                                  NO. 07-08-0022-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  JUNE 30, 2009
                         ______________________________

                            RONALD MARX, APPELLANT

                                           V.

                 ELECTRONIC DATA SYSTEMS CORP., APPELLEE
                     _________________________________

             FROM THE 362ND DISTRICT COURT OF DENTON COUNTY;

          NO. 2006-40139-362; HONORABLE BRUCE MCFARLING, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                       OPINION


      Appellant Ronald Marx appeals from a summary judgment granted appellee

Electronic Data Systems Corporation (“EDS”) in his wrongful termination and slander suit.

We affirm.


                                      Background


      Marx sued EDS for wrongful termination and slander in June 2006, after he resigned

his employment with the company in March of that year. Marx, a computer systems
integration specialist with an electrical engineering degree, began working for EDS in

November 2000. In April 2004, at his request, he transferred to another department, where

he worked in a group performing services for EDS’s customer Sabre Holdings, Inc.


       Marx’s petition alleged he was instructed to engage in behavior that would constitute

fraudulent overbilling of Sabre, subjecting him to potential criminal prosecution.1 He

alleged he refused to engage in this behavior and refused to aid and abet other employees

in conspiring to do so.


       Marx further alleged that after he refused to engage in the overbilling he was

subjected to a series of adverse actions by supervisors and co-workers. His petition

contained a non-exclusive list of actions that included Marx’s exclusion from meetings,

unjustified complaints about his not being a team player, other unjustified criticism by his

supervisors, and the withholding (by co-workers with the encouragement of supervisors)

of information necessary to his work. Further, Marx alleged he was not permitted to pursue

required computer integration-related certification, and was not reimbursed, after his 2004

department transfer, for tuition for previously-approved MBA course work. The listed

actions also included a demotion and reduction in pay, and the imposition of a

performance-improvement plan (“PIP”),2 despite his “more than adequate performance.”


       1
        In Marx’s brief on appeal, he argues his participation in overbilling would have
exposed him to prosecution under sections 31.03, 7.02, and 15.02 of the Texas Penal
Code and under section 4 of Title 18 of the United States Code. See Tex. Penal Code
Ann. § 31.03 (Vernon 2007); Tex. Penal Code Ann. § 7.02 (Vernon 2003); Tex. Penal
Code Ann. § 15.02 (Vernon 2003), 18 U.S.C. § 4.
       2
       The PIP identified tasks required of Marx, including performing certain network
engineering tasks for four particular projects. The PIP also identified areas of attendance

                                             2
Additionally, Marx alleged he was not allowed leave for surgery and other medical care,

and was required to disclose privileged medical information. His petition asserted his

March 2006 resignation was compelled by his unwillingness to further tolerate such

actions, thus he was constructively discharged.


       Marx’s petition also alleged that before and after his resignation, one or more EDS

employees made false, defamatory statements about him to other EDS employees and

Sabre employees. Marx alleged that EDS’s conduct was accompanied by malice, and

sought actual and punitive damages.


       After discovery, EDS filed a motion for summary judgment, asserting both traditional

and no-evidence grounds. The trial court granted the motion, and entered judgment

accordingly. This appeal followed.


                                         Analysis


                                   Summary Judgment


       When a party moves for summary judgment under both Rule 166a(c) and 166a(i),

we will first review the trial court’s judgment under the standards of rule 166a(i). If the



and communication in which Marx needed to improve, including punctuality at all meetings
or other activities and meeting all scheduled deadlines. Marx was also required to be
responsive to team members by returning phone calls and emails within a specified period
of time. The PIP also notified Marx that his 90-day forecasts were to be submitted at the
first of every month. Lastly, the PIP identified the steps to be taken if Marx was unable to
come to work and informed him that he was allowed a total of three days as excused
absences. A health care provider’s statement confirming a medical need for each absence
was required.

                                             3
nonmovant failed to meet its burden by producing more than a scintilla of evidence, there

is no need to analyze whether the movant’s summary judgment proof satisfied the rule

166a(c) burden. East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813, 816

(Tex.App.–Fort Worth 2007, pet. denied), citing Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004). If a trial court grants summary judgment without specifying the

grounds on which it relied, as here, the reviewing court must affirm if any of the summary

judgment grounds are meritorious. Sunshine Mining & Refining Co. v. Ernst & Young,

L.L.P., 114 S.W.3d 48, 51-52 (Tex.App.–Eastland 2003, no pet.).


