### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10788

MATTHEW J. SCHIRLE, Plaintiff–Appellant
v. SOKUDO USA, L.L.C.; DNS ELECTRONICS L.L.C.; DAINIPPON S CREEN 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

e m p l o y m e n t a g a i n s t a f a m i l y o f J a p a n e s e s e m i c o n d u c t o r

c o m p a ni e s

—D e f

e n dants–Appellees Dainippon Screen M anuf acturin g C o m p any , Ltd. (“DSM”), DNS Electronics, LLC (“DNSE”), Dainippon Screen Deutschland gMBh (“DSD”), and Sokudo USA, LLC (“Sokudo USA”), collectively the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 31, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-10788 Document: 00511940157 Page: 1 Date Filed: 07/31/2012No. 11-10788

Appellees. Specifically, he claimed that he was defamed, discriminated against based on his non-Ja p a n ese origin, and retaliated against when he complained of the disc r i m i n a t i on. The district court granted summary judgment to the Appellees. Because fact issues e x i s t 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 J u l y 2006. While seconded to Sokudo USA, Schirle served as Sokudo U S A’ s president and in that capacity reported to Takashige Suetake, ch i e f e xecutive

o f f i cer of Sokudo KK and vice chairman of DSM. Schirle alleges th a t i n December 2006 he began to experience harassment motivated by a cultural bias against “gaijins,” or foreigners not of Japanese descent. I n l ate March 2007, Suetake removed Schirle’s sales responsib i l i t i es 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

a s t o w hether Schirle left of his own accord or was fired, in September 2 0 0 7 , Schirle ended his employment with the DSM family of companies. Throughout his time at Sokudo USA, Schirle made several complaints about “gaijin” harassment to v ari o u s in dividuals within Sokudo USA and DNSE. Schirle first complained of th e di s c ri m in ati o n in m i d

- F eb ruary 2007; he informed Suetake that he was being harassed b y Steve Yada and Marty Yano, who like Schirle were DNS E e mployees seconded to Sokudo USA. Yada and Yano’s job responsibilities were to oversee Schirle and other American managers. Schirle

In ter ms of the rela tio nshi p betw een the def enda nt enti tie s, DN SE and D S D a re 1 sub sid iari es of DS M. Sok udo USA is a wh olly- ow ed sub sid iary of non- par ty Sok udo KK , wh ich its elf is a jointvent ure betw een DS M and anot her non- par ty, Ap pli ed Mat eria ls. 2 Case: 11-10788 Document: 00511940157 Page: 2 Date Filed: 07/31/2012No. 11-10788

again complained of harassment i n 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 wit h B i c k e tt 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 representativ e s of Micron Technology, Takimoto (1) displayed an organization chart t h a t m isspelled Schirle’s name and cast ambiguity on his position, (2) indicated that Schirle was a secretary and not a manager, and (3) indicated that Schi r l e c ould 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) ab o u t 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) inf o r m ed Hernandez that Schirle suffered from “mental issues,” (3) indicated that t h ese 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, an o t h er 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 sta t e m e n t s made by Galler and Mikulas about Schirle’s mental issues to former DNSE employee Ron Hogan.

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S c hirle brought suit on August 14, 2008 in the 342nd District Cour t o f Tarrant County, Texas. In that petition, Schirle claime d vi o l a t ions of Texas l a w—statutory libel, libel per se, slander per se, business disparagement, a n d civil conspiracy. Prior to bringing suit, however, on July 1 1 , 2 0 0 8, Schirle, D N S E , 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 ultimatel y 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, Schirl e a d d ed 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 t here is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Fed. R. C iv . P

. 56(a)). In making this dete r m ination, 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 . S t

. P

a ul 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). I n r e s o lving issues of state substantive law, we look to the final decisions of the state supreme court, which are binding, but if th e r e 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. 3 d 726, 729 (5th Cir. 2010). “The decisions of

