Opinion
Civil Action No. 3:02-CV-1977-N.
July 2, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion for Summary Judgment filed by C. Robert Coates ("Coates") and Management Insights, Inc. ("Management Insights") (together, "Defendants") on January 13, 2004. Defendants move for summary judgment, arguing that: (1) Plaintiff Barbara L. Vincent ("Vincent") failed to exhaust administrative remedies with respect to her sexual harassment claims against Coates and Management Insights; (2) Coates cannot be held individually liable under Title VII or the Texas Commission on Human Rights Act ("TCHRA"); and (3) Vincent's substantive law claims for sexual harassment, intentional infliction of emotional distress, and breach of contract fail to raise a genuine issue of material fact. The Court holds that: (1) Vincent failed to raise any claims or document any allegations of sexual harassment in her EEOC charge, so her claims for sexual harassment are barred; (2) since Coates is not Vincent's employer as defined by Title VII, individual liability does not lie; (3) no conduct alleged by Vincent is sufficiently "extreme and outrageous" to constitute an intentional infliction of emotional distress under Texas law; and (4) Vincent has failed to indicate any contractual provision breached by Defendants. Accordingly, Defendants' motion is granted.
I. BACKGROUND
Management Insights solicited Barbara Vincent to become a staff accountant in June 1998. Vincent signed an employment agreement and confidentiality agreement that stated that she was an at-will employee. At that time and still today, Coates was the CEO of Management Insights. Vincent was soon given responsibility for coordinating many of Coates and his wife's personal expenses and their stock portfolio. In the late spring of 1999, Coates initiated a personal relationship with Vincent, which became an intimate relationship in December 1999. Vincent and Coates continued this relationship until May 2002, during which time Coates and Vincent saw each other almost every week, sometimes daily, and Coates leased and paid for an apartment where he would meet with Vincent on a regular basis. Vincent acknowledges that all aspects of her relationship with Coates were voluntarily undertaken; however, she alleges that Coates led her to believe that they had a long-term relationship.
In May 2002, Coates terminated his relationship with Vincent. In June 2002, Vincent found Coates's personal journal in his office, learned that Coates had not been faithful during their relationship, and concluded that the work she performed at Management Insights partially facilitated Coates's conduct. Soon thereafter, Vincent requested that some of the responsibility for Coates's personal accounts be transferred to another employee, and indicated that she wished to leave Management Insights. Vincent was partially reassigned by her supervisor at Management Insights, and at some point was offered additional work hours to make up for her lessened workload. Vincent worked for eight more months, obtained a positive recommendation from Coates, and resigned her employment in February 2003.
Vincent's objection to Management Insights's conduct is not altogether clear: in her complaint, Vincent charges that Management Insights "still required Plaintiff to work on [Coates's] personal finances and issues." However, in her EEOC charge and her response to Defendants' summary judgment motion, Vincent claims that she was constructively discharged because her work was reassigned to other employees, which resulted in a loss of overtime hours.
In July or August 2002, Vincent filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging sex discrimination against Management Insights for the reassignment of responsibility for Coates's personal accounts and the subsequent loss of overtime hours. Vincent did not allege sexual harassment. The EEOC sent Vincent a "Notice of Right to Sue" on August 20, 2002, and she filed the instant case for sexual harassment on September 12, 2002, arguing, in part, that Defendants improperly failed to reassign responsibility for Coates's personal accounts to another employee and that, in retrospect, her relationship with Coates was "improper and abusive." Defendants filed their Motion for Summary Judgment on January 13, 2004.
Vincent apparently attached a narrative letter to her EEOC charge; however, it is not clear that Defendants were provided a copy of this letter, nor has it been authenticated as summary judgment evidence for the Court's consideration.
