                         REVISED February 8, 2008

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

                                                                        FILED
                                       No. 06-41476                 January 31, 2008

                                                                  Charles R. Fulbruge III
LINDA AMEZQUITA                                                           Clerk


                                                  Plaintiff-Appellant
v.

BENEFICIAL TEXAS, INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:02-CV-77


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Linda Amezquita initiated this action against her
former employer, Beneficial Texas, Inc. (“Beneficial”), and Household Bank FSB
(“Household”), asserting a litany of claims related to her termination, including
discrimination in violation of Title VII and defamation. Most of Amezquita’s
claims were disposed of on summary judgment, but her Title VII sex


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41476

discrimination claim survived and proceeded to trial. At the conclusion of
Amezquita’s presentation of evidence, Beneficial and Household successfully
moved for judgment as a matter of law (“JMOL”) on two grounds, viz., (1) that
Household should be dismissed as a defendant, and (2) because Amezquita had
failed to establish a prima facie case of discrimination, and even assuming,
arguendo, that she made such a showing, she had failed to introduce sufficient
evidence of pretext. Amezquita appeals, challenging the district court’s (1) grant
of summary judgment dismissing her defamation claim, (2) grants of JMOL on
both grounds, and (3) denial of her motion to reopen her case-in-chief. We affirm
all challenged rulings of the district court.
                       I. FACTS AND PROCEEDINGS
      Amezquita was hired in 1998 by Household Finance Corporation, which
soon thereafter merged with Beneficial. Her job as an account executive was to
solicit and sell home equity loans and related insurance. Within a year after her
hiring, Amezquita was promoted to senior account executive in Beneficial’s
Laredo office, where Ricardo Torres was the branch manager.
      In or around November of 1999, Lauro Gonzalez, Beneficial’s district
manager, learned that the employees working in the Laredo branch had
complained of a negative workplace environment. Gonzalez conferred with his
supervisor, Steve Pummill, and the two men decided to investigate the office
environment by interviewing the employees, including Amezquita, Torres,
Claudia Rangel (another senior account executive), and Luz Montes-Perez (a
sales assistant).
      Pummill interviewed Amezquita on January 28, 2002, in Gonzalez’s
presence. Before beginning the interview, Pummill instructed Amezquita that
she needed to be both truthful and cooperative during the investigation.
Pummill focused his questions to Amezquita on four issues of concern. First, he
asked her whether she and Torres were involved in a sexual relationship, as

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                                  No. 06-41476

other employees had reported that the two were close and that she had received
preferential treatment. Amezquita denied that such a relationship existed.
Second, Pummill questioned Amezquita about an incident involving her and her
co-worker, Rangel, which had reportedly occurred in the Laredo office break
room. Pummill had been told that Amezquita had confronted Rangel to discuss,
among other things, who should take credit for certain loan applications and
that, during the confrontation, Amezquita had placed a chair against the break
room door, which prevented the door from being opened. Amezquita replied that
the incident “never happened.” Third, Pummill asked Amezquita if she had ever
yelled in the office in front of customers. She admitted that she had yelled,
adding that all of the employees had too; however, she denied ever having done
so in the presence of customers. And, fourth, Pummill asked Amezquita whether
she had allowed personal friends to visit her in the office during business hours.
She admitted that she had, again adding that other employees also had friends
visit and insisting that her friends always stayed less than an hour.
      That same day, Pummill questioned Torres, Rangel, and Montes-Perez
about the same topics. They answered Pummill’s questions consistently with
one another but differently than Amezquita. Specifically, Torres, Rangel, and
Montes-Perez said that the break room incident had occurred, that Amezquita
had yelled in the office in front of customers, and that her visitors had
sometimes stayed for up to two hours.
      Pummill decided to re-question Amezquita the following day because of the
inconsistencies between her responses and those of the other employees. He
again informed her that she needed to be truthful, this time cautioning that she
could be terminated if she were not. After Amezquita answered Pummill’s
questions the same as she had the previous day, he concluded that she was lying
and thereby impeding Beneficial’s investigation. As a result, Amezquita was
fired. Pummill also determined that Torres should no longer serve as branch


