*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opinion should not be published and is not precedent except under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.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-20989

Summary Calendar

ELAINE MARTIN,

Plaintiff-Appellant,

VERSUS

THE KROGER COMPANY; CHARLES HEMBREE,

Defendants-Apellees,

Appeal from the United States District Court

For the Southern District of Texas

June 23, 2000

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

DAVIS, Circuit Judge:*

This is an appeal from the district court’s entry of summary

judgment dismissing Plaintiff Elaine Martin’s claims against the

Kroger Corporation and Charles Hembree, a Kroger employee. In her
2

complaint, Martin alleged that Kroger and Hembree violated the

Texas Labor Code by committing sex discrimination, race

discrimination, unlawful retaliation, negligent retention, and

several wage and hour violations. Martin also asserted causes of

action against Hembree for intentional infliction of emotional

distress and tortious interference with existing and prospective

business relations. The district court entered summary judgment

disposing of all of Martin’s claims. She appeals, arguing that:

(1) the district court lacked subject matter jurisdiction and (2)

the district court erred in granting summary judgment despite the

presence of substantial issues of material fact. For the reasons

that follow, we affirm the judgment of the district court.

I.

Kroger is a retail grocery chain with a number of stores in

the Houston, Texas area. Elaine Martin, a black female, worked as

an engineer for Kroger between 1993 and 1998. She was the only

female and only black engineer who worked under the supervision of

Charles Hembree, a white manager. Martin had never worked as an

engineer prior to her employment with Kroger and frequently

received mediocre evaluations, often stressing her lack of

leadership skills and suggesting that she learn more about the

technical aspects of her job.

Martin alleges that during her tenure with Kroger, she

witnessed a number of employees, including Hembree, make derogatory

statements about women and minorities. She also contends that
3

Hembree criticized her work and favored white employees. She

states that she complained to Hembree but he did nothing to

alleviate these problems. She further alleges that Hembree

wrongfully placed her on probation, and ultimately terminated her,

because she complained about the way Kroger treated minority

employees and subcontractors. Finally, she contends that Hembree

provided a negative reference for her, which precluded her from

gaining employment with H.E.B. grocery stores.

Martin filed a complaint with the EEOC but chose to pursue in

court only the state-law claims. Kroger and Hembree removed the

case, claiming diversity jurisdiction under 28 U.S.C. § 1332 and

alleging that Martin had fraudulently joined Hembree. Martin

neither filed a motion to remand nor otherwise opposed the removal.

Kroger and Hembree moved for summary judgment on all claims.

Prior to the summary judgment hearing, Martin voluntarily dismissed

her claims for negligent retention and hiring, Texas wage and hour

violations, and intentional infliction of emotional distress. The

district court entered summary judgment against the remaining

claims. 

II.

Martin argues that the district court lacked subject matter

jurisdiction to hear this case because this case does not involve

a federal question and because the parties were not completely

diverse. She explains that complete diversity does not exist

because both she and Hembree are citizens of Texas.
4

Kroger contends that Martin fraudulently joined Hembree in

order to defeat diversity jurisdiction. They argue that Martin

failed to establish any possibility that she could prevail on any

of her causes of action against Hembree -- sex and race

discrimination, intentional infliction of emotional distress, or

tortious interference with existing and prospective business

relations. 

Although Martin neither filed a motion to remand nor otherwise

challenged jurisdiction prior to her appeal, “a party may neither

consent to nor waive federal subject matter jurisdiction. Federal

courts may examine the basis of jurisdiction sua sponte, even on

appeal.” Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th

Cir. 1999); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 (5th

Cir. 1991)(“It is beyond doubt that although the parties can waive

defects in removal, they cannot waive the requirement of original

subject matter jurisdiction – in other words, they cannot confer

jurisdiction where Congress has not granted it.”). 

In reviewing a district court’s exercise of removal

jurisdiction, we generally consider whether the district court had

jurisdiction at the time of removal. Miranti v. Lee, 3 F.3d 925,

928 (5th Cir. 1993). However, “an alternative standard governs those

situations where, after improper removal, a case is tried on the

merits without objection, and the federal court enters judgment.”

Kidd v. Southwest Airlines, 891 F.2d 540, 546 (5th Cir. 1990). In

those circumstances, “the appellate court must review the pleadings
5

as they exist at the time that the district court enters judgment,”

rather than at the time of removal. Id. Because Martin failed to

contest jurisdiction prior to the district court’s entry of

judgment, we consider only the claims in controversy when the

district court entered its verdict -- discrimination/retaliation

and interference with current/prospective business relations.

Diversity jurisdiction exists where the matter in controversy

exceeds $75,000 and where every plaintiff is from a different state

as every defendant. See 28 U.S.C. § 1332; Strawbridge v. Curtiss,

7 U.S. 267 (1806). A plaintiff may not, however, “fraudulently

join” a defendant in order to defeat diversity. See Jerrigan v.

