Calhoun v. Flynn et al

Filing 36

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SAMUEL CALHOUN,
Plaintiff,
v.
BRANDON HOLLOWAY, et al.,
Defendants.

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September 18, 2017
David J. Bradley, Clerk

CASE NO. 4:17-cv-1248

MEMORANDUM AND ORDER
There are two motions pending before the Court in this employment
discrimination and tort suit filed by Plaintiff Samuel Calhoun, who is proceeding
pro se. One is a motion to dismiss [Doc. # 29] filed by Defendants employed by
H.E. Butt Grocery Company (“HEB”), specifically, Scott McClelland, Chris
Boehn, Barnard Douglas, and Bridgett Mervin (the “HEB Defendants”).
Defendants FirstFleet, Inc. (“FirstFleet”), Brandon Holloway, and Diane Hill
(collectively, the “FirstFleet Defendants) also have filed a motion to dismiss [Doc.
# 17]. Both motions address Plaintiff’s original and first amended complaints.
The Court heard oral argument from the parties on August 22, and incorporates
Plaintiff Calhoun’s comments into the motion record. For reasons set forth below,
the Court grants the HEB Defendants’ motion and dismisses all of Plaintiff’s
claims against the HEB Defendants. The Court grants in part and denies in part
the FirstFleet Defendants’ motion.
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Accordingly, the Court must dismiss all

Plaintiff’s claims against Holloway and Hill, and all of Plaintiff’s claims against
Defendant FirstFleet except his claim under Title VII of the Civil Rights Act of
1964 as amended, which remains pending.
I.

PROCEDURAL BACKGROUND
Plaintiff Samuel Calhoun filed this case on April 21, 2017, against the

FirstFleet Defendants1 and the HEB Defendants. The FirstFleet Defendants and
HEB Defendants each moved to dismiss Plaintiff’s Complaint (“Original
Complaint”) [Doc. # 1].

See “Defendants FirstFleet, Inc. and FirstFleet

Employees’ Motion to Dismiss Plaintiff’s Complaint” (“FirstFleet’s Motion to
Dismiss Original Complaint”) [Doc. # 17]; [HEB] Defendants’ Motion to Dismiss
[Doc. # 23].
Plaintiff filed a Response to the Motions to Dismiss, requesting leave to
amend and offering an amended complaint.

See “Plaintiff’s Response to

Defendants[’] Motion to Dismiss, Plaintiff[’]s Amended Complaint” (“Response”)
[Doc. # 27]. The Court construes Plaintiff’s Response as a motion for leave to
amend and grants that motion. Plaintiff’s proposed Amended Complaint has been

1

Plaintiff, in his Original Complaint [Doc. # 1], named John Flynn as a defendant
in his capacity as CEO of FirstFleet, Inc. Id. at 2. The FirstFleet Defendants
assert that John Flynn is not the company’s CEO. Plaintiff’s Amended Complaint
does not name John Flynn as a defendant in this case.

2
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docketed as a separate entry on the Court’s docket. See Amended Complaint [Doc.
# 33].2
The FirstFleet Defendants have replied to Plaintiff’s Response (“Reply”)
[Doc. # 28]. These Defendants argue that Plaintiff’s Amended Complaint again
fails to allege legally viable claims against the FirstFleet Defendants. Additionally,
the FirstFleet Defendants argue that Plaintiff now admits his claim under Title VII
of the Civil Rights Act of 1964, as amended (“Title VII”) is untimely because
Plaintiff’s suit was filed on April 21, 2017, ninety-three days after the date of the
Equal Employment Opportunity Commission (“EEOC”) Notice of Right to Sue
that Plaintiff received, which Plaintiff attached to his Amended Complaint. See id.
at 1-2; Notice of Right to Sue, Exh. A to Amended Complaint (“Notice of Right to
Sue”) [Doc. # 33], at ECF 14.
Because the written record contained no explanation from Plaintiff why he
did not initiate this lawsuit within ninety days of receiving the Notice of Right to
Sue, as required under Title VII, see 42 U.S.C. § 2000e-5(f)(1), the Court gave
Plaintiff Calhoun an opportunity to provide such an explanation orally at the
August 22 Initial Pretrial Conference in this case.