                                        3
                                 No. 06-41476

manager because of (1) the employee misconduct that he had permitted and (2)
the overall negative workplace environment that existed under his supervision.
And, Torres was demoted to account executive and transferred to Beneficial’s
San Antonio office.
      Amezquita filed suit against Beneficial and Household, asserting myriad
claims, most of which were disposed of after the defendants moved for summary
judgment. The district court did not, however, grant summary judgment to the
defendants on Amezquita’s Title VII claim because it determined that there was
a fact question as to the real reason for her termination, viz., whether it was
because (1) Pummill believed that she had been untruthful (the reason given by
the defendants) or (2) Pummill believed that she was engaged in a sexual
relationship with Torres (which she maintained was the defendants’ real
reason).
      At the completion of Amezquita’s presentation of evidence on her Title VII
claim, Beneficial and Household moved for JMOL on two grounds, both
predicated on the legal insufficiency of the evidence. They moved to dismiss
Household, a named defendant, because Amezquita had failed to adduce
evidence supporting her allegation that Household was her employer.          In
response, Amezquita sought to reopen her case-in-chief to introduce the
deposition testimony of Laura Soderberg in an effort to establish the
employer-employee relationship, but the court denied the request and dismissed
Household as a matter of law.
      The defendants also moved for JMOL because (1) Amezquita had failed to
establish a prima facie case of discrimination under the McDonnell Douglas
framework, and (2) even assuming, arguendo, that she had established a prima
facie case, she had failed to produce any evidence casting doubt on Beneficial’s
legitimate, non-discriminatory reason for terminating her. The district court
granted the motion in favor of Beneficial, and entered a final judgment of

                                       4
                                         No. 06-41476

dismissal. Following the denial of Amezquita’s motion for a new trial, she timely
filed a notice of appeal.


                                        II. ANALYSIS
A.    Summary Judgment
      We review the district court’s decision to grant Beneficial and Household’s
motion for summary judgment de novo, applying the same standard as the
district court.1 “Summary judgment is proper when the evidence demonstrates
that ‘there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’”2
      Amezquita asserts that the district court improperly granted summary
judgment on her defamation claim, insisting that Beneficial and Household had
published unprivileged defamatory statements to the Frick Company—the entity
that processes Beneficial’s unemployment compensation claims—which
statements imputed to Amezquita the commission of a crime.                   Amezquita
maintains that Pummill’s investigation report—specifically, the portion stating
that Amezquita locked Rangel in the break room—effectively accused her of
violating Texas Penal Code § 20.02.3 We conclude that the district court applied
the proper legal standards to the relevant facts and reached the correct result
with respect to Amezquita’s defamation claim.
      Texas law provides that employers have a privilege that attaches to
“communications made in the course of an investigation following a report of
employee wrongdoing,” which privilege persists “as long as communications pass



      1
          Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th Cir. 2006).
      2
          Id. (quoting FED. R. CIV. P. 56(c)).
      3
       TEX. PENAL CODE ANN. § 20.02(a). A person commits an offense if he intentionally or
knowingly restrains another person.

                                                 5
                                       No. 06-41476

only to persons having an interest or duty in the matter to which the
communications relate.”4 This privilege may be defeated by proof that the
statement in question was made with actual malice, which occurs “when the
statement is made with knowledge of its falsity or with reckless disregard as to
its truth.”5
      We hold that the communications in question between Beneficial and the
Frick Company are privileged. Pummill reported to the Frick Company the
results of his workplace investigation, including the disputed incident involving
Amezquita and Rangel.6 Notably, he reported that Rangel was in the break
room making coffee when Amezquita entered and placed a chair against the
door, tilting the chair so that its back was below the door handle. Pummill also
stated in his report to the Frick Company that Torres tried to enter the break
room but could not because the door was barred. Pummill reported only what
was told to him by Rangel and corroborated by Torres. Moreover, his report even
included Amezquita’s insistent denial that the incident occurred. Amezquita
offered no evidence indicating that Pummill misreported what he was told or
that he knew that what he reported was false. For purposes of showing actual
malice, it is inconsequential whether Pummill’s statements to the Frick
Company were true; it only matters that he neither knew the statements were
false nor disregarded their lack of veracity. Moreover, Beneficial only sent the
communications in question to persons who had an interest and a duty in the
outcome of the investigation. Accordingly, Beneficial and Household established
that the statement in question was privileged and that it was communicated
without actual malice. As such, dismissal of her defamation claim was proper.

      4
          Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
      5
          Id.
      6
      Pummill’s notes from his interviews with the Laredo office employees comprise the
communications in question that Beneficial “reported” to the Frick Company.

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                                          No. 06-41476




B.     Judgment as a Matter of law
       We review de novo the district court’s decisions to grant Beneficial and
Household’s motions for JMOL, applying the same standard as the district
court.7 “Judgment as a matter of law is proper after a party has been fully heard
by the jury on a given issue, and ‘there is no legally sufficient evidentiary basis
for a reasonable jury to have found for that party with respect to that issue.’”8
We review the record in the light most favorable to the nonmovant, drawing all
factual inferences in favor of the nonmoving party and leaving credibility
determinations, the weighing of the evidence, and the drawing of reasonable
inferences from the facts to the jury.9
       Amezquita contends that the district court erred in dismissing Household
as a matter of law because Beneficial and Household should be treated as a
single employer.          Specifically, she argues that Beneficial and Household
judicially admitted in their answer that Household terminated Amezquita and
that, as only employers can dismiss employees, this admission establishes that
Household is a proper defendant.10 Our review of the record on appeal reveals
no evidence that Amezquita made this argument to the district court.




