                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 March 29, 2007

                                                           Charles R. Fulbruge III
                             No. 05-20068                          Clerk


TAMI J. AMEEN, MARCUS ENARD,

                                                             Plaintiffs
TAMI J. AMEEN,

                                               Plaintiff - Appellant
versus


MERCK & CO., INC., DEBORAH K.
WINN, ROBERT F. YOUNG, ALEX
N. PETROVICH, and BOBBY GRIFFIN,

                                              Defendants - Appellees



          Appeal from the United States District Court
                for the Southern District of Texas
                        (No. 04:03-CV-3587)



Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Tami Ameen (“Ameen” or “Appellant”), a

former employee of Defendant-Appellee Merck & Co., Inc. (“Merck”),

brought an action in Texas state court against Defendants-Appellees

Merck, Deborah K. Winn, Robert F. Young, Alex N. Petrovich, and

Bobby Griffin, (collectively, “Appellees”) in which she alleged ten

causes of action under Texas law resulting from the termination of


     *
       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this opinion should not be published and is not precedent except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.
her employment at Merck. Appellees removed the case pursuant to 28

U.S.C. §§ 1332 and 1441, contending that the individual defendants

had been improperly joined to defeat diversity jurisdiction. Ameen

filed a motion to remand, which the district court denied, also

dismissing all of Ameen’s state law claims against the individual

defendants.     The district court later granted Merck’s summary

judgment motion to dismiss Ameen’s retaliation claim, her sole

remaining cause of action.       Ameen appeals both orders.     We affirm.

                      I. Facts and Proceedings

       Merck, one of the world’s largest pharmaceutical companies,

uses   sales   representatives    (“reps”)   to   sell   its   products   to

physicians and hospitals.         As part of their responsibilities,

Merck’s reps conduct health education liaison (“HEL”) programs,

which usually include social activities for doctors or other health

care providers.    Merck maintains detailed policies and regulations

governing the administration of its HEL programs, including limits

on the dollar amount that may be spent per physician.               One of

Merck’s policies specifies that “[t]he failure of any employee to

adhere strictly to both the letter and spirit of these general

principles will result in appropriate action, up to and including

dismissal from employment.”

       Ameen, a resident of Texas, was employed by Merck for almost

fourteen years.      At the time of her termination, she was an

executive senior representative, the highest sales position within



                                     2
the   company.    Defendant    Deborah    K.   Winn,   Ameen’s   immediate

supervisor, was responsible for screening potential candidates for

the rep positions.      She set up a team to screen applicants and

asked Ameen to chair the team.       Ameen has alleged that, as a member

of the screening team, she observed Winn engage in discriminatory

employment practices. On one occasion, for example, Winn indicated

she did not want to hire an applicant because he “spoke too black”;

on another, she referred to an applicant as an “old man” and

indicated that he was too old to work at Merck.          These practices

ultimately led to the filing of charges by the rejected applicants

with the Equal Employment Opportunity Commission (the “EEOC”),

which investigated and substantiated the claims.

      Ameen   asserts   that   she    reported   discriminatory     hiring

practices to Defendant Alex N. Petrovich, Winn’s supervisor, in

August or September 2000; Petrovich denies that Ameen informed him

of these practices.     In February 2001, Petrovich awarded Ameen a

discretionary $3,000 bonus.      In April 2001, Petrovich approved

Ameen’s overall rating of “exceeds expectations” in her performance

review.   Petrovich also granted Ameen a 2-month sabbatical so that

she could spend time with her family in the summer of 2001.

      At the end of May 2001, Petrovich conducted an exit interview

with a departing sales representative, who informed him that

Merck’s reps had been falsifying reports for HEL programs.           After

Petrovich asked Winn to investigate, she determined that Ameen had

falsified HEL reports, enabling her to make inappropriate payments

                                      3
to doctors. Petrovich then conducted his own investigation. Early

in August 2001, Petrovich interviewed Ameen, and she acknowledged

that she repeatedly violated Merck policy by submitting false

expense information to obtain funds that she in turn gave to

doctors.      Petrovich decided that day to terminate Ameen, stating

his reason for the dismissal as Ameen’s falsifications of HEL

program expense reports in violation of Merck policy.

     More than a year later, in November 2002, Ameen filed this

action   in    state    court   against       Appellees    seeking    damages   for

specified state law causes of action.              The individual defendants

are, like Ameen, residents of Texas.                 In her complaint, Ameen

alleged retaliation, intentional infliction of emotional distress,

tortious      interference      with   her     at-will    employment    contract,

negligence,      negligent      misrepresentation,        vicarious    liability,

defamation,     civil    conspiracy,      promissory       estoppel,   and   false

imprisonment under Texas law.                 Appellees removed the case to

federal court based on diversity jurisdiction, contending that the

in-state defendants had been improperly joined.                When Ameen filed

a motion to remand the case to state court, the district court

denied her motion without explanation.

