IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10788

MATTHEW J. SCHIRLE,

Plaintiff–Appellant

v.

SOKUDO USA, L.L.C.; DNS ELECTRONICS L.L.C.; DAINIPPON SCREEN

DEUTSCHLAND GMBH; DAINIPPON SCREEN MANUFACTURING

COMPANY LIMITED,

Defendants–Appellees

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CV-555

Before KING, PRADO, and HAYNES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

Plaintiff–Appellant Matthew Schirle brought various claims related to his

employment against a family of Japanese semiconductor

companies—Defendants–Appellees Dainippon Screen Manufacturing Company,

Ltd. (“DSM”), DNS Electronics, LLC (“DNSE”), Dainippon Screen Deutschland

gMBh (“DSD”), and Sokudo USA, LLC (“Sokudo USA”), collectively the

United States Court of Appeals

Fifth Circuit

F I L E D

July 31, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Appellees. Specifically, he claimed that he was defamed, discriminated against

based on his non-Japanese origin, and retaliated against when he complained

of the discrimination. The district court granted summary judgment to the

Appellees. Because fact issues exist as to Schirle’s employment claims, we

REVERSE that grant in part but AFFIRM as to Schirle’s defamation claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Schirle began working for DNSE. After working his way up 1

through the ranks of DNSE, Schirle was seconded by DNSE to Sokudo USA in

July 2006. While seconded to Sokudo USA, Schirle served as Sokudo USA’s

president and in that capacity reported to Takashige Suetake, chief executive

officer of Sokudo KK and vice chairman of DSM. Schirle alleges that in

December 2006 he began to experience harassment motivated by a cultural bias

against “gaijins,” or foreigners not of Japanese descent. In late March 2007,

Suetake removed Schirle’s sales responsibilities for the European market and

transferred them to Akihiko Okamoto. In mid-August 2007, following a late July

2007 diagnosis of generalized anxiety disorder by Dr. Robert DeMartini, Schirle

took a two-month medical leave from Sokudo USA. Though the parties disagree

as to whether Schirle left of his own accord or was fired, in September 2007,

Schirle ended his employment with the DSM family of companies.

Throughout his time at Sokudo USA, Schirle made several complaints

about “gaijin” harassment to various individuals within Sokudo USA and DNSE. 

Schirle first complained of the discrimination in mid-February 2007; he informed

Suetake that he was being harassed by Steve Yada and Marty Yano, who like

Schirle were DNSE employees seconded to Sokudo USA. Yada and Yano’s job

responsibilities were to oversee Schirle and other American managers. Schirle

In terms of the relationship between the defendant entities, DNSE and DSD are 1

subsidiaries of DSM. Sokudo USA is a wholly-owed subsidiary of non-party Sokudo KK, which

itself is a joint venture between DSM and another non-party, Applied Materials.

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again complained of harassment in May 2007. This time he did so to DNSE

Human Resources Director Alan Bickett. On July 12, 2007, Schirle reported the

continuing harassment to Nancie Dunn, another DNSE HR employee. Finally,

on August 13, 2007, Schirle filed a formal complaint with Bickett alleging

“gaijin” discrimination by Suetake, Yada, Yano, and Keisuke Takimoto, a DSM

employee who Suetake appointed in late June 2007 to directly supervise Schirle.

Schirle also alleged that various individuals defamed him during his

secondment to Sokudo USA. He detailed five instances. 

A. On July 18, 2007, during an executive review meeting with

representatives of Micron Technology, Takimoto (1) displayed an

organization chart that misspelled Schirle’s name and cast

ambiguity on his position, (2) indicated that Schirle was a secretary

and not a manager, and (3) indicated that Schirle could be

eliminated if Micron desired.

B. On October 19, 2007, in response to an inquiry by Will Henrich (an

employee of a DSD third-party agent in Germany) about whether

Schirle had left voluntarily, DSD President Junji Otsuka wrote: “I

heard he’s suffering from small mental disease, and not appearing

to Sokudo USA office at all in this one month time.”

C. In late 2007, DNSE Vice President of Business Operations Scott

Galler discussed Schirle’s “mental issues” with Reggie Hernandez,

a Sokudo USA account manager. Galler (1) shared the information

in Otsuka’s email with Hernandez, (2) informed Hernandez that

Schirle suffered from “mental issues,” (3) indicated that these

mental issues were related to Schirle’s departure from Sokudo USA,

and (4) told Hernandez that Schirle had inherited his mental issues

from his mother, who herself had mental issues.