. . . in t e rmediate 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 respe c t t o hi s c o mpensation, terms, conditions, or privileges of employment, b e c a u s e of such individual’s race . . . or national origin.” 42 U.S.C. § 200 0 e 2(a)(1). Additionally, the Title VII retaliation section prohibits an “e m p l o y e r” from “discriminat[ing] against [its] employee[]

. . . because [t h e 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 plain t i f f m u s t first make out his prima facie case of discrimination. McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 200 7) (citing McDonnell Douglas Corp. v. Green , 4 1 1 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 § 1 9 8 1

. Wesley v. Gen. Drivers, 2 W a re h o usemen & Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011) (citing Patters o n v . M

cLea n Cre d i t U

nion , 491 U.S. 164, 186 (1989)) (additional citations omitted).

Sec tio n 1981, in rele vant par t, aff ord s all per so ns wi thin the Unit ed Sta tes the “s ame 2 right

. . . t o m ak e a nd enf orc e c ontr act s” w itho ut res pec t to rac e. 42 U. S. C. § 1 981.

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1. Schirle’s Employer A threshold inquiry under bo th 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 t h e s tandards laid out in Deal v. State Farm County Mutual Insurance Co. of Texas , 5 F.3d 117 (5th C i r . 1 993), and summarized in Muhammed v. Dallas County Community Supervision and Corrections Department : Determining whether a defendant is an “employer” under Title VII involv e s a two-step process. First, the court must determine whether the defendant falls within Title VII’s statutory definition of an “employer.” Title VII defin e s a n “ employer” as “a person engaged in an industry affecting commerce who has fifteen or more e mployees

. . . , and any agent of such a person . . . . ” I f t h e defendant meets this definition, the court must then analyze whether an employment relationship exists betw e e n t he plaintiff and the defendant.
To determ in e wh e th e r an e m p loyment 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, supervi s e , a n d set the work schedule of the employee.

. . . The economic realities component of t h e t est focuses on whether the alleged employer paid t h e employee’s salary, withheld taxes, provid e d benefits, and set the terms and conditions of employment.
479 F.3d 377, 380 (5th Cir. 2007) (footnotes and interna l q u o t a t i on marks omitted). However, we have long held that “superficially distinct entities may b e e x p o sed to liability upon a finding that they represent a single, integrate d

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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 D N S E a n d Sokudo USA, Schirle remained a DNSE employee and DNSE retained responsibility for wages, benefits, and workers’ compensation. These factors, however, only r e l ate to the economic realities portion of the hybrid test from Muhammed

. The more i mportant right-to-control factors are ambiguously delineated. Sokudo U SA h a d the right “to have [Schirle] return to DNSE,” but DNSE also “reserve[d] the right to

. . . discipline (including hire, fire a n d t e rminate)” Schirle. Therefore, it
appears from the terms of the seco n d m e n t a greement that both DNSE and Sokudo USA had the (more important) right to control Schirle’s conduct.

2. Race/National Origin Discrimination An employee e s t ab l i s hes a prima facie case of discrimination if he can demonstrate that he (1) is a m ember of a protected group; (2) was qualified for the posit i o n a t issue; (3) was discharged or suffered some adverse employment action by t h e e mployer; and (4) was replaced by someone outside his protected group or was t r e a ted less favorably than other similarly s itu at e d e m p l o ye e s o ut s i d e 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 s u f f e r e d an adverse 4

In Tre vi no , we laid out fou r fac tor s for “d ete rm ining w h e t her dis tinc t enti tie s 3
cons tit ute an inte grate d ente rp ris e[: ]

. . . (1) inte rre lati on of ope rat ions , (2) cent rali zed cont rol of labor rela tio ns, (3) com mo n man agem ent, and (4) com mo n ow ners hip or fina ncial cont rol. ” W e n e e d not engage in this inquir y, how ever, beca use as we det ail below Schi rle h a s n o t add uced suf

fic ient evide nce on the sub st antive elem ents of his pr im a fac ie cas e for eit her his rac ial dis cri mi natio n c laim orhi s ret aliat ion clai m.