     After Ameen’s motion to remand was denied, Merck filed a

motion for summary judgment.              In granting Merck’s motion, the

district court held that, with respect to the surviving retaliation

claim, Ameen had not demonstrated a causal connection between any

protected activity and her termination.                  The court further held

                                          4
that, even if she had been able to make a prima facie case of

retaliation for her having engaged in a protected activity, Ameen

could not defeat Merck’s legitimate nondiscriminatory reason for

termination, as she had failed to demonstrate that “but for”

retaliation she would not have been terminated. Ameen timely filed

a notice of appeal.

                            II. ANALYSIS

A.   Subject Matter Jurisdiction

     1.    Standard of Review

     All questions of subject matter jurisdiction, including the

denial of a motion for remand to state court and a determination

that a party is improperly joined, are questions of law reviewed de

novo.1    We review a district court’s decision to pierce the

pleadings and its procedure for determining improper joinder only

for abuse of discretion.2

     2.    Removal

     Under 28 U.S.C. § 1441(a), a defendant may remove from state

court to federal court any civil action over which the federal

courts have original jurisdiction.     When jurisdiction is based on

diversity, however, a defendant may remove “only if none of the



     1
          Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529,
531 (5th Cir. 2006); McDonal v. Abbott Labs., 408 F.3d 177, 182
(5th Cir. 2005).
     2
          Guillory v. PPG Indus., Inc., 434 F.3d 303, 309 (5th
Cir. 2005).

                                   5
parties in interest properly joined and served as defendants is a

citizen of the State in which such action is brought.”3         Even

though Ameen and the individual defendants are citizens of Texas,

where this action was brought, Appellees contend that removal was

nevertheless proper because, they insist, the individual defendants

were improperly joined.

     To demonstrate improper joinder of resident defendants, a

diverse defendant must demonstrate either: “(1) actual fraud in the

pleading of jurisdictional facts, or (2) inability of the plaintiff

to establish a cause of action against the non-diverse party in

state court.”4    As Appellees rely only on Crockett’s second prong

in this case, we must determine whether “there is no reasonable

basis for the district court to predict that the plaintiff might be

able to recover against an in-state defendant.”5

     The burden of proof is on the Appellees as the removing

parties.6    In deciding whether a party was properly joined, the

court must resolve all contested factual issues and ambiguities in

state law in the non-removing party’s favor.7      As “the effect of



     3
            28 U.S.C. § 1441(b).
     4
          Crockett, 436 F.3d at 532 (quoting Travis v. Irby, 326
F.3d 644, 646-47 (5th Cir. 2003)).
     5
          Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573
(5th Cir. 2004) (en banc), cert. denied, 566 U.S. 992 (2005).
     6
            Guillory, 434 F.3d at 308.
     7
            Id.

                                   6
removal is to deprive the state court of an action properly before

it, removal raises significant federalism concerns . . . .”8     The

removal statute is therefore to be strictly construed, and any

doubt as to the propriety of removal should be resolved in favor of

remand.9

     3.    Propriety of Removal

     Ameen challenges the removal from the state court on three

principal grounds: (1) The notice of removal was not timely filed,

(2) the district court abused its discretion when it pierced the

pleadings, and (3) the district court erred in determining that

Ameen had no basis for recovery against the individual defendants.

Each of these challenges fails.

           a.   Timeliness of Removal

     Appellees did timely remove the complaint.   Under 28 U.S.C. §

1446(b),

     [i]f the case stated by the initial pleading is not
     removable, a notice of removal may be filed within thirty
     days after receipt by the defendant, through service or
     otherwise, of a copy of an amended pleading, motion,
     order or other paper from which it may first be
     ascertained that the case is one which is or has become
     removable . . . .10

Although Appellees did not remove within 30 days following the


     8
          Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 365-66 (5th Cir. 1995) (citations omitted).
     9
          Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.
2000); Carpenter, 44 F.3d at 366.
     10
           28 U.S.C.§ 1446(b) (emphasis added).

                                  7
filing of     Ameen’s       complaint,   they         did    remove       within   30   days

following Ameen’s deposition.11             A deposition may “constitute[] a

new   paper      or    event    that   changed         the    facts        regarding    the

removableness of the case.”12          Appellees’ contention that Ameen had

no basis for recovery against the individual defendants relies on

facts first revealed in her deposition testimony.                            Accordingly,

removal was timely, as Appellees removed within 30 days of becoming

aware that the case might be removable.

            b.        Piercing the Pleadings

      Ameen challenges the procedure used to decide the motion for

remand, contending that the district court improperly conducted a

summary inquiry into the evidence.13                  Ameen relies on Smallwood v.

