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finding plaintiff's IIED claims preempted by her Title VII claims because they arise out of the same events and incidents
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Civil Action No. 3:04-CV-2201-P.
March 9, 2005
MEMORANDUM OPINION ORDER
Now before the Court are Defendant Craig Scheef's Motion to Dismiss Plaintiff's Intentional Infliction of Emotional Distress Claim and Defendant Bank of Texas' Motion to Dismiss. Craig Scheef ("Scheef") filed his Motion to Dismiss on December 10, 2004, and Bank of Texas filed its Motion to Dismiss on December 13, 2004. Plaintiff filed her Response to both Motions on December 20, 2004. After reviewing the parties' arguments, the pleadings, and the applicable law, the Court DENIES Defendant Scheef's Motion and GRANTS IN PART and DENIES IN PART Defendant Bank of Texas' Motion.
I. Background
Plaintiff Angelica Maria Sauceda ("Sauceda") alleges the following: (1) sexual discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. § 21.051, and Title VII of the Civil Rights Act of 1969 ("Title VII"); (2) sexual harassment in violation of TCHRA, Tex. Labor Code Ann. § 21.051, and Title VII; (3) hostile work environment in violation of TCHRA, Tex. Labor Code Ann. § 21.051, and Title VII; (4) retaliation in violation of Tex. Labor Code Ann. § 21.055 and Title VII; (5) violations of the Fair Labor Standards Act; (6) invasion of privacy; (7) libel, slander, and defamation; (8) negligent hiring, training, supervision and retention; and (9) intentional infliction of emotional distress. (Pl.'s Compl. at 13-22.)
Plaintiff bases her claims on occurrences she allegedly experienced while working at the Swiss Avenue Lakewood Branch as a Bank of Texas employee. (Pl.'s Compl. at 2.) Defendant Scheef was employed by Bank of Texas as the President of the Swiss Avenue Lakewood Branch, and Sauceda became Scheef's assistant in March of 2003. (Pl.'s Compl. at 3.) According to the Plaintiff, Scheef began making inappropriate comments towards her in May of 2003. (Pl.'s Compl. at 3.) Examples of the alleged inappropriate statements include: "you like getting cream all over your face," "no need to get on your knees for me," "I'm not finished with you yet," "I'll take you to Dicks," and "I really like you." He also whispered the word "pussy" in her ear. (Pl.'s Resp. to Def. Scheef's Mot. to Dismiss at 3.)
Plaintiff also alleges that Scheef acted inappropriately towards her on several occasions. The Plaintiff's complaint states that Scheef would make her listen to music in his office while singing the words to her. (Pl.'s Compl. at 12.) Additionally, Plaintiff asserts that Defendant Scheef "thump[ed] her with his fingers or other objects" (Pl.'s Resp. to Def. Scheef's Mot. to Dismiss at 3) and often walked by her "desk with his hand next to his private part." (Pl.'s Compl. at 8.)
Bank of Texas now moves to dismiss Sauceda's intentional infliction of emotional distress claim along with her other state law tort claims which include: (1) invasion of privacy; (2) libel, slander, and defamation; and (3) negligent hiring, training, supervision and retention. Additionally, Scheef moves to dismiss Sauceda's intentional infliction of emotional distress claim.
II. Legal Standard
Rule 12(b)(6) authorizes dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Such a motion should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).
In determining whether dismissal should be granted, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. See Capital Parks, Inc. v. Southeastern Adver. and Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). The Court limits its inquiry to whether the plaintiff is entitled to offer evidence to support claims and does not address whether the plaintiff will ultimately prevail on the merits. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). Dismissal is proper when "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
III. Bank of Texas' Motion to Dismiss
The Court will first address the intentional infliction of emotional distress claim and then turn to the other state-law tort claims. A. Intentional Infliction of Emotional Distress Claim
The tort of intentional infliction of emotional distress consists of four elements: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. See Hoffman-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Bank of Texas asserts that this Court should dismiss the intentional infliction of emotional distress claim because Plaintiff's factual allegations support neither the "extreme and outrageous" element nor the "severe" emotional distress element. (Def. Bank of Texas' Mot. to Dismiss at 9.) Bank of Texas also argues that the tort of infliction of emotional distress is a "gap-filler," and thus, the Plaintiff can only maintain her claim if the wrongs she alleges are not protected by any other legal theory. (Def. Bank of Texas' Mot. to Dismiss at 3.) Specifically, Bank of Texas contends that Title VII provides protection against the alleged wrongs. (Def. Bank of Texas' Mot. to Dismiss at 5.)
