“To invoke the privilege on summary judgment, an employer must conclusively establish that the allegedly defamatory statement was made with an absence of malice.”
How later courts described this case
- “To invoke the privilege on summary judgment, an employer must conclusively establish that the allegedly defamatory statement was made with an absence of malice.”
- “[T]he question of the credibility of witnesses is one for the jury alone . . . .”
- “[Plaintiff] further failed to defend her retaliatory abandonment claim in both responses to the defendant’s motion to dismiss. Her failure to pursue this claim beyond her complaint constituted abandonment.”
- “Generally, . . . a district court must consider all the evidence before it and cannot disregard a party’s affidavit merely because it conflicts to some degree with an earlier statement.” (quotation marks omitted)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FELIX V. CUADRADO, §
§
Plaintiff, §
§
v. § Civil Action No. 3:20-cv-03492-M
§
TI COMMUNITIES, §
§
Defendant. §
§
§
MEMORANDUM OPINION AND ORDER
Before the Court is the Defendant’s Motion for Summary Judgment (ECF No. 22),
Plaintiff’s Motion to Strike, Objections, and Response to Defendant’s Motion for Summary
Judgment (ECF No. 26), and Defendant’s Motion to Strike Summary Judgment Evidence (ECF
No. 32) and Motion to Strike Affidavits (ECF No. 33). For the following reasons, the Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed, unless otherwise noted. In February 2018,1
Defendant TI Communities (“TI”) hired Plaintiff Felix Cuadrado as an Assistant Maintenance
Technician at one of TI’s properties, The View at Kessler Park Apartments (“VKP”). Cuadrado
Depo. (ECF No. 28-1) at 62:22–66:2.2 In June 2018, Cuadrado was promoted to Maintenance
Director. Id. at 203:1-2; Polonsky Decl. (ECF No. 24-1) ¶ 5. As the Maintenance Director,
1 Plaintiff asserts in his Response that he was hired in February 2019, but this appears to be a typographical error, as
he later contended he started working at TI on February 26, 2018, he was promoted in June of 2018, and he was on
medical leave in January 2019. Resp. at 7.
2 Citations to the parties’ appendices are to the bates numbering of the appendices, and for the first citation include
the docket numbers.
Cuadrado performed repairs, general upkeep, and preventative maintenance for VKP, including
making roof repairs. Cuadrado Decl. (ECF No. 28-1) ¶¶ 4, 34. He also had responsibility for
inventory control, and supervised other employees. Polonsky Decl. ¶ 5. Cuadrado reported to
the property manager who, in turn, reported to TI’s Regional Director, Kathy Ball. Cuadrado
Depo. (ECF No. 28-1) at 66:23–67:5. Cuadrado was paid on an hourly basis. Id. at 66:12. He
was paid his hourly rate for all the work he performed. Id. at 132:10-12. Cuadrado made $26
per hour as the VKP Maintenance Director. Id. at 154:25.
Sometime in late 2018, TI agreed to sell VKP. Ball Decl. (ECF No. 24-1) at 1. To
incentivize employees to stay until the sale closed, TI said it would give a bonus to employees
who were still employed with TI at the time of closing. Cuadrado Depo. (ECF No. 28-1) at
201:25-202:8. Cuadrado alleges he was promised a bonus of $10,000. Cuadrado Decl. ¶ 30.
Cuadrado was terminated before VKP sold. Pl.’s App. at 102. At some point before
Cuadrado’s termination, the Assistant Property Manager, Diane Hernandez, raised concerns that
Cuadrado was improperly removing items from VKP. Id. at 101. She said she found
surveillance video footage of Cuadrado and Sergio Concha, the Assistant Maintenance
Technician he supervised, removing appliances from the loading dock in the rear of the building.
Hernandez forwarded still frames of the video to Ball, who determined that the images
constituted evidence of Cuadrado stealing from TI. Id. at 62. As a result, on March 1, 2019,
Christine Schoellhorn, the President of TI, terminated Cuadrado for theft, and told him he would
be required to return TI’s property. Cuadrado Depo. (ECF No. 28-1) at 88:15–89:10. Cuadrado
was led out of the VKP lobby and to the parking lot, where Cuadrado asserts that Schoellhorn
told a resident that Cuadrado had been fired for theft. Id.
Cuadrado searched for new positions at other apartment complexes, and eventually found
a job at S2’s Hangar Apartments as an Assistant Maintenance Technician, making $18.00 per
hour. Cuadrado Decl. ¶ 28.
