and assessed costs to Souter. He
timely appealed.
On appeal, Souter maintains that (1) the district court erred
in granting Mason’s motion for summary judgment on the tortious
interference claim as there was sufficient evidence to raise a
factual issue whether Mason acted with actual malice in violation
of his qualified privilege to terminate Souter’s employment, (2)
the district court’s instructions to the jury did not properly
state Souter’s burden of proof of pretext or his burden of proof of
causation in his Title VII retaliation claim and that the erroneous
5
instructions affected the outcome of his case, and (3) the district
court erroneously excluded evidence that was relevant to Souter’s
Title VII retaliation claim.
II.
ANALYSIS
A. TORTIOUS INTERFERENCE WITH CONTRACT
1. Standard of Review
We review a grant of summary judgment de novo, using the same
standards as the district court. Summary judgment must be granted
if the court, viewing the facts and inferences in the light most
favorable to the non-moving party, determines that “there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”2 If any element of the
plaintiff’s case lacks factual support, a district court should
grant a defendant’s motion for summary judgment.3
2. No cause of action against Mason
The district court held that, under Texas law, Mason could not
2
Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir.
1995)(citing Fed. R. Civ. P. 56(c)).
3
Id.
6
be held liable for tortious interference with Souter’s employment
contract. As Souter’s supervisor, Mason was S & W’s agent, and an
agent cannot be held liable for tortious interference with his
principal’s contract.
To assert a tortious interference claim successfully, the
plaintiff must prove that (1) a contract subject to interference
exists, (2) the act of interference was willful and intentional,
(3) such intentional act was a proximate cause of the plaintiff’s
damage, and (4) actual damage or loss occurred.4 Even though Texas
is an employment-at-will state,5 an at-will employment agreement
can be the subject of a claim of tortious interference with
contract.6 As a matter of Texas law, however, one cannot
tortiously interfere with his own contract; liability for tortious
interference requires the acts of an interfering third party.7
Generally, an agent is not regarded as being a third party but
4
Johnson v. Hospital Corp. of America, 95 F.3d 383, 394 (5th
Cir. 1996)(citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d
931, 939 (Tex. 1991)).
5
Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489
(Tex. 1991).
6
Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688 (Tex. 1989).
7
Hussong v. Schwan’s Sales Enterprises, Inc., 896 S.W.2d 320,
326 (Tex. App.-Houston [1st Dist.] 1995, no writ)(citing
Schoellkopf v. Pledger, 778 S.W.2d 897, 902 (Tex. App.-Dallas 1989,
no writ)); American Medical Int’l, Inc. v. Giurintano, 821 S.W.2d
331, 335 (Tex. App.-Houston [14th Dist.] 1991, no writ)(citing
Baker v. Welch, 735 S.W.2d 548, 549 (Tex. App.-Houston [1st Dist.]
1987, writ dism’d)).
7
rather as having the legal identity of his principal.8 Therefore,
an agent cannot be personally liable for tortious interference with
his principal’s contracts.9
A supervisor is considered to be an agent of the employer.10
It follows that the agent/supervisor and the principal/employer are
considered to be one entity; the agent is the principal’s alter
ego, and both have the same financial interests.11 Consequently,
an agent/supervisor who terminates an employee cannot be held
liable for tortious interference with an employment contract
between the employee and the principal/employer.
Souter nevertheless maintains that Mason tortiously interfered
with the employment contract between Souter and S & W when Mason
submitted the memo to Myers that questioned Souter’s continued
employment. At that time, Mason was Souter’s direct supervisor,
and he had the authority to terminate Souter as well as to conduct
investigations of his employment and to relay negative reports to
other members of the management staff. In the capacity of Souter’s
supervisor, Mason was S & W’s agent. As S & W cannot be liable for
8
American Medical, 821 S.W.2d at 335.
9
John Masek Corp. v. Davis, 848 S.W.2d 170, 175 (Tex. App.-
Houston [1st Dist.] 1992, writ denied); Massey v. Houston Baptist
University, 902 S.W.2d 81, 85 (Tex. App.-Houston [1st Dist.] 1995,
writ denied).