II. VINCENT'S CLAIMS FOR SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT ARE BARRED BECAUSE OF HER FAILURE TO RAISE THEM IN HER EEOC CHARGE
Defendants argue that Vincent's sexual harassment and hostile work environment claims are barred because Vincent failed to exhaust mandatory administrative prerequisites. It is well-settled that courts have no jurisdiction over claims brought under Title VII and the TCHRA unless the plaintiff has first exhausted her administrative remedies by filing a Charge of Discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997); see also Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991) ("exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the CHRA"). "The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Tex. Dept. of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000) (citing Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990)). Title VII claims raising new acts of discrimination or theories of liability not reasonably related to the allegations contained within the plaintiff's EEOC charge are not appropriate. E.g., Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980); National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711-12 (5th Cir. 1994).Texas federal courts have consistently held that allegations of sexual discrimination detailed in an EEOC charge are insufficient to satisfy the exhaustion requirement of a Title VII suit for sexual harassment. Sabrah v. Lucent Technologies, Inc., No. 3:96-CV-2827-D; 1998 WL 792503, at *2, n. 3 (N.D. Tex. Nov. 6, 1998) (refusing to consider plaintiff's allegations of harassment in her summary judgment response, because "[plaintiff]'s EEOC charges, which include complaints only about discrimination, are not sufficiently broad to encompass a harassment claim."); Reno v. Metro. Transit Auth., 977 F. Supp. 812, 818-19 (S.D. Tex. 1997) (granting summary judgment for harassment claims because plaintiff's EEOC charge complained only of discrimination); see also Robinson v. Rubin, 77 F. Supp. 2d 784, 792 (S.D. Tex. 1999) (granting summary judgment for discrimination claims where plaintiff's EEOC charge mentioned only acts of retaliation). "Because a claim of sexual harassment may constitute sexual discrimination does not imply that a charge consisting of facts which purportedly constitute sexual discrimination necessarily includes all forms of sexual discrimination." Reno, 977 F. Supp. at 819 (quoting Sandom v. Travelers Mortgage Servs., Inc., 752 F. Supp. 1240, 1247 (D.N.J. 1990)).
In the instant matter, Vincent's EEOC discrimination charge indicates only that her employment duties had been taken away, that she was denied opportunity to earn "exceptional hours," and that both actions occurred because Coates did not want Vincent involved in his personal affairs after the end of their romantic relationship. Vincent's charge of discrimination further states that the earliest instance of discriminatory conduct was June 1, 2002 — almost a month after the personal relationship between Vincent and Coates had ended. Vincent's subsequent complaint, however, sets forth no cause of action based upon discrimination; instead, she charges harassment based on Coates's advances toward her, subsequent infidelity, and the improper requirement that Vincent continue working on Coates's personal finances after their breakup. In sum, the conduct alleged in the complaint all occurred prior to the first instance of discrimination alleged in the EEOC charge, or plainly contradicts the claims raised in the EEOC charge. The Court thus concludes that Vincent's sexual harassment claim would not have been developed and subsequently investigated during the course of any EEOC proceedings growing out of the August 2002 charge. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Accordingly, Vincent's claims for sexual harassment against Coates and Management Insights are barred.
Even should administrative remedies have been exhausted for Vincent's harassment claims, there is no summary judgment evidence to establish that any improper conduct was unwelcome or based upon sex. See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986) (setting forth elements of hostile work environment). Accordingly, summary judgment would remain appropriate.
III. COATES IS NOT SUBJECT TO INDIVIDUAL LIABILITY UNDER TITLE VII OR THE TCHRA
Coates contends that he does not qualify as an "employer" subject to liability under Title VII or the TCHRA, and all individual claims against him must be dismissed. It is well-settled that, "[o]nly `employers,' not individuals acting in their individual capacity who do not otherwise meet the definition of `employers,' can be liable under title VII." Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994). "Employer" is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks . . . and any agent of such a person." 42 U.S.C. § 2000e(b). Supervisors working for a private employer who do not themselves qualify as employers under the statute may not be held liable under Title VII. Shaw v. Fanning, Harper Martinson, No. 3:95-CV-2862-G, 1997 WL 102483, at *1(N.D. Tex. Mar. 3, 1997) (dismissing plaintiff's race discrimination claims against senior partners of law firm because they were not "employers" as defined by Title VII). In addition, a CEO cannot be held liable in his individual capacity for violation of Title VII. See Dudley v. Tex. Instruments, No. 3:02-CV-0290-M, 2002 WL 1489527, at *2 (N.D. Tex. July 10, 2002) (granting dismissal of Title VII claims brought against corporation's CEO). Similarly, individual liability is not available under the TCHRA. Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex.App.-Waco 2000, pet. denied).
