IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT L. GURLEY, §

§

Plaintiff, §

§

VS. § NO. 4:04-CV-943-A

§

AMERICAN AIRLINES, INC., §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendant, American

Airlines, Inc., for summary judgment. The court, having

considered the motion, the response of plaintiff, Robert L.

Gurley, the reply, the record, the summary judgment evidence, and

applicable authorities, finds that the motion should be granted. 

I.

Plaintiff's Claims

On July 9, 2004, plaintiff filed his original complaint in

the Dallas Division of the United States District Court for the

Northern District of Texas. The action was later transferred to

the Fort Worth Division.

Plaintiff alleges: Plaintiff is a former employee of

defendant. Another employee of defendant, Deborah Bogdan

("Bogdan"), made surreptitious and illegal recordings of

plaintiff's private communications upon which defendant relied in

causing plaintiff's termination of employment. Plaintiff was

treated differently than other employees because of his race. 

 

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Plaintiff seeks relief under 42 U.S.C. § 1981 and

declaratory relief under 28 U.S.C. §§ 2201 and 2202. 

II.

Grounds of the Motion

Defendant contends that plaintiff's claims in this action

are barred by res judicata. Alternatively, defendant says that

plaintiff's claims are barred by collateral estoppel.

III.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

 

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mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

The standard for granting a summary judgment is the same as

the standard for rendering judgment as a matter of law. Celotex

Corp., 477 U.S. at 323. If the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial. Matsushita, 475 U.S. at

597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

Cir. 1969) (en banc) (explaining the standard to be applied in

determining whether the court should enter judgment on motions

for directed verdict or for judgment notwithstanding the

verdict). 

IV.

Undisputed Evidence

The following is an overview of evidence pertinent to the

motion for summary judgment that is undisputed in the summary

judgment record:

 

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Plaintiff filed a lawsuit against defendant and one of his

supervisors, Peggy Sterling ("Sterling"), in Cause No. 96-187968

in the 96th Judicial District Court of Tarrant County, Texas (the

"first lawsuit"). Plaintiff alleged that he had been employed by

defendant but was terminated on December 7, 2000, based on his

race. He asserted causes of action for discrimination in

employment in violation of the Texas Commission on Human Rights

Act and Texas Labor Code, intentional infliction of emotional

distress, negligent supervision, slander, libel, defamation, and

negligent misrepresentation. The state court granted summary

judgment, dismissing the claims against Sterling and dismissing

plaintiff's claims against defendant for negligent supervision,

defamation, and negligent misrepresentation with prejudice. 

Later, the state court dismissed plaintiff's claim for

intentional infliction of emotional distress with prejudice.

On August 2, 2004, the first lawsuit was called for trial. 

The jury rendered a verdict in favor of defendant and, by final

judgment signed September 24, 2004, the state court ordered,

adjudged, and decreed that plaintiff take nothing by his state

court lawsuit.

In August 2003, approximately one year before the first

lawsuit went to trial, another of defendant's former employees

told plaintiff's state court counsel that Bogdan had made

recordings of plaintiff's conversations. In September of 2003,

defendant forwarded to plaintiff's state court counsel what it

understood to be portions of transcripts of the tape-recorded

 

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conversations. The tapes themselves were delivered to the court

and defendant did not oppose plaintiff's having access to them.

On February 12, 2004, plaintiff filed a lawsuit in the

United States District Court for the Northern District of Texas,

Dallas Division, against Bogdan alleging that she had illegally

taped his conversations. On April 7, 2004, plaintiff took

Bogdan's deposition in that lawsuit. 

By order signed April 29, 2004, the state court judge in the

first lawsuit allowed plaintiff to depose Bogdan and the employee

who made the disclosure regarding the tape recordings. 

Depositions took place in May and June of 2004. In July 2004,

plaintiff filed a motion in the first lawsuit to strike and

exclude from trial the tapes made by Bogdan and any other related

evidence.

 

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V.

Law Applied to the Facts

Because the first lawsuit was tried in state court, Texas

law controls the determination of whether res judicata or

collateral estoppel bars the pursuit of this action. Marrese v.

Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985);

Pancake v. Reliance Ins. Co. (In re Pancake), 106 F.3d 1242, 1244

(5th Cir. 1997). Res judicata, or claim preclusion, prevents the

relitigation of claims that have been fully adjudicated as well

as related matters that, with the use of diligence, should have

been litigated in the prior suit. Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 628 (Tex. 1992). The doctrine is designed

to reflect the need to bring all litigation to an end, prevent

vexatious litigation, maintain the stability of court decisions,

promote judicial economy, and prevent double recovery. Id. at

629. Collateral estoppel, or issue preclusion, prevents

relitigation of issues that were actually litigated and were

essential to the judgment of a prior case. Getty Oil Co. v. Ins.

Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992).

To prevail on a claim of res judicata, defendant must

show: (1) the parties in both actions are the same or are in

privity; (2) there is a final judgment on the merits in the first

action; (3) the prior judgment was rendered by a court of

competent jurisdiction; and (4) the second action is based on the

same claims that were raised or could have been raised in the

first action. Amstadt v. United States Brass Corp., 919 S.W.2d

 

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644, 652 (Tex. 1996). In assessing the fourth element, the court

applies a transactional test, considering whether the facts of

the two actions are related in time, space, origin, motivation,

whether they form a convenient trial unit, and whether their

treatment as a trial unit conforms to the party's expectations or

to business understanding or usage. Barr, 837 S.W.2d at 631.

Plaintiff does not dispute that the first three elements

exist in this case. Instead, he focuses on the fourth element,

arguing that he could not have presented his civil rights claim

at the time he brought the first lawsuit. Yet, plaintiff's own

evidence and admissions show that all of his claims could have

been raised in the first lawsuit. For example, "Plaintiff

included reference to the racial discrimination and harassment

issues presented in the state court lawsuit[] only as background

evidence . . . ." Pl.'s Resp. to Def.'s Mot. for Summ. J. at 9. 

"Plaintiff was not aware of the full extent of Bogdan's unlawful

conduct and of Defendant's knowledge and participation therein[]

until the Spring of 2004." Id. And, plaintiff admits "Plaintiff

claimed [in the first lawsuit] that he was treated differently in

the terms and conditions of his employment because of race

. . . ." Id. at 10. Of course, a term and condition of his

employment was the administrative procedure about which he

complains here. Because all of plaintiff's claims regarding

employment discrimination could and should have been raised in

 

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The court need not reach the matter of collateral estoppel.

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the first lawsuit, the claims in this action are barred by res

judicata.

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VI.

Order

For the reasons discussed herein,

The court ORDERS that defendant's motion for summary

judgment be, and is hereby, granted; that plaintiff take nothing

on his claims against defendant; and that such claims be, and are

hereby, dismissed with prejudice.

SIGNED July 18, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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