Illinois Central Railroad Co.’s instruction that, for purposes of

removal, use of discovery should be limited.14                        It is true that,

“[o]rdinarily,         if   a   plaintiff       can    survive        a    Rule    12(b)(6)




      11
          Ameen was deposed on August 7, 2003.                    Appellees removed
on September 8, 2003.
      12
          S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494
(5th Cir. 1996).
      13
          “[A] summary inquiry is appropriate only to identify
the presence of discrete and undisputed facts that would preclude
plaintiff’s recovery against the in-state defendant.” Smallwood,
385 F.3d at 573-74. Although the district court did not
articulate a basis for the denial of a motion to remand, she
evidently did consider the exhibits.
      14
            Id. at 574 (discovery should be “on a tight judicial
tether”).

                                            8
challenge, there is no improper joinder.”15 Nevertheless, there are

cases in which a summary inquiry is appropriate.             In Guillory v.

PPG Industries, Inc., for example, we upheld the district court’s

piercing of the pleadings when the parties had conducted ten months

of post-removal discovery.16

      Here, Ameen’s deposition testimony provided the foundation for

the removal, as her deposition was the “new paper or event that

changed the facts regarding the removableness of the case.”17            As

such, the district court would have been unable to appreciate fully

the basis for its possible jurisdiction without examining the

deposition.     Smallwood does not require a different result. It and

its   progeny    have   explicitly       allowed   limited   discovery   in

determining improper joinder, particularly when, as here, the




      15
           Id. at 573.    As we cautioned in Smallwood,

      Attempting to proceed beyond this summary process
      carries a heavy risk of moving the court beyond
      jurisdiction and into a resolution of the merits, as
      distinguished from an analysis of the court's diversity
      jurisdiction by a simple and quick exposure of the
      chances of the claim against the in-state defendant
      alleged to be improperly joined. Indeed, the inability
      to make the requisite decision in a summary manner
      itself points to an inability of the removing party to
      carry its burden.

      Id. at 574.
      16
           434 F.3d at 311.
      17
           S.W.S. Erectors, Inc., 72 F.3d at 494.

                                     9
discovery forms the basis for the removal.18             Accordingly, the

district court’s decision to consider the deposition was not an

abuse of discretion.        Indeed, denial of remand in this case is

consistent with our holding in Smallwood.19        There, we held en banc

that “[w]hen the only proffered justification for improper joinder

is that there is no reasonable basis for predicting recovery

against   the   in-state    defendant,   and   that   showing   is   equally

dispositive     of   all   defendants    rather   than   to   the    in-state

defendants alone, the requisite showing has not been made.”20             We

explained that when a showing “compels a holding that there is no

reasonable basis for predicting that state law would allow the

plaintiff to recover against the in-state defendant necessarily

compels the same result for the nonresident defendant, there is no

improper joinder; there is only a lawsuit lacking merit.”21

     In the instant case, the district court indicated in its

decision granting summary judgment that it had considered the

moving papers on the motion for remand, and that it “now determines



     18
          Guillory, 434 F.3d at 311 (Smallwood “sharply limits,
but does not eliminate, discovery.”); Smallwood, 385 F.3d at 574.

     19
          Although the parties did not fully brief this issue, we
must consider it as it goes to whether the federal courts have
subject matter jurisdiction over this case. See McDonal, 408
F.3d at 182-83 (if court lacks subject matter jurisdiction, case
must be remanded to state court).
     20
           Smallwood, 385 F.3d at 575.
     21
           Id. at 574.

                                    10
that Defendant Merck is also entitled to judgment as a matter of

law on all of Plaintiffs’ claims.”              This case is nevertheless

distinguishable from Smallwood, as the retaliation claim against

Merck survived the motion for remand.             Although Ameen sued the

individual defendants for retaliation in violation of the Texas

Commission on Human Rights Act, she concedes that she has no such

cause of action against them.         Several post-Smallwood cases have

instructed that “if a district court concludes that the common

defense proffered would not dispose ‘of every claim against every

defendant, [the district court] should continue to deny remand and

proceed     with   the   proper   disposition   of   the   case.’”22   Thus,

Smallwood’s “common defense” rule does not apply here because

Ameen’s retaliation claim against Merck was denied on grounds

independent of those for dismissing her causes of action against

all other Appellees.23

             c.    Basis for Recovery on State Law Claims

       Ameen challenges the district court’s conclusion that she had

no basis for recovery against the individual defendants under state

law.    Ameen alleged eight Texas law causes of action against the

individual defendants: (1) defamation; (2) civil conspiracy; (3)

tortious interference; (4) intentional infliction of emotional


       22
          McDonal, 408 F.3d at 184 (quoting Rainwater v. Lamar
Life Ins. Co., 391 F.3d 636, 638-39 (5th Cir. 2004) (per
curiam)).
       23
             See Rainwater, 391 F.3d at 638.