Cuadrado sued TI in Dallas County District Court, asserting claims for violations of the
Family Medical Leave Act (FMLA), defamation, tortious interference, negligent and intentional
misrepresentation, breach of contract, promissory estoppel, quantum meruit, and intentional
infliction of emotional distress. Pl.’s First. Am. Pet. at 6–10. TI removed the case, and now
moves for summary judgment on all of Cuadrado’s claims.
II. MOTIONS TO STRIKE
Both Cuadrado and TI moved to strike evidence filed in connection with TI’s Motion for
Summary Judgment. Cuadrado moved to strike Declarations of Schoellhorn, Ball, and Carrie
Polonsky, the Senior Vice President of Talent Services. TI moved to strike Cuadrado’s
“Affidavit” and the “Affidavits” of Juan Colegio and Maria Martinez, former employees of TI,
and moved to exclude Colegio and Martinez as testifying witnesses. Cuadrado objected to and
moved to strike still frames of video surveillance of Cuadrado removing appliances from the
back entrance of the building into evidence, and TI asserted objections relating to Cuadrado’s
now-abandoned FMLA claim, which objections are therefore moot.
a. Cuadrado’s objections and motions to strike to Declarations of TI witnesses
In his Response to Defendant’s Motion for Summary Judgment, Cuadrado objects to, and
moves to strike, the Declarations3 of TI witnesses Schoellhorn, Ball, and Polonsky on the
grounds that they contain inadmissible hearsay and are not based on personal knowledge.
3 Cuadrado repeatedly refers to the “Affidavits” of Polonsky, Schoellhorn, and Ball, but cites to portions of TI’s
appendix that correspond with the Declarations of Polonsky, Schoellhorn, and Ball. The Court construes
Cuadrado’s reference to the “Affidavits” as being to the Declarations.
Specifically, Cuadrado objects that portions of the TI’s witness Declarations that recount
the declarant learning about Cuadrado’s alleged theft are inadmissible hearsay. For instance,
Cuadrado objects to Paragraph 13 of Polonsky’s Declaration, in which she states that Ball
“informed [her] that the photos and videos showed Cuadrado and Concha removing company
property from the VKP building without permission or business justification.” Polonsky Decl.
¶ 13. Similarly, Cuadrado objects to Paragraph 3 of Schoellhorn’s Declaration (ECF No. 24-1)
¶ 3, and to Ball’s Declaration, which states that Ball was “made aware” of discrepancies with
orders for replacement appliances because “it was reported” and “brought to [her] attention” that
Hernandez, VKP’s Assistant Property Manager, did not trust Cuadrado. Ball Decl. (ECF No. 24-
1) ¶¶ 4, 6–7.
These statements are not offered for the truth of the matter asserted—that Cuadrado stole
from TI—but instead reflect the mental state of TI’s managers in making personnel decisions.
Accordingly, under Federal Rule of Evidence 802, these statements are not inadmissible hearsay,
and the Motion to Strike them is denied.
Cuadrado also objects to paragraphs in Schoellhorn, Ball, and Polonsky’s Declarations
that discuss video and related photos allegedly depicting Cuadrado stealing from TI, as reflecting
a lack of personal knowledge. For instance, Cuadrado complains that the witnesses did not
watch the “original video” and have no personal knowledge as to when and where the images
were taken. E.g., Resp. at 26–27. Cuadrado further objects to Paragraph 17 of Polonsky’s
Declaration and Paragraph 12 of Ball’s Declaration—which describe how Polonsky told Ball to
report Cuadrado’s alleged theft to the police—as misleading, because the Declarations omit that
Polonsky did not instruct Ball to file a police report until after TI received a demand letter from
Cuadrado’s attorney.
Federal Rule of Civil Procedure 56(c) requires that an affidavit or declaration “be made
on personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Here,
the Court has reviewed the complained-of statements relating to the video and photos, and
concludes that they are based on the respective declarant’s personal knowledge. For example, in
her Declaration, Polonsky recounts Ball providing her with what Ball described as photos and
video from a VKP surveillance camera, explains that she recognized Concha and Cuadrado
because she had previously met them, and describes what they allegedly show. Polonsky Decl.
