Brauninger v. Motes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 20, 2007
No. 07-30228
Summary Calendar Charles R. Fulbruge III
Clerk

ROY MICHAEL BRAUNINGER,

Plaintiff-Appellant,
v.

DAVID MOTES; DEFAULT MANAGEMENT SOLUTIONS, L.L.C.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:05-CV-688

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

Michael Brauninger appeals a summary judgment in an employment dis-
crimination and defamation suit he brought against David Motes and Default

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 No. 07-30228

Management Solutions, L.L.C., now known as First American Loss Mitigation
Services (“FALMS”). Finding no error, we affirm.

I.
In March 2003 FALMS hired Brauninger as a manager with supervisory
authority over numerous FALMS employees. Rick Roniger, an Executive Vice
President and branch manager, and Amy Williamson, a Human Resources Man-
ager, interviewed Brauninger, consulted with each other and jointly decided to
offer Brauninger the position. At the time, Brauninger was a 50-year-old white
male; Roniger was a 51-year-old white male; and Williamson was a white female
in her thirties.
In April 2004, FALMS employee Angelica Jeter called the Human Resourc-
es Department to report sexually harassing comments allegedly made by Braun-
inger to Jodi Bougeouis, another FALMS employee under Brauninger’s supervi-
sion. Two days later, Bougeouis called the Human Resources Department to
complain.
Based on these complaints, Amy Williamson began investigating Braunin-
ger’s conduct. On May 4, 2004, Williamson interviewed multiple employees in
that office, including Jodi Bougeouis, Angelica Jeter, Nancy Stroebel, Monique
Simms, Lee Lebaud, Kim Schroeder, Judy Lewis, David Motes, and Brauninger.
During the interviews, Williamson received first- and second-hand reports of
sexual and racial comments made by Brauninger to co-workers and subordi-
nates. These included Brauninger’s description of an employee as a “nigger lov-
er,” sexual advances Brauninger made to Jodi Bougeouis, Brauninger’s express
desire to hire a job candidate because of her breasts, and during a meeting with
employees, his reference to a female client as “the bitch with big boobs,” includ-
ing illustrative hand gestures to emphasize the point.
On the day of the interviews, Williamson discussed the allegations with
her Human Resources supervisor, Judy Ellison, and with Roniger. The three of
2
 No. 07-30228

them decided that Brauninger had violated FALMS’ policy against sexual
harassment, and they agreed to terminate his employment immediately.
On May 4, 2004, less than fourteen months after hiring Brauninger,
FALMS fired him. Subsequently, Williamson recorded her findings and notes
from the various interviews in a report, which noted that two employees related
being told by Brauninger of his intention to “sue the shit out of everyone.”
FALMS formally confirmed its decision to terminate Brauninger in a letter
dated May 6, 2004, which also informed Brauninger that he could contest the
termination through FALMS’s “complaint resolution process.” Brauninger ap-
pealed the termination decision through that process, claiming that he had not
engaged in improper conduct and that the witnesses interviewed by Williamson
were part of a conspiracy against him. Brauninger did not, at that point, claim
age, race, or sex discrimination.
In response to the administrative appeal, Ellison conducted a second inves-
tigation of the complaints against Brauninger. She interviewed some of the em-
ployees interviewed by Williamson in her initial investigation and other employ-
ees. Her investigation corroborated Williamson’s, and she concluded that the de-
cision to terminate Brauninger had been appropriate. Ellison recorded her find-
ings in a report and in a letter sent to Brauninger on June 24, 2004.
Brauninger filed a claim with the EEOC alleging he was fired because of
his age. The EEOC dismissed the claim, and Brauninger filed a federal age dis-
crimination suit against FALMS, also raising state race and sex discrimination
claims against FALMS and state defamation claims against FALMS and its em-
ployee Motes.
The district court granted FALMS’s motion for summary judgment on the
discrimination claims but denied FALMS’s and Motes’s motions for summary
judgment on the defamation claims. The court later granted Motes’s motion for
reconsideration of the defamation claims and awarded Motes and FALMS sum-
mary judgment on those claims. Brauninger appeals the summary judgments
3
 No. 07-30228

and the admission of Williamson’s and Ellison’s affidavits, reports, and letters.