2

At the Initial Pretrial

Accordingly, “Defendants FirstFleet, Inc. and FirstFleet Employees’ Motion to
Dismiss Plaintiff’s Complaint” [Doc. # 17] and the HEB Defendants’ Motion to
Dismiss [Doc. # 23] will be denied as moot.

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Conference, Plaintiff stated, under oath, that he did not actually receive the EEOC
Notice of Right to Sue until several days after the EEOC issued it on January 18,
2017. Based on Plaintiff’s sworn representation regarding the timing of his receipt
of the EEOC Notice of Right to Sue, the Court ruled that Plaintiff had timely filed
his Title VII claims against the HEB and FirstFleet Defendants. See Hearing
Minutes and Order dated August 22, 2017 [Doc. # 34].3
For reasons explained below in Section IV, the Court concludes that the
HEB Defendants’ Motion [Doc. # 29] should be granted in its entirety because
Plaintiff’s Amended Complaint fails to cure the defects identified by those
Defendants, see Motions to Dismiss [Docs. # 23, # 29], and because further
amendment would be futile with respect to Plaintiff’s claims against the HEB

3

In the Fifth Circuit, when the actual date of receipt of an EEOC right-to-sue letter
is unknown, it is appropriate to use a presumption of receipt. Taylor v. Books A
Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). Although the exact length of the
presumption is “an open question in this Circuit,” the Fifth Circuit “has expressed
satisfaction with a range between three and seven days” after the date that the right-to-sue
letter was issued by the EEOC. Morgan v. Potter, 489 F.3d 195, 196 (5th Cir. 2007). It

is unknown when Plaintiff actually received the Notice of Right to Sue. Even
assuming that the low end (i.e., three days) of the Fifth Circuit’s presumption
range is applicable to Plaintiff’s Original Complaint, the Original Complaint,
which was filed ninety-three days after the issuance of the Notice of Right to Sue,
would be timely filed for Title VII purposes.

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Defendants.4 Accordingly, Plaintiff’s claims against the HEB Defendants will be
dismissed with prejudice.
For similar reasons also explained below in Section IV, the Court concludes
that the FirstFleet Defendants’ Motion [Doc. # 17] should be granted in part and
denied in part. Accordingly, Plaintiff’s claims against the FirstFleet Defendants,
other than Plaintiff’s claim under Title VII against Defendant FirstFleet, will be
dismissed with prejudice.
II.

FACTUAL BACKGROUND
Plaintiff, who is black, was employed by FirstFleet as a truck driver.

Amended Complaint [Doc. # 33], at ECF 1; FirstFleet’s Motion to Dismiss
Original Complaint [Doc. # 17], at 1. Plaintiff alleges that on March 9, 2016,
while on duty, he was involved in an altercation with HEB employee Chris Boehn
in an HEB-owned yard.

See Amended Complaint [Doc. # 33], at ECF 1-2.

FirstFleet, Inc. investigated the incident and terminated Plaintiff shortly thereafter.
See Amended Complaint [Doc. # 33], at ECF 2-3. According to Plaintiff, the
investigation was conducted unfairly and tainted by the actions and racial animus
of both the FirstFleet and HEB Defendants. See Amended Complaint [Doc. # 33],
4

In addition to granting Plaintiff leave to amend to amend his Original Complaint,
at the Initial Pretrial Conference the Court also gave Plaintiff the opportunity to
make any additional filings he deemed appropriate on or before August 25, 2017.
See Hearing Minutes and Order dated August 22, 2017 [Doc. # 34]. Plaintiff has
not made any additional filings since August 22, 2017.

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at ECF 2-4, 6-8. Plaintiff alleges he was wrongly terminated and denied “Texas
Workforce benefits.” See id. at ECF 8. Plaintiff filed an administrative complaint
with the EEOC on January 5, 2017, and the EEOC issued a Notice of Right to Sue
on January 18, 2017. See Notice of Right to Sue and Charge of Discrimination
[Doc. # 33], at ECF 14-15.5
Construed liberally, Plaintiff alleges that he was discriminated against based
on his race, in violation of Title VII. See generally Amended Complaint [Doc.
# 32]. Plaintiff also claims that the FirstFleet Defendants and the HEB Defendants
violated 42 U.S.C. § 1983 (“§ 1983”) by depriving him of his constitutional rights
and that Defendants FirstFleet and McClellan failed to adequately train and
supervise their employees. See id. at ECF 3, 5-6, 7, 10. Defendants’ motions to
dismiss followed.
III.

LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663
5

In his Charge of Discrimination, Plaintiff checked boxes alleging discrimination
based on race, color, retaliation, and age. See Charge of Discrimination, Exh. A to
Amended Complaint [Doc. # 33], at ECF 15. Even construed liberally, Plaintiff’s
Amended Complaint does not contain any allegations whatsoever regarding age
discrimination or any factual, non-conclusory allegations regarding retaliation. To
the extent that Plaintiff makes claims against either the HEB or FirstFleet
Defendants in the Amended Complaint for violations of Title VII based on age
discrimination or retaliation, such claims are dismissed with prejudice on the
grounds that Plaintiff has failed to adequately allege any such claims.

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F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co.,
563 F.3d 141, 147 (5th Cir. 2009)). The complaint must be liberally construed in
favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient
factual allegations, as opposed to legal conclusions, to state a claim for relief that is
“plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v.
Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded
factual allegations, a court should presume they are true, even if doubtful, and then
determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556
U.S. at 679. Additionally, regardless of how well-pleaded the factual allegations
may be, they must demonstrate that the plaintiff is entitled to relief under a valid
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v.
Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).
Additionally, a document filed pro se must be “liberally construed” and “a
pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (internal quotation marks omitted).

See Fed. R. Civ. P. 8(e)

(“Pleadings must be construed so as to do justice”); Hood v. Pope, 627 F. App’x
295, 299 n.7 (5th Cir. 2015).

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IV.

ANALYSIS
A.

HEB and FirstFleet Defendants’ Motions

The HEB and FirstFleet Defendants argue that Plaintiff’s claims should be
dismissed pursuant to Federal Rules of Civil Procedure 12(b)(6) because Plaintiff
fails to plead sufficient facts supporting any claims against the HEB and FirstFleet
Defendants under § 1983, Title VII, or applicable Texas law.6 Plaintiff had the
benefit of the HEB and FirstFleet Defendants’ arguments in preparing his
Amended Complaint. The Court agrees with the arguments set forth in the HEB
6

The HEB Defendants also argue that Plaintiff’s claims against them fail under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction,
because Plaintiff has not pleaded that he exhausted his administrative remedies
with respect to the HEB Defendants before filing suit. See HEB Defendants’
Motion to Dismiss Plaintiff’s First Amended Complaint [Doc. # 29], at 7-8. The
Court does not reach the exhaustion issue regarding HEB because Plaintiff fails to
plead a cognizable Title VII claim against any of the HEB Defendants. In
contrast, the FirstFleet Defendants aver that while the law in the Fifth Circuit is
mixed on the question of whether exhaustion of administrative remedies in the
motion to dismiss context should be reviewed under Federal Rule of Civil
Procedure 12(b)(1) or 12(b)(6), the proper analytic lens is 12(b)(6). FirstFleet’s
Motion to Dismiss Original Complaint [Doc. # 17], at ECF 3 fn.3. Though there
is disagreement within the Fifth Circuit regarding whether the exhaustion
requirement is a prerequisite to a suit or a jurisdictional bar, this Court, among
others, has concluded that the requirement does not implicate jurisdiction. See
Seghers v. Hilti, Inc., Civil Action No. 4:16–cv–0244, 2016 WL 6778539, at *4
(S.D. Tex. Nov. 16, 2016); Gonzalez v. Tellepsen Indus. Corp., Civil Action No.
4:17-cv-00732, 2017 WL 2608839, at *3 (S.D. Tex. May 31, 2017) (“As a
threshold matter, a motion to dismiss for failure to exhaust administrative
remedies is properly evaluated under Federal Rule of Civil Procedure 12(b)(6).”).
The Court, however, need not, and does not, reach the issue of whether Rule
12(b)(1) or Rule 12(b)(6) is the appropriate vehicle governing the FirstFleet
Defendants’ exhaustion argument, as the applicable rule is not dispositive of the
issues presented.