¶ 13. The fact that Polonsky does not directly describe when or where the video was taken does
not warrant excluding statements within her personal knowledge, and Cuadrado has not
otherwise shown her to lack competence to testify. Further, the omission from the Declarations
of details about when the police report was filed does not warrant exclusion. Cuadrado’s
Motions to Strike Schoellhorn’s, Polonsky’s, and Ball’s Declarations are DENIED.
b. TI’s objections and motions to strike Cuadrado’s “Affidavit” and Colegio’s
and Maria Martinez’s “Affidavits”4 and testimony
i. Cuadrado’s “Affidavit”
TI objects to and seeks to strike Cuadrado’s “Affidavit” in its entirety for lack of
verification, and moves the Court to strike paragraphs from the “Affidavit” that constitute
hearsay or purportedly contradict Cuadrado’s deposition and the Amended Complaint. ECF No.
32.
TI argues that Cuadrado’s “Affidavit” must be stricken in its entirety because it is not
verified. However, federal law permits unsworn Declarations to have “like force and effect” of
an affidavit supporting a motion if the Declaration is made under penalty of perjury and dated.
4 As set out below, the documents which Cuadrado refers to as “affidavits” are, in fact, Declarations.
28 U.S.C. § 1746. Here, Cuadrado signed and dated the document under penalty of perjury.
Cuadrado Decl. at 8. The Court therefore construes the document as a Declaration, and denies
TI’s request to exclude it.
TI contends that the Court should nevertheless strike portions of Cuadrado’s Declaration
that contradict his prior statements. Specifically, TI objects to Paragraph 10, describing how
Cuadrado had allegedly moved a stove from apartment 1108, and Paragraph 30,5 stating that Ball
offered Cuadrado a bonus to “get the property ready for sale, in addition to [his] Service Director
position/duties.” Cuadrado Decl. ¶¶ 10, 30. TI points to Cuadrado’s deposition testimony, in
which he previously testified that he had moved a stove from apartment 1008, and statements in
the Amended Complaint, which state that the only requirement to receive a bonus was that VKP
be sold. Cuadrado Depo. at 123:23, 181:23; Pet. (ECF No. 1-1) ¶ 35. Because the complained-
of statements in Cuadrado’s Declaration allegedly contradict his prior statements, TI argues that
these statements constitute a sham under S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495–96
(5th Cir. 1996), which prohibits a party from submitting an affidavit that “impeaches, without
explanation, sworn testimony.”
As an initial matter, Cuadrado has explained the discrepancy in his testimony about the
number of the apartment from which he removed a stove, and that slightly different apartment
number referenced in his Declaration.6 Further, S.W.S. is the exception to the rule that a trial
court cannot disregard an affidavit just because it conflicts “to some degree” with the same
person’s deposition. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980). Under
5 In addition to objecting to Paragraphs 10 and 30, TI also objected to Paragraph 21 as relating to the alleged bonus
agreement. Paragraph 21 of Cuadrado’s Declaration, however, refers to the police report of the alleged theft,
whereas Paragraph 31 refers to the bonus agreement. Cuadrado Decl. ¶¶ 21, 31. The Court considers TI’s reference
to Paragraph 21 to be a typographical error, but declines to strike Paragraph 31 for the same reasons as it does for
Paragraph 30.
6 Cuadrado stated in his Declaration that he meant to say Apartment 1008 when he stated 1108 in his deposition, and
as was reflected in the work order he had completed. Cuadrado Decl. ¶ 10.
the sham affidavit rule, a court may refuse to give credence to statements that are so inconsistent
that they “constitute an obvious sham,” but need not strike every discrepancy. Winzer v.
Kaufman Cty., 916 F.3d 464, 472 (5th Cir. 2019) (quoting Clark v. Resistoflex Co., 854 F.2d 762,
766 (5th Cir. 1988)); see also id. (“Generally, . . . a district court must consider all the evidence
before it and cannot disregard a party’s affidavit merely because it conflicts to some degree with
an earlier statement.” (quotation marks omitted)). In both his Declaration and his deposition,
Cuadrado states he undertook additional duties to get VKP ready for sale; therefore, his
testimony can be reconciled and presents a credibility determination reserved for the factfinder.
See id. at 473. TI’s Motion to Strike these portions of Cuadrado’s Declaration is therefore
denied.
