Brackens, et al v. Ennis State Bank, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10438
Summary Calendar
_______________
WILLIE BRACKENS AND VIRLEY BRACKENS,
Plaintiffs-Appellants,
VERSUS
ENNIS STATE BANK;
BRAMLET BEARD,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
PAT BEARD,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
GEORGIE RICHARDSON,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
JACQUIE RICE,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
AND
DOROTHY HOLT,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:98-CV-308-L)
_________________________
March 12, 2001

-- 1 of 8 --

2
Before SMITH, BENAVIDES,
and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
I.
Willie Brackens, a black female, was fired
from her job at Ennis State Bank (“ESB”).1
During her tenure there, she performed her
work too slowly, made numerous errors, and
received multiple warnings for conducting too
much personal business during the work day
and for excessive absences. She requested and
received two extended medical leaves, ex-
hausting her paid vacation. Upon her return,
ESB filled her position with another employee
and moved her to a bookkeeping position with
identical salary and benefits. Brackens then
filed a discrimination charge with the Equal
Employment Opportunity Comm ission
(“EEOC”), claiming she had been transferred
because of her race and disability.
After six months in the bookkeeping
department, Brackens refused to participate in
a drawing to determine the order of a new shift
rotation. She called the employee
administering the draw “the Devil” and a “fake
Christian,” then left work for the rest of the
day. ESB suspended her without pay for three
days, then fired her.
II.
Brackens and her husband sued, claiming,
inter alia, race discrimination, retaliation, loss
of consortium, misrepresentation, and
intentional infliction of emotional distress
(“i.i.e.d.”).2 The court granted summary judg-
ment on all claims. Brackens appeals, claiming
error in the failure to allow her to amend her
complaint and averring that questions of
material fact prevented summary judgment.
Finding no error, we affirm.
III.
The Brackenses believe the court erred in
refusing their request to amend their complaint
to include a “breach of oral contract.” We
review the denial of a motion to amend for
abuse of discretion. Whitmire v. Victus Ltd.,
212 F.3d 885, 887 (5th Cir. 2000).3
The proposed amended complaint asserted,
in essence, that ESB had created a contract
with Willie Brackens through her reliance on
its promises and that ESB breached that
contract by firing her without cause. Brackens
appears to have raised a claim of promissory
estoppel, though she has not used that term.
We construe pleadings liberally “to do
substantial justice,” FED. R. CIV. P. 8(f), and
we do not require technical forms of pleading
or motions. Rule 8(e)(1).
A.
By its terms, rule 15(a) allows a plaintiff to
amend a complaint after a responsive pleading
has been served by written consent of the ad-
verse party or by leave of the court “when
* 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.
1 We use “Ennis State Bank” to refer to Ennis
State Bank, Bramlet Beard, Pat Beard, Georgie
Richardson, Dorothy Holt, and Jacquie Rice col-
lectively.
2 Virley Brackens does not appeal the summary
judgment on the loss of consortium claim.
3 See also Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 331-32 (1971).

