Civ. No. 3:99-CV-2522-D.
Filed April 3, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Alyssa Wright ("Wright") sues defendant Blythe-Nelson ("Blythe-Nelson"), a Texas general partnership, and ten individual defendants, contending they are liable for violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., intentional infliction of emotional distress, assault and battery, negligence, conspiracy, and violations of the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981-14040. Defendants move to dismiss certain of the claims against them. The court grants the motion in part and denies it in part for the reasons that follow.
Blythe-Nelson employed Wright initially in its marketing department, later promoted her to Communications Director, and ultimately terminated her employment. Defendant James L. Blythe ("Blythe") subjected her to a sexually hostile work environment (telling her dirty jokes, making sexually explicit comments directed toward her, touching her shoulders, arms, neck, and back, kissing and groping her, and conditioning terms and conditions of her employment on her willingness to engage in sexually explicit conduct with him and with customers). Blythe's partner, Mart D. Nelson, was aware of Blythe's actions but did not attempt to correct them. Wright maintains that all Blythe-Nelson partners are liable for this conduct. After Wright complained about the sexually hostile work environment, defendants retaliated against her by restructuring her job responsibilities and duties so that she performed a lower status job assignment that afforded her less career opportunity and earning capacity and in which she lacked support. Blythe-Nelson ultimately fired her for complaining of the sexual harassment policies and practices at Blythe-Nelson.
"In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (citing Doe v. Hillsboro. Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)).
Wright sues under Title VII, for intentional infliction of emotional distress, assault and battery, negligence, conspiracy, and under the VAWA. Defendants move to dismiss certain of the claims against them.
The court begins by addressing a procedural issue. Defendants filed this motion on February 28, 2000. The deadline for Wright to respond to the motion was March 20, 2000. See N.D. Tex. Civ. R. 7.1(e). Wright has not yet responded. She did file a response, however, to a similar motion filed in the Eastern District of Texas before that court transferred the case to this tribunal. The court now decides whether it will consider Wright's earlier response in deciding defendants' current motion.
After Wright filed this suit in the Eastern District of Texas, defendants filed motions to transfer the case pursuant to 28 U.S.C. § 1404 (a) and to dismiss or for partial summary judgment. The Eastern District of Texas granted the transfer motion without reaching the motion to dismiss or for partial summary judgment. After the case was docketed in this forum, this court on February 18, 2000 denied defendants' motion without prejudice because it did not comply with the local rules of this court and because the motion for partial summary judgment could constitute the one summary judgment motion that Rule 56.2(b) permitted defendants to file without obtaining leave of court. On February 28, 2000 defendants re-filed their motion to dismiss but omitted any request for partial summary judgment.
Defendants' February 28, 2000 motion to dismiss also fails to comply with two local civil rules of this court: Rules 7.1(i)(1) and 7.2(e). These rules took effect September 1, 1999 and therefore apply to this case, which was docketed in this court on November 5, 1999. Rule 7.1(i)(1) provides that "[a] party who relies on documentary (including an affidavit, declaration, deposition, answer to interrogatory, or admission) or non-documentary evidence to support or oppose a motion must include such evidence in an appendix." Defendants have attached two exhibits to their motion to dismiss. These documents should have been included in an appendix. Rule 7.2(e) states that "[i]f a party's motion or response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relics to support or oppose the motion." Defendants' brief does not cite their appendix because none was filed. Because these deficiencies have not interfered with the decisional process of the court, the court has considered the documents and briefing that defendants submitted.
Under these circumstances — where defendants have essentially re-urged the same dismissal motion that they filed in the Eastern District of Texas and to which Wright responded in that forum — the court concludes that it should consider the response that Wright filed to the first motion.
Defendants move to dismiss Wright's claim under the VAWA, contending that she has not alleged a "crime of violence" within the meaning of 42 U.S.C. § 13981 (c). In her response, Wright merely asserts that she "does not concede that no claim exists under the Violence Against Women Act, (`VAWA') and believes she has set forth, in the context of the many claims against Defendants, such a claim." P. Resp. at 2 She points to no specific place in her complaint, and the court has located none, that alleges an act or series of acts that would constitute a felony and that would come within the meaning of state or federal offenses described in 18 U.S.C. § 16.
All references to plaintiffs response are to her August 26, 1999 response filed in the Eastern District of Texas. See supra § II.
The VAWA requires that Wright allege a "crime of violence." Doe v. Hartz, 134 F.3d 1339, 1342 (8th Cir. 1998); 42 U.S.C. § 13981 (c). Section 13981(d)(2)(A)) defines "crime of violence" as
an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States[.]
Wright has not alleged conduct that meets this test. See Doe, 134 F.3d at 1343-44 (holding that where plaintiff failed to allege conduct that would constitute felony under state or federal law, she had necessarily failed to satisfy the requirement of 18 U.S.C. § 16). At most she has alleged conduct that would constitute a misdemeanor under Texas law, The court therefore dismisses this claim against all defendants.