                                      11
distress;        (5)    negligence;    (6)      negligent    misrepresentation/

promissory estoppel; (7) false imprisonment; and (8) retaliation.24

             (i)       Defamation

     To state a claim for defamation of a non-public figure under

Texas     law,    a    plaintiff    must   demonstrate      that   the   defendant

published a defamatory statement about him while acting with

negligence regarding the truth of the statement.25                 To recover on

such a claim, the plaintiff must identify the alleged defamatory

statement and the speaker.26           Texas defamation claims are subject

to a one-year statute of limitations,27 which period begins to run

when a plaintiff discovers, or should have discovered, that the

defamatory statement was made.28

     Ameen points to numerous allegedly defamatory statements made

by the individual defendants and known to Ameen in or around August

2001.     Ameen did not file her complaint until November 2002, more

than a year after she discovered these statements had been made.

     24
          Ameen concedes that she has no cause of action against
the individual defendants on her retaliation claim.
     25
             WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998).
     26
          See Abbott v. Pollock, 946 S.W.2d 513, 520 (Tex.
App.——Austin 1997, pet. denied) (holding that appellants failed
to raise material issue of fact when they relied on their belief
that appellee or his employees had spoken disparagingly about
them).
     27
             TEXAS CIV. PRAC. & REM. CODE § 16.002.
     28
          Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.——Houston
[1st Dist.] 2002, no pet.).

                                           12
Her claim is therefore time-barred to the extent that it is based

on the August 2001 statements.

     Ameen nevertheless relies on a conversation she had during an

appointment with her personal physician early in 2002, when he told

her that Merck representatives had made disparaging statements

about her.     Ameen asserts that her defamation claim survives,

because she filed suit within one year following her discovery of

these statements.   The 2002 conversation with her doctor, however,

does not save Ameen’s defamation claim.              First, the statement by

the doctor is inadmissible as hearsay.29             Second, even if it were

admissible, the doctor did not identify the speaker or the specific

nature of what was said, so his comments are too vague to support

Ameen’s defamation claim.30

     Ameen    further    relies   on        a   self-publication   theory   of

defamation based on the disclosures she made to potential employers

about statements made by Merck employees.             Assuming arguendo that

Texas law recognizes such a theory, the statements made by Ameen to

potential    employers   cannot   be    considered      defamatory.     Ameen

reported to each of these potential employers that, although Merck

ascribed her termination to her violation of company policy, she


     29
          See Patton v. United Parcel Serv., Inc., 910 F. Supp.
1250, 1274 (S.D. Tex. 1995) (citing Wells v. Shop Rite Foods,
Inc., 474 F.2d 838, 839 (5th Cir. 1973)).
     30
          See Abbott, 946 S.W.2d at 520 (granting summary
judgment when plaintiff failed to specify facts of alleged
defamation).

                                       13
believed that the true reason for her termination was retaliation

for her   reporting   employment   discrimination.     To   make   out   a

defamation claim based on self-publication, however, a plaintiff

must believe the statement was in fact true at the time she

disclosed it.31   As the gist of her revelations to her potential new

employers was that she believed the allegedly defamatory statements

were false, Ameen cannot make out a defamation claim against the

individual defendants based on a theory of self-publication.

          (ii) Civil Conspiracy

     Civil conspiracy occurs when (1) two or more persons (2) with

an objective to be accomplished (3) have a meeting of the minds on

the objective of the conspiracy or course of action and (4) commit

one or more unlawful, overt acts (5) that proximately results in

damages.32 To state a claim of civil conspiracy against an employee

or agent of a principal, the employee or agent must have been

acting outside the scope of his employment or agency.33

     Appellees have met their burden of demonstrating that Ameen

cannot make out her claim of civil conspiracy.       First, her theory

that the individual defendants conspired to mislead Merck about the

     31
          Martineau v. ARCO Chem. Co., 203 F.3d 904, 914 (5th
Cir. 2000) (discussing Texas law).
     32
          Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983).
     33
          Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 100
n.7 (Tex. App.——Houston [14th District] 1995, pet. denied) (“Nor
can a parent and subsidiary corporation, or their employees or
agents acting within the scope of their employment, conspire.”).