D. Also in late 2007, Laszlo Mikulas, another DNSE Vice President,

repeated to Hernandez the same statements that Galler had made

to Hernandez about Schirle’s mental issues.

E. Finally, in late 2007, Hernandez relayed the statements made by

Galler and Mikulas about Schirle’s mental issues to former DNSE

employee Ron Hogan.

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Schirle brought suit on August 14, 2008 in the 342nd District Court of

Tarrant County, Texas. In that petition, Schirle claimed violations of Texas

law—statutory libel, libel per se, slander per se, business disparagement, and

civil conspiracy. Prior to bringing suit, however, on July 11, 2008, Schirle,

DNSE, and Sokudo USA entered into a tolling agreement under which they

agreed to toll any limitations period applicable to Schirle’s suit from July 12

through August 12, pending an ultimately unsuccessful mediation attempt. 

Appellees removed the case to the United States District Court for the Northern

District of Texas on September 16, 2008. Upon removal, Schirle added claims

for Title VII discrimination, Title VII retaliation, and discrimination under 42

U.S.C. § 1981. On October 22, 2010, Schirle filed an amended complaint, which

for the first time alleged defamatory instances C, D, and E. Appellees moved for

summary judgment, which the district court granted. Schirle timely appealed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Prison Legal News v. Livingston, 683

F.3d 201, 211 (5th Cir. 2012). Summary judgment is appropriate where the

movant shows that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P.

56(a)). In making this determination, all inferences are drawn in favor of the

non-movant. Id. at 211.

Where federal jurisdiction is based on diversity, we apply the substantive

law of the forum state, Texas, to those claims that arise under state law. Aubris

Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483, 486 (5th Cir. 2009)

(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938)) (additional citation

omitted). In resolving issues of state substantive law, we look to the final

decisions of the state supreme court, which are binding, but if there is no

decision directly on point, then we must determine how that court, if presented

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with the issue, would resolve it. Packard v. OCA, Inc., 624 F.3d 726, 729 (5th

Cir. 2010). “The decisions of . . . intermediate appellate courts may provide

guidance, but are not controlling.” Id.

III. DISCUSSION

A. Title VII and Section 1981 Claims

Title VII makes it unlawful for an “employer” to “fail or refuse to hire or

to discharge any individual, or otherwise to discriminate against any individual

with respectto his compensation, terms, conditions, or privileges of employment,

because of such individual’s race . . . or national origin.” 42 U.S.C. § 2000e2(a)(1). Additionally, the Title VII retaliation section prohibits an “employer”

from “discriminat[ing] against [its] employee[] . . . because [the employee] has

opposed any practice made an unlawful employment practice by this

subchapter,” such as racial/national origin discrimination. § 2000e-3(a). Under

the familiar McDonnell Douglas framework, to survive a motion for summary

judgment, the plaintiff must first make out his prima facie case of

discrimination. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “If the

plaintiff makes a prima facie showing, the burden [of production] then shifts to

the employer to articulate a legitimate, nondiscriminatory or nonretaliatory

reason for its employment action.” Id. at 557. This same framework applies to

racial discrimination claims under § 1981. Wesley v. Gen. Drivers, 2

Warehousemen & Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011) (citing 

Patterson v.McLean Credit Union, 491 U.S. 164, 186 (1989)) (additional citations

omitted).

Section 1981, in relevant part, affords all persons within the United States the “same 2

right . . . to make and enforce contracts” without respect to race. 42 U.S.C. § 1981.

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1. Schirle’s Employer

A threshold inquiry under both Title VII discrimination and retaliation

claims is whom Schirle had an employment relationship with for the purposes

of Title VII. In determining whether a given defendant is an employer, we use

the standards laid out in Deal v. State Farm County Mutual Insurance Co. of

Texas, 5 F.3d 117 (5th Cir. 1993), and summarized in Muhammed v. Dallas

County Community Supervision and Corrections Department:

Determining whether a defendant is an “employer” under Title VII

involves a two-step process. First, the court must determine

whether the defendant falls within Title VII’s statutory definition

of an “employer.” Title VII defines an “employer” as “a person

engaged in an industry affecting commerce who has fifteen or more

employees . . . , and any agent of such a person . . . .” If the

defendant meets this definition, the court must then analyze

whether an employment relationship exists between the plaintiff

and the defendant.

To determine whether an employment relationship exists within the

meaning of Title VII, we apply a hybrid economic realities/common

law control test. The most important component of this test is the

right to control the employee’s conduct. When examining the

control component, we have focused on whether the alleged

employer has the right to hire, fire, supervise, and set the work

schedule of the employee. . . . The economic realities component of

the test focuses on whether the alleged employer paid the

employee’s salary, withheld taxes, provided benefits, and set the

terms and conditions of employment.