TI further contends that portions of Cuadrado’s Declaration are conclusory, lack
foundation, and are not based on personal knowledge. However, as Cuadrado stated that the
contents of his Declaration are within his personal knowledge, TI essentially asks the Court to
weigh the credibility of Cuadrado’s statements. Given that credibility determinations are strictly
within the purview of the factfinder, the Court denies TI’s Motion on these grounds. See
Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216 (1931) (“[T]he question of the credibility
of witnesses is one for the jury alone . . . .”).
TI further moves to strike portions of Cuadrado’s Declaration that it claims constitute
inadmissible hearsay. Federal Rule of Civil Procedure 56 requires that an affidavit or declaration
set out facts that would be admissible in evidence. Fed. R. Civ. P. 56(c)(4). In his Declaration,
when discussing his efforts to get a job after VKP, Cuadrado states, “I was told upon turning in
the application that I would get the job given my qualifications and many years of experience.
But, when each apartment complex called TI for reference, they did not hire me. A
representative from each apartment told me that a TI representative stated that I was terminated
for stealing.” Cuadrado Decl. ¶ 27. Cuadrado’s references in Paragraph 27 of his Declaration to
statements allegedly made to him, by prospective employers, ant to statements allegedly made by
TI to prospective employers, constitute inadmissible hearsay. See Fed. R. Evid. 802, 803.
Therefore, the Court STRIKES such portions of Paragraph 27 of Cuadrado’s Declaration.
TI further objects to Paragraph 41 of Cuadrado’s Declaration, concerning his health
condition; as the parties have stated that they resolved this dispute, the objection is denied as
moot.
ii. Martinez and Colegio’s “Affidavits”7 and Testimony
TI moves to strike the Declarations of Maria Martinez and Juan Colegio, and to exclude
them from testifying as witnesses because (1) they failed to appear for depositions, (2)
Cuadrado’s counsel did not cooperate with their appearing, in bad faith, and (3) the Martinez
Declaration was submitted under “suspicious” circumstances. ECF No. 33.
On January 15, 2021, in his first amended disclosures, Plaintiff identified “Juan”—first
name only—and Maria Martinez as likely to have discoverable information. Def.’s. App. (ECF
No. 34-1) at 1, 3, 8. On August 13, 2021, in his second amended disclosures, Cuadrado
disclosed Juan Colegio’s last name and the contact information for Colegio and Martinez. Id. at
12–17. On August 17, 2021, Cuadrado produced via email a document entitled “Affidavit of
Maria Martinez,” which was purportedly signed and dated by Martinez that same day. Id. at 18–
22. The parties do not dispute that Cuadrado—not Martinez—signed Martinez’s name on the
Declaration produced on August 17. Mot. to Strike (ECF No. 33) at 5, Resp. (ECF No. 37) at 2.
Cuadrado maintains that there was a misunderstanding, and that less than 24 hours later,
7 To the extent the Martinez and Colegio Affidavits were not verified, they are construed as Declarations.
Plaintiff’s counsel procured a copy of the Declaration, signed by Martinez, and produced it to
defense counsel, along with an explanation. Def’s. App. at 40–42.
The fact discovery deadline was initially August 20, 2021. ECF No. 8. That same day,
Magistrate Judge Rutherford extended the discovery deadline for two weeks for Cuadrado to
provide complete witness contact information for all persons identified in his disclosures, and an
additional thirty days for TI to act on that information. ECF No. 10. On August 26, 2021,
defense counsel inquired about the availability of Martinez and Colegio for deposition, and then
subpoenaed them. Def.’s App. at 43–50. On September 8, 2021, attorneys for both parties
appeared, but Martinez and Colegio did not. Certificates of Nonappearance (ECF No. 34-1) at
71–72, 90–91. TI now argues that Cuadrado’s counsel did not cooperate in securing their
appearances.
Although the Court has inherent power to impose sanctions to control litigation before it,
Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th Cir. 2010), the
Court declines to strike the Declarations of Colegio and Martinez. TI could have moved to
compel their testimony but declined to do so. Their testimony by Declaration is of marginal
significance. As to TI’s objections that portions of Colegio’s and Martinez’s Declarations
contain hearsay or impermissible character evidence, those objections are OVERRULED.
c. The Surveillance Video
The parties have other disputes relating to the surveillance video and associated still
photographs purporting to show Cuadrado’s theft. Cuadrado contends that TI improperly failed
to preserve the original, complete surveillance video, and any other videos from which
photographs were taken. Cuadrado relies on the affidavit of his counsel, Vincent Bhatti, that
TI’s counsel informed him that the original videos are no longer available. Pl.’s App. at 51. In
turn, TI moves to strike Bhatti’s testimony as irrelevant hearsay.
