Calvert v. The Brachfeld Law Group, P.C. et al
Filing
8
MEMORANDUM AND ORDER granting 3 MOTION to Remand (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, ) (Main Document 8 replaced on 3/27/2013) (kcarr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LATASHA CALVERT,
Plaintiff,
CIVIL ACTION NO. H-12-3683
BRACHFELD LAW GROUP, P.C.
d/b/a LAW OFFICES OF BRACHFELD
& ASSOCIATES, MERIDIAN
MANAGEMENT SOLUTIONS, LLC,
and ANTHONY ANDERSON,
Defendants.
MEMORANDUM AND ORDER
Pending is Plaintiff Latasha Calvert's
(Document No.
3) .
After
Motion to Remand
carefully considering the
motion,
response, reply, and the applicable law, the Court concludes that
the case must be remanded to the 125th Judicial District Court,
Harris County, Texas.
I.
Backqround
Plaintiff Latasha Calvert ("Plaintiff") originally brought
suit in state court against only Anthony Anderson ("Anderson"),
alleging assault and intentional infliction of emotional distress.'
She alleged that she was employed as a collections agent by
Brachfeld Law Group, P.C. and/or its affiliated entities from late
Document No. 1, ex. C (Orig. Pet.).
June 2011 through mid-August 2011, and that Anderson was her
super~isor.~
Plaintiff claims that Anderson sexually harassed her,
which harassment included offensive sexual comments, inappropriate
touching, exposing himself to Plaintiff (both in his office and
with pictures he put on her cell phone), and threatening to fire
Plaintiff if she did not perform certain sexual acts.3 She states
that on one occasion she fulfilled his demand for a sexual act when
Anderson threatened that either Plaintiff or a co-worker would be
fired.4 After her compliance, the named co-worker was fired the
following day.
Subsequently, Plaintiff added Brachfeld Law Group, P.C. and
Meridian Management Solutions, LLC (collectively referred to as
"Brachfeld") as defendants in an amended ~omplaint.~Plaintiff
sought relief from Brachfeld under the Texas Commission on Human
Rights Act (\\TCHRAn),
TEX. LAB. CODE ANN.
§
21.001 et seq. (West
2006), for gender discrimination, sexual harassment, sexual harassment quid pro quo, hostile work environment, and retaliati~n.~
In
I . ex. C at
d,
2.
ex.
Document No. 1, ex. C at 51-60 (1st Am. Cmplt.). These two
defendants 'jointly own and operate a debt collection service with
agencies located throughout the country." Document No. 1 at 2.
Document No. 1, ex. C at 58.
support of her TCHRA claim, Plain.tiff alleges that she reported
Anderson's conduct to her training manager, and that her training
manager told her to inform a payroll employee named Suzanne.
Plaintiff went twice to see Suzanne, and put notes under her door
regarding Anderson's
conduct because
Suzanne was not
there.
Plaintiff alleges that nothing was done to address Anderson's
conduct, and eventually Plaintiff left the job "to protect her
personal welfare.
Based on the same description of Anderson's
actions and conduct, Plaintiff asserts claims against Anderson
individually for assault and intentional infliction of emotional
distress.
Brachfeld removed this case to federal court, contending that
this Court
has
jurisdiction based
on complete diversity of
citizenship because Anderson was improperly joined as a defendant.
Plaintiff moves to remand, contending that Anderson is a proper
defendant in this suit.''
11.
A.
Motion to Remand
Im~roper
Joinder Standard
To establish that a non-diverse defendant has been improperly
joined, the removing party must prove either (1) actual fraud in
I . ex.
d,
C at 57.
I . ex.
d,
C at 59.
Document No. 3.
the pleading of jurisdictional facts, or
(2) the plaintiff's
inability to establish a cause of action against the non-diverse
defendant.
Cir. 2003).
Ross v. Citifinancial, Inc., 344 F.3d 458, 461 (5th
Here, Defendants do not assert that
Plaintiff
fraudulently pleaded jurisdictional facts, so only the second prong
is at issue. Under this prong,
\'
[t] court must determine whether
he
there is arguably a reasonable basis for predicting that state law
might impose liability" on the non-diverse defendant.
I .at 462.
d
A reasonable basis for state liability requires that there be a
r e a s o n a b l e possibility of recovery, not merely a t h e o r e t i c a l one.
I . The Fifth Circuit has explained:
d
[TIhe standard for evaluating a claim of improper joinder
is similar to that used in evaluating a motion to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12 (b)(6). The scope of the inquiry for improper joinder, however, is broader than that for Rule
12 (b)(6) because the court may "pierce the pleadings" and
consider summary judgment-type evidence to determine
whether the plaintiff has a basis in fact for the claim.
Campbell v. Stone Ins.. Inc., 509 F.3d 665, 669 (5th Cir. 2007)
(citing Ross, 344 F.3d at 462-63); a c c o r d Travis v. Irby, 326 F.3d
644, 648-49 (5th Cir. 2003).
Whether or not to \\pierce the
pleadings" is discretionary, and may be appropriate in order to
identify the presence of discrete and undisputed facts that would
preclude a plaintiff's recovery against the non-diverse defendant.
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.
2004) .
The focus of this summary inquiry must be on whether the
defendants were improperly joined in order to defeat diversity, not
on the overall merits of the plaintiff's case.
I . at 573.
d
The party claiming fraudulent joinder bears a "heavy" burden
of persuasion.
All factual allegations in the state court
petition are considered in the light most
favorable to the
plaintiff, Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th
Cir. 2005), and contested issues of fact and any ambiguities in
state law must be resolved in favor of remand. Gasch v. Hartford
Accident
B.