                                   14
facts relevant to her termination is belied by her admissions that

she violated Merck policy.               Second, to the extent that this claim

rests on the apparently rampant violations of HEL policy by Merck

employees,34 this did not proximately cause Ameen’s damages. Third,

Ameen has not alleged any facts suggesting that the individual

defendants acted outside the scope of their employment in reporting

the facts of Ameen’s misconduct to Merck.

                  (iii)       Tortious Interference           with   Ameen’s   At-Will
                              Employment Contract

       To state a tortious interference claim, a plaintiff must prove

(1)     the       existence    of    a     business     relationship     subject    to

interference, (2) the occurrence of a willful and intentional act

of    interference,         (3)     that   was    the   proximate     cause    of   the

plaintiff’s injury, and (4) actual damages or loss occurred.35                       A

business’s agent can be held liable for interference with an

employment contract when he acts willfully and intentionally to

serve       his    own    personal    interest     at   the    company’s   expense.36

Nevertheless,

       [b]ecause a corporate officer's acts on the corporation's
       behalf usually are deemed corporate acts, a plaintiff

       34
          Despite the existence of the HEL policy, several sales
representatives testified that Merck policies were routinely
broken, as Merck representatives competed with other
pharmaceutical companies to attract physicians as customers.
       35
          Hill v. Heritage Res., Inc., 964 S.W.2d 89, 109 (Tex.
App.——El Paso 1997, pet. denied).
       36
                  Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex.
1998).

                                             15
      must show that the agent acted solely in his own
      interests. . . . A corporate officer's mixed motives-to
      benefit both himself and the corporation-are insufficient
      to establish liability. . . . [I]f a corporation does
      not complain about its agent's actions, then the agent
      cannot be held to have acted contrary to the
      corporation's interests.37

Merck does not object to the conduct of the individual defendants.

As   the   individual     defendants’     actions   cannot    therefore    be

considered    contrary     to   Merck’s    interest,    Ameen’s      tortious

interference claim likewise fails.

           (iv) Intentional Infliction of Emotional Distress

      “To recover for intentional infliction of emotional distress,

a plaintiff must prove that (1) the defendant acted intentionally

or   recklessly;    (2)   the   defendant's   conduct   was    extreme    and

outrageous;   (3)   the   defendant's     actions   caused    the   plaintiff

emotional distress; and (4) the emotional distress suffered by the

plaintiff was severe.”38        The courts of Texas have adopted the

Restatement (Second) of Torts’ definition of extreme and outrageous

conduct as “conduct that is ‘so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a

civilized community.’”39        The alleged “extreme and outrageous”


      37
           Id. (emphasis added and citations omitted).
      38
          Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995).
      39
          Id. (quoting Twyman v. Twyman, 855 S.W.2d 619, 621
(Tex. 1993)).

                                     16
conduct proffered by Ameen is her treatment by the individual

defendants during the investigation process and their role in

“persuad[ing] Merck to fire Plaintiff under false pretenses.”

     To the extent that this claim is based on Ameen’s allegedly

retaliatory termination, it fails.          The Texas Supreme Court has

instructed that intentional infliction of emotional distress is a

“judicially created [cause of action] for the limited purpose of

allowing recovery in those rare instances in which a defendant

intentionally inflicts severe emotional distress in a manner so

unusual   that   the   victim   has   no   other    recognized    theory   of

redress.”40 The conduct Ameen relies on —— the allegedly pretextual

explanations for her termination in retaliation for her complaints

of discrimination —— is the same as the conduct underlying her

retaliation claim.     As Ameen had the ability to bring a retaliation

claim for this conduct, her intentional infliction of emotional

distress claim based on the same action cannot stand.41

     Ameen also impugns the treatment she received during the

interview by Petrovich as inflicting distress.              She claims that

Petrovich and Young persisted in questioning her in a hotel room

about her   violations    of    company    policy   until   she   broke   into

     40
          Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438,
447 (Tex. 2004).
     41
          Id. at 448 (“If the gravamen of a plaintiff's complaint
is the type of wrong that the statutory remedy was meant to
cover, a plaintiff cannot maintain an intentional infliction
claim regardless of whether he or she succeeds on, or even makes,
a statutory claim.”).

                                      17
“hysterical tears.”          She says that they then put her in another

room and told her not to leave, forbidding her from using the phone

or   talking       to    anyone;    that      she    remained      in     the   room    for

approximately thirty to forty minutes; and that although the door

to the room remained open at all times, a guard was stationed

there.

      To the extent that Ameen’s claim relies on the individual

defendants’        investigation         of   the    complaint,         including      their

instruction that she not leave the room or use the telephone,

Appellees have demonstrated that there is no reasonable basis to

predict Ameen’s claim might succeed, as such conduct falls far

short of that considered “extreme or outrageous” under Texas Law.

