Sullivan v. OTR Wheel Engineering Inc

Filing 28

Memorandum Opinion and Order denying 22 Motion to Dismiss Assault Claim in Plaintiffs First Amended Complaint. (Ordered by Judge Karen Gren Scholer on 5/8/2024) (ykp)

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS

CAMERON

B.

S U L L I VA N

V .

OTR WHEEL ENGINEERING, INC.
MEMORANDUM

DIVISION

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OPINION

C I V I L A C T I O N N O . 3 : 2 3 - C V- 2 2 2 7 - S

AND

ORDER

This Memorandum Opinion and Order addresses Defendant OTR Wheel Engineering,
Inc.’s Motion to Dismiss Assault Claim in Plaintiffs First Amended Complaint (“Motion”) [ECF
No. 22]. The Court has reviewed the Motion, Plaintiff Cameron B. Sullivan’s Response in
Opposition to the Motion [ECF No. 24], Defendant’s Reply in Support of the Motion [ECF
No. 25], and the applicable law. For the following reasons, the Court DENIES the Motion.
I.

BACKGROUND

This case arises out of Plaintiffs supervisor allegedly groping Plaintiff and Defendant’s
subsequent handling of the incident. Plaintiff worked for Defendant as aWheel Technician. First
Am. Compl. (“Amended Complaint”) [ECF No. 20] ]|3.01. Plaintiffs supervisor was David
Holloway. Id. During ameeting, Holloway allegedly “walked up to Plaintiff and groped Plaintiffs
penis in front of at least

fteen (15) co-workers.” Id. ^3.02. In the following days, Plaintiff

con ded in coworkers about the incident. Id. 3.04-.05. Plaintiff later led apolice report, told
asupervisor what happened, and discussed the incident with Human Resources. Id. 3.06-.08.
The Director of Human Resources assigned Alyssa Gulledge to investigate Plaintiffs complaint.
Id. 3.08. Plaintiff alleges that Gulledge waited four days before contacting him. Id. H3.09. As
Gulledge began investigating. Plaintiff “felt like he was in ahostile environment.” Id. If 3.11.
Gulledge called Plaintiff at the conclusion of the investigation and informed him that she could

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not substantiate his claim. Id. |3.12. Plaintiff was expected to continue reporting to Holloway. Id.

Plaintiff contacted employees who had witnessed the alleged assault and claims that they were
intimidated by Holloway, were never interviewed, or did not witness the incident. Id. 3.13-.16.
Plaintiff stopped reporting to work, and Defendant terminated his employment. Id.3 . 1 8 - . 2 2 .
Based on the foregoing events, Plaintiff brings claims for discrimination, retaliation.
harassment, and hostile work environment under the Texas Labor Code and aclaim for common-

law assault. Id. || 4.01-5.06. Defendant led the Motion, seeking dismissal of Plaintiff sassault
claim.
II.

LEGAL

S TA N D A R D

To defeat amotion to dismiss led pursuant to Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must plead “enough facts to state aclaim to relief that is plausible on its face.” Bell Atl.
Corp. V. Twombly, 550 U.S. 544, 570 (2007). To meet this “facial plausibility” standard, aplaintiff
must “plead[] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). The court must accept well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.
2007) (citation omitted). However, the court does not accept as true “eonclusory allegations.
unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Cor/)., 484 F.3d 776, 780
(5th Cir. 2007) (citation omitted). Aplaintiff must provide “more than labels and conclusions, and
aformulaic recitation of the elements of acause of action will not do.” Twombly, 550 U.S. at 555
(citation omitted). “Factual allegations must be enough to raise aright to relief above the
speculative level ... on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. (citations omitted). At the motion to dismiss stage, the court does not evaluate
the plaintiffs likelihood of success. See Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.

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1977). It only determines whether the plaintiff has stated aclaim upon which relief can be granted.
See id.
III.

