McNamee v. Verizon Wireless (VAW) LLC et al
Filing
17
Memorandum Opinion and Order...the defendant's motion to dismiss is granted as to plaintiff's claim for intentional infliction of emotional distress, and is denied as to her claims under the ADA and the THRC. (Ordered by Judge John McBryde on 1/9/2014) (wrb)
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CELLULAR SALES OF TEXAS , LLC ,
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Defendant .
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No . 4 :13 -CV -741-A
MEMORANDUM OPINION
and
O RDER
Before the court for decision is the motion to dismiss for
failure to state a claim for relief pursuant to Rule 12 ( ( ) of
b) 6
the Federal Rules of Civil Procedure f iled by defendant , Cellular
Sales of Texas , LLC . Plaintiff, Julieann McNamee , filed a
response , and defendant filed a reply . Having considered al1 of
the parties ' filings, plaintiff ' first amended complaint, and
s
the applicable legal authorities, the court concludes that the
motion should be granted in part and denied in part .
Background
Plaintiff initiated this action by the filing of an original
complaint, followed by her first amended complaintx
The amended
complaint alleged the following :
Plaintiff has been diagnosed with a number of conditions ,
including brain trauma, post-traumatic stress disorder, bipolar
disorder, and a spinal condition . These conditions , separately
and collectively , substantially impair one or more of plaintiff '
s
major life activities. Consequently, plaintiff' physicians have
s
prescribed a service dog to assist with her activ ities of daily
living . Plaintiff has registered her service dog With the United
States Department of Justice and carries a letter from her
psychologist concerning her need for the service dog .
On or about February 26, 2013, plaintiff entered defendant '
s
premises for the purpose of purchasing two SIM cards for a
cellular telephone . Rather than allow plaintiff to purchase the
SIM cards, one of defendant 's employees refused serv ice to
plaintiff because of her service dog, demanding that plaintiff
remove the dog from the store . When plaintiff advised the
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employee of her right to have the service dog assist her ,
the employee became enraged, screamed at (
plaintiffl to
'get the hell out' and to go to a different Verizon
'
'
store in the future, and v iolently slammed
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plaintiff's) cellular telephone onto a table,
destroying the telephone and , along with it, numerous
irreplaceable p ictures of family members, her dog , and
others contained solely in the telephone .
Pl .' First Am . Compl . at 5. The photographs lost as a result of
s
the employee ' actions included those taken of plaintiff '
s
s
grandson during his only v isit to plaintiff in Texas.
Plaintiff contacted Verizon customer serv ice, and upon
instructions from a Verizon representative , returned to
defendant ' store to obtain a replacement cellular telephone .
s
However , another employee refused to provide plaintiff w ith the
replacement telephone, stated 'they just give out service dogs to
'
anyone,' and made other insults to plaintiff about her
'
disability . Id . The employee ordered plaintiff to leave the
store and not return w ithout an appointment .
Plaintiff alleged claims and causes of action against
defendant for : violations of Title III of the Americans w ith
Disabilities Act (
HADA'), 42 U . C. 55 12181-12189; Violations of
'
S.
sections 121 .002 through 121 .004 of the Texas Human Resources
Code ('THRC'); intentional infliction of emotional distress ; and,
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'
for conversion of property . The complaint also seeks class
certif ication .
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II .
Grounds of Defendant ' Motion
s
Defendant seeks dismissal of plaintiff ' ADA claim because
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she has failed to allege sufficient facts to hold it liable for
its employees' allegedly tortious conduct. Defendant contends
dismissal is warranted as to plaintiff ' claim for intentional
s
infliction of emotional distress because : the gravamen of
plaintiff ' complaint is disability discrimination , for which
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there are statutory remedies , so the intentional infliction of
emotional distress claim is barred ; the allegations do not
constitute extreme and outrageous conduct as a matter of law ,
plaintiff does not allege that defendant ' employees intended to
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cause her severe emotional distress , and she alleges no facts to
show she has suffered severe emotional distress . The motion to
dismiss does not address the conversion claim .
1 11 .
Applicable Legal Principles
Rule 8 ( ( ) of the Federal Rules of Civil Procedure
a) 2
provides, in a general way, the applicable standard of pleading .
It requires that a complaint contain 'a short and plain statement
'
of the claim showing that the pleader is entitled to relief ,'
'
Fed . R . Civ . P . 8 ( ( ), fin order to give the defendant fair
a) 2
l
notice of what the claim is and the grounds upon which it rests .'
