THOM BESSO v. KEYCITY CAPITAL LLC, ET AL.
No. 4:23-cv-00906-P
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION
January 24, 2025
PageID 832
Before the Court are Defendants KeyCity Capital LLC‘s (“KeyCity“) and Tie Lasater‘s (“Lasater“) (collectively, “Defendants“) Motion for Summary Judgment (ECF No. 67) and related Motion to Strike (ECF No. 75). Having considered the Motions, docket filings, and applicable law, the Court finds that both Motions should be granted.
BACKGROUND
Thom Besso was hired by KeyCity as a recruiter in November 2021. In April 2022, Besso learned that his prostate cancer had returned, and that treatment would require a seven-week radiation plan. Besso immediately notified KeyCity officers of his diagnosis and treatment plan. By June 2022, Besso completed the treatment, and his cancer once again went into remission.
In late September and early October 2022, Besso assisted KeyCity in its health insurance renewal. During that process, Besso learned that KeyCity‘s health insurance premiums would likely increase and believed that this was due, in part, to his expensive cancer treatments. Besso was terminated on October 26, 2022.
KeyCity asserts various other bases for Besso‘s termination besides his cancer treatments: submitting excessive business expenses; buying expensive food and drinks on KeyCity‘s accounts; swimming in underwear at a company retreat; and being ineffective at his job.
LEGAL STANDARD
A. Disclosure of Witnesses
B. Summary Judgment
Summary Judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact” and “is entitled to judgment as a matter of law.”
C. Defamation
To establish a prima facie case of defamation, a plaintiff must show: “(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual); and (4) damages, unless the statement constitutes defamation per se.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017). “[A]n allegedly defamatory publication should be construed as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). Whether a statement constitutes defamation per se is generally a question of law. In re Lipsky, 460 S.W.3d 579, 596 (Tex. 2015) (citation omitted).
D. ADA
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on the basis of disability.”
ANALYSIS
The Court will begin with Defendants’ Motion to Strike. It will then analyze Defendants’ Motion for Summary Judgment.
A. Motion to Strike
Before addressing the Motion for Summary Judgment, the Court must determine what evidence is properly before it. To do that, the Court must ascertain whether the nondisclosure of the Jackson and Lee Declarations (the “disputed declarations“) was substantially justified or harmless. Failing to provide a required disclosure may be substantially justified if “parties could differ as to whether the party was required to comply with the disclosure [obligation].” Olivarez v. GEO Grp., Inc., 844 F.3d 200, 205 (5th Cir. 2016). And courts have found nondisclosure substantially justified when the disclosing party had no knowledge of the person or evidence until after the discovery deadline has passed.” Drechsel v. Liberty Mut. Ins. Co., No. 3:14-cv-162-M-BN, 2015 WL 7067793, at *2 (N.D. Tex. Nov. 12, 2015). The Fifth Circuit addresses harmlessness under
The disputed declarations are undoubtedly important to Besso‘s case. Indeed, the Jackson Declaration is the only evidence to combat Defendants’ declaration that KeyCity was not concerned about the rising insurance premiums.1 This factor therefore weighs against striking the disputed declarations.
Besso‘s argument that Defendants cannot claim prejudice because “[b]oth Jackson and Lee were former employees of KeyCity” is unpersuasive for two reasons. First, as discussed in the January 16, 2025 hearing on the Motion to Strike, Jackson and Lee had both left KeyCity by the time this lawsuit was filed. Second, and more importantly, even if Jackson and Lee were still KeyCity employees, it is not the Defendants’ burden to interview all eighty of KeyCity‘s employees to determine which employees may have relevant evidence—such disclosure is required of Plaintiff.
With respect to the third factor, the Court is reluctant to grant a continuance. This case is set for trial in less than forty days. Consequently, although Plaintiff argues that “[a]ny claimed prejudice is minimal and curable,” the Court does not see a path short of resetting the trial date. If a continuance were granted, the Court would need to wait first for depositions of the undisclosed witnesses and then for briefing on a renewed motion for summary judgment. The business of the Fort Worth Division of the Northern District of Texas precludes the undersigned from doing so. See X Corp. v. Media Matters for Am., No. 4:23-CV-01175-O, 2024 WL 1895255, at *6 (N.D. Tex. Apr. 26, 2024) (O‘Connor, J.) (explaining the Fort Worth Division‘s uniquely busy docket).
In sum, although the evidence presented in the disputed declarations is unmistakably important to Besso‘s case, the prejudice to Defendants, the Court‘s inability to cure with a continuance, and the lack of explanation for nondisclosure all suggest that the disputed declarations should be stricken. The Court will therefore grant the Defendants’ Motion to Strike and strike the disputed declarations from the record.
B. Motion for Summary Judgment
Turning now to Defendants’ Motion for Summary Judgment, the Court will first review Besso‘s defamation claim and then turn to Besso‘s ADA claim.