       7
           Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002).
       8
           Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994) (quoting FED. R. CIV. P. 50(a)).
       9
           Id.
       10
         At the district court level, Amezquita moved for a new trial, contending that the court
erred in dismissing Household because it was a single employer with respect to her.
Specifically, she argued that the extensive testimony of Lauro Gonzalez established the link
between Household and Beneficial. As this argument is not offered by Amezquita on appeal,
we do not address it.

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                                         No. 06-41476

Arguments not raised at the district level are waived.11 Alternatively, even if
Amezquita had properly raised this argument, though, we would not be
persuaded. Amezquita points to no authority supporting her contention that
Household must be held to have employed her simply because it admitted to
having terminating her employment. In addition, Amezquita’s brief does not
offer any analysis of the four factors that we have recognized as relevant to a
determination whether distinct entities constitute a single employer. Neither
does she offer any analysis as to how Household’s purported judicial admission
bears on these factors.12 Having examined the relevant factors, the arguments
advanced before the district court, and the record evidence, we are convinced
that the district court’s decision to dismiss Household as a matter of law was
proper.
       We also hold that the district court properly granted JMOL in favor of
Beneficial on Amezquita’s Title VII claim. To establish a prima facie case of
discrimination under Title VII, a plaintiff must show that he: (1) was a member
of a protected class; (2) was qualified for the position that he lost; (3) suffered an
adverse employment action; and (4) was replaced by someone outside the
protected class or other similarly situated persons were treated more favorably.13
If (but only if) an employee successfully establishes a prima facie case, the
burden of production shifts to the employer to produce evidence of a legitimate,




       11
           Lemaire v. Louisiana Dep’t of Transp. and Dev., 480 F.3d 383, 387 (5th Cir. 2007);
In re Goff, 812 F.2d 931, 933 (5th Cir. 1987) (noting, though, that an issue may be raised for
the first time on appeal only if it is a purely legal one and if consideration is necessary to avoid
a miscarriage of justice).
       12
          The four factors that we have identified are: “(1) interrelation of operations, (2)
centralized control of labor relations, (3) common management, and (4) common ownership or
financial control.” Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983).
       13
            Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005).

                                                 8
                                        No. 06-41476

non-discriminatory reason for the alleged adverse employment action.14 Then,
if the employer produces evidence of a non-discriminatory reason, the employee
must offer sufficient evidence that the reason offered by the employer was not
its true reason, but was pretext for discrimination; or that the employer’s reason,
while true, was only one of the reasons for its conduct, and another motivating
factor was the employee’s protected characteristic.15
      Amezquita argues for the first time on appeal that she made a prima facie
showing of the fourth element, i.e., that Juan Medina, a male, replaced her.
Amezquita did not raise this argument at trial; in fact, she expressly conceded
that she had not presented any evidence that a man had replaced her. Facts not
presented at trial may not be asserted on appeal.16
      In the alternative, Amezquita contends that the fourth element has been
established by reasserting that she was treated less favorably than her similarly
situated co-worker, Ricardo Torres.                Amezquita maintains that she was
discriminated against—treated less favorably—because of her sex, as she was
terminated because of her suspected sexual relationship with Torres, but he was
merely demoted. The district court found, and we agree, that Amezquita was not
similarly situated to Torres and that the misconduct that led to his demotion
was not nearly identical with that which led to her termination. Evidence
presented at trial established that Amezquita was a senior account executive in
Beneficial’s Laredo office and that Torres was her immediate supervisor.
Indeed, Torres was the branch manager—the only management personnel in the
Laredo office—and his supervisor was Lauro Gonzalez. Such distinction in
position and supervision has been held sufficient to establish that two persons


      14
           Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
      15
           Id.
      16
           Garcia v. Am. Marine Corp., 432 F.2d 6, 8 (5th Cir. 1970).