The Court will first address the "gap-filler" argument by determining whether Plaintiff can maintain her intentional infliction of emotional distress claim in addition to her Title VII claims. In Texas, the tort of intentional infliction of emotional distress is a "gap-filler." Hoffman-LaRoche, 144 S.W.2d at 447; Prigmore v. Houston Pizza Ventures, Inc., 189 F.Supp. 2d 635, 643 (S.D. Tex. 2002). A "gap-filler" is "judicially created for the limited purpose of allowing recovery in those rare instances [in] which a [victim] . . . has no other recognized theory of redress." Hoffman-LaRoche, 144 S.W.2d at 447.
In Hoffman, the Texas Supreme Court held that a plaintiff cannot circumvent statutory remedies by collecting damages based on an intentional infliction of emotional distress claim. Hoffman-LaRoche, 144 S.W.2d at 447. The Hoffman court elaborated, stating that "[i]f the gravamen of a plaintiff's complaint is the type of wrong that the statutory remedy was meant to cover, a plaintiff cannot maintain an intentional infliction [of emotional distress] claim regardless of whether he or she succeeds on, or even makes, a statutory claim." Id. at 448. Thus, "when a plaintiff alleges a claim for intentional infliction of emotional distress based on the same facts making up her Title VII claim(s), the former is preempted." Stewart v. Houston Lighting Power Co., 998 F.Supp. 746, 757 (S.D. Tex. 1998) (citing Jackson v. Widnall, 99 F. 3d 710, 716 (5th Cir. 1996)).
In this case, Sauceda employed the same allegations to support her intentional infliction of emotional distress claim and her Title VII claims. To support her Title VII hostile work environment claim, Sauceda claimed that Defendant Scheef made "sexually graphic comments, innuendo[s] and jokes." (Pl.'s Compl. at ¶ 57.) Similarly, to support her intentional infliction of emotional distress claim, Sauceda asserted that Defendant Scheef acted in an "extreme and outrageous" manner by continually subjecting her to inappropriate comments and innuendos. (Pl.'s Compl. at ¶ 76.) Furthermore, Sauceda's Title VII claims and her intentional infliction of emotional distress claim arise out of the same events and incidents. Therefore, Plaintiff's intentional infliction of emotional distress claim is preempted by her Title VII claims. Accordingly, the Court dismisses Plaintiff's intentional infliction of emotional distress claim against the Bank of Texas.
Given the resolution of this claim, the Court finds it unnecessary, with regard to Bank of Texas' Motion, to discuss whether Plaintiff's allegations reach the level of "extreme and outrageous" conduct or whether Sauceda successfully pleads "severe" emotional distress. B. Other State Law Tort Claims
The Court now turns to Sauceda's remaining state-law tort claims. Bank of Texas argues that Sauceda's remaining claims should be dismissed because they are preempted by the TCHRA, which provides the exclusive remedy for state-law employment discrimination claims. (Def. Bank of Texas' Mot. to Dismiss at 5.) Sauceda responds by emphasizing that Federal Rule of Civil Procedure 8(e)(2) permits her to plead in the alternative. (Pl.'s Resp. at 4.)