       A no-evidence motion for summary judgment is essentially a pretrial directed verdict

and we apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005);

Goddard v. Northhampton Homeowners Ass’n, Inc., 229 S.W.3d 353, 356

(Tex.App.–Amarillo 2007, no pet.). We review the evidence in the light most favorable to

the respondent against whom the no-evidence summary judgment was rendered,

disregarding all contrary evidence and inferences. Goddard, 229 S.W.3d at 356, citing

Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).


       A no-evidence contention should be sustained where (1) there is complete absence

of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a scintilla, or (4) the evidence conclusively established the



                                              4
opposite of a vital fact. Merrell Dow, 953 S.W.2d at 711. A no-evidence summary

judgment should not be granted if the respondent counters with more than a scintilla of

probative evidence raising a genuine issue of material fact. Medlock v. Commission for

Lawyer Discipline, 24 S.W.3d 865, 868 (Tex.App.–Texarkana 2000, no pet.); Lampasas

v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.App.–Houston [14th Dist.] 1999, no pet.).

When evidence is so weak as to do no more than create “a mere surmise or suspicion” that

a fact exists, the evidence does not exceed a scintilla. Ridgway, 135 S.W.3d at 601,

quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).


Wrongful Termination Claim


      Marx’s wrongful termination claim relies on Sabine Pilot Service, Inc. v. Hauck, 687

S.W.2d 733, 735 (Tex. 1985). In Texas, absent a specific agreement to the contrary, an

employer may fire an employee at will for good cause, bad cause, or no cause at all.

Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). In Sabine

Pilot, 687 S.W.2d at 735, the Texas Supreme Court recognized an exception to the

employment-at-will doctrine for an employee discharged “for the sole reason that the

employee refused to perform an illegal act.” See also Winters v. Houston Chronicle Publ’g

Co., 795 S.W.2d 723, 724 (Tex. 1999). The court held that a plaintiff has the burden to

prove by a preponderance of the evidence that his discharge was for the sole reason that

he refused to perform an illegal act that would subject him to criminal penalties. Sabine

Pilot, 687 S.W.2d at 735; City of Midland v. O’Bryant, 18 S.W.3d 209, 215 (Tex. 2000);

Winters, 795 S.W.2d at 724.



                                            5
       The Sabine Pilot exception applies when an employee has been unacceptably

forced to choose between risking criminal liability or being discharged from his livelihood.

Winters, 795 S.W.2d at 724. An employer who discharges an employee both for refusing

to perform an illegal act and for a legitimate reason cannot be liable for wrongful discharge

under Sabine Pilot; the refusal must be the sole cause for the employee’s termination.

Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995); McClellan v. Ritz-

Carlton Hotel Co., 961 S.W.2d 463, 464 (Tex.App.–Houston [1st Dist.] 1997, no pet.).


       An employee is constructively discharged when job conditions are made so difficult

or unpleasant that a reasonable person in the employee’s shoes would have felt compelled

to resign. Kosa v. Dallas Lite & Barricade, Inc., 228 S.W.3d 428, 430 (Tex.App.–Dallas

2007, no pet.). The court in Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d

900 (Tex.App.–Houston [1st Dist.] 1998, no pet.) held the Sabine Pilot exception to the

employment-at-will doctrine applies to employees who are constructively discharged for the

sole reason that they refuse to commit a crime. Id. at 902. EDS does not challenge that

holding. We agree it is possible for a constructively discharged employee to establish a

Sabine Pilot claim.


       Marx contends the sole reason for his constructive discharge was his refusal to

engage in conduct that amounted to criminal activity. EDS asserted four grounds for

summary judgment on Marx’s wrongful termination claim: (1) Marx was not required to

commit a crime; (2) EDS did not know Marx was refusing to perform an illegal act; (3) Marx

was not constructively discharged; and (4) Marx’s alleged refusal to overbill was not the



                                             6
sole cause of his alleged constructive discharge. We will address two of the grounds,

expressing no opinion on the others.


