     Case: 10-20831     Document: 00511716046         Page: 1     Date Filed: 01/05/2012




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

                                                                            FILED
                                                                          January 5, 2012

                                     No. 10-20831                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HENRY UDOEWA,

                                                  Plaintiff - Appellant
v.

PLUS4 CREDIT UNION; VLADIMIR STARK; PATRICIA COLLINS,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3054


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Henry Udoewa, a former employee of Plus4 Credit
Union, brought a lawsuit against Defendants-Appellees Plus4 Credit Union and
two of its officers, Vladimir Stark and Patricia Collins, asserting claims under
42 U.S.C. § 1981 for race discrimination, retaliation, and hostile work
environment, as well as several state law claims, including defamation and
negligent retention. The district court dismissed Udoewa’s claims of negligence,


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-20831

intentional infliction of emotional distress, and national origin discrimination for
failure to state a claim. The district court then granted the defendants’ motion
for summary judgment on all of Udoewa’s remaining claims. On appeal, Udoewa
challenges the district court’s dismissal of his claims, the district court’s denial
of Udoewa’s discovery request for certain documents, and the district court’s
grant of the defendants’ motion for summary judgment. For the following
reasons, we AFFIRM the orders and judgment of the district court.
      1.   Udoewa appeals the district court’s dismissal of his negligence,
intentional infliction of emotional distress, and national origin discrimination
claims. We review de novo a district court’s grant of a motion to dismiss
pursuant to Rule 12(b)(6). Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d
248, 252 (5th Cir. 2011). We agree with the reasoning and conclusions of the
district court as stated in its orders dated June 29, 2009, and December 21, 2009.
First, the district court correctly dismissed Udoewa’s negligence claim because
Udoewa’s “allegations sound in intentional tort, not negligence.” Second, under
Texas law, “intentional infliction of emotional distress is a ‘gap-filler’ tort never
intended to supplant or duplicate existing statutory or common-law remedies.”
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). Therefore, the
district court correctly concluded that, “[b]ecause the allegations underlying the
intentional infliction of emotional distress claim are the same as those
underlying the federal § 1981 and state-law defamation claims, the intentional
infliction of emotional distress claim fails.” Third, because § 1981 does not apply
to claims based “solely on the place or nation of his origin,” see St. Francis
College v. Al-Khazraji, 481 U.S. 604, 613 (1987), the district court correctly
concluded that Udoewa’s national origin discrimination claim, based solely on
the fact that he was born in Nigeria, is not cognizable under § 1981.
      2. Udoewa asserts on appeal that the district court erred in determining
that past sexual harassment investigatory reports and minutes from Plus4’s

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                                         No. 10-20831

Board of Directors meetings were protected under the work product doctrine.1
We review the district court’s discovery rulings “under a deferential abuse of
discretion standard.” Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 927
(5th Cir. 2006) (citations omitted).            The work product doctrine applies to
documents “prepared in anticipation of litigation,” FED. R. CIV. P. 26(b)(3), and
we have held that “the privilege can apply where litigation is not imminent, ‘as
long as the primary motivating purpose behind the creation of the document was
to aid in possible future litigation.’” In re Kaiser Aluminum & Chem. Co., 214
F.3d 586, 593 (5th Cir. 2000) (citation omitted). The district court correctly
concluded that the documents were prepared in anticipation of litigation and
were therefore protected under the work product doctrine.
        3. Udoewa argues that the district court erred in granting summary
judgment in favor of the defendants on his claims for failure to promote, transfer
of job responsibilities, wrongful termination, hostile work environment, and
retaliation under § 1981.           We review a district court’s grant of summary
judgment de novo, applying the same standard as the district court. Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). With respect to
each of Udoewa’s claims, we agree with the district court’s reasoning in full, as
set out in the court’s careful and well-reasoned fifty-six page opinion. The
district court correctly concluded that Udoewa provided no direct evidence of
intentional discrimination and that the defendants were entitled to summary
judgment on all of Udoewa’s § 1981 claims.
        4. Udoewa also argues that the district court erred in granting summary
judgment in favor of the defendants on his state law defamation and negligent
retention claims. We agree with the district court’s analysis and conclusions.
With regard to the defamation claim, the court noted that “there is no evidence

        1
            The district court made these rulings at the discovery hearing held on January 28,
2010.

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that Stark published an accusation of sexual harassment against Udoewa,” and
therefore granted summary judgment in favor of the defendants on that claim.
With regard to the negligent retention claim, the district court noted that, under
Texas law, Udoewa cannot sustain an action for negligent retention against
Plus4 without establishing that Stark committed an actionable, common-law tort
against him. See Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex. App.—San
Antonio 1999, no pet.), abrogated on other grounds by Hoffman-LaRoche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Because the district court found
that there was no triable issue of fact on Udoewa’s defamation claim, the court
correctly granted summary judgment to the defendants on Udoewa’s negligent
retention claim. Therefore, we hold that the court properly granted summary
judgment in favor of the defendants on these claims.
      The orders and judgment of the district court are AFFIRMED.




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