Federal Rule of Civil Procedure 37(e) provides that, “[i]f electronically stored
information that should have been preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve it,” the Court may issue an appropriate
remedy. Fed. R. Civ. P. 37(e). If the Court finds that a party was prejudiced by the loss of
information, it “may order measures no greater than necessary to cure the prejudice.” Fed. R.
Civ. P. 37(e)(1). If the Court finds that the information was intentionally not preserved, the
Court may then take additional steps, including presuming that the lost information was
unfavorable to the party who did not preserve it. Id. 37(e)(2).
The Court concludes that relief under Rule 37(e) is inappropriate here, because Cuadrado
cannot show prejudice from the loss of the original videos, to the extent they once existed. TI
witnesses testified that they relied on still frames of the video surveillance, which Cuadrado
attached as evidence to his Response, to make their decision to terminate Cuadrado. See Ball
Depo. at 168, 177, 186–87. Cuadrado does not argue that other, potentially exonerating events
occurred which would have been captured and included on the original videos; for example,
Cuadrado might have argued that he later returned the allegedly stolen appliances to the
apartments, which might have been reflected in the full videos. Instead, he simply argues he
“cannot put forward additional proof of TI’s malice” without the originals, without stating what
the missing videos would purportedly show. Resp. at 29.
Cuadrado also speculates that the video and photographs were manipulated, but he does
not provide a factual basis for this position. Accordingly, the Court finds no basis to strike the
video or photographs on these grounds.
Accordingly, the Motion to Strike the photos and the video are DENIED. TI’s objections
to Bhatti’s Declaration are DENIED AS MOOT.
d. FMLA Objections
Cuadrado previously asserted a claim that TI’s Property Manager, Jessica Martinez,
retaliated against Cuadrado for taking FMLA leave, but has since dropped that claim. See Pl.’s
Second Am. Pet. (ECF No. 1-1) at 10–11. Accordingly, TI’s objections to statements made by
Jessica Martinez are DENIED AS MOOT.
III. MOTION FOR SUMMARY JUDGMENT
TI moves for summary judgment on Cuadrado’s claims for violation of the FMLA,
defamation, tortious interference, negligent and intentional misrepresentation, breach of contract,
promissory estoppel, quantum meruit, and intentional infliction of emotional distress. For the
reasons explained below, the Motion is GRANTED IN PART and DENIED IN PART.
a. Legal Standard
Summary judgment is proper where there is no genuine dispute of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is
“material” if it might affect the outcome of the case under applicable law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The
movant bears the burden to prove that no genuine issue of material fact exists, but this does not
require negating elements of the nonmoving party’s case. Lynch Props., Inc. v. Potomac Ins.
Co., 140 F.3d 622, 625 (5th Cir. 1998). Instead, the moving party can meet its burden by
identifying those portions of the pleadings, depositions, and other summary judgment evidence
which demonstrate the nonmoving party lacks evidence to support its claims. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986).
The burden then shifts to the nonmoving party to show that summary judgment is not
warranted. Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991). The nonmoving
party must go beyond the pleadings and point to specific facts in affidavits, depositions, answers
to interrogatories, and admissions on file that show there is a genuine issue for trial. Celotex,
477 U.S. at 324. Conclusory allegations, unsubstantiated assertions, or a mere scintilla of
evidence will not defeat a summary judgment motion. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). The court will view all facts and inferences in the light most favorable to
the nonmoving party. Armstrong v. Am. Home Shield Corp., 333 F.3d 566 (5th Cir. 2003).
However, the court “will not assume ‘in the absence of any proof . . . that the nonmoving party
could or would prove the necessary facts.’” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540
(5th Cir. 2005) (quoting Little, 37 F.3d at 1075).
b. Analysis
In his response, Cuadrado did not address his claims under the FMLA, for negligent and
intentional misrepresentation, and intentional infliction of emotional distress. Accordingly, the
Court determines that Cuadrado has abandoned these claims, and summary judgment is granted
in favor of TI on these claims. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir.