II.
Brauninger contends the district court erred by admitting into evidence
Williamson’s and Ellison’s affidavits, their written reports, and their letters to
Brauninger, who objects to the admission of all these documents on essentially
two groundsSSthat they are unreliably “self-serving” and are based on inadmissi-
ble hearsay. We review for abuse of discretion. United States v. Anderson, 933
F.2d 1261, 1267-68 (5th Cir. 1991).
The district court found that Williamson’s and Ellison’s affidavits complied
with the requirements of 28 U.S.C. § 1746, were based on personal knowledge,
and served to authenticate the reports and letters that accompanied them. The
court thus found the affidavits sufficiently relevant and reliable. Although
Brauninger dismisses the affidavits as containing merely “self-serving” asser-
tions, he offers no specific reason to doubt that the affidavits are based on Wil-
liamson’s and Ellison’s personal knowledge regarding the conduct of their own
investigations and employment decisions. Accordingly, the court did not abuse
its discretion in admitting the affidavits.
Brauninger’s principal complaint, however, regards the admission of Wil-
liamson’s and Ellison’s reports and letters. Williamson’s report chronicles the
steps in her investigation, the complaints she received, the witnesses she inter-
viewed, statements made during those interviews, and the basis for the decision
to terminate Brauninger. Her termination letter to Brauninger summarizes the
findings of her investigation. Ellison’s report likewise chronicles her own follow-
up investigation, and her letter to Brauninger similarly summarizes her addi-
tional findings. The court admitted the reports and letters, finding that they
contained non-hearsay and hearsay evidence admissible under the business rec-
ords exception of Federal Rule of Evidence 803(6).

4
 No. 07-30228

Although the reports contained statements made by FALMS employees to
Williamson or Ellison during the course of their interviews, the district court cor-
rectly found that those statements are not hearsay. Because they were offered
to prove what was said to Williamson and Ellison, and thus what Williamson
and Ellison relied on in making the decision to fire Brauninger, the statements
were not offered to prove the truth of the matters asserted.1
Although the statements of FALMS employees contained in the reports
were not hearsay, the reports constitute out-of-court statements by Williamson
and Ellison that are hearsay. Yet, the district court deemed the reports admis-
sible under rule 803(6)’s exception to the hearsay exclusion. That rule allows the
admission of “report[s] . . . made at or near the time by . . . a person with knowl-
edge, if kept in the course of a regularly conducted business activity, . . . unless
the source of information or the method or circumstances of preparation indicate
lack of trustworthiness.” FED. R. EVID. 803(6). The court correctly found that
the reports were made at or near the time of the investigations, were based on
Williamson’s and Ellison’s personal knowledge of their own investigations, and
were the result of a regularly conducted business activity. As to the last of those
findings, the court properly noted that the investigation and documentation of
sexual harassment allegations are ordinary business practices and regular parts
of Williamson’s and Ellison’s duties as human resource managers.2
Brauninger, however, argues that Williamson’s and Ellison’s reports fall

1
See FED. R. EVID. 801(c) (explaining that a statement is not hearsay if offered for a
reason other than proving truth of the matter asserted). Brauninger takes issue with many
of the accusations leveled against him by FALMS employees, and his brief implies that the al-
leged falsity of those accusations is a centerpiece of his suit. Because he was an at-will employ-
ee, however, the key issue is not whether the accusations were true but instead whether
Williamson, Ellison, and Roniger relied on themSSmistakenly or notSSin making a nondiscrim-
inatory decision.
2
See La Day v. Catalyst Tech., Inc., 302 F.3d 474, 481 n.7 (5th Cir. 2002) (stating that
human resource manager’s harassment investigation notes were admissible as a business rec-
ord).
5
 No. 07-30228