                                               9
                                           No. 06-41476

are not similarly situated.17 In addition, Beneficial and Household presented
evidence establishing that Amezquita was fired because Pummill and Gonzalez
believed that she was lying and impeding the investigation but that Torres was
demoted because of his poor managerial performance. Amezquita offered neither
evidence to the contrary nor evidence indicating that Torres was thought to have
been dishonest or to have impeded the investigation yet was treated more
favorably. Rather, she offered only her unsubstantiated self-serving conclusion
that her alleged sexual relationship with Torres was the misconduct for which
they both were punished. Amezquita failed to offer evidence sufficient to
demonstrate that her misconduct was nearly identical to that of Torres. Conduct
is “not nearly identical when the difference between the plaintiff’s conduct and
that of those alleged to be similarly situated accounts for the difference in
treatment received from the employer.”18
       Furthermore, even if we should hold (which we do not) that Amezquita had
established a prima facie of discrimination, we would conclude that she failed to
introduce sufficient evidence of pretext on the part of Beneficial. As we just
observed, Beneficial offered substantial evidence that its legitimate, non-
discriminatory reason for terminating Amezquita was management’s belief that
she had lied and impeded the company’s investigation of its Laredo office’s work
environment. Amezquita attempts to demonstrate pretext based on nothing
more than her unsubstantiated assertion that she did not lie during her
interviews and by insisting, without substantiation, that her rumored
relationship with Torres was the real cause of her termination. Whether
Pummill and Gonzalez were wrong to believe that she was lying, though, is
irrelevant, as even an employer’s incorrect belief in the underlying facts—or an

       17
            See, e.g., Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302-03, 305 (5th Cir. 2000).
       18
         Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (citing Wyvill, 212
F.3d at 304-05) (emphasis added).

                                                  10
                                       No. 06-41476
improper decision based on those facts—can constitute a legitimate, non-
discriminatory reason for termination.19              In addition, Amezquita failed to
introduce evidence sufficient to cast doubt on Beneficial’s legitimate, non-
discriminatory reason. She offered no compelling evidence linking her alleged
relationship with Torres to her termination and offered no evidence
demonstrating that Pummill even believed that such a relationship existed.
Without more than her unsupported assertion that she was terminated because
of her suspected relationship, the district court properly concluded that there
was not sufficient evidence for a jury to find pretext.
C.     Motion to Reopen
       We review the district court’s decision to deny Amezquita’s motion to
reopen for an abuse of discretion.20 We will not disturb the district court’s
decision in the absence of a showing that it has worked an injustice in the
cause.21
       On appeal, Amezquita alleges that if her motion to reopen had been
granted, she would have introduced evidence establishing that Household was
her employer.        Specifically, she asserts that she would have introduced
documentation showing that Household opposed her claim for unemployment
benefits before the Texas Workforce Commission (“TWC”), a proceeding in which,
she maintains, Household acted and represented itself as her employer.22


       19
        Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005); Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
       20
          Garcia v. Women’s Hosp. of Texas, 97 F.3d 810, 814 (5th Cir. 1996). Even though this
issue is ultimately moot based on our conclusion that the district court properly granted JMOL
on Amezquita’s Title VII claim, we take this opportunity to affirm the district court’s decision
in accordance with the following reasoning.
       21
            Id.
       22
        In the district court, Amezquita contended that deposition testimony revealed that
Laura Soderberg, acting on behalf of Household, participated in the decision to terminate
Amezquita, thereby establishing the employment relationship between Household and

                                              11
                                       No. 06-41476
Having reviewed the record on appeal, we find no evidence that Amezquita
advanced this argument before the district court. In addition, her argument
relies on evidence not presented at trial. Her attempt to supplement the record
with the TWC documents after trial was denied because she failed to submit
them at trial, never included them in her exhibit list, and never offered them in
her case-in-chief or made an offer of proof. As such, Amezquita’s argument and
exhibit are not properly before us. Even if Amezquita had properly raised the
argument and introduced the evidence, though, we would not be persuaded.
When deciding whether to grant a party’s motion to reopen, the district court
considers the importance and probative value of the evidence, the reason for the
moving party’s failure to introduce the evidence earlier, and the possibility of
prejudice to the nonmoving party.23          Amezquita fails to analyze—or even
mention—these factors in her brief, thus offering no explanation for her failure
to introduce the evidence earlier. In addition, the TWC documentation that
identifies Household as Amezquita’s employer was not completed by Household,
and, as such, is of questionable probative value. We are satisfied that the
district court did not abuse its discretion in denying Amezquita’s motion to
reopen.
                                     III. CONCLUSION
      The district court properly granted summary judgment in favor of
Beneficial and Household on Amezquita’s defamation claim, as the relevant
communications between Beneficial and the Frick Company were privileged.
The district court properly granted JMOL in favor of both defendants as well:
Amezquita failed to present evidence sufficient to establish that Household was
her employer; she also failed to establish a prima facie case of sex


Beneficial. As Amezquita apparently abandons this argument on appeal, we do not address
it.
      23
           Garcia, 97 F.3d at 814.

                                           12
                                 No. 06-41476
discrimination. And, even if we were to assume, arguendo, that she had met the
prima facie case requirement, she failed to offer sufficient evidence of pretext.
Finally, the district court did not abuse its discretion in denying Amezquita’s
motion to reopen. All rulings of the district court contested by Amezquita on
appeal are
AFFIRMED.




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