479 F.3d 377, 380 (5th Cir. 2007) (footnotes and internal quotation marks

omitted). However, we have long held that “superficially distinct entities may

be exposed to liability upon a finding that they represent a single, integrated

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enterprise” (i.e., a single employer). Trevino v. Celanese Corp., 701 F.2d 397, 3

404 (5th Cir. 1983).

By the terms of the secondment agreement between DNSE and Sokudo

USA, Schirle remained a DNSE employee and DNSE retained responsibility for 

wages, benefits, and workers’ compensation. These factors, however, only relate

to the economic realities portion of the hybrid test from Muhammed. The more

important right-to-control factors are ambiguously delineated. Sokudo USA had

the right “to have [Schirle] return to DNSE,” but DNSE also “reserve[d] the right

to . . . discipline (including hire, fire and terminate)” Schirle. Therefore, it

appears from the terms of the secondment agreement that both DNSE and

Sokudo USA had the (more important) right to control Schirle’s conduct. 

2. Race/National Origin Discrimination

An employee establishes a prima facie case of discrimination if he can

demonstrate that he

(1) is a member of a protected group; (2) was qualified for the

position at issue; (3) was discharged or suffered some adverse

employment action by the employer; and (4) was replaced by

someone outside his protected group or was treated less favorably

than other similarly situated employees outside the protected group.

McCoy, 492 F.3d at 556–57. This case turns on the third and fourth elements

of the McDonnell Douglas test. Schirle alleges that he suffered an adverse 4

In Trevino, we laid out four factors for “determining whether distinct entities

3

constitute an integrated enterprise[:] . . . (1) interrelation of operations, (2) centralized control

of labor relations, (3) common management, and (4) common ownership or financial control.” 

We need not engage in this inquiry, however, because as we detail below Schirle has not

adduced sufficient evidence on the substantive elements of his prima facie case for either his

racial discrimination claim or his retaliation claim.

It is clear from the record that Schirle (1) is a member of a protected group, see 4

McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 279 (1976) (holding that white

plaintiffs can bring racial discrimination claims under Title VII and § 1981), and (2) was

qualified for the position at issue, based on his bachelor’s and master’s degrees in engineering

as well as his twenty-five years in the semiconductor industry, including management

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employment action when Suetake stripped him of his European sales

responsibilities in late March 2007 and gave those responsibilities to Okamoto. 

Adverse employment actions under the McDonnell Douglas framework are

limited to “ultimate employment decisions such as hiring, granting leave,

discharging, promoting, and compensating.” Pegram v. Honeywell, Inc., 361F.3d

272, 282 (5th Cir. 2004) (emphasis omitted). Still, it is recognized that a

significant diminishment of “material responsibilities,” see Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998), or a demotion, Pegram, 361 F.3d at 282,

also constitutes an adverse employment action under Title VII. Schirle’s loss of

his European sales responsibilities, leaving him only responsible for sales in the

United States, is a diminishment of material responsibilities significant enough

to satisfy the third element of his prima facie case of discrimination. This

conclusion flows from our standard of review, which requires us to draw all

inferences in Schirle’s favor. Turning to the fourth element, the record reveals

that in their “Responses to Plaintiff’s Requests for Admissions,” Appellees

admitted that Okamoto, who replaced Schirle in being responsible for European

sales, was “Japanese” and of the “Asian race.” Therefore, Schirle has met his

burden of making his prima facie case.

The question then becomes whether the adverse employment action taken

by Suetake is attributable to DNSE and/or Sokudo USA. Title VII incorporates

respondeat superior liability such that if Suetake were an agent/employee of

either DNSE and/or Sokudo USA, that company would be liable for Suetake’s

actions. Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir. 2002). While there

is no record evidence to suggest that Suetake was an agent of DNSE, the

secondment agreement between DNSE and Sokudo USA shows that Suetake

signed on behalf of Sokudo USA, as Sokudo USA’s CEO. The secondment

experience in Japan. 

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agreement is governed by California law, and California adheres to the standard

rule that “a corporation may act only through its officers, agents, and

employees.” See Burdetee v. Carrier Corp., 71 Cal. Rptr. 3d 185, 202 (Cal. Ct.

App. 2008) (alterations omitted). This is sufficient evidence to create a fact issue

as to whether Suetake was Sokudo USA’s agent, see Borders Online LLC v. State

Bd. of Equalization, 29 Cal. Rptr. 3d 176, 182 (Cal. Ct. App. 2005) (“[I]ssues of

agency typically are questions of fact.”), which would allow Schirle to make a

claim against Sokudo USA under Title VII. See Amedisys, 298 F.3d at 448. 