A N A LY S I S

Plaintiff brings an assault claim predicated on the groping incident involving Holloway.
See Am. Compl. 3.02, 5.02. Defendant moves to dismiss Plaintiffs assault claim on the ground
that it is preempted by the Texas Commission on Human Rights Act (“TCHRA”), Tex. Lab. Code

§21.001, et seq. Mot. 3. According to Defendant, the gravamen^ of Plaintiff sclaim is harassment.
not assault. Id. at 4. Defendant cites two Texas Supreme Court cases on the issue: Waf e House,
Inc. V. Williams, 313 S.W.3d 796 (Tex. 2010), and Steak NShake, 512 S.W.3d 276. Mot. 3.
Arguing that Plaintiffs allegations here are more similar to the allegations in Waf e House, in
which the court found that preemption applied, than to the allegations in Steak NShake, in which
the court found that the plaintiffs assault claim was not preempted. Defendant urges the Court to
dismiss Plaintiffs assault claim. Id. at 4.

In Waf e House, the plaintiffs coworker made offensive sexual comments, winked at the
plaintiff, showed her acondom, stared at her, pushed her, “rub [bed] against her breasts with his
arm,” and blocked her from exiting asupply room, among other things. 313 S.W.3d at 799. The
plaintiff sued her employer. Waf e House, for sexual harassment under the TCHRA and commonlaw negligent supervision and retention. Id. at 798. The primary question facing the court was:
'may aplaintiff recover negligence damages for harassment covered by the TCHRA?” Id. at 79899. The court held that “[wjhere the gravamen of aplaintiffs case is TCHRA-covered harassment.
the [TCHRA] forecloses common-law theories predicated on the same underlying sexual-

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The gravamen of aclaim is its true nature, as opposed to what is simply alleged or artfully pled, allowing
courts to determine the rights and liabilities of the involved parties.” B.C. v. Steak NShake Operations,
Inc., 512 S.W.3d 276, 283 (Tex. 2017) (citation omitted).

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harassment facts.” Id. at 813; see also id. at 799 (“[T]he TCHRA ... is preemptive when the
complained-of negligence is entwined with the complained-of harassment.”). Applying that
standard to the facts of the case, the court determined that the complained-of acts constituted
harassment under the TCHRA and thus could not “moonlight as the basis for anegligence claim.
Id. at 813.

In Steak NShake, the Supreme Court of Texas again was asked the decide whether a
plaintiffs common-law claim—this time for assault—was preempted by the TCHRA. 512 S.W.3d
at 277. The Steak NShake plaintiff brought suit after her supervisor attacked her in abathroom at
work, “tr[ied] to kiss her.

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began pulling down her pants while putting his hand up her shirt,” and

bxpos[ed] his genitals to [her].” Id. at 278. The court found that differences in the “severity and
frequency of the assailant’s conduct.

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the nature of the claims themselves,” and “the fundamental

theory of employer liability” distinguished the case from Waj e House. Id. at 280-81. Because
Waf e House did not dictate the outcome, the court analyzed the gravamen of the plaintiffs claim
and held that it was “assault and not harassment.” Id. at 283. The court noted ve factors supporting
its conclusion: (1) the plaintiffs supervisor did not “offer[] her apromotion or tie[] sexual favors
to job performance”; (2) the plaintiffs supervisor’s actions did not have “the purpose or effect of
unreasonably interfering with [her] work performance or creating an intimidating, hostile, or
offensive working environment”; (3) the plaintiff denied “any discussion of asexual nature or any
actions by her supervisor that could be interpreted in asexual way prior to the alleged ... assault”;
(4) the supervisor’s behavior was not part of apattern; and (5) the plaintiff did not “witness or
report any prior assaultive behavior by her supervisor or any other ...manager.” Id. at 283-84
(citation omitted). “In other words,” the plaintiff did “not allege that [her employer] [was] liable

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for fostering or tolerating ahostile work environment, awrong the TCHRA was intended to
remedy.” Id. at 284.
In sum, the TCHRA preempts common-law claims predicated on sexual harassment facts
where the gravamen of aplaintiffs case is harassment. Waf e House, 313 S.W.3d at 813. But
'where the gravamen of aplaintiffs claim is assault..., the TCHRA does not foreclose the assault
claim even when predicated on the same facts that would presumably constitute asexualharassment claim under the TCHRA.” Steak NShake, 512 S.W.3d at 285.