under an exception to rule 803(6) for business records prepared in anticipation
of litigation. Brauninger urges that before writing the reports, Williamson and
Ellison knew of his intention to sue.
Although rule 803(6) does not refer to an exception for business records
prepared in anticipation of litigation, the exception amounts to a corollary of rule
803(6)’s requirement that admissible business records result from a “regularly
conducted business activity”SSand thus not from the mere anticipation of litiga-
tion. Construing the statutory predecessor to rule 803(6), the Supreme Court
held that a railroad’s accident reports were inadmissible where “those reports
are not for the systematic conduct of the enterprise as a railroad business” but
rather “are calculated for use essentially in the court.” Palmer v. Hoffman, 318
U.S. 109, 114 (1943). Applying Palmer, this court has deemed reports inadmissi-
ble where their “primary utility” is for litigation. Broadcast Music, Inc. v. Xan-
thas, Inc., 855 F.2d 233, 238 (5th Cir. 1988).
The district court correctly found that the primary purpose of Williamson’s
and Ellison’s reports had little to do with any anticipated litigation by Braunin-
ger. The harassment investigation was triggered by employees’ sexual harass-
ment complaints and not by Brauninger’s subsequent threat to sue. In response
to harassment complaints against Brauninger, it was an ordinary practice for
human resource managers to investigate those complaints and to document the
findings of that investigation.
Nor did the district court err in deeming the reports trustworthy. Admis-
sibility of evidence under rule 803(6) “is chiefly a matter of trustworthiness.”
Miss. River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319
(Former 5th Cir. Oct. 1981). Brauninger makes much of the fact that William-
son’s report was written after the decision to terminate had already been made.
Yet, although Brauninger frames the report as an ex post facto attempt to justify
a firing decision, we do not agree that the timing of the report undermines its

6
 No. 07-30228

trustworthiness.
On May 4, 2004, shortly after receiving complaints against Brauninger,
Williamson visited the FALMS office to conduct interviews. Upon interviewing
the witnesses and learning of the seriousness of the allegations, Williamson de-
termined that Brauninger needed to be fired immediately.3 Williamson con-
ferred by phone with her supervisors, and Brauninger was terminated that day.
Under the circumstances, it would not be reasonable to expect Williamson to re-
frain from terminating Brauninger until she had time to type up her notes into
a formal report.

III.
Brauninger challenges the summary judgment on his discrimination and
defamation claims. We review a summary judgment de novo, applying the same
standards as did the district court. Gowesky v. Singing River Hosp. Sys., 321
F.3d 503, 507 (5th Cir. 2003).
Summary judgment is appropriate if “there is no genuine issue as to any
material fact.” FED. R. CIV. P. 56(c). “If the moving party meets the initial bur-
den of showing there is no genuine issue of material fact, the burden shifts to the
nonmoving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Gowesky, 321 F.3d at 507 (internal quota-
tions and citation omitted). Although the summary judgment evidence is viewed
in the light most favorable to the non-moving party, this may be done only “when
there is an actual controversy, that is, when both parties have submitted evi-
dence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (citations omitted). To establish that a genuine controversy
exists, the non-moving party must offer more than “conclusory allegations” and

3
Indeed, FALMS may have been exposed to the prospect of title VII liability if it did not
“correct promptly” the alleged sexual harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998).
7
 No. 07-30228

“unsubstantiated assertions.” Id.