2006) (“[Plaintiff] further failed to defend her retaliatory abandonment claim in both responses
to the defendant’s motion to dismiss. Her failure to pursue this claim beyond her complaint
constituted abandonment.”). The Court will address the remainder of Cuadrado’s claims.
i. Defamation
Cuadrado asserts that TI is liable for defamation based on two allegedly defamatory
statements: first, that an unidentified manager of TI told the manager of Center Ridge
Apartments, Cuadrado’s prospective employer, that Cuadrado was a thief; and second, that
Schoellhorn told a VKP resident that Cuadrado had been fired for theft. Resp. at 30–31.8
Under Texas law, the elements of defamation are “(1) the publication of a false statement
of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite
degree of fault, at least amounting to negligence, and (4) damages, in some cases.” Innovative
Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020). A
statement is defamatory per se when it is “so obviously harmful to reputation that the jury may
presume the existence of general damages.” In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015).
Defamation per se includes accusing someone of committing a crime. Id. at 596.
Regarding the first alleged defamatory statement—that TI made statements to Center
Ridge Apartments that Cuadrado was a “thief”—Cuadrado’s evidence consists of his own
Declaration and deposition. Resp. at 20. Cuadrado claims that he heard from a friend, Mario
Maldonado, that a TI manager told the hiring manager at Center Ridge Apartments that
Cuadrado was a thief. Pl.’s App. at 5, 13–14, 23, 34. Cuadrado provides no evidence from
Maldonado.
TI responds that Cuadrado’s unsubstantiated, hearsay testimony is not sufficient to raise a
genuine issue of material fact. TI provides evidence that no prospective employer of Cuadrado
8 Because he does not address it in his Response, Cuadrado appears to have abandoned his claim that someone at TI
told a different prospective employer, Cherrybrook Apartments, that he was “bad news.” See Pl.’s App. at 11–12.
In addition, Cuadrado did not respond to TI’s Motion for Summary Judgment as to his claim that someone at TI
defamed him to his current employer, S2, an assertion which TI rebutted with evidence from S2’s employee records
for Cuadrado, showing no communication with TI. Def.’s App. at 421–92.
ever requested information about him from TI, and that TI provided no such information. See
Def.’s App. at 404, 415–20.
Cuadrado’s unsubstantiated assertions with respect to what TI told his prospective
employers are based on inadmissible hearsay, and there is no admissible evidence that TI
defamed Cuadrado to prospective employers. See Fed. R. Civ. P. 56(c)(4).
As to the second basis for his defamation claim—a statement allegedly made by
Schoellhorn to a VKP resident—Cuadrado’s evidence was described in his deposition:
“When we walk by the lobby, she go on one of tenants—there was an old lady. She
was a teacher. She had been livin [sic] in that building for 38 years.
‘Felix, what’s going on?’
And Christine [Schoellhorn] say, ‘He’s fired because he’s a thief.’”
Pl.’s App. 23.
TI argues that Cuadrado does not offer any corroboration for his version of events, and
that his testimony alone, without evidence of understanding by the resident that she heard the
defamatory statement, is insufficient to withstand summary judgment.
The Court disagrees with TI. Cuadrado’s deposition testimony creates a fact question.
See Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 448 (5th Cir. 2018); Heinsohn v.
Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016); Johnson v. Dubroc, 3 F.3d 436 (5th
Cir. 1993). A district court may not weigh the credibility of evidence at the summary judgment
stage, but must instead determine whether there is evidence that could support a verdict for the
plaintiff. Carroll v. Metro. Ins. & Annuity Co., 166 F.3d 802, 808 (5th Cir. 1999). Here,
Cuadrado’s testimony about Schoellhorn’s alleged statement to a resident creates a factual
dispute about a key element of his claim and is appropriate for determination by a factfinder.
TI further argues that summary judgment is still appropriate because Cuadrado cannot
prove the alleged statement was made negligently, and because the affirmative defenses of truth
and qualified privilege apply. The Court disagrees with TI. The summary judgment record
indicates that Ball, Polonsky, and Schoellhorn reviewed a video and photos of Cuadrado
removing an appliance, and because they did not know Cuadrado to have permission or a
business justification to do so, concluded he was stealing company property. However, TI
admits that it took no witness statements before terminating Cuadrado, and the summary
judgment record is unclear as to whether the property in question ever actually left VKP’s
premises—i.e., whether Cuadrado ever actually deprived TI of property. Pl.’s App. at 126; see
also Ball Depo. (ECF No. 24-1) at 97:23–98:22, 112:6-8, 183:23–188:15, 198:2–20; Martinez
Decl. ¶¶ 11–12; Def.’s App. at 20–21; Cuadrado Depo (ECF No. 28-1). at 221:24–222:22.
