Reed v. Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 8, 2004

Charles R. Fulbruge III
No. 03-50934 Clerk

BONNIE REED,

Plaintiff-Appellant,
versus

RICHARD S. HERNANDEZ, Individually, and
In His Official Capacity;
BASTROP COUNTY, TEXAS,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas
(W-02-CV-416-AA)

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

PER CURIAM:*

In this action arising out of a refusal to rehire, Bonnie Reed

appeals, pro se, the summary judgment awarded Sheriff Richard

Hernandez and Bastrop County, Texas (jointly, the County). Reed

contends, inter alia, that the district court reversibly erred by

not allowing him to change answers to his deposition, relied on by

the County in support of summary judgment. (Reed attempted to make

the changes with errata sheets that do not comply with FED. R. CIV.

P. 30(e).) AFFIRMED.

*
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this opinion should not be published and is not precedent except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.
 I.

Reed was hired in July 1999 by the Bastrop County Sheriff’s

Department. In September 2000, Reed was arrested by the Bastrop

Police Department for “Assault With Bodily Injury (Family

Violence)”, based on his estranged wife’s complaint. Two days

later, after Reed had been charged, the Sheriff’s Department

terminated his employment; the stated reason was his arrest. After

the charges against Reed were dismissed, he reapplied for

employment with the Sheriff’s Department; he was not rehired.

Reed filed this action in state court, presenting a claim

under 42 U.S.C. § 1981 for racial discrimination and numerous state

law claims. The action was removed to district court. Summary

judgment was awarded against Reed on all 15 of his claims.

II.

A Summary judgment is awarded upon showing “there is no

genuine issue as to any material fact and ... the moving party is

entitled to a judgment as a matter of law”. FED. R. CIV. P. 56(C).

The judgment is reviewed de novo, applying the same standards as

did the district court. E.g., American Home Assurance Co. v.

United Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004).

Once the movant identifies parts of the record that it believes

demonstrate an absence of a material fact issue, the burden shifts

to the nonmovant to identify specific facts that create such an

issue for trial; allegations or denials in the pleadings are not

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sufficient. E.g., Edwards v. Your Credit, Inc., 148 F.3d 427, 431-

32 (5th Cir. 1998) (citing FED. R. CIV. P. 56(e) and Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)). In response to

the County’s summary judgment motion, Reed offered only untimely

deposition errata sheets, which the district court would not accept

as evidence.

Reed contests the summary judgment only for his claims for

fraud, intentional infliction of emotional distress, and tortious

interference with contract. By failing to address the other

claims, Reed has abandoned them. See Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993) (issues not briefed are abandoned).

With one exception (the County does not challenge Reed’s

appendix number 12), each side moved to strike the other’s appendix

as beyond the scope of the record on appeal. Reed’s challenged

appendices are not included in the record; therefore, the County’s

motion to strike is GRANTED. The County’s appendix contains

deposition excerpts that were submitted as an exhibit to its

summary judgment motion; therefore, Reed’s motion to strike is

DENIED.

A.

Reed maintains the district court erred in not considering his

deposition errata sheets as evidence in opposition to summary

judgment. Generally, for reviewing a summary judgment, broad

discretion is accorded evidentiary rulings; ordinarily, such

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rulings will be disturbed only on a showing of manifest error.

E.g., Love v. National Medical Enterprises, 230 F.3d 765, 775 (5th

Cir. 2000).

Changes by a deponent to his deposition are controlled by FED.

R. CIV. P. 30(e). That rule provides:

If requested by the deponent ... before
completion of the deposition, the deponent
shall have 30 days after being notified by the
[court reporter] that the transcript ... is
available in which to review the transcript
... and, if there are changes in form or
substance, to sign a statement reciting such
changes and the reasons given by the deponent
for making them.

(Emphasis added.) The County asserts that Reed waived his ability

to correct his deposition by not timely filing the errata sheets

with the court reporter.

Reed attempted to make 120 changes to his deposition answers.

He concedes the errata sheets were submitted outside the 30-day

period allowed by Rule 30(e). Several of the answers he seeks to

change were relied on by the County in its summary judgment motion.

The changes include: “Yes” to “no”; “correct” to “incorrect”; “I

can’t say that” to “Yes, I can say that”; and inserting wholly new

explanations in contradiction of his prior answers.

In addition to not making the changes to his deposition within

the requisite 30-day period, Reed never submitted the changes to

the court reporter. He contends his failure to submit the errata

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sheets in accordance with the Rule was due to an error by his

attorney.

The district court based its exclusion ruling on both the

untimely and otherwise improper attempted filing of the sheets and

their improper subject-matter. Rule 30 (e) does not provide any

exceptions to its requirements. Accordingly, the district court

did not commit manifest error by excluding the errata sheets.

(Therefore, we need not reach the district court’s second basis for

exclusion.)

B.

The summary judgment record having been defined, next at issue

is the summary judgment. It was properly awarded against Reed.

1.

In his deposition, Reed testified that the County committed

fraud by telling his attorney that the Sheriff’s Department would

rehire him after the assault charges were resolved. Under Texas

law, a fraud claim requires showing that: a material

misrepresentation was made; the representation was false; when the

representation was made, the speaker knew it was false or made it

recklessly without any knowledge of its truth; the speaker made the

representation intending the other party to act on it; that party

acted in reliance upon the representation; and that party thereby

suffered injury. E.g., Gaspard v. Beadle, 36 S.W.3d 229, 235 (Tex.

App. – Houston [14th Dist.] 1994, no pet.). Reed has failed to

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present admissible evidence establishing material fact issues on

any of these elements.

2.

Reed claims the County’s terminating his employment post-

arrest constitutes “intentional infliction of emotional distress”.

Under Texas law, the elements for this claim are: the defendant

acted intentionally or recklessly; the conduct was extreme and

outrageous; the defendant’s actions caused the plaintiff emotional

distress; and such emotional distress was severe. E.g., Twyman v.

Twyman, 855 S.W.2d 619, 621 (Tex. 1993).

For two of the four elements, Reed maintains: his seeking

medical treatment for depression establishes the County’s conduct

as being extreme and outrageous; and his emotional distress was

severe because he “lost his job, lost his source of income, and was

then distressed by his inability to pay his bills”. Reed fails to

demonstrate a material fact issue.

3.

Reed’s final claim is for tortious interference with contract.

Texas’ employment-at-will doctrine provides that employment for an

indefinite time period, as was Reed’s, may be terminated without

cause by either party. E.g., Federal Express Corp. v. Dutschman,

846 S.W.2d 282, 283 (Tex. 1993).

Reed did not have an employment contract with the County;

instead, he asserts that the County’s policy manual constitutes a

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constructive contract. In Texas, however, “[i]t is well

established ... that an application for employment, handbooks,

copies of the employer's policies, and other similar documents do

not constitute an agreement or contract that limits the employer's

right to terminate the employment at will”. Day & Zimmermann, Inc.

v. Hatridge, 831 S.W.2d 65, 69 (Tex. App. – Texarkana 1992, writ

denied).

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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