The Bank of Texas cites Cook v. Fidelity Investments in support of its argument that the TCHRA preempts Sauceda's state-law tort claim. 908 F. Supp. 438, 442 (N.D. Tex. 1995). The Cook court held that "[t]he TCHRA provides the exclusive state-law means for redress of employment discrimination and preempts claims for discrimination brought under other state law theories." Cook, 908 F. Supp. at 442 (citing Vincent v. West Texas State Univ, 895 S.W.2d 469, 473-74 (Tex.App.-Amarillo 1995, no writ)); Stinnett v. Williamson County Sheriff's Dept., 858 S.W.2d 573, 576-577 (Tex. App-Austin 1993, writ denied); Bates v. Humana, Inc., No. SA-92-CA-432, 1993 WL 556416, at *11 (W.D. Tex. 1993)). Specifically, the Cook court held that a "claim for negligent supervision is preempted by the TCHRA." Id.
However, other Texas courts have more recently held that the TCHRA does not act as an exclusive remedy when conduct supporting employment discrimination is alleged. For example, "Texas courts and other authority have recognized the viability of an invasion of privacy claim brought in the context of sexual harassment allegations." Nichols v. Apartment Temporaries, Inc., No., 3:99-CV-2538-BC, 2001 WL 182701, at *3 (N.D. Tex. 2001) (citing Perez v. Living Centers-Devcon, 963 S.W.2d 870, 875 (Tex.App.-San Antonio 1998, pet. denied)). In Perez v. Living Centers-Devcon, the court concluded that a plaintiff could maintain her invasion of privacy claim, "which arose from the same facts as her sexual harassment claim." Perez, 963 S.W.2d at 875.
The Perez court determined that the cases cited in Cook only concerned suits in which the Plaintiff sought relief under two separate statutory claims. Perez, 963 S.W.2d at 872-875. The Perez court arrived at this conclusion by analyzing the TCHRA's legislative history and distinguishing the cases cited by the Cook court. Id. For example, in Vincent v. West Texas State Univ., the court held that a claim under the TCHRA preempts a claim based on the same facts under the Texas Torts Claims Act. Vincent, 895 S.W.2d at 473-74. Likewise, in Stinnett v. Williamson Country Sheriff's Dept., the court determined that a claim under the TCHRA preempts a claim based on the same facts under the Whistleblower Act. Stinnett, 858 S.W.2d at 576-577. Although the court in Bates v. Humana, Inc. did rule that the TCHRA preempts a negligent supervision claim, it cited Stinnett as support. Bates v. Humana, Inc., No. SA-92-CA-432, 1993 WL 556416, at *11 (W.D. Tex. 1993)).
The Perez court also emphasizes that the TCHRA's legislative history never indicates, directly or indirectly, that the statute should serve as an exclusive remedy. "Notably neither an intent to serve as an exclusive remedy, nor an intent to preclude common law causes of action, is contained within the stated purposes of the TCHRA." Perez, 963 S.W.2d at 874 (citing Tex. Lab. Code. Ann. § 21.001 (Vernon 1996)). Additionally, "[n]o amendment or testimony, or anything in the legislative history of the TCHRA . . . indicates that the legislators meant for the TCHRA to preclude common-law causes of action." Perez, 963 S.W.2d at 875. In fact, the statute indicates that failure to exhaust the mandatory administrative review process does not preclude a lawsuit for common law causes of action. Id.
Section 21.211 of The Texas Labor Code, Election of Remedies, provides that "[a] person who has initiated an action in a court of competent jurisdiction . . . based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance." Id. (citing Tex. Lab. Code. Ann. § 21.211 (Vernon 1996)). This section of the TCHRA precludes a plaintiff from first making a common law claim and then making a statutory claim or first making a statutory claim and then making a common law claim in a separate proceeding. Perez, 963 S.W.2d at 875. However, this section does not preclude a plaintiff from arguing in the alternative as permitted by Fed.R.Civ.Proc. 8(e)(2). Hence, this Court is persuaded by the reasoning of Perez and Nichols that the TCHRA does not preempt common-law claims. Accordingly, a plaintiff can plead in the alternative by asserting statutory claims under the TCHRA and state common-law claims.