It is clea r fr om the rec ord that Sc h i r l e ( 1 ) i s a me mbe r of a pr ote cte d group , see 4 McDo nal d v. Sante Fe Tra il Tra nsp . Co. , 427 U. S. 273, 279 (197 6) (h o ldi ng that wh ite pl a i n t i f fs c an bring rac ial dis cri mi natio n clai ms unde r Title VII and § 1981) , and (2) wa s qualif ied for the pos itio n at iss ue, bas ed on his bache lor’ s and mas ter ’s degr ees in enginee ring as we ll as his tw enty- five years in the se mi cond uct or indu st ry , i n c l u d i ng man agem ent 7 Case: 11-10788 Document: 00511940157 Page: 7 Date Filed: 07/31/2012No. 11-10788

employment action when Sue t a k e stripped him of his European sales responsibilities in late March 2007 and gave those responsibilities to Okamoto. Adverse employ m e n t actions under the McDonnell Douglas framework are limited to “ u l t i m ate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” Pegra m v . H o n e y w e l l , I n c . , 3 6 1 F

. 3 d 272, 282 (5th Ci r . 2004) (emphasis omitted). Still, it is recognized that a significant diminishment of “material resp o nsibilities,” 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 t o satisfy the third element of his prima facie case of discrimination. T h i s conclusion flows from our standard of review, which re q u i r e s 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,” Ap p e l l ees admitted that Okamoto, who replaced Schirle in being responsible for European sales, was “Japanese” and of the “Asian race.” Therefore, S c h i r l e h a s 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

e i ther DNSE and/or Sokudo USA, that company would be liable for Suet a k e ’ s actions. Smith v. Amedisys, Inc. , 298 F.3d 434, 448 (5th Cir. 2002). While there is no record evidence to suggest t h a t S u e t a ke was an agent of DNSE, the secondment agree m e n t b e tween DNSE and Sokudo USA shows that Suetake signed on behalf of Sokudo USA, as Sokudo USA’s CEO. T h e s e c ondment

expe rien ce in Japa n. 8 Case: 11-10788 Document: 00511940157 Page: 8 Date Filed: 07/31/2012No. 11-10788

agreement is governed by California law, and California adheres to the standard rule that “a corporation may a c t only through its officers, agents, and employees.” See Burdetee v. Carrier Corp. , 71 Cal. Rpt r . 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. 20 05) (“[I]ssues of

a g e ncy typically are questions of fact.”), which would allow Schirle to m a k e a claim against Sokudo USA under Title VII. See Amedisys , 2 9 8 F

. 3 d at 448. Nowhere in its briefing to this court or to the district court did Sokudo USA put forth a legitimate, non-discrimin at o ry r e a s o n f o r th e a dve r s e e m p l oyment action;
summary judgment was therefore inappropriately granted to Sokudo USA. See Alvarado v. Tex. Rangers , 492 F.3d 605, 618 (5th Cir. 200 7). 3. Retaliation To make out a prima facie case of retaliation, the plaintiff must establish t h a t “ (1) he participated in an activity protected by Title VII; (2) his em p l o y e r took an adverse emp l o y m e n t a ction against him; and (3) a causal connection exists between the protected activity and the adver s e e m p loyment action.” McCoy , 492 F.3d at 556–57. As we have previously stated, Schirle has put forth

no evidence that DN S E w a s his employer for Title VII purposes; thus, if his retaliation claim is to survive, it c a n o n l y do so against Sokudo USA. Schirle cites four instances where he complained specifically of racial/national origin d i s crimination. 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

. 3 d 5 4 6 , 5 51 (5th Cir. 2009), only one of Schirle’s complaints was to Sokudo USA empl o yees—his mid-February 2007 complaint to Suetake about Yado and Yana’s harassment o f h i m for being a foreigner. Following this complaint in late March 2007, Suetake stripped S c h i r le of his European sales responsibilities, which we have held c o n s t i tuted an adverse