Accordingly, a reasonable juror could conclude that TI was negligent—if not reckless—in
identifying Cuadrado as a “thief” to a resident before interviewing witnesses or determining
whether that characterization was true, especially given TI’s policy that misconduct allegations
are to be thoroughly investigated. Pl.’s App. at 78. For the same reason, the Court declines to
grant summary judgment on TI’s affirmative defenses of truth and qualified privilege, which
confers civil immunity to a company for making allegedly defamatory statements to “interested
persons” and prospective employers of current or former employees, and because TI has not
conclusively established that the statement was substantially true or made with an absence of
malice. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 645 (Tex. 1995) (“To
invoke the privilege on summary judgment, an employer must conclusively establish that the
allegedly defamatory statement was made with an absence of malice.”); McIlvain v. Jacobs, 794
S.W.2d 14, 16 (Tex. 1990).
Accordingly, TI’s Motion for Summary Judgment is DENIED as to Cuadrado’s
defamation claim arising from Schoellhorn’s alleged statement to a resident.
c. Contract-Related Claims
Cuadradro brings a claim against TI for breach of contract, or, in the alternative, for
promissory estoppel or quantum meruit, based on breach of an alleged agreement TI made to pay
Cuadrado a $10,000 bonus. The Court grants summary judgment for TI on these claims.
i. The Bonus Contract
TI moves for summary judgment on Cuadrado’s breach of contract claim relating to a
purported “bonus contract,” by which TI allegedly promised Cuadrado a $10,000 bonus in
exchange for his services in getting VKP ready for sale. TI asserts that a bonus was offered to
employees who remained employed through the closing of the property’s sale, but since
Cuadrado’s employment was terminated prior to closing, he was not eligible for a bonus.
In Texas, to establish a breach of contract claim, the plaintiff must prove that “(1) a valid
contract between plaintiff and defendant existed, (2) the plaintiff performed or tendered
performance, (3) the defendant breached the contract, and (4) the plaintiff sustained damages as a
result of the breach.” Beverick v. Koch Power, Inc., 186 S.W.3d 145, 150 (Tex. App.—Houston,
2005, no pet.). As to the first element, the plaintiff must demonstrate: “(1) an offer; (2) an
acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each
party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it
be mutual and binding.” Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex. App.—Dallas, 2006),
rehearing overruled (2006).
Here, Cuadrado has not presented competent summary judgment evidence to show there
was a valid contract for a bonus of $10,000 in exchange for his continued services. Cuadrado
contends that a contract existed between him and TI that he would receive a $10,000 bonus for
his exemplary work when the building sold. The only evidence of the terms of such an
agreement come from Cuadrado’s Declaration, in which he states that, “Ball, on behalf of TI,
offered [him] a $10,000 bonus” to get the “property ready for sale”; “because of [Ball’s] offer,
[he] would go above and beyond to get the Property ready for sale”; and, “per [his] bonus
agreement with TI,” he repaired the roof of the building and the elevator in such a way that saved
TI “approximately $1,000,000.” Cuadrado Decl. at 6–7. Cuadrado further claims that Ball sent
an email to “everybody” regarding the terms of the bonus, but he is unable to locate it. Id. at 36.
Cuadrado provides no evidence of a meeting of the minds of TI and Cuadrado as to the
terms of the alleged bonus contract. He is unable to locate the email he claims Ball sent
regarding the terms of the bonus, and his description of the alleged agreement is inconsistent.
His Declaration refers to getting the property ready for sale, but elsewhere, he stated that the only
condition to receive the bonus was that “the building must sell.” Pl.’s First. Am. Pet. at 5;
Cuadrado Depo. at 202:2-5.
Cuadrado has not established proof of a binding agreement between the parties that the
bonus was unconditionally due him. Cuadrado does not dispute TI’s contention that being
employed by TI at the time the building sold was a requirement for him to receive the bonus, nor
that he was not employed by TI at closing. Even if there was an agreement, Cuadrado cannot
provide summary judgment evidence of performance of that material term of employment as of
the closing date.
Finally, Cuadrado’s claim fails for lack of consideration. Cuadrado does not dispute that
he was not required to perform anything beyond his regular job duties to be entitled to the bonus
he seeks. Cuadrado offers no evidence of additional job duties he undertook in consideration for
a performance-based bonus.9 Consideration is an essential element of an enforceable contract,
and a covenant for additional employee benefits requires new consideration. See Alex
Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006) (an employer could
not enforce a new obligation on an existing employee without providing new consideration).