A.
Under the burden-shifting scheme of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973),4 a plaintiff in an employment discrimination suit must first
establish a prima facie case. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245
F.3d 507, 512 (5th Cir. 2001). Once established, the prima facie case raises a
presumption of discrimination, which the employer can rebut by demonstrating
a legitimate, nondiscriminatory reason for its action. Id. If the employer sup-
plies a nondiscriminatory reason, the burden shifts to the plaintiff to show that
the employer’s reason either was a pretext for discrimination or was mixed with
a discriminatory motive. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004).
The district court assumed a genuine issue of material fact as to whether
Brauninger could establish a prima facie case, but the court went on to find no
issue as to the existence of a nondiscriminatory reason for FALMS’s firing deci-
sion and the absence of pretext or mixed motive. We agree with the district
court that Brauninger has not established a genuine issue of material fact re-
garding FALMS’s reasons for terminating his employment.
Assuming Brauninger establishes a prima facie case, FALMS has met its
summary judgment burden of demonstrating a legitimate, nondiscriminatory
reason for firing him. Williamson’s and Ellison’s affidavits, reports, and letters
suggest FALMS did so because of multiple allegations that Brauninger had sex-
ually harassed employees and had created a hostile work environment in viola-

4
Although Brauninger brings his race and sex discrimination claims under state law,
Louisiana courts have observed “the commonality between federal and state anti-discrimina-
tion laws,” and have approved the application of title VII’s McDonnell Douglas doctrine to state
discrimination claims. Baldwin v. Bd. of Sup’rs for Univ. of La. Sys., 961 So. 2d 418, 422 (La.
App. 1st Cir. 2007). We therefore consider Brauninger’s age, race, and sex claims under the
same rubric.
8
 No. 07-30228

tion of company policies. Although Brauninger claims FALMS conducted a has-
ty investigation and relied on “hearsay witnesses who bore particular grudges”
against him, he was an at-will employee whom FALMS could fire for any lawful
reason or for no reason at all.
To survive summary judgment, FALMS need only show that it relied in
good faith on allegations of Brauninger’s misconductSSa nondiscriminatory rea-
son for termination.5 Brauninger points to no summary judgment evidence dis-
puting that FALMS relied in good faith on the various allegationsSSaccurate or
notSSagainst him.6 Failing to do so, Brauninger’s persistent attempt to dispute
the accuracy of those allegations is not relevant to his discrimination claim.
Because FALMS has met its summary judgment burden of providing a
nondiscriminatory reason for firing Brauninger, the burden shifts to Brauninger
to establish a genuine issue of material fact as to pretext or mixed motive. To
survive summary judgment on either theory, Brauninger must offer competent
evidence of discriminatory animus against him on account of his race, age, or
sex. We agree with the district court that he has not done so.
Brauninger’s brief points to three arguably relevant pieces of evidence of
discriminatory animus against him, a white male in his early fifties. First, he

5
“[E]ven an incorrect belief that an employee’s performance is inadequate constitutes
a legitimate, non-discriminatory reason. We do not try in court the validity of good faith beliefs
as to an employee’s competence.” Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.
1991); see also Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983) (noting
that the McDonnell Douglas doctrine is not “a device which permits the jury to examine an em-
ployer’s reasons for discharge and determine that the employer’s business judgment or policies
do not appeal to its sensibilities”).
6
The only evidence of bad faith suggested in Brauninger’s brief is his assertion, based
solely on personal knowledge, that nobody else in that office had been fired for a “first offense”
of employee misconduct during the fourteen months Brauninger worked there. Yet, Braunin-
ger points to no specific examples, in the summary judgment record, of employees who were
retained despite committing “first offenses” similar in seriousness to the harassment offenses
he was alleged to have committed. Moreover, Brauninger concedes that FALMS’s company
policies warn that offenses involving sexual harassment “may subject an employee to immedi-
ate termination.”
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 No. 07-30228