       Ground One: Request to commit crime


       To prevail under a Sabine Pilot cause of action, a plaintiff must prove two things: (1)

that the plaintiff refused to perform an illegal act, and (2) that his refusal was the only

reason he was terminated. Hawthorne v. Star Enterprise, Inc., 45 S.W.3d 757, 760

(Tex.App.–Texarkana 2001, pet. denied); see Burt v. City of Burkburnett, 800 S.W.2d 625,

627 (Tex.App.–Fort Worth 1990, writ denied) (Sabine Pilot requires that the employer, in

some form, require the employee to commit an illegal act). By its first ground, EDS

challenged the evidence it required Marx to engage in fraudulent overbilling.


       After careful review of the summary judgment evidence, we find that the phrase

“mere surmise or suspicion,” Ridgway, 135 S.W.3d at 601, aptly describes the evidence

that EDS asked Marx to engage in fraudulent overbilling. Marx was one of several network

engineers in the group working with Sabre to change Sabre’s telephone service from “land-

line” to “voice-over IP” technology. Marx testified on deposition his day-to-day duties were

varied, including such tasks as “attending conference calls to reading literature, work

information, technical documentation, sending e-mails, looking over quotes, looking at

other design guides.” He estimated 30 percent of his time was devoted to what he

considered “technical work.” Although other engineers in the group had similar duties,

none were precisely like his.3

       3
           He said no one else was “focused on voice.”

                                              7
       After his transfer to the group working on the Sabre account, Marx’s day-to-day

supervisor was Gene Orr. Brian Wheeler, who physically was located in EDS’s New York

office, became Marx’s manager shortly after his transfer to Orr’s group.


       EDS required employees like Marx to account by hour for their working time.

Network engineers entered their working time in a timekeeping system, charging their time

to accounts that included both billable and nonbillable work such as administrative tasks.4

Reviewing the manner in which Marx and other network engineers under his supervision

recorded their time was among Orr’s duties. The hours devoted to a particular project by

the network engineers was at least a factor in determining the amount EDS billed Sabre,

and Sabre personnel also reviewed the allocation of billable and nonbillable hours by EDS

engineers.


       Marx testified his supervisor Orr told him more than once to bill more hours. He

described an occasion he and Orr were in Pennsylvania working on a project over a

weekend. Marx testified he could not recall how many hours he recorded as billable but

Orr commented that Marx did not put down enough hours for the weekend effort,5 though


       4
           Orr described the process as follows:

       Q:       You do have a role in seeing that time and expenses are reported to those
                who do the actual billings, correct?
       A.       I have a role in charging hours to the projects I do and that my team has.
       Q.       Explain what you mean by “charging hours.”
       A.       We have a labor system and we enter projects or efforts that support our
                clients.

       5
        “Effort” is a term of art in this context, distinguished from a “project.” Orr described
an “effort” as any “number of activities, whether or not that is (sic) administration related
or support, asset inventories, things like that.” He also noted that some efforts are billable

                                               8
they worked 36 hours “nonstop.” He said Orr told him to correct his time sheet, but he did

not do so. He testified there were other instances in which Orr told him he did not record

enough billable hours for his work. Marx said he once responded, “I can’t do it if I didn’t

work it.”


       Marx also testified to statements made by his co-worker Jensen, who was senior to

Marx, concerning the recording of billable hours. He described an instance in which

Jensen suggested Marx record 24 hours for work that actually had taken them only four

hours. He did not do so. Asked if he knew whether Jensen had recorded 24 hours for the

task, he responded negatively, and added, “I just know that the suggestion [was] to put

down 24 hours for four hours worth of work.”6


       Marx further described an occasion on which he and Jensen were performing a

series of repetitive tasks. EDS’s preliminary cost estimate for the project allocated two

hours for each repetition. Marx testified he pointed out to Jensen that “once you know

what you’re doing,” later repetitions of the task took only about five minutes rather than the

estimated two hours. He said Jensen “indicated, [w]ell, just leave it the way it is because

that’s how it works.” Marx further testified that he recorded only his actual time for the

work. Asked about Jensen, Marx said Jensen told him he was recording the estimated two




while other efforts are nonbillable.

       6
         Then asked if Jensen’s suggestion shocked him, Marx replied, “No, because . . .
the guy’s off the wall.” When EDS’s counsel, later in the deposition, referred to this
occasion as “one instance where you were asked to overbill,” Marx responded, “Or
insinuated to.”