Ashland Oil, Inc., 989 F.2d 812, 817 (5th Cir. 1993). In order to

demonstrate that Martin has fraudulently joined Hembree, Kroger

must demonstrate either “outright fraud in the plaintiff’s

recitation of jurisdictional facts or that there is absolutely no

possibility that the plaintiff will be able to establish a cause of

action against the in-state defendant in state court.” Rodriguez

v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997). 

In analyzing a claim of fraudulent joinder, this Court applies

“a summary-judgment like procedure” and may consider “summary

judgment-type evidence such as affidavits and deposition

testimony.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th

Cir. 1999). We must “evaluate all of the factual allegations in

the plaintiff’s state court pleadings in the light most favorable

to the plaintiff, resolving all contested issues of substantive
6

fact in favor of the plaintiff[,] and examine relevant state law

and resolve all uncertainties in favor of the non-removing party.”

Rodriguez, 120 F.3d at 591. We do not consider “whether the

plaintiff will actually or even probably prevail on the merits of

the claim” but instead “look only for a possibility that the

plaintiff may do so.” Id. As such, we will consider each of

Martin’s claims in turn.

Martin’s primary claim against Hembree is for race and sex

discrimination and retaliation under the Texas Commission on Human

Rights Act (“TCHRA”). After reviewing the pleadings and relevant

case law, we conclude that there is no possibility that Martin will

prevail on this claim. Martin’s claims against Hembree arise

solely from his actions as a supervisory employee of Kroger,

however, [s]upervisors and managers . . . are not liable under the

Texas Human Rights Act in their individual capacity for their

alleged acts of discrimination.” DeMoranville v. Specialty

Retailers, Inc., 909 S.W.2d 90, 94 (Tex. App. 1995)(reversed on

other grounds); accord City of Austin v. Gifford, 824 S.W.2d 735,

742 (Tex. App. 1992)(“The Act does not create a cause of action

against supervisors or individual employees”); Thompson v. City of

Arlington, 838 F. Supp. 1137, 1153 (N.D. Tex. 1993). Individual

employees, even those with supervisory authority, do not fall

within the TCHRA’s definition of “employer.” See Tex. Lab. Code §

21.002(8)(A)(defining “employer”). Accordingly, Martin’s TCHRA

claims against Hembree cannot provide the basis for diversity
7

jurisdiction.

Martin also alleges that Hembree tortiously interfered with

her current business relationship with Kroger and her prospective

business relationship with H.E.B. The district court entered

summary judgment against both of these claims, finding that Martin

failed to present a prima facie case of either tortious

interference with a current business relationship or tortious

interference with a prospective business relationship.

To the extent that Martin’s tortious interference claims

simply repackage her discrimination/retaliation claims, they are

foreclosed by the TCHRA. As courts have explained, the “TCHRA

provides the exclusive state-law means for redress of employment

discrimination and preempts claims for discrimination brought under

other state-law theories” see Cook v. Fidelity Investments, 908

F.Supp. 438, 442 (N.D. Tex. 1995). To the extent that Martin’s

tortious interference claims stand on their own, they are

insufficient as a matter of law. 

In order to make out a claim of tortious interference with a

contract, the plaintiff must demonstrate: “(1) the existence of a

contract subject to interference; (2 )willful and intentional

interference; (3) interference that proximately caused damage; and

(4) actual damage or loss.” Powell Indus., Inc. v. Allen, 985

S.W.2d 455, 456 (Tex. 1998). Where the plaintiff alleges that an

agent of her current employer has interfered with her contract with

that employer, the plaintiff must establish that “the agent acted
8

willfully and intentionally to serve the agent’s personal interets

at the corporation’s expense.” Id. at 457. “A corporate officer’s

mixed motives -- to benefit both himself and the corporation -- are

insufficient to establish liability.” Powell Indus., Inc. v.

Allen, 985 S.W.2d 455 (Tex. 1998). Furthermore, “if a corporation

does not complain about it’s agents actions, then the agent cannot

be held to have acted contrary to the corporation’s interests.”

Id.

Martin has failed to allege any facts suggesting that Hembree

interfered with her relationship with Kroger. In her affidavit,

Martin avers only that Hembree failed to control the racist

environment, that he stated that he had grown up thinking it was

acceptable to refer to blacks as “niggers,” and that she had heard

that Hembree was racist and would try and get rid of her. In her

deposition, Martin stated that Hembree tortiously interfered with

her relationship with Kroger because: “he allowed Terry

[Hillebrandt’s] demeaning behavior to continue even when, you know,

I would come – I felt so neglected, out of place in the engineering

department once I filed a charge. . . . We didn’t socialize. And

so – and I feel that . . . someone talked to the engineers. The

engineers didn’t want to socialize and talk to me about anything.