In the instant matter, Coates acts as CEO of Management Insights, the entity that served as Vincent's employer. As an officer of Management Insights, Coates did not himself engage in an industry affecting commerce, but instead served a corporation that did so. Indeed, Vincent's confidentiality, non-compete, and employment agreements all indicate that her employer was Management Insights. Vincent argues in response that Coates acted as an alter ego of Management Insights and therefore may be liable under Title VII and the TCHRA. However, it is not clear that alter ego liability is an available remedy under Title VII. Dufrene v. Pellittieri, No. 95-3806, 1996 WL 502459, at *7 (E.D. La. Sept. 4, 1996) ("I have been cited to no persuasive authority (particularly none emanating from the Fifth Circuit) to support the proposition that individuals may be held liable under Title VII based on an alter ego theory."). In any case, an attempt to pierce the corporate veil under an alter ego theory requires a showing of actual fraud. NorDar Holdings Inc. v. Western Sec. (USA) Ltd., 969 F. Supp. 420, 422 (N.D. Tex. 1997) (interpreting TEX. BUS. CORP. ACT art. 2.21 (1997)). Vincent has neither alleged fraud nor raised a genuine issue of material fact concerning actual fraud. Accordingly, Coates is not subject to individual liability under Title VII or the TCHRA.
IV. NO GENUINE ISSUE OF MATERIAL FACT EXISTS CONCERNING VINCENT'S REMAINING CLAIMS
Defendants argue that Vincent fails to raise a genuine issue of material fact concerning any remaining claims. Initially, the alleged acts of discrimination detailed in Vincent's EEOC petition are not charged as Title VII or TCHRA discrimination in her complaint, nor argued under a theory of discrimination upon summary judgment. Vincent seeks relief only for sexual harassment under Title VII and the TCHRA. Accordingly, no remedy lies for discrimination in violation of Title VII or the TCHRA.
Also, Vincent fails to raise a genuine issue of material fact concerning intentional infliction of emotional distress. In Texas, intentional infliction of emotional distress requires a showing that (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the action of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct exists only where the conduct is "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 621 (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. D (1965)); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989) (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)) (outrageous conduct exists where "a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'").
Here, Vincent raises no facts which would establish "extreme and outrageous" conduct. In total, she alleges that (1) Coates initiated a personal relationship with her, to which she was receptive, (2) she was assigned to his personal accounts before and during their relationship, (3) during the relationship, Coates misrepresented his intentions to her and engaged in secret relations with other women, and (4) upon their break-up, she requested to be reassigned by Management Insights, which resulted in fewer overtime hours. Plainly, Coates's actions deeply hurt Vincent; however, actions consisting of little more than infidelity are not alone sufficient to constitute intentional infliction of emotional distress under Texas law. See Gaspard v. Beadle, 36 S.W.3d 229, 234 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (reversing jury verdict of intentional infliction of emotional distress against plaintiff's former lover who "fraudulently represented he had romantic feelings for [plaintiff] and implied he would marry her in order to entice her into a sexual relationship," only to terminate the relationship with a note requesting payment for legal services). No allegations against Management Insights suggest the "regular and continuous pattern of behavior" that may give rise to liability for intentional infliction of emotional distress. Id. at 238. Accordingly, summary judgment is appropriate for Vincent's intentional infliction of emotional distress claim.
By holding that Coates's conduct was not extreme or outrageous in a legal sense, the Court is certainly not endorsing Coates's conduct.
Finally, Defendants seek summary judgment on Vincent's breach of contract claim. In her complaint, Vincent alleges that Defendants breached the June, 1998 employment agreements by allowing sexual harassment in the workplace and failing to remedy a hostile work environment. Vincent has failed to support this claim in her summary judgment response, and the Court has identified no provision of either contract that would support a claim for breach of contract on the facts alleged by Vincent. Accordingly, her breach of contract claim is dismissed.
Vincent does not appear to allege breach of contract for any alleged constructive termination. In any case, Vincent admits that she was an at-will employee; accordingly, no contract remedy would lie. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998) (citations omitted) ("absent a specific agreement to the contrary, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.").
CONCLUSION
Because Vincent did not raise any allegations of harassment in her EEOC charge, and no sexual harassment claim would have been developed and subsequently investigated during the course of any EEOC proceedings growing out of the August, 2002 charge, her Title VII and TCHRA claims are barred. Since Coates is not an "employer" as defined by Title VII and the TCHRA, he is not subject to individual liability under those provisions. Because Vincent has failed to raise a genuine issue of material fact concerning her claims for intentional infliction of emotional distress and breach of contract, summary judgment is granted as to those claims. Accordingly, Defendants motion for summary judgment is granted.