10
See Hussong, 896 S.W.2d at 326.
11
Massey, 902 S.W.2d at 85; Hussong, 896 S.W.2d at 326-27;
Masek, 848 S.W.2d at 175.
8
tortiously interfering with its own employment contract with
Souter, neither can its agent, Mason, be liable for tortiously
interfering with S & W’s employment contract with Souter.
And if that were not enough, the defendant to a tortious
interference claim may also assert an affirmative defense of
justification based on the exercise of his own legal rights.12 This
privilege is absolute if the defendant acted within his legal
rights. Accordingly, there can be no examination into such a
defendant’s motive or good faith, but only into whether he acted
within his legal rights. Under Texas’ employment-at-will doctrine,
a supervisor is within his legal rights to interfere with an at-
will employee’s employment contract.13 A court cannot inquire into
a superior’s reason for terminating his supervised employee. An
employer is not required to make a termination decision in good
faith; in fact, the privilege of termination is not lost even when
the superior acts out of malice or personal motive.14
We reject out of hand Souter’s argument that Mason lost his
privilege to interfere with Souter’s employment when he allegedly
12
A defendant to a tortious interference claim also has an
affirmative defense of justification based on a good faith claim to
a colorable legal right even though that claim ultimately proves to
be mistaken. See Johnson v. Hospital Corp. of America, 95 F.3d
383, 394 (5th Cir. 1996)(discussing our recent clarification of the
relationship between a defendant’s good faith and his affirmative
defense of justification).
13
Hussong, 896 S.W.2d at 327; Jones v. Legal Copy, Inc., 846
S.W.2d 922, 925 (Tex. Ct. App.-Houston [1st Dist.] 1993, no writ).
14
Hussong, 896 S.W.2d at 327.
9
acted with personal animosity and purely for personal gain. The
affirmative defense of justification, based on Mason’s exercise of
his legal rights in terminating an at-will employee, forecloses any
inquiry whatsoever into Mason’s bona fides in terminating Souter.
Texas courts have expressly held that the at-will doctrine bars a
tortious interference claim against a manager based on his decision
to terminate an employee,15 and those courts have extended this rule
to cover a tortious interference claim against a supervisor who
terminates an at-will employee.16 Based on existing precedent and
Texas’ employment-at-will doctrine, Mason acted within his legal
rights in terminating Souter’s employment and therefore may avail
himself of the absolute privilege of justification without being
subject to an inquiry into his good faith.
B. JURY INSTRUCTIONS
The jury found, by a preponderance of the evidence, that
Souter was not terminated by S & W in retaliation for opposing
employment practices that he deemed to be unlawfully
discriminatory. On appeal, Souter challenges the jury instructions
which recited his burden of proof of pretext and causation,
asserting that the purportedly erroneous instructions affected the
jury’s verdict. Our review of the jury instructions, both as a
whole and as to those specifically challenged, satisfies us that
15
Jones, 846 S.W.2d at 925.
16
Hussong, 896 S.W.2d at 327.
10
the district court properly instructed the jury on the applicable
law.
Broad discretion is afforded to the trial court in fashioning
jury instructions, and we review them for an abuse of discretion.17
We are specifically guided as follows:
First the challenger must demonstrate that the charge as
a whole creates ‘substantial and ineradicable doubt
whether the jury has been properly guided in its
deliberations.’ Second, even if the jury instructions
were erroneous, we will not reverse if we determine,
based upon the entire record, that the challenged
instruction could not have affected the outcome of the
case.18
Souter’s claims that the jury instructions imposed on him a
heavier burden of proof than is required by law to prove the
elements of pretext and causation are completely without merit.
First, the wording of the jury instruction on the element of
pretext is essentially identical to the language of St. Mary’s
Honor Center v. Hicks,19 which sets forth the requirements for
proving pretext in the context of a motion for summary judgment in
a Title VII discrimination case. According to St. Mary’s, “a
reason cannot be proved to be a ‘pretext for discrimination’ unless
it is shown both that the reason was false, and that discrimination
17
EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1252 (1995).