Nowhere in its briefing to this court or to the district court did Sokudo USA put

forth a legitimate, non-discriminatory reason for the adverse employment action;

summary judgment was therefore inappropriately granted to Sokudo USA. See

Alvarado v. Tex. Rangers, 492 F.3d 605, 618 (5th Cir. 2007).

3. Retaliation

To make out a prima facie case of retaliation, the plaintiff must establish

that “(1) he participated in an activity protected by Title VII; (2) his employer

took an adverse employment action against him; and (3) a causal connection

exists between the protected activity and the adverse employment action.” 

McCoy, 492 F.3d at 556–57. As we have previously stated, Schirle has put forth

no evidence that DNSE was his employer for Title VII purposes; thus, if his

retaliation claim is to survive, it can only do so against Sokudo USA. Schirle

cites four instances where he complained specifically of racial/national origin

discrimination. While specific complaints about discrimination are clearly

protected activity under Title VII, see Ikossi-Anastasiou v. Bd. of Supervisors of

La. State Univ., 579 F.3d 546, 551 (5th Cir. 2009), only one of Schirle’s

complaints was to Sokudo USA employees—his mid-February 2007 complaint

to Suetake about Yado and Yana’s harassment of him for being a foreigner. 

Following this complaint in late March 2007, Suetake stripped Schirle of his

European sales responsibilities, which we have held constituted an adverse

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employment action. Finally, the causal connection is met based on the near-onemonth temporal proximity between Schirle’s complaint to Suetake andSuetake’s

adverse employment action against Schirle. See Evans v. City of Hous., 246 F.3d

344, 354 (5th Cir. 2001) (“Close timing between an employee’s protected activity

and an adverse action against[him] may provide the ‘causal connection’ required

to make out a prima facie case of retaliation. We note that a time lapse of up to

four months has been found sufficient to satisfy the causal connection for

summary judgment purposes.” (internal quotation marks and citation omitted)). 

As was the case with the discrimination claim, Sokudo USA has put forth no

legitimate, non-retaliatory reason for the adverse employment action, and

therefore, summary judgment was inappropriately granted. See Alvarado, 492

F.3d at 617.

B. Defamation

Under Texas law, to maintain a cause of action for defamation, the

plaintiff must prove that the defendant: (1) published a statement; (2) that was

defamatory concerning the plaintiff; (3) while acting with negligence regarding

the truth of the statement (if the plaintiff is a private individual). WFAA-TV,

Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Words are defamatory if 5

they tend to harm a person’s reputation. Id.; Tex. Civ. Prac. & Rem. Code

§ 73.001 (providing that a statement is defamatory if it “tends to injure a living

person’s reputation and thereby expose the person to public hatred, contempt or

ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue,

or reputation.”). The plaintiff must bring a defamation suit not later than one

Texas law recognizes both libel and slander. An action for libel requires publication 5

to a third party of written defamatory words about the plaintiff, while slander requires

defamatory words about the plaintiff to be spoken, without legal excuse, to a third party.

Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.—Corpus Christi 2003, no pet.), abrogated on

other grounds by Fort Brown Villas III Condominium Ass’n, Inc. v. Gillenwater, 285 S.W.3d

879 (Tex. 2009). 

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year after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code

§ 16.002(a). Ordinarily, the cause of action accrues when the defamatory

statement is published; under the discovery rule, however, “the statute of

limitations does not begin to run until the injured party learns of, or, in the

exercise of reasonable diligence, should have learned of the injury or wrong

giving rise to the action.” Johnson v. Baylor Univ., 188 S.W.3d 296, 301 (Tex.

App.—Waco 2006, no pet.).

1. Instance A

Instance A comprises oral and written statements by Takimoto during an

executive review meeting with representatives of Micron Technology on July 18,

2007. The district court determined that Schirle’s defamation claim regarding

Instance A is time-barred because Schirle did not bring suit until August 14,

2008—more than one year after the statement was made. Schirle argues that

although Takimoto was a DSM employee, the statements were made within the

scope of his employment to Sokudo USA; therefore, the statements should be

covered by the tolling agreement between Schirle, DNSE, and Sokudo USA.

Review of the record shows that Takimoto was seconded not to Sokudo USA, but

to Sokudo Co., Ltd. (a separate legal entity). Therefore, the tolling agreement

does not apply to Instance A. Moreover, the discovery rule cannot save this

claim because Schirle admits to learning of it on July 19, 2007. The district

court was correct in finding this claim untimely.