'
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Bell Atl . Corp . v . Twombly, 550 U . . 544 , 555 (
S
2007) (
internal
quotation marks and ellipsis omitted). Although a complaint need
not contain detailed factual allegations , the 'showing '
'
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action . Twombly , 550 U .S . at 555 & n . . Thus , While a court
3
must accept all of the factual allegations in the complaint as
true , it need not credit bare legal conclusions that are
unsupported by any factual underpinnings . See Ashcroft v . Icbal ,
556 U . . 662 , 679 (
S
2009) ('
IWhile legal conclusions can provide
the framework of a complaint , they must be supported by factual
allegations .')
'
Moreover , to survive a motion to dism iss for failure to
state a claim , the facts pleaded must allow the court to infer
that the plaintif f ' right to relief is plausib le .
s
Id . To
allege a plausible right to relief , the facts pleaded must
suggest liability ; allegations that are merely consistent with
unlawful conduct are insufficient . Id . at 678 (
citing TWombly,
550 U . . at 557). '
S
'
Determining whether a complaint states a
plausible claim for relief . . . E
is) a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense .' Id . at 679 .
'
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IV .
Application of Law to Facts
A.
Claims Under the ADA and THRC
The court concludes that the motion to dismiss should be
denied as to plaintif f 's claims under the ADA and THRC .
Dismissal of such claims is more appropriately pursued through a
motion for summary judgment.
B.
Intentional Infliction of Emotional Distress
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Defendant first challenges plaintiff ' claim for intentional
s
infliction of emotional distress on the grounds that such claim
is barred because it is based on the same facts as her disability
claims . In her response , plaintiff denies that the claims are
based on the same set of facts , and she attempts to distinguish
the relief she seeks through her disability claims versus her
claim for intentional infliction of emotional distress . The
court agrees with defendant .
It is now well-settled that intentional infliction of
emotional distress is 'a gap-filler tort,' judicially created to
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allow recovery in the rare case where a defendant intentionally
inflicts severe emotional distress in such an unusual manner that
no other theory of recovery is available to the victim .
Hoffmann-La Roche , Inc . v . Zeltwanqer, l44 S . .3d 438, 447 (
W
Tex .
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2004 ). The tort was created uto supplement existing forms of
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recovery by prov iding a cause of action for egregious conduct
that might otherwise go unremedied .' Id. (
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internal quotation
marks omitted). An intentional infliction of emotional distress
claim is not available , however , where the underlying conduct is
covered by another statutory scheme .
'If the gravamen of a
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plaintiff ' comp laint is the type of wrong that the statutory
s
remedy was meant to cover, a plaintiff cannot maintain an
intentional infliction claim regardless of whether he or she
succeeds on , or even makes , a statutory claim .' Hoffmann-La
'
Roche , 144 S . . at 448 . The availability of other remedies-W 3d
even if they do not explicitly preempt the tort-- 'leaves no gap
'
to fi1l.' Creditwatch v . Jackson, 157 S . . 814, 8l6 (
'
W 3d
Tex.
2005).
Here , the factual underpinnings of plaintiff 's intentional
infliction of emotional distress claim are the same as those
underlying her statutory ADA and THRC claims . Although plaintiff
in her response attempts to argue otherw ise, the complaint speaks
for itself : each of plaintiff ' claims is based on the very same
s
set of factual allegations .
The complaint does not allege any
conduct to support her intentional infliction of emotional
distress claim that differs from that underlying her state and
federal discrimination claims . Under these circumstances ,
plaintiff has statutory remedies under the ADA and THRC , leaving
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no 'gap ' to fill, and plaintiff ' intentional infliction of
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'
s
emotional distress claim is untenable as a matter of law .
* * *
*
Because the court finds defendant ' '
s gap-filler' argument
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dispositive of plaintiff ' claim for intentional infliction of
s
emotional distress , it need not reach the other grounds for
dismissal of this claim raised in the motion to dismiss .
V.
Order
Therefore ,
The court ORDERS that defendant 's motion to dismiss be , and
is hereby, granted as to plaintiff ' claim for intentional
s
infliction of emotional distress , and be , and is hereby , denied
as to her claims under the ADA and the THRC .
'
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SIGNED January 9 , 2 014 .
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ited States Distric
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Judge
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