In this case, Sauceda pleads in the alternative by simultaneously asserting both statutory claims under the TCHRA and state-law tort claims including: (1) invasion of privacy; (2) libel, slander, and defamation; and (3) negligent hiring, training, supervision, and retention. (Pl.'s Compl. At 17-22.) Based on the holdings in Nichols and Perez along with legislative history of the TCHRA, the Court maintains Plaintiff's state-law tort claims against the Bank of Texas. Thus, as to the Bank of Texas, Sauceda maintains all of her statutory claims and the following state-law claims: (1) invasion of privacy; (2) libel, slander, and defamation; and (3) negligent hiring, training, supervision, and retention.
IV. Scheef's Motion to Dismiss
Defendant Scheef moves to dismiss only Sauceda's intentional infliction of emotional distress claim. He asserts that Plaintiff's factual allegations support neither the "extreme and outrageous" element nor the "severe" emotional distress element. (Def. Scheef's Mot. to Dismiss at 2.) Scheef also argues, by incorporation of Bank of Texas' Motion to Dismiss, that the tort of intentional infliction of emotional distress is a "gap-filler," and thus Plaintiff can only maintain her claim if the wrongs alleged are not protected by Title VII.
As previously mentioned, an intentional infliction of emotional distress claim is a "gap-filler," which provides relief "in those rare instances [in] which a [victim] . . . has no other recognized theory of redress." Hoffman-LaRoche, 144 S.W.2d at 447. Bank of Texas and Scheef both assert that Title VII provides the necessary relief. (Def. Bank of Texas' Mot. to Dismiss at 5.) Title VII provides a recognized theory of redress for a victim when an "employer" discriminates on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2. Additionally, Title VII defines an employer as a person who has "fifteen or more employees for each working day in each of twenty or more calendar weeks." Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994) (citing 42 U.S.C. § 2000e(b)). In Grant v. Lone Star Co., the court held that an individual employee is not an employer, and "individuals who do not otherwise qualify as an employer cannot be held liable for a breach of Title VII." Id. at 653.
Scheef is not an employer under Title VII; therefore, he cannot be held liable for a breach of Title VII. Thus, Scheef's "gap-filler" argument fails. The Court must now address whether Sauceda's complaint rises to the level of "extreme and outrageous" conduct and whether she successfully pleads "severe" emotional distress.
Extreme and outrageous conduct is conduct which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Dean v. Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir. 1989) (citing Restatement (Second) of Torts § 46, Comment d (1965)); see also Stults v. Conoco, 76 F.3d 651, 658 (5th Cir. 1996). Under Texas law, "extreme and outrageous" conduct has been narrowly construed in the employment context; therefore, liability due to intentional infliction of emotional distress will not attach for mere "employment disputes." Johnson v. Merrell Dow Pharmaceutical, Inc., 965 F.2d 31, 33 (5th Cir. 1992); Chavez v. McDonald's Corp., No. 3:99-CV-1718D, 1999 WL 814527, at *3 (N.D. Tex. 1999).
Courts define mere "employment disputes" in a manner which permits employers to supervise, review, criticize, demote, transfer and discipline employees. Johnson, 965 F.2d at 33. For example, a plaintiff's complaints "of not being assigned work and training, not being included in communications regarding work, receiving a low performance review . . ., and having more onerous terms and conditions placed on her" do not rise to the level of "extreme and outrageous" conduct. Best v. GTE Directories Serv. Corp., No. 3:92-CV-0163-D, slip op. at 3 (N.D. Tex. Mar. 19, 1993). Furthermore, "[l]iability does not extend to mere insults, indignities, threats, annoyance, or petty oppressions." Weller v. Citation Oil Gas Corp., 84 F.3d 191, 195 (5th Cir. 1996). For example, a citizen did not suffer from "extreme and outrageous" conduct when the Mayor prohibited him from speaking at city council meetings. Luckett v. City of Grand Prairie, 2001 WL 285280 at *7 (N.D. Tex. Mar. 19, 2001). Similarly, another court dismissed a marketing supervisor's intentional infliction of emotional distress claim that was based on the employer excluding him from marketing meetings and wrongfully discharging him because he was Hispanic. Chavez, 1999 WL 814527 at *3.