                                              9
hours for each repetition, and indicated Marx should do the same. Asked if Jensen

actually said so, Marx responded, “Well, that was . . . in my opinion, the suggestion.”


       Marx’s testimony concerning Jensen’s billing practices and his suggestions or

insinuations that Marx should follow his example do not constitute evidence that his

employer required Marx to engage in fraudulent overbilling. Moreover, even when they are

considered in light of Jensen’s comments, neither Orr’s instructions to bill more hours nor

his instructions to correct his time records on particular projects or efforts permit more than

surmise he was thereby asking Marx to do so by means of fraudulently charging his time

to billable accounts.7


       In his deposition, Marx also sometimes referred to his actions as reporting the

overbillings of other employees. As one example, he said the company retaliated against

him when “I blew the whistle on these guys who were stealing money from [Sabre through

overbilling] and [EDS], in turn, put both of them in charge of determining my performance,

whether I could keep a job or not.” An employee’s claim that he was discharged because

he reported illegal activities of other employees is not a Sabine Pilot claim. Ed Rachel

Fndn. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006) (per curiam) (“Sabine Pilot protects

employees who are asked to commit a crime, not those who are asked not to report one”).




       7
         Asked if he felt Orr was asking him to do something illegal when Orr told Marx his
billable hours were too low, Marx responded, “My guess is yes. That’s my assumption
because if I don’t have enough billable hours – in other words, if I was doing something
and it was not in billable work and I don’t have enough billable hours, well, wait a minute,
why would I have billable hours – 40 billable hours if I didn’t work 40 billable hours?
There’s a problem there.”

                                              10
              Ground Two: Causation


       EDS’s no-evidence motion also challenged the evidence that Marx’s refusal to

engage in criminal overbillinging, if such occurred, was the sole reason for his constructive

discharge. Initially, Marx urges that the causation element of a Sabine Pilot claim must be

viewed differently when the plaintiff’s discharge was constructive rather than a direct

termination. Citing Nguyen, 981 S.W.2d at 902, Marx argues the causation issue is

whether the plaintiff is constructively discharged for the sole reason that he refuses to

commit a crime, “not whether actions against an employee which lead an employee to

resign are taken for the sole reason that the employee refuses to commit a crime.” We

disagree.


       As noted, an employee is constructively discharged when job conditions are made

so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt

compelled to resign. Kosa, 228 S.W.3d at 430. See also Davis v. City of Grapevine, 188

S.W.3d 748, 766 (Tex.App.–Fort Worth 2006, pet. denied); Winters v. Chubb & Son, Inc.,

132 S.W.3d 568, 575 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Or, as the United

States Supreme Court has put it, constructive discharge occurs when an employer makes

conditions so intolerable that an employee reasonably feels compelled to resign.

Pennsylvania State Police v. Suders, 542 U.S. 129, 147; 124 S.Ct. 2342, 2354, 159

L.Ed.2d 204 (2004) (describing constructive discharge stemming from hostile work

environment); see also Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983), cert. denied

sub nom., Whisenhunt v. Spradlin, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983).



                                             11
Thus, to find a constructive discharge, a court must determine whether a reasonable

person in the employee's position would have felt compelled to resign. Pittman v.

Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir.1981). It is

necessary to examine the conditions imposed, not the employer's state of mind. Bourque

v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980). An employee thus

does not need to prove that the employer subjectively intended to force the employee to

resign. Junior v. Texaco, Inc., 688 F.2d 377, 379 (Tex. 1982); Pittman, 644 F.2d at 1077.

See also Hammond v. Katy Independent School Dist., 821 S.W.2d 174, 177

(Tex.App.–Houston [14th Dist.] 1991, no writ). In making our inquiry, we examine only the

conditions imposed, not the state of mind of employer or employee. Hammond, 821

S.W.2d at 177.


       Whether the employee’s discharge was direct or constructive, a Sabine Pilot claim

requires proof the discharge came about for only one reason, the employee’s refusal to

perform an illegal act. See Nguyen, 981 S.W.2d at 902; Hinds, 904 S.W.2d at 633. It

follows that when the plaintiff asserts a constructive discharge, the plaintiff need not show

the employer intended to force his resignation but the proof must be that the employer,

solely because the employee refused to perform an illegal act, made conditions so

intolerable the employee reasonably felt compelled to resign. Nguyen, 981 S.W.2d at 902;

see Suders, 542 U.S. at 147; 124 S.Ct. at 2354.