Randall's Food Markets, Inc. v. Johnson is instructive. There, the

plaintiff brought a claim of intentional infliction of emotional

distress against her former employer and supervisors based on their

conduct during an investigation of her theft of an item from the

store where she worked. She alleged that her supervisors’ tone and

manner of inquiry was “severe and curt,” which resulted in her

crying, and that she believed that she was unable to leave because

her supervisor instructed her to stay put.42                       The Texas Supreme

Court      found   that    she     had    failed     to   demonstrate       intentional

infliction of emotional distress.                  In so holding, the court noted,

“[e]mployers       act    within     their     legal      rights    in    investigating


      42
              Randall’s Food Mkts., Inc., 891 S.W.2d at 644.

                                              18
reasonably credible allegations of dishonesty of their employees.”43

The Randall’s court found that the supervisors’ conduct was “not

‘beyond all possible bounds of decency,’ ‘atrocious,’ and ‘utterly

intolerable       in   a   civilized   community’;   rather,   it   [was]   a

managerial function that is necessary to the ordinary operation of

a business organization.”44

     Although there are discrete factual differences between the

treatment received by the plaintiff in Randall’s Food Markets and

that received by Ameen,45 the cases are remarkably similar.           As in

Randall’s Food Markets,          the supervisors’ conduct here is not

“beyond all possible bounds of decency.”

            (v) Negligence

     To establish actionable negligence, a plaintiff must show

that: (1) the defendant owed him a duty; (2) that duty was

breached; and (3) he suffered damages as a proximate result of the

breach.46   Individual employees and managers may be held personally

liable for on-the-job negligence only if the alleged duty is one

that is owed to the employee distinct from that owed by the




     43
            Id.
     44
          Id. (citing Wornick Co. v. Casas, 856 S.W.2d 732, 735
(Tex. 1993)).
     45
          In Randall’s Food Markets, no guard stood outside of
the room, but the plaintiff remained in the room for several
hours. Id. at 644-45.
     46
            Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

                                       19
employer.47      Ameen conceded that the only duty the individual

defendants owed to her arose from their employment at Merck.                  She

cites no duty separate and apart from the duty they owed as

employees of Merck.       Her negligence claim against the individual

defendants therefore fails.

            (vi) Negligent Misrepresentation and Promissory Estoppel

      The elements of a negligent misrepresentation claim are:

      (1) the representation is made by a defendant in the
      course of his business, or in a transaction in which he
      has a pecuniary interest; (2) the defendant supplies
      ”false information” for the guidance of others in their
      business; (3) the defendant did not exercise reasonable
      care or competence in obtaining or communicating the
      information; and (4) the plaintiff suffers pecuniary loss
      by justifiably relying on the representation.48

The   elements    of   promissory    estoppel   are     (1)    a   promise,   (2)

foreseeability by promissor of reliance on that promise, and (3)

substantial detrimental reliance by the promisee.49

      The alleged promise/false information pointed to by Ameen is

that Winn     allegedly   promised    her   that   if    she   refrained      from

disclosing that she had violated Merck policy, Winn would protect

her job.   Negligent misrepresentation claims, however, cannot rest




      47
            Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).
      48
          Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442
(Tex. 1991).
      49
          Pegram v. Honeywell, Inc., 361 F.3d 272, 288 (5th Cir.
2004) (applying Texas law).

                                      20
on future events.50    Similarly, with respect to promissory estoppel

claims, vague oral assurances of future job security, such as that

alleged here, are insufficient to modify an employee’s at-will

employment status.51    Further, Ameen’s reliance on such a statement

—— one that directly contradicted Merck’s written policies —— that

she would not be terminated if she did not disclose the violations

of the HEL policy is simply not reasonable.52



          (vii) False Imprisonment

     “The essential elements of false imprisonment are: (1) willful

detention; (2) without consent; and (3) without authority of law.

A detention may be accomplished by violence, by threats, or by any

other means that restrains a person from moving from one place to

another.”53   When a plaintiff alleges that the detention was

accomplished by a threat, “the plaintiff must demonstrate that the

threat was such as would inspire in the threatened person a just




     50
          Allied Vista, Inc. V. Holt, 987 S.W.2d 138, 141 (Tex.
App.——Houston [14th Dist.] 1999, pet. denied).
     51
          See Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 559
(Tex. App.——San Antonio 1998, no writ). Ameen concedes that she
was an at-will employee.
     52
          Cf. DRC Parts & Accessories, L.L.C v. VM Motori,
S.P.A., 112 S.W.3d 854, 858 (Tex. App.——Houston [14th Dist.]
2003, pet. denied) (relying on oral promise that directly
contradicts written contract cannot be justifiable).
     53
          Randall's Food Mkts., Inc., 891 S.W.2d at 644-45
(internal citations omitted).