-- 2 of 8 --

3
justice so requires.”4 This rule “circumscribes
the exercise of the district court’s discretion;
thus, unless a substantial reason exists to deny
leave to amend, that discretion is not broad
enough to permit denial.” Shipner v. E. Air
Lines, Inc., 868 F.2d 401, 407 (11th Cir.
1989) (dictum). In discerning the presence of
said “substantial reason,” the court may
consider such factors as “undue delay, bad
faith, dilatory motive on the part of the
movant, repeated failure to cure deficiencies
by amendments previously allowed, undue
prejudice to the opposing party, and futility of
amendment.” Jacobsen v. Osborne, 133 F.3d
315, 318 (5th Cir. 1998) (quoting In re South-
mark Corp., 88 F.3d 311, 314-15 (5th Cir.
1996)). A denial “without any justifying rea-
son,” however, “is not an exercise of that dis-
cretion; it is merely an abuse of that discretion
and inconsistent with the spirit of the Federal
Rules.” Lowery v. Tex. A & M Univ. Sys., 117
F.3d 242, 245 (5th Cir. 1997) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
The court deemed the Brackenses’ motion
futile because it was “without merit.” We
have interpreted “futility” in this context “to
mean that the amended complaint would fail to
state a claim upon which relief could be
granted.” Stripling v. Jordan Prod. Co., 234
F.3d 863, 873 (5th Cir. 2000).5 Thus, in
determining futility, we apply “the same stan-
dard of legal sufficiency as applies under Rule
12(b)(6),”id.SS“whether in the light most fa-
vorable to the plaintiff and with every doubt
resolved in his behalf, the complaint states any
valid claim for relief.” Id. (internal quotations
omitted).
B.
We look to state law for principles of con-
tract interpretation. Clardy Mfg. Co. v.
Marine Midland Bus. Loans, Inc., 88 F.3d
347, 352 (5th Cir. 1996). “The longstanding
rule in Texas provides for employment-at-will,
terminable at any time by either party, with or
without cause, absent an express agreement to
the contrary.” Ronnie Loper Chevrolet-Geo,
Inc. v. Hagey, 999 S.W.2d 81, 83 (Tex.
App.SSHouston [14th Dist.] 1999, no pet.).
The doctrine of promissory estoppel, however,
allows reliance on statements by an employer
to surmount the presumption of at-will
employment. See Patterson v. Leal, 942
S.W.2d 692, 694 (Tex. App.SSCorpus Christi,
1997, writ denied).
Regardless of the merits of Brackens’s
claim, she theoretically could prove some set
of facts demonstrating that she relied on some
ESB promise to her detriment. The district
court “may not dismiss a complaint under Rule
12(b)(6) unless it appears beyond doubt that
the plaintiff can prove no set of facts in
support of his claim which would entitle him to
4 Rule 15(a) states in relevant part:
A party may amend the party’s pleading
once as a matter of course at any time be-
fore a responsive pleading is served or, if the
pleading is one to which no responsive
pleading is permitted and the action has not
been placed upon the trial calendar, the par-
ty may so amend it at any time within 20
days after it is served. Otherwise a party
may amend the party’s pleading only by
leave of court or by written consent of the
adverse party; and leave shall be freely
given when justice so requires.
5 See also Jamieson v. Shaw, 772 F.2d 1205,
1208 (5th Cir. 1985) (“When futility is advanced
as the reason for denying an amendment to a com-
plaint, the court is usually denying leave because
the theory presented in the amendment lacks legal
foundation . . . .”).

-- 3 of 8 --

4
relief.” Stripling, id.
The theoretical possibility of presenting
facts to support Brackens’s promissory estop-
pel theory does not end the analysis. “In order
to avoid dismissal for failure to state a claim,
however, [Brackens] must plead specific facts,
not mere conclusory allegations . . . . We will
thus not accept as true conclusory allegations
or unwarranted deductions of fact.” Tuchman
v. DSC Communications Corp., 14 F.3d 1061,
1067 (5th Cir. 1994) (internal quotations omit-
ted).
The proposed amended complaint states
only that Brackens had a contract with ESB
that could be completed in one year, that she
relied on ESB’s representations in deciding to
accept employment, and that she was
damaged. She alleges no facts in support of
these allegations.6 “[C]onclusory allegations
or legal conclusions masquerading as factual
conclusions will not suffice to prevent a
motion to dismiss” or, by extension, a denial of
a motion for leave to amend. Fernandez-Mon-
tez v. Allied Pilots Ass’n, 987 F.2d 278, 284
(5th Cir. 1993).
Brackens has alleged merely the legal ele-
ments of a promissory estoppel claim; she has
not pled, with sufficient particularity, the facts
to support these elements. Thus, even under
the liberal 12(b)(6) standard, her claim would
not have survived dismissal. Therefore, the
claim was futile, and the court did not err in
refusing to grant leave to amend.
IV.
The Brackenses contend that the court er-
roneously granted summary judgment on their
claims of race discrimination, retaliation, mis-
representation, and i.i.e.d. We review a sum-
mary judgment de novo, applying the same
standards as did the district court. Uniroyal
Chem. Co. v. Deltech Corp., 160 F.3d 238, 6 The relevant portion of the proposed amended
complaint reads as follows:
38. Plaintiff Willie Brackens had a contract
will [sic] defendant Ennis State Bank that
could be completed in one year. All duties
and responsibilities were of such a nature
that the functions were able to be performed
on a yearly basis.
39. Plaintiff was told of the opportunities at
Ennis State Bank and relied on the
representation of the agents of Ennis State
Bank in interviews and in subsequent
reviews in making the decision to accept and
continue employment with Ennis State
Bank.
40. Plaintiff received an audit report from
the Texas Workforce Commission that
states plaintiff Willie Brackens should not
(continued...)
6(...continued)
have been terminated from her job because
there was [sic] no violations of the rules and
policies. Plaintiff Willie Brackens was
harassed, tormented and subjected to cruel
and unusual treatment by co-workers.
41. Plaintiff Willie Brackens was damaged
due to the reliance on the misrepresentations
of the agents of Ennis State Bank. Plaintiff
gave up opportunities with other Bank
employers to agree to come to Ennis State
Bank for non existent [sic] opportunities.
The complaint fails to state the terms of the
supposed oral contract, the representations
Brackens believes ESB made to her (either
personally or through stated company policy), or
her foregone opportunities.