&
Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).
Analysis
Brachfeld contends that Plaintiff's assault and intentional
infliction of emotional distress ("IIED") claims against Anderson
are preempted by the TCHRA and/or are insufficiently pled.''
The TCHRA prohibits an employer from discriminating against
someone on the basis of race, color, disability, religion, sex,
national origin, or age.
Plaintiff
cannot
TEX. LABOR CODE
seek--and has
Anderson under the TCHRA.
not
§
21.051 (West 2006).
sought--recovery against
See Swafford v. Bank of America C o r ~ . ,
401 F. Supp. 2d 761, 764 (S.D. Tex. 2005) (Rosenthal, J.) ("Texas
federal and state courts have uniformly denied recovery for TCHRA
claims against individual supervisors and fellow employees.")
(citing cases).
Brachfeld argues that to allow Plaintiff to seek
Document No. 6 at 2.
recovery against Anderson based on common law tort claims would
circumvent the statutory scheme created by the Texas legislature in
the TCHRA for addressing workplace sexual harassment.
In Waffle House. Inc. v. Williams, the Texas Supreme Court
held that "employer liability for unwanted sexual touching by a
coworker (simply assault under Texas law given its 'offensive or
provocative' nature) is limited to a tailored TCHRA scheme that
specifically covers employer liability for sexual harassment." 313
S.W.3d 796, 803 (Tex. 2010) .
However, in so holding, the Court
expressly stated that its holding did not bar ' tort claim against
a
the harasser/assailant individually."
I .at
d
799. Brachfeld cites
to no Texas state or federal case law holding that the TCHRA
prevents an individual from bringing a separate assault claim
against an assailant, whether a co-worker or a supervisor, simply
because that individual also may have a discrimination claim
against the employer under the TCHRA.
But cf. Green v. Indus.
Specialty Contractors, Inc., 1 S.W.3d 126, 134-35 (Tex. App.-Houston [14th Dist.] 1999, no pet. h.) (finding fact issue remained
on plaintiff's assault claim against supervisor for touching her
buttocks in case where plaintiff also brought sexual harassment
claim against employer under the TCHRA) ; E.E.0 . C. v. Commercial
Coatins Serv., Inc., Civ. A. No. H-03-3984, 2005 WL 6439215, at *4
(S.D. Tex. May
31, 2005)
(Ellison, J.)
(finding intentional
infliction of emotional distress claim not available because
plaintiff could raise claims under "Title VII, the TCHRA, and the
common law theory of assault" for workplace sexual incident and
choking incident that were part of the overall harassing conduct
against plaintiff based on his race) .I2
Brachfeld further contends that Plaintiff failed adequatelyto
plead a claim for assault.
As relevant to this case, an assault
occurs when a person "intentionally or knowingly causes physical
contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or
provocative."
TEX. PENAL CODE
§
22.01(a)(3); Waffle House, 313
S.W.3d at 801; Loaisisa v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012)
("The elements of a civil assault mirror those of a criminal
assault.").
Brachfeld argues that the only alleged "potentially
injurious or offensive physical contact" between Plaintiff and
Anderson was the sexual act Plaintiff performed after Anderson
threatened to terminate her if she did not comply with his request.
Brachfeld contends that because Plaintiff consented, this contact
l2
Unlike assault, the Texas Supreme Court has held that
intentional infliction of emotional distress claims cannot be
brought against an employer or a supervisor for workplace
harassment. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816
(Tex. 2005) .
In so holding the court stated: " [I]
ntentional
infliction of emotional distress is a "gap-filler" tort never
intended to supplant or duplicate existing statutory or common-law
remedies. Even if other remedies do not explicitly preempt the
tort, their availability leaves no gap to fill." See also Martinez
v. Computer Sciences Corp., No. A-05-CA-187-SS,2005 WL 3414828, at
* 3 (W.D. Tex. May 16, 2005) (finding that after Creditwatch, '
a
plaintiff may no longer bring an IIED claim against a supervisor
for workplace harassment under Texas law").
does not constitute assault.
Aside from Brachfeld's view that
Plaintiff's act was consensual, Plaintiff's complaint also alleges
other contacts, including that Anderson would "brush up against"
her while making 'dirty
and sexual comments."
The Court cannot
say, given the totality of Plaintiff's complaints against Anderson,
that it is not reasonably possible for her to recover against him
for assault. See Waffle House, 313 S.W.3d at 799-800 (plaintiff's
assault claim against her co-worker was based on instances of the
co-worker inappropriately touching plaintiff and making offensive
sexual comments); Howe v. Yellowbook, USA, 840 F. Supp. 2d 970, 982
(N.D. Tex.
2011)
(finding that plaintiff's
allegations that
supervisor "touched her and attempted to force her into having sex"
was
sufficient
to
state a
claim
for
assault
and
battery).
Plaintiff has stated a reasonable basis for recovery against
Anderson,
and
Defendants
have
not
shown
that
Anderson
was
improperly joined to defeat diversity jurisdiction.
111.
Order
Based on the foregoing, it is
ORDERED that Plaintiff Latasha Calvert's Motion to Remand
(Document No. 3) is GRANTED, and this case is REMANDED to the 125th
Judicial District Court, Harris County, Texas.
The Clerk will mail a certified copy of this Order to the
Clerk of the 125th Judicial District Court of Harris County, Texas,
as required by 28 U.S.C. 5 1447, and shall notify all parties and
provide them with a true copy of this Order
SIGNED at Houston, Texas, on this
'ictfo
d
f March, 2013.
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