                                   21
fear of injury to her person, reputation, or property.”54

     Ameen’s false imprisonment claim stems from the manner in

which she was interviewed about the violations of HEL policy.

Petrovich and Griffin allegedly questioned her about violations of

company policy for about 45 minutes, in a hotel room, during which

she cried “pretty hysterically.”      After the initial interview,

Ameen was moved to another hotel room, where she was instructed

that she should not leave, use her cell phone, or talk to anyone.

She was under the watch of a security guard, whom she believed

would prevent her from leaving even though the door to the hotel

room was open.   She remained in this room for approximately 30-45

minutes before she was formally discharged.

     Despite these facts, Ameen acknowledged that she did not feel

threatened, and that no one told her she would be restrained to

prevent her leaving.    And, she was compensated for the time she

spent in the hotel room.     Although there was a security guard

standing outside of the room, the door remained open the entire

time that Ameen was in the room.     She was not locked in the room,

and at no time did she attempt to exit.      Indeed, Ameen admitted

that the thought of leaving “didn’t even cross [her] mind.”     She

wanted to leave, but she had been asked to stay and she knew that

her future at the company was being determined.

     In Safeway Stores, Inc. v. Amburn, an intermediate Texas



     54
          Id. at 645.

                                22
appellate court was presented with similar facts.      In dismissing

the case, the court noted that

     [w]hile employers should be admonished that their dealing
     with employees should always be reasonable and humane, we
     cannot adopt a rule which would constantly place an
     employee in jeopardy of a charge of false imprisonment.
     The interview with Amburn had a direct bearing upon his
     duties as an employee. He was compensated during the
     time that he was in the area. Under the circumstances,
     it cannot be said that his requested presence for
     purposes of interrogation constituted false imprisonment
     unless he was unlawfully detained. We accept at face
     value Amburn's testimony that he was scared. It is not
     unlikely that any person being confronted with questions
     concerning his personal integrity would relish such an
     interview.   This, however, is not the same as false
     imprisonment.55

In the framework established by the Texas courts’ rejections of

similar claims in Amburn and Randalls Food Markets,56 Ameen’s false

imprisonment   claim    cannot   succeed   against   the   individual

defendants.

                                 -----

     Defendants-Appellees met their burden of demonstrating that

Ameen has no basis for recovery against the individual defendants

under any of the state law causes of action that she advanced.

Thus, the district court did not err in denying her motion to

remand.

B.   Summary Judgment

     1.   Standard of Review


     55
          Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443, 446
(Tex. Civ. App. 1965)
     56
          891 S.W.2d 640.

                                  23
      We review the district court’s decision to grant summary

judgment de novo.57 A motion for summary judgment should be granted

only when there is no genuine issue of material fact.58                In

determining whether there is a genuine issue of material fact, the

reviewing court views all facts and draw all inferences therefrom

in favor of the non-moving party.59

      2.   Retaliation

      To establish retaliation under the Texas Commission on Human

Rights Act (“TCHRA”), the employee must demonstrate that (1) he

engaged in protected activity, (2) the employer took an adverse

employment action, and (3) there is a causal link between the

protected activity and the adverse employment action.60           If the

employee meets his prima facie burden, “the burden then shifts to

the   [employer]   to   demonstrate    a   legitimate   nondiscriminatory

purpose for the employment action.”61       If the employer does so, the

burden shifts back to the employee to demonstrate that the stated


      57
          American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).
      58
          Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
      59
           Id.
      60
          Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)
(Title VII action). As the TCHRA was designed to align Texas
state law with federal law, courts look to federal law
interpreting Title VII when analyzing TCHRA claims. Quantum
Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
      61
          Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487
(5th Cir. 2004) (quoting Gee, 289 F.3d at 345).

                                      24
reason is a pretext for retaliation.62     To demonstrate pretext, the

employee must show that the adverse employment action would not

have occurred “but for” his protected conduct.63

          a.     Prima Facie Case

     Ameen has satisfied the first two elements of her prima facie

case: She engaged in protected activity, and she was terminated.

She fails to satisfy the third element, however, as she presented

no   probative   evidence   of   a    causal   connection   between   her

termination and her protected activity.          Assuming arguendo that

the decision-maker, Petrovich, was even aware that some activity

Ameen engaged in was “protected,”64 we nevertheless conclude that

she has failed to demonstrate that such activity was the reason for

her termination.   The timing of Ameen’s termination, eleven months

after she allegedly complained to Petrovich, casts significant

doubt on the claim that her termination was in retaliation for that




     62
          Id.
     63
          Id. at 488-89 (holding that “but for” standard applied
to retaliation case brought under Texas law).
     64
          Although Ameen contends in her brief that she testified
at her deposition that she reported Winn’s discriminatory conduct
to Petrovich, the portions of her deposition cited to in her
brief contain no such testimony. Rather, it appears that Ameen’s
complaint of discrimination to Petrovich was limited to a
complaint about the “Spares” program, a Merck program that
required its employees to travel. It is far from clear that her
complaint about this program rises to the level of protected
activity.