-- 4 of 8 --

5
241 (5th Cir. 1998). A party is entitled to
summary judgment when “the pleadings, de-
positions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if
any, show 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.” FED.
R. CIV. P. 56(c). A dispute over a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobb-
y, Inc., 477 U.S. 242, 248 (1986). We must
view all inferences from the facts in the light
most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986).
A.
The Brackenses contend that the district
court erred in granting summary judgment on
her claim of race discrimination under 42
U.S.C. § 1981. Brackens must show four ele-
ments to establish a prima facie case of
employment discrimination under title VII:
(1) that she is a member of a protected class;
(2) that she was qualified for the position;
(3) that she suffered an adverse employment
action; and (4) that similarly situated
employees not in the protected class were
treated differently under nearly identical
circumstances. Rutherford v. Harris County,
197 F.3d 173, 184 (5th Cir. 1999).7 This
standard also applies to cases brought under §
1981. See Chaline v. KCOH, Inc., 693 F.2d
477, 479 (5th Cir. 1982).
Brackens established a prima facie case.
She is black and therefore a member of a pro-
tected class, and she was terminated, an ad-
verse employment action. The employee with
whom she had the altercation triggering her
suspension and termination was not
disciplined. Thus, the burden shifted to ESB
to “‘produc[e] evidence [of] . . . a legitimate,
nondiscriminatory reason’” for her
termination. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, ___, 120 S. Ct.
2097, 2106 (2000) (quoting Burdine, 450 U.S.
at 254).8
ESB produced evidence that it terminated
Brackens for her uncooperative behavior to-
ward her co-worker and for calling her “the
Devil” and a “fake Christian.” Brackens then
bore the burden to show that ESB’s
articulated reason for the employment decision
was pretextual. Id.; Burdine, 450 U.S. at 253;
McDonnell Douglas, 411 U.S. at 804.
The district court concluded that Brackens
“utterly failed” to present such evidence and
that she “merely testifie[d] to her subjective
belief that she was terminated due to her race
through conclusory statements that her
termination ‘was because I was black,’ and
that the ‘entire City of Ennis is racist.’”
Brackens’s subjective beliefs do not present
genuine issues of material fact sufficient to
survive summary judgment.9
7 See also St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993); Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); McDon-
nell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973).
8 See also McDonnell Douglas, 411 U.S.
at 802.
9 See Duffy v. Leading Edge Prods. Inc., 44
F.3d 308, 312 (5th Cir. 1995) (“[C]onclusory alle-
gations unsupported by concrete and particular
facts will not prevent an award of summary judg-
ment.”); Waggoner v. City of Garland, 987 F.2d
1160, 1164 (5th Cir. 1993) (observing that
subjective beliefs alone cannot establish a claim of
(continued...)