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employment action. Finally, the causal connection is met based on the near-onem o nth t e m p o ral proximity between Schirle’s complaint to S u e t ak e an d S u e t ak e ’ 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 a g ain s t [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 satis f y the causal connection for
summary judgment purposes.” (internal quotation marks and citatio n omitted)). As was the case with the discrimination claim, Sokudo USA has p u t 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, t o m aintain 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 (i f t h e plaintiff is a private individual). WFAA-TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998). Words ar e d e f a m a t o ry 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 rec ognizes both libel and sla nder

. An act ion for libel requ ires publ icat ion 5 to a thi r d par ty of wr itt en def ama tor y wo rd s about the plai ntif f, wh ile sla nder requ ires def ama tor y wo rd s about the plai ntif f to be sp ok en, wi thou t legal excu s e , t o a thir d par ty. Alaniz v. Hoy t , 105 S. W.3 d 330, 345 (Tex. App. —Cor pus Christ i 2003, no pe t. ) , abrogatedon othergro unds by Fort Brow n Vi llas III Condom ini um As s’n, Inc. v . Gi llenw ater , 285 S. W.3 d 879 (Tex. 200 9). 10 Case: 11-10788 Document: 00511940157 Page: 10 Date Filed: 07/31/2012No. 11-10788

year after the day the cause of ac t i o n a c c rues. Tex. Civ. Prac. & Rem. Code § 16.002(a). Ordinarily, the cause of action accrues when t h e defamatory statement i s p ub l i shed; under the discovery rule, however, “the statute of limitation s does not begin to run until the injured party learns of, or, in the exercise of reasonable diligence, should have le a r n e d of the injury or wrong givi n g 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 Au gu s t 1 4, 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; t h erefore, the statements should be covered by the tolling agreement between S c h irle, 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 , t h e tolling agreement does not apply to Inst a n c e A. Moreover, the discovery rule cannot save this claim becaus e 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 Oct o ber 19, 2007 in response to an inquiry by Henrich, who worked for a DSD third-party agent in Germany, about whether Schirle had le f t voluntarily. Otsuka re s p o n d e d : “I heard he’s suffering from small mental disease, and not appearing to Sokudo USA office at all in this one m o n t h time.” DSD does not

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

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defamatory because of Texas’s defense of substan t i a l 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. Wils o n , 3 3 1 S.W.3d 900, 915 (Tex. App.—Austin 2011, pet. granted). “If the underlying facts regarding the ‘gist’ of the statement a r e 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 o f t he 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, M i k u las, and Hernandez that Schirle and his mother suffered from “ment a l issues.” Unlike Instances A and B, however, these claims were not pleaded until October 22, 2010. As Texas only allows one yea r t o b r i n g a defamation claim, these clai m s can only be saved if they “relate back” to an earlier, non-time12 Case: 11-10788 Document: 00511940157 Page: 12 Date Filed: 07/31/2012No. 11-10788

barred complaint. Under the relevant portions o f F e d e r a l 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 applicabl e s t atute of limitations allows relation bac k ; [ o r] (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 ple a d i n g .” 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, ev e n i f i t i s 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, t r ansaction, 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. 64 4 , 6 5 9 (2005). Under Texas law, a newly asserted claim relates back unless it “is wholly based

on a new, d i s t i n c t , o r different transaction or occurrence.” Tex. Civ. Prac. & Rem. Code § 16.068 (2008). “Tex a s l a w 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 5 6 3 , 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. Th e s t at e m e nt s , th o u gh 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 th a t t h e d i scovery rule cannot save Schirle’s claims because the claims were not “inherently undiscoverable.” See Velsicol Chem. Co r p . 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 ve r i fiable.”). 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 S o kudo 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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