The individual defendants contend they cannot be held individually liable under Title VII. Wright responds that she is suing them as partners of Blythe-Nelson. She maintains that if the individual defendants will stipulate that they are liable as partners for the conduct in question, their joinder may be unnecessary. P. Resp. at 3.
Without reaching the question whether Wright can collect a judgment against the individual defendants if she prevails on her Title VII claim against Blythe-Nelson, the court holds that the individual defendants are not Wright's employer under Title VII and cannot held liable under that statute. See, e.g., Voskuil v. Environmental Health Ctr.-Dallas, 1997 WL 527309, at *3 (ND. Tex. Aug. 18, 1997) (Fitzwater, J.) (holding that individual who is not plaintiff's employer cannot be held liable under Title VII) (citing Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994)). Her Title VII claims against all defendants except Blythe-Nelson are dismissed.
See Turner v. Blythe.Nelson, No. 4:99CV90, slip op. at 8 (E.D. Tex. Feb. 8, 2000) (Brown, J.) ("As such, Plaintiff's Title VII claims against the individual Defendants should be dismissed. The Court again reiterates that a finding on this issue is entirely distinct from the issue of a partner's potential liability for a judgment against the partnership should one be entered. That, obviously, is a question to be resolved by turning to state law.").
Defendants move to dismiss Wright's civil conspiracy claim on the grounds that she has failed to identify an underlying tort and that, as a matter of law, the partners of a partnership cannot conspire with the partnership or each other. The court denies the motion in this respect.
"The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief" Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (citing Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. (citing Doe, 81 F.3d at 1401). "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).
Under the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and viewing the allegations of Wright's complaint in the light most favorable to her for purposes of deciding the motion to dismiss, see, e.g., Royal Bank of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.), the court is unable to say that she can prove no set of facts that would establish an underlying tort that is sufficient to entitle her to relief
Concerning defendants "intra-partnership conspiracy" argument, the court notes that Wright's complaint alleges that defendants conspired with certain Blythe-Nelson customers. See Compl. ¶ 8.01. Therefore, the court cannot say, in the context of a Fed.R.Civ.P. 12(b)(6) motion, that this doctrine insulates defendants from liability as a matter of law.
All individual defendants except Blythe move to dismiss Wright's assault and battery claim. Although the court agrees that this claim is based only on the conduct of defendant Blythe, see Compl. ¶ 6.1, defendants have not addressed, and thus have not established based on the pleadings alone, that they cannot be held vicariously liable for his conduct. The court denies their motion in this respect.
Defendants maintain inter alia that Wright's negligence claim is barred because her exclusive remedy is provided by the Texas Workers' Compensation Act ("TWCA"). Wright appears to concede, in an awkwardly-worded response, that if defendants will agree that the alleged conduct occurred within the course and scope of her employment, then the TWCA bars her negligence claim. See P. Resp. at 5. Because this premise is essential to defendants' motion, see Ds, Mot. Dis. at 12-13, the court holds that Wright's negligence claim is barred and dismisses it.
All individual defendants except Blythe move to dismiss Wright's claim for intentional infliction of emotional distress. They point out that, at most, the complaint alleges that they were aware of the conduct in question and failed to prevent or stop it and therefore their conduct was not extreme or outrageous.
To recover on a claim for intentional infliction of emotional distress, Wright must establish that (1) the defendant in question acted intentionally or recklessly, (2) the defendant's conduct was extreme and outrageous, (3) the defendant's actions caused Wright emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996). Extreme and outrageous conduct is that 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. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous."' Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). The essential ingredient of extreme and outrageous conduct required for such a claim has been narrowly construed in the employment context. Hagen v. BeautiControl Cosmetics, Inc., 1998 WL 355479, at *2 (N.D. Tex. June 30, 1998) (Fitzwater, J.). Such a construction makes establishing "extreme and outrageous" conduct in the employment context very difficult. See Id.
The court holds as a matter of law that Wright has failed to state a claim for intentional infliction of emotional distress against these individual defendants. Wright has alleged this claim in the vaguest of terms. See Compl. ¶ 5.01. Viewed favorably to her, she asserts nothing more than that these defendants failed to prevent or stop the conduct at issue. See id. at ¶¶ 3.05-3.06. As a matter of law, this inaction does not amount to intentional infliction of emotional distress because it is not extreme and outrageous, that is, conduct that 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. To the extent that Wright relies on alleged acts of retaliation, see id. at ¶ 3.06, the court holds as a matter of law that these cannot qualify as extreme and outrageous. This claim is therefore dismissed against these defendants.
* * *
The court grants in part and denies in part defendants' February 28, 2000 motion to dismiss.