-- 5 of 8 --

6
Brackens argues that because the event pre-
cipitating her suspension and termination “was
investigated without affording Ms. Brackens
due process to state her case” and because the
timing of the discharge “came just days after
Willie Brackens had been subjected to a hostile
work environment and had been harassed by
senior and fellow employees,” a trier of fact
might find for the Brackenses. Both facts,
even when construed most favorably to Ms.
Brackens, are immaterial. To settle
grievances, private parties need not satisfy the
constitutional requirements of due process.
See, e.g., Bures v. Houston Symphony Soc’y,
503 F.2d 842, 843 (5th Cir. 1974). Thus, its
presence or absence has no bearing on this
case.
The timing of the discharge also has little
relevance, because Brackens has not alleged
facts that connect her strained working
relationships with a discriminatory motive.
Indeed, she admits making the statements for
which ESB says she was fired. Thus, the
Brackenses failed to present evidence that the
articulated reason for firing was pretextual.
The district court did not err in granting
summary judgment for ESB on this issue.
B.
Brackens contends the district court erred
in granting summary judgment on her title VII
claim that she was terminated in retaliation for
filing with the EEOC. The analysis of a retal-
iation claim resembles that of the
discrimination claim above.
Once Brackens establishes a prima facie
case, the burden shifts to ESB to articulate a
legitimate, non-retaliatory reason for the ac-
tion. Long v. Eastfield College, 88 F.3d 300,
308 (5th Cir. 1996); Shirley v. Chrysler First,
Inc., 970 F.2d 39, 42 (5th Cir. 1992). To es-
tablish a prima facie case of retaliation, Brac-
kens must show that (1) she engaged in
protected activity; (2) she suffered an adverse
employment action; and (3) there was a causal
connection between the protected activity and
the employment action. E.g., Mattern v. East-
man Kodak Co., 104 F.3d 702, 705 (5th Cir.
1997); Shirley, 970 F.2d at 42.
The parties do not dispute that Brackens
engaged in a protected activity or that she suf-
fered an adverse employment action within the
meaning of title VII. To demonstrate causal
connection, Brackens proffers her belief that
she verbally accosted a co-worker rather than
a supervisor, a diagnosis that she had post
traumatic stress disorder while at ESB, the
bank president’s suggestion that her work
performance was very good, and the fact that
only she was disciplined after the incident that
triggered her termination.
None of these facts remotely connects her
termination with her EEOC filing. Thus, she
did not meet her burden of production, so the
court did not err in granting summary
judgment on the retaliation claim.
C.
The Brackenses contend that the district
court erred in granting summary judgment on
their intentional misrepresentation claim.10 To
9(...continued)
discrimination).
10 The court correctly found that because
Brackens testified that only Richardson and Rice
had made misrepresentations to her, the Brackens-
es’ claims of misrepresentation against Bramlet
Beard, Pat Beard, and Dorothy Holt must fail,
because a material representation is an essential el-
(continued...)

