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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.,

(5th Cir. 1995)(citing Fed. R. Civ. P. 56(c)). 3

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,

(5th Cir. 1996)(citing Victoria Bank & Trust Co. v. Brady,

(Tex. 1991)). 5 Schroeder v. Texas Iron Works, Inc.,

(Tex. 1991). 6 Sterner v. Marathon Oil Co.,

(Tex. 1989). 7 Hussong v. Schwan’s Sales Enterprises, Inc.,

(Tex. App.-Houston [1st Dist.] 1995, no writ)(citing Schoellkopf v. Pledger,

(Tex. App.-Dallas 1989, no writ)); American Medical Int’l, Inc. v. Giurintano,

(Tex. App.-Houston [14th Dist.] 1991, no writ)(citing Baker v. Welch,

(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,

. 9 John Masek Corp. v. Davis,

(Tex. App.- Houston [1st Dist.] 1992, writ denied); Massey v. Houston Baptist University,

(Tex. App.-Houston [1st Dist.] 1995, writ denied). 10 See Hussong,

. 11 Massey,

; Hussong,

; Masek,

.

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,

(5th Cir. 1996)(discussing our recent clarification of the relationship between a defendant’s good faith and his affirmative defense of justification). 13 Hussong,

; Jones v. Legal Copy, Inc.,

(Tex. Ct. App.-Houston [1st Dist.] 1993, no writ). 14 Hussong,

.

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

S.W.2d at 925. 16 Hussong,

.

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.,

, 1096 (5th Cir. 1994), cert. denied, ___ U.S. ___,

(1995). 18 FDIC v. Mijalis,

(5th Cir. 1994)(quoting Bender v. Brumley,

(5th Cir. 1993))(citations omitted). 19

,

(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.,

(5th Cir. 1983); Long v. Eastfield College,

(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

(5th Cir. 1996). 24

, n.4 (citing McDaniel v. Temple Indep. Sch. Dist.,

(5th Cir. 1985)), 308 (citing McMillan,

). 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.,

(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