offers the fact that over 80% of employees in FALMS’s office were non-white
minorities. Standing alone, however, this statistic does not amount to probative
evidence of discrimination without accompanying evidence that there is a “gross
statistical disparity” between FALMS’s workforce and a “qualified pool” of poten-
tial employees “presumptively eligible” for employment. Anderson v. Douglas &
Lomason Co., 26 F.3d 1277, 1290 (5th Cir. 1994). The summary judgment record
contains no such evidence.
Second, Brauninger offers the fact that Williamson once told co-workers
she had been married to black and hispanic men. Such comment, however, does
not show racial animus against white men.
Third, Brauninger offers the fact that Roniger, who was one year older
than Brauninger, had referred jokingly to himself, Brauninger, and another em-
ployee as “grey-haired men.” Such stray remark, however, is not unambiguous
evidence of animus, given that Roniger was referring to himself as well as to
Brauninger.7 Nor has Brauninger shown that the remark was related to, or
proximate in time to, a specific employment decision.8
To defeat summary judgment, the evidence must be sufficient on its own
to “support a jury verdict in the nonmoving party’s favor.”9 On the thin evidence
offered by Brauninger, no reasonable jury could conclude that discriminatory
animus motivated Brauninger’s firingSSindeed, a firing occurring little over a

7
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001) (quoting Wyvill v.
United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000)) (explaining that to support an in-
ference of animus, a stray remark must be “direct and unambiguous”).
8
See Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996) (requiring comments
be related and proximate to employment decision).
9
11 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 56.13[2], at 146-47 (3d ed.
2007); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”).
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 No. 07-30228

year after Brauninger was hired by the same people who fired him.10 We there-
fore agree with the district court that Brauninger’s discrimination claims do not
survive summary judgment.

B.
Under Louisiana law, a claim for defamation must establish causation, or
“resulting injury.” Costello v. Hardy, 864 So. 2d 129, 140 (La. 2004). In other
words, a defamation plaintiff “must show a ‘but for’ causal connection between
the defendant’s conduct and the injuries.” Kosmitis v. Bailey, 685 So. 2d 1177,
1181 (La. App. 2d Cir. 1996). Brauninger contends that Motes spread false and
defamatory statements about him and that those statements caused him to be
fired. The district court dismissed Brauninger’s defamation claims against
FALMS and Motes because no reasonable jury could find that Motes’s state-
ments were a “but for” cause of Brauninger’s termination. We agree.
In his brief, Brauninger makes the unsupported assertion that “[a]ll dam-
aging information concerning Mike Brauninger came from David Motes.” Al-
though Motes appears to have been a source of much gossip in the office, Wil-
liamson’s report documents the sources relied on in confirming Brauninger’s in-
appropriate comments. Nearly all were confirmed by firsthand accounts and not
by rumors allegedly started by Motes: Stroebel claimed Brauninger suggested
to her that he wanted to hire a job candidate because of her breasts; Bougeouis
claimed Brauninger made multiple sexual advances to her, and she averred that
Brauninger told her another employee was a “nigger lover;” Lee Lebeaud and
Lewis claimed Brauninger referred to a client as “the bitch with big boobs” dur-
ing an employee meeting they attended.
Moreover, Williamson, Ellison, and Roniger confirmed in affidavits that

10
See Faruski v. Parsons S.I.P., Inc., 123 F.3d 315, 321 n.3 (5th Cir. 1997) (stating that
the fact that same person hires and fires employee raises inference of nondiscriminatory motive
for firing).
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they would have terminated Brauninger based on these firsthand reports, re-
gardless of any secondhand rumors started by Motes. Aside from the unsupport-
ed assertion in his brief, Brauninger has offered no summary judgment evidence
suggesting that FALMS did not rely on these firsthand accounts in making its
decision to terminate him.11 As the district court also observed, Brauninger ap-
pears never to have probed the basis for the termination decision through dis-
covery devices or depositions of FALMS employees.
Because Brauninger has not demonstrated a genuine issue of material fact
with regard to causation, we need not reach the other elements of his defamation
claim, nor need we address the issue of FALMS’s vicarious liability for Motes’s
alleged defamation. Accordingly, the district court correctly granted summary
judgment to FALMS and Motes on the defamation claim.
AFFIRMED.

11
See Little, 37 F.3d at 1075 (requiring more than “conclusory allegations” and “unsub-
stantiated assertions” to survive summary judgment).
12