Here, as in Steak NShake, the severity and frequency of Holloway’s conduct, the nature of
Plaintiffs claims, and the theory of Defendant’s liability distinguish this case from Waf e House.
Id. at 282. Plaintiff alleges asingle assault in which his supervisor “groped” his genitals in front
of coworkers. Am. Compl. 13.02; see also Steak NShake, 512 S.W.3d at 280. Plaintiff brought
an assault claim, not anegligence claim. Am. Compl. 5.01-.06; see also Steak NShake, 512
S.W.3d at 281. And Plaintiff alleges that Defendant “is liable because one of its alleged vice
principals committed an assault.

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Steak NShake, 512 S.W.3d at 281; Am. Compl. t5.02

(“Plaintiff was the victim of sexual assault and battery suffered at the hands of aVice Principal in
the person of... Holloway[.]”). As such. Waf e House does not dictate the outcome of this case.
and, like the Steak NShake court, the Court must determine “whether the gravamen of’ Plaintiffs
claim based on the groping incident “is assault or harassment.” 512 S.W.3d at 283.
The ve factors distilled from Steak NShake point to the gravamen of Plaintiffs claim

being assault. Holloway did not offer Plaintiff anything in exchange for sexual favors. Plaintiff
does not allege that “absent the assault, [Holloway’s] actions had the purpose or effect of

^Plaintiff also appears to predicate Defendant’s liability on negligent hiring or retention. Am. Compl.
15.02. However, the Court declines to dismiss Plaintiffs assault claim at this stage solely because Plaintiff
pleaded alternative theories of recovery, one of which could be preempted. See FED. R. CiV. P. 8(d)(2) (“If
aparty makes alternative statements, the pleading is suf cient if any one of them is suf cient.”).

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unreasonably interfering with [Plaintiffs] work performance or creating an intimidating, hostile,
or offensive working environment.” Id. (citation and internal quotation marks omitted). There are
no allegations regarding sexual comments or actions prior to the alleged assault, and Plaintiff does
not allege any pattern of behavior. And Plaintiff did not witness or report any prior assaultive
behavior. In other words, Plaintiff does not allege that Defendant is liable for fostering or tolerating
ahostile work environment. Based on Plaintiffs pleadings. Plaintiff is not “attempting to shoehorn
aharassment claim into an assault by focusing solely on one aspect of along-standing pattern of
harassment.” Id. at 284. Rather, “[t]he essence of [Plaintiffs] claim” arising out of the groping
incident “A assault.” Id.

For the foregoing reasons. Plaintiffs assault claim is not preempted under the law
applicable to sexual harassment claims. For the sake of thoroughness, the Court also brie y
addresses retaliation under the TCHRA. Though Plaintiff purports to bring harassment and hostile
work environment claims, his allegations appear to support only aretaliation claim. See Am.
Compl. ^4.02 (“Plaintiff was harassed as aresult of his complaints [about the alleged assault] and
subjected to ahostile environment.”); see also Metro. Transit Auth. of Harris Cnty. v. Ridley, 540
S.W.3d 91, 98-99 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (analyzing hostile work
environment claim under the TCHRA’s retaliation framework where the plaintiff argued “that she
was subjected to ahostile work environment as retaliation for engaging in protected activity, not
as aresult of her race or gender”). The TCHRA bars acommon-law claim when it is “based upon
the same retaliatory conduct that is actionable under the TCHRA for ...retaliation.” Woldetadik
V. 7-Eleven, Inc., 881 F. Supp. 2d 738, 744 (N.D. Tex. 2012) (citing Waf e House, 313 S.W.3d at
807). Here, Plaintiffs assault claim is not predicated on the same facts as his TCHRA claim. The
assault claim is based on the alleged groping incident. See Am. Compl. ^5.02. The TCHRA

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claims, by contrast, are based on Defendant’s actions after Plaintiff reported the alleged assault.
See id. ^4.02. As such. Plaintiff has adequately pleaded that the gravamen of his claim arising out
of the groping incident is assault, and Plaintiffs actual and potential TCHRA claims-

■n o m a t t e r

how they are characterized—do not preempt his assault claim.
I V.

CONCLUSION

For the reasons discussed above, the Court DENIES Defendant’s Motion to Dismiss

Assault Claim in Plaintiffs First Amended Complaint [ECF No. 22].
SO

ORDERED.

SIGNED May 8, 2024.

KAREN GREN SCHOLER
UNITED

7

S TAT E S

DISTRICT

JUDGE