1. Defamation Claim
Defendants assert that Besso presents no evidence of damages for his defamation claim, and therefore there is no genuine dispute of material fact. Besso responds that the statements made by Lasater relating to Besso swimming in his underwear at a company event and submitting excessive business expenses constitute defamation per se. Defamation per se may apply when “statements . . . are so obviously hurtful to a plaintiff‘s reputation that the jury may presume general damages.” Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013). The statement must fall into one of four categories: “(1) imputation of a
Besso asserts that the statements made by Lasater fall under categories 3 and 4. For category 3, injury to a person‘s office, business, profession, or calling, Lasater‘s statements are not defamation per se. The Supreme Court of Texas has said that “[d]isparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparages is of such a character that is peculiarly valuable in the plaintiff‘s business or profession.” Hancock, 400 S.W.3d at 67 (citing RESTATEMENT (SECOND) OF TORTS § 573 cmt. e (1977)). Here, Besso was a recruiter at KeyCity. And the statements that he swam in his underwear and submitted excessive expenses is not specifically damaging to a recruiter—those are statements equally disparaging to all individuals and therefore not defamation per se. The Court rejects Besso‘s argument that Lasater‘s statements constitute defamation per se under category 3.
As for category 4, the imputation of sexual misconduct, Lasater‘s statements likewise do not constitute defamation per se. Examples of statements imputing sexual misconduct include calling someone a “pervert” and “pedophile,” see Montano v. Cronan, No. 09-20-00232-CV, 2021 WL 2963801 (Tex. App.—Beaumont July 15, 2021, no pet.); calling someone‘s wife a “slut,” see Marshall v. Mahaffey, 974 S.W.2d 942, 949-50 (Tex. App.—Beaumont 1998, pet. denied); and alleging that someone sexually molested another individual, see Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Lasater‘s statement about Besso swimming in his underwear is incomparable to such examples. There is nothing directly sexual about saying a man swam in his underwear. While it may be inferred that such an action is inappropriate, it does not necessarily suggest sexual misconduct. The Court therefore rejects Besso‘s argument that Lasater‘s statements constitute defamation per se under category 4.
Because Lasater‘s statements do not constitute defamation per se under any of the four categories, the Court finds that there is no genuine
2. ADA Claim
Defendants also argue that Besso‘s ADA claim should be dismissed because Besso cannot make a prima facie case that he was subject to discrimination. Because Besso offers no direct evidence of discrimination, the McDonnell Douglas framework applies. Under the McDonnell Douglas test, Besso must show: (1) he has a disability; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of the disability. McDonnell Douglas, 411 U.S. at 702. While the first two prongs are undisputed, Defendants argue that Besso cannot present evidence that he was subject to an adverse employment decision on account of his disability. In response, Besso claims first that a prima facie case for his ADA claim is established through the “temporal proximity” test, and second that there are genuine disputes of material fact preventing summary judgment.
a. Temporal Proximity
Temporal proximity looks at the link between “any employer‘s knowledge of protected activity and an adverse employment action” to prove the third element of the McDonnell Douglas framework. Hanks v. Shinseki, No. 3:08-1594-G, 2010 WL 3000835, at *5 (N.D. Tex. July 28, 2010). If “close enough timing between the two events” exists, then an adverse employment decision can be presumed. January v. City of Huntsville, 74 F.4th 646, 653 (5th Cir. 2023). Courts have found that “a few months [is] sufficient to satisfy causation in a prima facie case.” Id. But not six months. See Russell v. Univ. of Tex. of Permian Basin, 234 F. App‘x 195, 207 (5th Cir. 2007).
As a threshold matter, this Court must determine what the relevant “protected activity” is for the purposes of the temporal proximity analysis. Besso insists that the rise of insurance premiums is the relevant protected activity. Defendants, on the other hand, contend that the relevant protected activity was Besso‘s disclosure of his cancer
Consequently, the relevant date for the Court‘s temporal proximity analysis is the date that Besso made KeyCity aware of his cancer diagnosis. Besso points out that Defendant Lasater became aware of his cancer on July 15, 2022, and Besso was then terminated on October 26, 2022. But Lasater was not the only—or first—KeyCity principal that Besso notified. Besso notified KeyCity‘s CFO and Senior Vice President of his cancer in April 2022, marking a six-month gap between when he notified his employer and when he was terminated—the alleged adverse action. Such a gap cannot sustain a finding of a prima facie case under the temporal proximity test. Russell, 234 Fed. Appx. at 207 (“[E]vidence of temporal proximity alone cannot sustain an inference of causation when there is a six-month gap between the protected activity and the alleged adverse employment action.“).
Besso‘s next response is that the ADA claim raises disputes of material fact and therefore cannot be subject to summary judgment. Besso alleges that he was terminated based on KeyCity‘s concern over increasing health insurance premiums. KeyCity has presented evidence that its management was unconcerned with such increasing premiums.3 Besso has offered no competent summary judgment evidence to contradict KeyCity‘s evidence. Thus, there is no fact issue, and the Plaintiff‘s Motion for Summary Judgment on the ADA claim must be granted.
CONCLUSION
For the reasons above, the Court GRANTS Defendants’ Motion to Strike the Jackson and Lee Declarations from the record. The Court further GRANTS Defendants’ Motion and ENTERS summary judgment in Defendants’ favor on Besso‘s defamation and ADA claims.
SO ORDERED on this 24th day of January 2025.
Mark T. Pittman
Mark T. Pittman
UNITED STATES DISTRICT JUDGE