                                             12
       We see no evidence from which a jury properly could infer that the adverse actions

to which Marx testified and that he claims led to his departure from EDS occurred solely

because he refused to engage in overbilling Sabre. The evidence to which Marx points us

demonstrates that the adverse actions he claims led to his resignation occurred later in

time than the events he identifies as requests to overbill, and demonstrates he now

believes the adverse actions to have been motivated by his refusal to participate in

overbilling. But it demonstrates nothing more.


       As noted, Marx points to insults from co-workers, the salary reduction, “unfair

criticism and discipline threatening termination and precluding transfer,” ridicule and

isolation, and interference with his medical care as compelling his resignation.8 Marx does

not contend that the insults, ridicule and isolation he suffered from the actions of co-

workers stemmed exclusively from his refusal to participate in overbilling, and the summary

judgment record provides no basis for such a contention.


       The more substantive of the adverse actions occurred in early March 2006, when

Wheeler and Orr delivered to Marx his annual employee evaluation in which Marx was

rated “Below Expectations” and was given his PIP. At about the same time, he was

notified his annual salary would be decreased by about twenty thousand dollars,9 effective

the first of the next month. Orr’s instructions to Marx to increase his billable hours occurred


       8
         Other adverse actions listed in Marx’s first amended original petition, including the
company’s selective refusal to allow him to pursue a required certification and its refusal
to reimburse him for previously-approved MBA course work. Those actions are not
addressed on appeal.
       9
           Before the decrease, Marx’s annual salary was about $124,500.

                                              13
during 2005, as did Jensen’s suggestions regarding billing practices. Marx’s evidence

indicates that he made Wheeler and EDS human resources department personnel aware

of the “overbilling issue” no later than December 2005. But even under the but for

causation standard applicable to Title VII retaliation cases, the mere temporal proximity

between protected conduct and adverse action is insufficient to show a causal link. Strong

v. University Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). See also Roberson

v. Alltel Information Services, 373 F.3d 647, 656 (5th Cir. 2004) (“[w]ithout more than timing

allegations . . . summary judgment in favor of [the defendant] was proper”). Similar

argument based on the timing of events surely is also insufficient to demonstrate the sole

cause relationship required for a Sabine Pilot claim. See Hinds, 904 S.W.2d at 633

(comparing the two causation standards).


       Neither are Marx’s subjective opinions of the motivation for his employer’s actions

sufficient to raise a fact issue defeating summary judgment. Texas Division-Tranter, Inc.

v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (retaliatory discharge claim); Robinson v.

The Devereaux Foundation, No. 14-01-00081-CV, 2002 WL 1315631 (Tex.App.–Houston

[14th Dist.] June 6, 2002, pet. denied) (mem. op.) (Sabine Pilot claim).


       Wheeler, Orr and other EDS employees testified to other reasons for the actions

Marx cites. Orr testified he initiated a PIP for Marx because of the frustration he was

having with Marx’s performance. In particular, Orr was concerned about Marx’s “inability

to effectively deliver upon his projects.” He “thought the appropriate action was to put forth

some type of a formal performance-improvement plan.”



                                             14
       Although he correctly notes the company did not actually reduce his salary until

March 2006, Marx acknowledges the subject had been discussed for some time. The

evidence shows that Wheeler told him in 2004, shortly after he became Marx’s manager,

his salary did not match his job code.10 As Wheeler put it, he told Marx that his salary was

“way out of whack for your position title.” Wheeler testified that the reason for Marx’s

salary change was “due to the fact that the role that [Marx] was performing was an

infrastructure specialist job, and I was aligning him to that role.” Orr also indicated that

Marx’s salary was reduced “[b]ased on performance issues and the job that [Marx] was

performing.” He stated Marx’s “performance was poor and that he was not performing to

an adequate level of the job code that he was in.” Further a “job code change would have

put [Marx] into a job code category that was more reflective of what his responsibilities

were and able to handle.”


       Marx argues his appeal is supported by Morales v. SimuFlite Training Intern.,

Inc., 132 S.W.3d 603, 609 (Tex.App.–Fort Worth 2004, no pet.) and Allen v. Powell, 989

S.W.2d 776 (Tex.App.–Amarillo 1998) aff’d in part, rev’d in part, Powell Industries, Inc. v.