-- 6 of 8 --

7
support this tort claim, Brackens must show
that (1) a material representation was made;
(2) it was false; (3) the speaker knew it was
false or made it recklessly without any
knowledge of the truth and as a positive
assertion; (4) the speaker made it with the
intention that it should be acted upon by the
party; (5) the party acted in reliance upon it;
and (6) the party thereby suffered injury.11
In district court, Brackens alleged that
Richardson and Rice made three
misrepresentations during her job interview:
(1) that employees normally get a raise after a
year of employment; (2) that ESB would be
flexible with respect to school issues and
illnesses; and (3) that competent employees
would have opportunities to advance. In
addition, Brackens believed that her sick leave
was “secretly held against” her. On appeal,
she claims that ESB president Bramlet Beard
cited excessive absences as a partial reason for
her termination, yet she believes all leave was
approved and that Beard did not indicate that
her job was at stake.
Even taking all of Brackens’s statements as
true, her claim fails as a matter of law. First,
the statements regarding a raise and
advancement merely explained the normal
course of events, contingent on her
performance. “There is nothing wrong with
assuring a potential employee that he will
advance if he performs well and then refusing
to advance him if he does not.” DeSantis v.
Wackenhut Corp., 732 S.W.2d 29, 38 (Tex.
App.SSHouston [14th Dist.] 1987), aff’d in
part, rev’d in part on other grounds, 793
S.W.2d 670 (Tex. 1990). These
representations were not definite promises, so
even if Brackens did rely on them to her
detriment, she cannot prevail.12
Second, Brackens admitted in deposition
that ESB allowed her to leave work to take
care of her children “the same as any other em-
ployee.” Thus, by her own admission, ESB
did not misrepresent to her its willingness to
be flexible. Brackens alleges that Beard
“made representations that suggested her job
was not at risk,” yet he cited excessive
absences as a reason for her termination. She
does not say, however, whether these
representation occurred before or after she had
exhausted her leave. Moreover, she has
alleged no facts that indicate that Beard’s
comments, whatever they may have been, were
more than vague assurances.
Therefore, Brackens failed to provide evi-
dence of any definite representation, correct or
otherwise. Without evidence of a specific
10(...continued)
ement of the claim. See Green Int’l, Inc. v. Solis,
951 S.W.2d 384, 390 (Tex. 1997). On appeal, the
Brackenses do not distinguish among these
defendants.
Moreover, at trial the Brackenses presented
claims for both negligent and intentional
misrepresentation. Although they do not
distinguish the two on appeal, their argument
covers only issues related to intentional
misrepresentation.
11 Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 501 n.7 (5th Cir. 2000); Ins. Co. of N.
Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998);
Green Int’l, 951 S.W.2d at 390.
12 See Gilmartin v. KVTV—Channel 13, 985
S.W.2d 553, 558 (Tex. 1998) (explaining that
detrimental reliance on a promise may establish a
fraud claim only when the plaintiff reasonably and
justifiably relies on a definite promise, not vague
assurances).

-- 7 of 8 --

8
material representation, we need not reach the
other five elements of the standard. The court
correctly granted summary judgment on this
claim.
D.
Brackens contends the court erred in
granting summary judgment on her Texas law
claim for i.i.e.d. She must establish four ele-
ments: (1) the defendant acted intentionally or
recklessly; (2) the conduct was extreme and
outrageous; (3) the defendant’s actions caused
emotional distress; and (4) the emotional dis-
tress was severe. Hirras v. Nat’l R.R.
Passenger Corp., 95 F.3d 396, 400 (5th Cir.
1996). “[T]he level of atrociousness to which
[the behavior] must [rise] is quite high. Simply
put, it must exceed all possible bounds of
decency and be utterly intolerable in a civilized
society.” Skidmore v. Precision Printing &
Packaging, Inc., 188 F.3d 606, 613 (5th Cir.
1999) (quoting Franklin v. Enserch, Inc., 961
S.W.2d 704, 710 (Tex. App.SSAmarillo 1998,
no writ)).
Brackens alleged that ESB employees
caused her distress because they accused her
of taking too much sick leave, working slowly
and inaccurately, and using company time for
personal business. Ordinary employment dis-
putes are not adequate to support i.i.e.d.
claims. Estate of Martineau v. ARCO Chem.
Co., 203 F.3d 904, 913 (5th Cir. 2000). Brac-
kens offers no evidence that ESB’s conduct
was anything more.
Further, although Brackens notes on appeal
that she was diagnosed with post traumatic
stress disorder and was placed on medication
and therapy, she utterly fails to draw any con-
nection between this emotional strain and any
action traceable to ESB. Thus, the court did
not err in granting summary judgment on this
claim.
AFFIRMED.13
13 We decline ESB’s suggestion that we impose
sanctions for frivolous appeal under FED. R. APP.
P. 38.

-- 8 of 8 --