Reed v. Hernandez , 114 F. App'x 609 ( 2004 )

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this opinion should not be published and is not precedent except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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