2. Instance B

Instance B involves alleged libel by Otsuka, a President of DSD, made on

October 19, 2007 in response to an inquiry by Henrich, who worked for a DSD

third-party agent in Germany, about whether Schirle had left voluntarily. 

Otsuka responded: “I heard he’s suffering from small mental disease, and not

appearing to Sokudo USA office at all in this one month time.” DSD does not

assert a statute-of-limitations defense but contends that the statement is not

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defamatory because of Texas’s defense of substantial truth. “Under the

‘substantial truth’ doctrine, minor inaccuracies are not actionable as long as the

publication’s ‘gist’ or ‘sting’ is true, and a ‘true’ statement for these purposes is

one that is not more damaging to the plaintiff’s reputation than a literally true

statement would have been.” Neely v. Wilson, 331 S.W.3d 900, 915 (Tex.

App.—Austin 2011, pet. granted). “If the underlying facts regarding the ‘gist’ of

the statement are undisputed, then substantial truth can be determined as a

matter of law.” Cram Roofing Co. v. Parker, 131 S.W.3d 84, 90 (Tex. App.—San

Antonio 2003, no pet.). 

As the district court noted, Schirle’s family doctor had referred to Schirle’s

condition as a “psychiatric condition.” Furthermore, Schirle’s psychiatrist had

stated that Schirle had a “mood disorder,” which he diagnosed as a “generalized

anxiety disorder.” DSD contends that “psychiatric condition” or “mood disorder”

is substantially the same as Otsuka’s statement that Schirle was “suffering from

a small mental disease.” In considering the gist of the two statements, we agree

with the district court that Otsuka’s statement was substantially true. Reading

that Schirle had a “small mental disease” and reading that Schirle had a

“psychiatric condition” or “mood disorder” does not evoke a markedly different

conclusion in the mind of the reasonable reader. A literally true statement

would have been just as damaging to Schirle’s reputation. Neely, 331 S.W.3d at

915. We therefore find that the district court was correct in granting summary

judgment against Schirle on Instance B.

3. Instances C, D, and E

These instances relate to late 2007 oral statements made by Galler,

Mikulas, and Hernandez that Schirle and his mother suffered from “mental

issues.” Unlike Instances A and B, however, these claims were not pleaded until

October 22, 2010. As Texas only allows one year to bring a defamation claim,

these claims can only be saved if they “relate back” to an earlier, non-time12

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barred complaint. Under the relevant portions of Federal Rule of Civil

Procedure 15(c)(1), “[a]n amendment to a pleading relates back to the date of the

original pleading when: (A) the law that provides the applicable statute of

limitations allows relation back; [or] (B) the amendment asserts a claim or

defense that arose out of the conduct, transaction, or occurrence that set out—or

attempted to be set out—in the original pleading.” The consequence of Rule

15(c)(1)(A) is that a claim will be deemed to “relate back” if relation back is

permitted under state law, even if it is not permitted under federal law. See

Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 42 (1st Cir. 2010).

Under federal law, a newly asserted claim relates back to a claim asserted

in the original petition if they arose out of the same “conduct, transaction, or

occurrence”; that is, a “common core of operative facts” must unite the original

claim and the newly asserted claim. Mayle v. Felix, 545 U.S. 644, 659 (2005). 

Under Texas law, a newly asserted claim relates back unless it “is wholly based

on a new, distinct, or different transaction or occurrence.” Tex. Civ. Prac. &

Rem. Code § 16.068 (2008). “Texas law treats each alleged defamatory

publication as a single transaction with an independent inquiry.” Tex. Disposal

Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587 (Tex.

App.—Austin 2007, pet. denied). 

Under neither federal nor Texas law do Instances C, D, and E relate back

because they are factually distinct. The statements,though similar, have factual

differences (e.g., discussing Schirle’s mother’s alleged mental issues in addition

to Schirle’s) and the speakers are different as well. Moreover, we agree with the

district court that the discovery rule cannot save Schirle’s claims because the

claims were not “inherently undiscoverable.” See Velsicol Chem. Corp. v.

Winograd, 956 S.W.2d 529, 531 (Tex. 1997) (“The discovery rule applies if: (1) the

injury is inherently undiscoverable; and (2) the evidence of the injury is

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objectively verifiable.”). The district court correctly found Instances C, D, and

E untimely.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of

summary judgment to Sokudo USA as to Schirle’s discrimination and retaliation

claims but AFFIRM it in all other aspects.

REVERSED IN PART, AFFIRMED IN PART; REMANDED.

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