Allen, 985 S.W.2d 455 (Tex. 1998). We disagree. Powell produced evidence he was fired

because he refused to authorize payment of personal expenses of the president of his

company. Powell, 989 S.W.2d at 779-81. Evidence in Morales showed he was fired for

refusing to sign a government-required form in blank. Morales, 132 S.W.3d at 609. In the

face of that evidence, the appellate courts in both cases found that alternative reasons for


       10
         When Marx transferred to Orr’s group in 2004, the position to which he was
transferred carried a different job code than his previous position, but his salary was not
changed.

                                            15
 the firings did not justify removing the cases from the jury. Both courts said determination

 of the true reasons for the firings were questions for the fact finders. Morales, 132 S.W.3d

 at 610; Powell, 989 S.W.2d at 781-81. Here, by contrast, Marx has not produced more

 than a scintilla of evidence to meet the causation requirement for his Sabine Pilot claim.


      We overrule Marx’s first issue.


Slander Claims


             In Marx’s second issue, he argues that the trial court erred also in granting

summary judgment on his slander claim. EDS challenged Marx’s claim by asserting that the

statements of which Marx complains are not defamatory. We agree.


                                        Applicable Law


       Slander is a defamatory statement orally communicated or published to a third

person without legal excuse. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646

(Tex. 1995); Austin v. Inet Technols., Inc., 118 S.W.3d 491, 496 (Tex.App.–Dallas 2003,

no pet.); AccuBanc Mortgage Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex.App.–Fort

Worth 1996, writ denied). A statement is defamatory if the words tend to injure a person’s

reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Inet,

118 S.W.3d at 496; Cecil v. Frost, 14 S.W.3d 414, 417 (Tex.App.–Houston [14th Dist.]

2000, no pet.). In a defamation action, the initial question whether the words used were

reasonably capable of a defamatory meaning is a question of law to be decided by the trial

court. Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 645 (Tex. 1987). The court


                                              16
construes the statement as a whole in light of surrounding circumstances based on how a

person of ordinary intelligence would perceive the entire statement. Id.; Cecil, 14 S.W.3d

at 417. A statement may be false, abusive, unpleasant, or objectionable to the plaintiff but

not be defamatory in light of the surrounding circumstances. Columbia Valley Regional

Med. Ctr. v. Bannert, 112 S.W.3d 193, 198 (Tex.App.–Corpus Christi 2003, no pet.).


       The opinion of the plaintiff in a defamation action has no bearing on whether the

words or statements at issue are actually defamatory. Houseman v. Publicaciones Paso

del Norte, S.A. DE C.V., 242 S.W.3d 518, 524 (Tex.App.–El Paso 2007, no pet.).


                                         Analysis


       All of the statements Marx alleges defamed him were made by other members of his

work group at EDS. The first was made when Marx entered his work cubicle one day

without saying anything while co-workers were holding a conversation on the other side of

the cubicle wall. Another network engineer, Annette Harris, said, “I think Ron’s over there”

and then said “yeah, you know, the sneaky snake is here.” The second statement also was

made by Harris, this time during a staff meeting. During conversation in the meeting, Marx

referred to himself as a “hunt and peck” typist. Harris remarked, “Yeah, you’re a slow

pecker.” The third statement was made on an occasion when Jensen saw Marx sitting in

his cubicle. He commented to Harris and another co-worker, Brian Moreno, “Ron doesn’t

look like a happy camper today.” He then told Marx, “you should get on some, you know,

happy pills or some–you need some kind of medication.” Harris chimed in, adding, “You

know, they got medication for your problems.”


                                            17
       Finally, Marx complains of a comment made about his use of a coffee mug. Once

when Marx returned to his desk to find his mug missing, Jensen told Marx there was a mug

in the lab he could use. Marx got the mug, washed it, and got coffee. When he returned

with the mug, Jensen and Orr were standing together. Jensen said to Orr, “Isn’t that your

coffee cup, Gene?” Orr responded, saying to Marx, “Yeah, you’d better wash it before you

get laid off.”


       We conclude, as a matter of law, none of the statements was defamatory.