. . .” Martin simply has not stated any basis for tortious

interference with a current contract apart from the

race/retaliation claims. Furthermore, Martin has never alleged

that Hembree terminated her employment because of his own personal
9

interests, rather than the interests of Kroger. Nor has she

alleged that Kroger expressed displeasure with Hembree’s decision

to terminate her. Accordingly, there is no possibility that Martin

could succeed on her claim for tortious interference with a current

business relationship. 

Similarly, there is no possibility that Martin will prevail on

her claim for tortious interference with a prospective business

relationship. In order to prove a cause of action for interference

with a prospective contract under Texas law, the plaintiff must

show that: (1) there was a reasonable probability that the

plaintiff would have entered into a contractual relationship; (2)

the defendant committed a malicious and intentional act that

prevented the relationship from occurring, with the purpose of

harming the plaintiff; and (3) actual harm or damage resulted from

the defendant’s interference. See Gaia Technologies, Inc. v.

Recycled Products Corp., 175 F.3d 365, 377 (5th Cir. 1999)(citing

Texas case law). “It is not necessary to prove that the contract

certainly would have been made but for the interference; it must be

reasonably probable, considering all of the facts and circumstances

attendant to the transaction.” Hill v. Heritage Resources, Inc.,

964 S.W.2d 89, 109 (Tex. App. 1997). However, “[m]ore than mere

negotiations must have taken place.” Id.

Martin has not alleged any facts suggesting that she and

H.E.B. had even entered into discussions concerning employment, let

alone that her employment with H.E.B. was “reasonably probable.”
10

Martin alleges simply that she had a “pre-interview” with an H.E.B.

human resources representative, that the representative told her

that they needed to check out her references, and that ultimately

H.E.B. did not hire her. Furthermore, Martin failed to allege in

her complaint that she was reasonably likely to obtain employment

but for Hembree’s actions. Finally, Martin conceded in her

deposition that “I have no evidence that [Hembree] talked to

H.E.B.” and that “I have no evidence or facts” suggesting that

anyone at Kroger spoke to H.E.B. Even “[c]onstruing, as we must,

all disputed facts in the plaintiff’s favor,” Carriere v. Sears,

Roebuck & Co., 893 F.2d 98, 101 (5th Cir. 1990), there is simply no

possibility that Martin could have made out a claim for tortious

interference with a prospective business relationship. See Griggs

v. State Farm Lloyd’s, 181 F.3d 694, 702 (5th Cir. 1999)(finding

that plaintiff fraudulently joined defendant where they could not

possible recover on their claims).

Because there is no possibility that Martin will prevail on

any of her claims against Hembree, we hold that the district court

properly exercised subject matter jurisdiction

II.

Martin argues that the district court erred in entering

summary judgment on her retaliation claim. She contends that the

district court overlooked substantial issues of material fact

regarding whether Kroger terminated her because of her poor
11

performance, or because of her pattern of opposition to

discriminatory practices.

The district court found that Martin had established a prima

facie case of discrimination because she had proved that: (1) she

opposed a discriminatory practice – the use of racial slurs; (2)

she suffered an adverse employment decision – termination; and (3)

she established causation – by a temporal proximity between her

complaints and her discharge. Nevertheless, the court held that

Kroger provided “ample evidence of non-retaliatory reasons for

Martin’s discharge, i.e., her poor performance and negative

attitude. . . .” Because Martin failed to show that the reasons

that Kroger proffered for her discharge were pretextual and that 

Kroger actually sought to fire her because of her opposition to

discrimination, the district court granted summary judgment for

Kroger.

Our review of the briefs and record leads us to agree with the

district court. Once a plaintiff has advanced a prima facie case

for retaliation and the defendant has “articulate[d] a legitimate,

nondiscriminatory reason for the challenged employment action,” a

plaintiff can avoid summary judgment only if “the evidence, taken

as a whole: (1) creates a fact issue as to whether each of the

employer’s stated reasons was not what actually motivated the

employer and (2) creates a reasonable inference that race was a

determinative factor in the actions of which plaintiff complains.”

Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102
12

F.3d 137, 140-41 (5th Cir. 1996). Moreover, the “plaintiff must

present sufficient evidence to create a discriminatory intent in

order to avoid summary judgment.” Id. at 141. And as in response

to any motion for summary judgment, “it is . . . incumbent upon the

non-moving party to present evidence – not just conjecture and

speculation – that the defendant retaliated and discriminated

against plaintiff on the basis of her race.” Id. at 140. 

In response to Martin’s prima facie showing of retaliation,

Kroger produced substantial evidence documenting Martin’s work

difficulties, which substantially preceded her discrimination

charges. Martin failed to produce any evidence either suggesting

that Kroger did not actually fire her on the basis of her poor

performance or that Kroger fired her because of her opposition to

discrimination. At best, Martin has demonstrated a temporal

proximity between her complaints and her termination. While such

a showing may be sufficient to establish a prima facie case, it

does not constitute evidence “sufficient to create a reasonable

inference of discriminatory intent in order to avoid summary

judgment.” 102 F.3d at 141.

III.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.
13