In this case, Sauceda's allegations extend beyond a mere employment dispute. Scheef allegedly asked Sauceda if she "like[s] getting cream all over [her] face" and told her that there was "no need to get on [her] knees for [him]." (Pl.'s Resp. to Def. Scheef's Mot. to Dismiss at 3.) Sauceda also alleges that Scheef thumped her on several occasions and often walked by her "desk with his hand next to his private part." (Pl.'s Compl. at 8.) While Sauceda does complain about receiving a low performance review (Pl.'s Compl. at 8), her complaints of inappropriate statements in conjunction with Scheef's alleged inappropriate actions constitute more than a mere employment dispute. As the Johnson court discussed, the purpose behind distinguishing "mere employment disputes" from other disputes is to allow employers the ability to supervise, review, criticize or demote employees. Scheef was not attempting to supervise, criticize or demote Sauceda. Clearly, Scheef's alleged inappropriate statements and conduct exceed the bounds of a mere employment dispute.
Additionally, Sauceda's allegations rise to the level of "extreme and outrageous" conduct. Her complaint details the consistent inappropriate statements and actions she allegedly endured. These alleged statements and actions, which are inappropriate at the least, degraded and dehumanized Sauceda. Scheef's alleged conduct far exceed the bounds of decency and is utterly intolerable in a civilized community. Thus, Plaintiff alleges "extreme and outrageous" conduct.
Scheef further asserts that Sauceda did not suffer from "severe" emotional distress. (Def. Scheef's Mot. to Dismiss at 2.) Sauceda claims that she suffered from anxiety attacks, unnatural fear of male supervisors, severe indignation and wounded pride. (Pl.'s Resp. to Def. Scheef's Mot. to Dismiss at 3.)
"Emotional distress means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry and nausea." Hockaday v. Tex. Dep't Criminal Justice, 914 F.Supp. 1439 (S.D.Tex. 1996) (citing Behringer v. Behringer, 884 S.W.2d 839, 844 (Tex.App.-Ft. Worth 1994, writ denied)). "'Severe' distress is that which no reasonable person could be expected to endure, and must be more than mere worry, anxiety, vexation, embarrassment or anger." Huckaby v. Moore, 142 F.3d 233, 242 (5th Cir. 1998). Texas courts have held that insomnia, nervousness, paranoia, and inability to concentrate constituted "severe emotional distress." Dean, 885 F.2d at 307 (citing Tidelands Auto Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.-Beaumont 1985, writ refused n.r.e.)). In determining whether a plaintiff has a viable claim, the Court must accept all well pleaded facts as true and view them in the light most favorable to the plaintiff. Capital Parks, 30 F.3d at 629.
Sauceda successfully pleads that she suffered from "severe emotional distress" by claiming Scheef's statements and conduct caused her severe indignation and resulted in anxiety attacks. No reasonable person should be expected to suffer from anxiety attacks or severe indignation, and this type of emotional distress surpasses the bounds of mere worry, anxiety, vexation, embarrassment or anger. Thus, Sauceda's allegations, if proven, would establish Scheef acted in an "extreme and outrageous" manner and that she suffered from "severe emotional distress."
Moreover, Fed.R.Civ.Proc. 8(a) simply requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.Proc. 8(a). "Given the Federal Rules' simplified standard for pleading, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Plaintiff's complaint easily satisfies the requirement of Rule 8(a) because it gives Scheef fair notice of the basis for Sauceda's complaint. Accordingly, Scheef's Motion to Dismiss is DENIED.
VI. Conclusion
For the foregoing reasons, the Court GRANTS Defendant Bank of Texas' Motions to Dismiss with respect to the intentional infliction of emotional distress claim and DENIES the Motion with respect to the other state-law tort claims. Additionally, the Court DENIES Scheef's Motion to Dismiss Sauceda's intentional infliction of emotional distress claim.