Considered in the office context in which they were made, we find that a person of ordinary

intelligence would not perceive any of them as injurious to Marx’s reputation, exposing him

to public hatred, contempt, ridicule, or financial injury. Musser, 723 S.W.2d at 655. Even

Marx, in his deposition, stated that in isolation each of the comments could be considered

jokes or “kidding.” Taken together, however, he said they are “[a] little alienation. A little

more harassment. A little more degrading nonsense.” Nonetheless, the trial court did not

err by granting EDS summary judgment against Marx’s slander action based on these

statements.


       Marx also alleged as slanderous a statement made by an EDS manager to a Sabre

employee that Marx had not been honest in his disclosures about EDS’s billings, and

statements made by Harris and Jensen that Marx was “no good” and “could not be trusted.”

The only summary judgment evidence of the statements came from Marx’s deposition. He

testified he did not hear the statements, but was told about them by third parties. By

motion, EDS asked the trial court to strike Marx’s summary judgment evidence of the



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statements as hearsay and thus improper summary judgment evidence.11 EDS’s motion

to strike was filed three days before the trial court signed an order stating only it granted

EDS’s motion for summary judgment. The court’s order did not address EDS’s motion to

strike summary judgment evidence. About two weeks later, the trial court signed the

judgment from which Marx appeals, which is entitled “Amended Order Granting Defendant’s

Motion for Summary Judgment.” That judgment recites the court considered EDS’s motion

for summary judgment, Marx’s response, and “all evidentiary objections and motions to

strike made in connection with the Motion.”


       The parties’ appellate briefs discuss the issue whether Marx’s deposition testimony

to the assertedly slanderous statements was hearsay. We agree with EDS the testimony

was hearsay. Marx testified to the out-of-court statements of third parties. His testimony

was offered to prove the truth of the third parties’ statements to him that the slanderers

made the offending statements. The grant of EDS’s motion to strike Marx’s testimony to

the statements involved no abuse of discretion. See Southland Corp. v. Lewis, 940 S.W.2d

83, 85 (Tex.1997) (holding affidavit contained “clearly inadmissible hearsay” and therefore

was not competent summary judgment proof); Souder v. Cannon, 235 S.W.3d 841, 851

(Tex.App.–Fort Worth 2007, no pet.) (holding hearsay objection to statement in affidavit




       11
         To be considered by the trial or reviewing court, summary judgment evidence must
be presented in a form that would be admissible at trial. Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W .3d 103, 112 (Tex.App.–Houston [14th Dist.] 2000, no pet.). Hearsay
is not proper summary judgment evidence. Einhorn v. LaChance, 823 S.W.2d 405, 410
(Tex.App.–Houston [1st Dist.] 1992, writ dism'd w.o.j.) (op. on reh'g) (holding that
statements in affidavits based solely on hearsay are inadmissible as summary judgment
evidence).

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should have been sustained and reviewing court therefore would not consider the

statement).


       Further, applying case law from the Second Court of Appeals,12 we find the trial

court’s statement in its amended order that it “considered” EDS’s motion to strike, coupled

with its grant of EDS’s motion for summary judgment, constituted an implicit granting of the

motion to strike as well. See Frazier v. Yu, 987 S.W.2d 607, 619 (Tex.App.–Fort Worth

1999, pet. denied) (finding implied ruling sustaining summary judgment movant’s

objections); Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.–Fort Worth 1998, no pet.)

(finding implied ruling overruling non-movant’s objections). See also Winn v. Spectrum

Primary Care, Inc., No. 02-07-038-CV, 2008 WL 1867296 (Tex.App.–Fort Worth April 24,

2008, pet. denied) (mem. op.) (finding implied ruling overruling non-movant’s objections).


       We overrule Marx’s second issue. His two remaining issues dealt with damages.

Having affirmed the trial court’s disposition of his causes of action against EDS, it is not

necessary to address the damage issues. See Tex. R. App. P. 47.1.


       Accordingly, the judgment of the trial court is affirmed.



                                    James T. Campbell
                                         Justice




      12
         This appeal was transferred to this Court from the Second Court of Appeals by the
Supreme Court of Texas under Government Code section 73.001. Tex. Gov’t Code Ann.
§ 73.001 (Vernon 2005). By rule, we are required to apply the transferor court’s case law.
Tex. R. App. P. 41.3.

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