18
FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994)(quoting
Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993))(citations
omitted).
19
509 U.S. 502, 113 S. Ct. 2742 (1993)(emphasis in original).
11
was the real reason.”20 Correspondingly, the district court’s
instruction to the jury here stated: “A reason is pretextual only
if the Plaintiff shows both that the reason was false and that
retaliation was the real reason for Defendants’ actions.”21
Even though the instant case was not decided on a motion for
summary judgment but rather at a full blown jury trial on the issue
of Souter’s termination, the elements that Souter was required to
prove to the jury are identical to those that he would have had to
show to defeat a motion for summary judgment. We have previously
recognized that the elements and the burden of proof in a Title VII
discrimination case are the same in a Title VII retaliation case,
except that the plaintiff in a retaliation case ultimately must
prove that activity protected under Title VII caused him to be
unlawfully retaliated against rather than proving that he was
unlawfully discriminated against.22 Both the language of St. Mary’s
and the instant jury instruction on the element of pretext require
the plaintiff to prove the falsity of the defendant’s proffered
benign reason and the true reason for the termination or
discrimination. In reciting practically verbatim the language of
St. Mary’s, the jury instruction accurately charged the jury on
20
Id. at 2752.
21
Emphasis added.
22
See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th
Cir. 1983); Long v. Eastfield College, 88 F.3d 300, 304-05 (5th
Cir. 1996).
12
Souter’s burden for proving pretext.
Second, the jury instruction on causation properly states
Souter’s burden of proof on that element, as set forth in our
recent decision in Long v. Eastfield College.23 In Long, we
confirmed that the ultimate determination in an unlawful
retaliation case is whether the conduct protected by Title VII was
a “but for” cause of the adverse employment decision.24 The jury
instruction here is wholly consistent with our pronouncement in
Long, as it states that Souter must prove that retaliation was “a
determining factor” in S & W’s decision to terminate his
employment, then defines “a determining factor” to mean that “the
termination would not have occurred but for [Souter’s] opposing
alleged unlawful discriminatory employment practices by [S & W].”25
Thus the district court properly instructed the jury on Souter’s
burden of proof on the element of causation.
C. EXCLUSION OF EVIDENCE
Souter claims that the district court erred in excluding
evidence of Souter’s complaints of unlawfully discriminatory
practices at S & W. We review evidentiary rulings of the district
23
88 F.3d 300 (5th Cir. 1996).
24
Id. at 305, n.4 (citing McDaniel v. Temple Indep. Sch. Dist.,
770 F.2d 1340, 1346 (5th Cir. 1985)), 308 (citing McMillan, 710
F.2d at 1116).
25
Emphasis added.
13
court under the deferential abuse of discretion standard.26 Our
careful review of the court’s rulings on the admission and
exclusion of evidence during the trial of this case reflects
nothing to show that the district court abused its discretion.
III.
CONCLUSION
Reviewing the jury instructions as a whole — and specifically
the ones addressing the law on unlawful retaliation — and the
evidence in the record, we conclude that, notwithstanding Souter’s
proof, a reasonable jury could have found that S & W’s evidence
carried the day with a valid, non-retaliatory, non-pretextual,
believable, and benign reason for Souter’s termination. In short,
a reasonable jury could have found that Souter was not fired in
retaliation for his opposition to employment practices at S & W
which he in good faith believed to be unlawfully discriminatory.
Absent that kind of retaliation, S & W is protected by Texas’ at-
will employment doctrine. The jury instructions fairly recited the
applicable law, and the jury’s verdict is consistent with both the
instructions and the evidence in the record. As for Mason, he
cannot be held liable for tortious interference with S & W’s
employment contract with Souter: An agent cannot tortiously
interfere with his principal’s contracts; moreover, a supervisor
enjoys absolute immunity when exercising his rights to hire and
26
Kelly v. Boeing Petroleum Serv. Inc., 61 F.3d 350, 356 (5th
Cir. 1995).
14
fire under the Texas employment-at-will doctrine. Based on the
foregoing conclusions, the judgments of the district court are
AFFIRMED.
15