                                     25
complaint.65    Additionally, Ameen received favorable treatment from

both Petrovich and Winn in the months following her putative

protected      activity:        She   received    positive    reviews    and

discretionary bonuses in the year following her lodging of those

complaints, and she was even granted a two-month sabbatical so that

she could spend the summer with her children.                This sort of

treatment      is   “utterly    inconsistent     with   an   inference   of

retaliation.”66

     Ameen also tries to rely on the so-called “cat’s paw” theory

to establish a causal link, asserting that Winn unduly influenced

Petrovich’s decision.         “[T]he discriminatory animus of a manager

can be imputed to the ultimate decisionmaker if the decisionmaker

‘acted as a rubber stamp, or the “cat's paw,” for the subordinate

employee's prejudice.’”67       “To invoke the cat’s paw analysis, [the

employee]   must     submit    evidence    sufficient   to   establish   two

conditions: (1) that a co-worker exhibited [retaliatory] animus,

and (2) that the same co-worker ‘possessed leverage, or exerted




     65
          See Grizzle v. Travelers Health Network, Inc., 14 F.3d
261, 268 (5th Cir. 1994) (10-month lapse in time suggested that
retaliatory motive was unlikely).
     66
          Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424
(5th Cir. 1997).
     67
          Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003)
(quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227
(5th Cir. 2000)).

                                      26
influence, over the titular decisionmaker.’”68

       Even   assuming      arguendo       that    Winn   influenced        Petrovich’s

decision to terminate Ameen, her claim still fails, as “the causal

link between the protected conduct and termination is broken where

the [decision-maker] . . . conducts an ‘independent investigation’

in the course of reaching his or her decision.”69                          After Winn’s

initial investigation, Petrovich asked Human Resources personnel to

investigate the matter further.              In addition, he conducted his own

investigation.         As    part     of    this    independent       investigation,

Petrovich interviewed Ameen, and she acknowledged that she had

violated Merck       policy      on   multiple      occasions.        In    Wallace   v.

Methodist Hospital System,70 we rejected a Cat’s Paw theory of

causation under similar circumstances. Discussing Wallace, we have

previously explained that “[t]he final decisionmakers in Wallace .

. . did not rely on the Wallace [discriminatory supervisor’s]

factfinding to terminate the plaintiff because the plaintiff in

that case freely admitted to the final decisionmakers that she

committed the violation for which they fired her.”71                         Similarly,

even    if    we   were     to   assume      that    Winn      recommended      Ameen’s

termination,       Petrovich     cannot     be    said    to   have   acted    on   that


       68
          Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th
Cir. 2004) (quoting Russell, 235 F.3d at 227).
       69
              Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001).
       70
              271 F.3d 212, 218 (5th Cir. 2001)
       71
              Laxton, 333 F.3d at 584.

                                            27
recommendation, given Ameen’s direct admission of her misconduct to

Petrovich.

                 b.      Pretext

       Ameen’s retaliation claim is further doomed by her inability

to demonstrate that Merck’s non-discriminatory reason for her

firing      is        pretextual.      Merck       asserted   that   the   legitimate

nondiscriminatory reason for Ameen’s termination was her admission

that    she      repeatedly        violated    Merck’s    HEL   policies.    We     have

consistently held that in retaliation cases where the defendant has

proffered a nondiscriminatory purpose for the adverse employment

action the plaintiff has the burden of proving that “but for” the

discriminatory purpose he would not have been terminated.”72                      Ameen

was therefore required to demonstrate that “but for” the alleged

retaliatory purpose, she would not have been terminated.                     This she

has failed to do.              Ameen admitted violating Merck’s policy by

misdirecting to doctors thousands of dollars she obtained by filing

fraudulent reports.           Ameen was aware of Merck’s stated policy that

the failure of any employee to adhere strictly to both the letter

and spirit of these general principles would result in appropriate

action, up to and including dismissal from employment.                       Based on

her    conceded          conduct,    Ameen     cannot    satisfy     her   burden     of

demonstrating that Merck’s legitimate nondiscriminatory reason is

pretextual.


       72
          Pineda, 360 F.3d at 487 (analyzing retaliation claim
brought under the TCHRA).

                                              28
                         III. CONCLUSION

     The orders of the district court denying Ameen’s motion to

remand and dismissing her action are

AFFIRMED.




                               29