Cuadrado has not shown new consideration, so summary judgment must be awarded in favor of
TI on his breach of contract claim as to a bonus contract.
ii. Recovery Under Quasi-Contract Theories
TI seeks summary judgment on Cuadrado’s bonus claims under quasi-contract theories of
promissory estoppel and quantum meruit.
Regarding promissory estoppel, TI argues that Cuadrado has provided no evidence
beyond conclusory allegations in his pleadings that he relied, to his detriment, on TI’s promises
of a bonus. Proof of detrimental reliance is an element of promissory estoppel. English v.
Fischer, 660 S.W.2d 521, 524 (Tex. 1983). Cuadrado provides no evidence that he did more
than what was required of him to complete his job duties, or that he declined other opportunities
in reliance on a bonus. See Trevino & Assocs. Mech., L.P. v. Frost Nat. Bank, 400 S.W.3d 139,
147 (Tex. App.—Dallas 2013, no pet.) (plaintiff required to show material change in position in
response to defendant’s promise). Cuadrado’s argument that he went “above and beyond” his
normal job duties is conclusory. Cuadrado admits in his Declaration that he only undertook
tasks, like repairing the roof, that were already part of his job description. Cuadrado Decl. ¶¶ 4,
34, 38–39.
9 Cuadrado implies that handling fire marshal inspections was outside of the scope of his duties as lead maintenance
technician. Pl.’s App. at 44 (“inspection[s] in that building” were “above and beyond” his job description). Yet he
admits, in the same statement, that getting the building ready for inspections was the job of the lead maintenance
technician or maintenance director—titles Cuadrado uses interchangeably—and that the previous TI maintenance
technician was fired for not completing fire marshal inspections satisfactorily. Id. at 20, 44.
Cuadrado also cannot recover under a quantum meruit theory. Quantum meruit is an
alternative to a breach of contract claim, which allows a plaintiff to recover damages by showing
he (1) rendered valuable services (2) to the defendant, (3) who accepted his services, (4) and he
rendered the services under circumstances as would reasonably notify the defendant that plaintiff
expected to be paid. Johnston v. Kruse, 261 S.W.3d 895, 901 (Tex. App.—Dallas 2008, no pet.).
Here, Cuadrado had preexisting employment with TI, which compensated him for his work as
Maintenance Director. Cuadrado cannot establish that he was not paid for any services he
rendered as an employee of TI. Therefore, TI is entitled to summary judgment on Cuadrado’s
claims for quantum meruit.
d. Tortious Interference
To show tortious interference with prospective business relations, Cuadrado must prove
“(1) there was a reasonable probability that the plaintiff would have entered into a business
relationship with a third party; (2) the defendant either acted with a conscious desire to prevent
the relationship from occurring or knew the interference was certain or substantially certain to
occur as a result of the conduct; (3) the defendant’s conduct was independently tortious or
unlawful; (4) the interference proximately caused the plaintiff injury; and (5) the plaintiff
suffered actual damage or loss as a result.” Coinmach Corp. v. Aspenwood Apartment Corp.,
417 S.W.3d 909, 923 (Tex. 2013). Cuadrado complains that TI interfered with his applications
for employment at Cherrybrook and Center Ridge Apartments, but provided no competent
evidence that he would reasonably have been hired at either apartment complex, nor that
interference occurred. Cuadrado admitted in his deposition testimony that he never received an
offer from Center Ridge, and his statement that a manager at Cherrybrook Apartments called,
revoking his prior offer, is inadmissible hearsay.
Cuadrado provided no admissible evidence that TI interfered with any of his efforts to
secure employment after he was terminated at VKP. TI submitted admissible evidence that it did
not do so, and so is entitled to summary judgment on Cuadrado’s interference claim.
IV. CONCLUSION
For the reasons stated above, the Motions to Strike and TI’s Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART. Summary judgment is granted on
Cuadrado’s claims for breach of contract, promissory estoppel, quantum meruit, defamation as to
the third party employers, negligent and intentional misrepresentation, intentional infliction of
emotional distress, and under the FMLA, and denied only on Cuadrado’s claim for defamation to
a resident.
SO ORDERED.
January 14, 2022.
BABBARA M. G.LYNN CG
{IEF JUDGE
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