Opinion
Civil Action No. 3:03-CV-2480-D.
February 7, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff Nelda J. Tillison ("Tillison") sues defendants Trinity Valley Electric Cooperative, Inc. and Trinity Valley Services, Inc. (collectively "Trinity Valley"), her former employers, alleging sex discrimination, quid pro quo sexual harassment, and hostile work environment sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; age discrimination, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; and state-law claims of intentional infliction of emotional distress, negligence, gross negligence, negligent retention, and gross negligent retention. Trinity Valley moves for summary judgment on all of Tillison's claims. Tillison has not responded to the motion, and it is now ripe for decision. For the reasons that follow, the court grants the motion and dismisses Tillison's action against Trinity Valley.
I
Trinity Valley filed its motion on January 3, 2005. Tillison's response was due 20 days after Trinity Valley filed its motion. See N.D. Tex. Civ. R. 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). Because the twentieth day was a Sunday, Tillison's response was not due until January 24, 2005. See Fed.R.Civ.P. 6(a). Nevertheless, she has not responded, and the motion is ripe for decision.Tillison's failure to respond to Trinity Valley's motion does not permit the court to enter a "default" summary judgment, but the court may accept as true all of Trinity Valley's undisputed facts. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, "[a] summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Accordingly, although the court has recounted certain allegations in Tillison's complaint to facilitate an understanding of the reasoning of this memorandum opinion, it has not considered the factual allegations to be evidence.
Tillison began working for a predecessor of Trinity Valley in 1967. She originally worked in the billing department, but later transferred to the accounting department. Tillison alleges that Trinity Valley's general manager, third-party defendant Jack Schwartz ("Schwartz"), sponsored a company policy that required female employees to dress in a sexually-provocative manner and conduct themselves in ways suggesting that they were receptive to his advances. She further avers that Schwartz stated that an attractive female's chances of advancement were better. Tillison alleges that her supervisors began to mistreat her when she refused to abide by Schwartz's requirement. This abuse included assigning additional responsibilities and an unmanageable workload, reprimanding her, and monitoring her telephone calls. Her frustration peaked on January 11, 2002, when she left work following a confrontation with a supervisor and did not return. Tillison alleges that she was constructively discharged and that Trinity Valley discharged her to avoid paying her full retirement benefits and because of her sex. She subsequently filed a charge of discrimination, obtained a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"), and initiated this lawsuit. Tillison alleges sex discrimination, quid pro quo sexual harassment, and hostile work environment sexual harassment under Title VII, age discrimination under the ADEA, intentional infliction of emotional distress, negligence, gross negligence, negligent retention, and gross negligent retention.
II
The court first considers whether Tillison's claims for negligence, gross negligence, negligent retention, and gross negligent retention are precluded by the Texas Workers' Compensation Act ("TWCA"). Trinity Valley contends the claims fail because the TWCA preempts them.
Trinity Valley maintained a worker's compensation insurance policy from 2000 until Tillison's employment ended in January 2002.
"The TWCA exempts an employer from common law liability for negligence and gross negligence for an employee's injuries sustained in the course of employment[.]" Briseno v. McDaniel, 2004 WL 2203255, at *6 (N.D. Tex. Sept. 30, 2004) (Fitzwater, J.) (citing Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex. 1980)). The gravamen of each count of negligence is that Trinity Valley breached its duty to Tillison by failing to prevent or adequately respond to Schwartz's harassment. A review of the complaint demonstrates that Tillison complains exclusively of harassment suffered while she was attempting to perform her work duties, and she does not now contend that she sustained injuries outside the scope of her employment. Her claims for negligence, gross negligence, negligent retention, and gross negligent retention are therefore barred by the exclusive remedy provision of the TWCA. See Tex. Lab. Code Ann. § 408.001 (Vernon 1996); Ward v. Bechtel Corp., 102 F.3d 199, 204 (5th Cir. 1997); Briseno, 2004 WL 2203255, at *6. Accordingly, the court grants the motion with respect to these claims.
III
Trinity Valley also seeks summary judgment dismissing Tillison's claim for intentional infliction of emotional distress. It contends that Tillison cannot recover on this basis because the claim is supported by the same facts that underlie her Title VII and ADEA claims.
In Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004), the Texas Supreme Court reiterated that the tort claim of intentional infliction of emotional distress was originally recognized to be a "'gap-filler' tort, judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress." Id. at 447. In Hoffmann-LaRoche the court addressed the claims of a plaintiff who sued her former employer for sexual harassment and intentional infliction of emotional distress. Id. at 441-42. It held that because the gravamen of her complaint was sexual harassment, she was unable to pursue both claims unless she proved acts independent of her sexual harassment claim that supported a claim for intentional infliction of emotional distress. See id. at 441.
Trinity Valley contends that Tillison complains primarily of employment discrimination, and that her intentional infliction of emotional distress claim merely reincorporates the same allegations that support her sex and age discrimination claims. The court agrees that the gravamen of Tillison's complaint is employment discrimination: that Trinity Valley constructively discharged her to prevent her from reaching retirement and because she would not accede to Schwartz's preferences in her conduct and attire. Moreover, Tillison testified in her deposition that her intentional infliction of emotional distress claim was based on the conduct that gave rise to her sexual harassment and age discrimination claims. Because she has not respond to Trinity Valley's summary judgment motion, Tillison has not produced any evidence of intentional infliction of emotional distress that is independent of her employment discrimination claims. Because the conduct of which she complains is cognizable under federal anti-discrimination statutes, she cannot also pursue a claim for intentional infliction of emotional distress. See id. at 447 ("Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available."). Accordingly, the court grants Trinity Valley's motion for summary judgment as to this claim.
IV
Trinity Valley also seeks summary judgment dismissing Tillison's claims for age and sex discrimination. It maintains that Tillison failed to timely file a charge of discrimination with the EEOC.
Because Texas is a deferral state, Tillison was required to file her EEOC charge within 300 days after the alleged unlawful practice occurred. See Stith v. Perot Sys. Corp., 2004 WL 690884, at *3 (N.D. Tex. Mar. 12, 2004) (Fitzwater, J.) (citing 42 U.S.C. § 2000e-5(e) (Title VII claim)); 29 U.S.C. § 626(d)(2) (ADEA claim)), aff'd, ___ Fed. Appx. ___, 2005 WL 210485 (5th Cir. Jan. 31, 2005) (unpublished opinion). "The 300-day filing period is not jurisdictional, but rather is more akin to and operates as a limitations period. The period commences on the date the alleged unlawful practice occurred." Id. (citations omitted). A charge of discrimination is considered filed with the EEOC upon receipt. Adams v. Cal-Ark Int'l, Inc., 159 F. Supp.2d 402, 408 (E.D. Tex. 2001) (citing 29 C.F.R. § 1601.13).
"A deferral state is one in which (1) a state law prohibiting . . . discrimination in employment is in effect and (2) a state authority has been set up to grant or seek relief from such discriminatory practice." Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988) (ADEA claim); see Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987) (Title VII claim).
Tillison's charge of discrimination indicates that the latest date of discrimination was January 11, 2002. Ds. App. 160. She also confirmed during her deposition that the discrimination underlying her charge took place on January 11, 2002, her last day of work. Id. at 112. Therefore, Tillison's charge would have to have been filed no later than November 7, 2002 to be considered timely. The undisputed evidence demonstrates that her charge was not filed on or before that date. Tillison signed the charge on November 7, 2002; however, she testified that she then mailed it to her attorney. Id. at 116. A letter dated November 11, 2002 from Tillison's attorney to the Dallas District Office of the EEOC indicates that the charge was enclosed to be filed by the EEOC. Id. at 162. Moreover, Tillison testified at her deposition that she has no evidence that the EEOC received her charge before November 11, 2002. See id. at 117. There is no evidentiary dispute that the charge was not filed within the 300-day period following the latest act of discrimination alleged. The court concludes that Tillison's charge of discrimination is untimely. Accordingly, the court grants Trinity Valley's motion on Tillison's claims under Title VII and the ADEA.
For the foregoing reasons, the court grants Trinity Valley's January 3, 2005 motion for summary judgment. Trinity Valley has filed a third-party action against Schwartz. Within 15 days of the date this memorandum opinion and order is filed, Trinity Valley must advise the court in writing whether it intends to pursue the action (although two claims are for contribution and indemnity, the other is for breach of fiduciary duty, and Trinity Valley may seek broader relief that is not entirely mooted by the granting of this motion). If it does, the court will defer entering a judgment until it has resolved the third-party action; otherwise, the court will dismiss the third-party action and enter a final judgment.
SO ORDERED.