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and FirstFleet Defendants’ Motions, with the exception of Defendant FirstFleet’s
request to dismiss Plaintiff’s racial discrimination claim under Title VII.
Section 1983.— Plaintiff alleges both the HEB and FirstFleet Defendants
violated § 1983 by depriving him of certain constitutional rights. See Amended
Complaint [Doc. # 33], at ECF 7, 10. Section 1983 expressly encompasses only
constitutional violations by “state actors.” 42 U.S.C. § 1983. To maintain a claim
under § 1983, Plaintiff must show that a “state actor” deprived him of a
constitutional right, or that the HEB or FirstFleet Defendants conspired with or
acted in concert with state actors. See Priester v. Lowndes Cnty., 354 F.3d 414,
420 (5th Cir. 2004). Plaintiff does not allege that any of the HEB or FirstFleet
Defendants is a state actor.
Nor does Plaintiff allege facts suggesting that any of the HEB Defendants
conspired with state actors to deprive him of a federal right. Plaintiff cannot
maintain a claim under § 1983 against any of the HEB Defendants.
With respect to the FirstFleet Defendants, Plaintiff does allege that two
individuals, Defendants Brandon Holloway and Diane Hill, “did knowingly and
intentionally [] conspire[] with [the] Texas Workforce Commission to prevent
Plaintiff from receiving his rightfully deserved benefits that cause[d] hardship and
d[e]famation of Plaintiff[‘s] character.” Amended Complaint [Doc. # 32], at ECF
5.

This conclusory allegation is the sole allegation against the FirstFleet
9

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Defendants in the Amended Complaint with respect to any conspiracy or
cooperation between the FirstFleet Defendants and a state actor for the purpose of
harming Plaintiff. To state a claim that a non-state actor is liable under § 1983, a
plaintiff must, in addition to alleging the deprivation of a constitutional right, also
allege that there is an agreement between the non-state actor and a public entity to
commit an illegal act. Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir.
2004) (citing Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir.1994)). The Amended
Complaint is entirely devoid of any factual allegations that plausibly suggest any
agreement between the FirstFleet Defendants and the Texas Workforce
Commission (or any other state actor) to commit any illegal act or to deprive
Plaintiff of his constitutional rights.

Absent any such factual allegations, the

Amended Complaint, even construed liberally, fails to state a claim that a
conspiracy existed between the FirstFleet Defendants and a state actor to deprive
Plaintiff of his constitutional rights.7 Because the Amended Complaint fails to state
a claim that any of the FirstFleet Defendants conspired with a public entity to
deprive Plaintiff of his constitutional rights, and because Plaintiff has not alleged
7

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions . . . . Factual allegations must be
enough to raise a right to relief above the speculative level on the assumption that
all of the complaint's allegations are true.) (citations omitted).

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facts establishing that any of the FirstFleet Defendants are state actors, Plaintiff’s
claim under § 1983 against each of the FirstFleet Defendants must be dismissed.
Title VII.— Plaintiff claims that both the HEB and FirstFleet Defendants
discriminated against him based on his race in violation of Title VII. See Amended
Complaint [Doc. # 33], at ECF 6-10. Title VII, however, only provides a cause of
action against an “employer.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007) (“As Title VII prohibits discrimination in the employment
context, generally only employers may be liable under Title VII.”) (internal
citations omitted). Plaintiff does not allege that an HEB Defendant employed him
at any point in time. To the contrary, the Amended Complaint contains an
allegation that Plaintiff, at the time of the incident that led to his termination, was
employed by FirstFleet. Amended Complaint [Doc. # 32], at ECF 5.
In any event, “relief under Title VII is only available against an employer,
not an individual supervisor or fellow employee.” Umoren v. Plano Indep. Sch.
Dist., 457 F. App’x 422, 425 (5th Cir. 2012) (citing Foley v. Univ. of Houston Sys.,
355 F.3d 333, 340 n.8 (5th Cir. 2003).

The HEB Defendants named in the

Amended Complaint are all individuals, and none was an “employer” of Plaintiff
within the meaning of Title VII. See 42 U.S.C. § 2000e(b). Plaintiff’s Title VII
claims against the HEB Defendants must be dismissed.

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Plaintiff also has sued Brandon Holloway and Diane Hill, two of the
FirstFleet Defendants, under Title VII. Neither is an employer under Title VII.
Each is merely alleged to have been an employee of FirstFleet at the time Plaintiff
sought benefits from the Texas Workforce Commission. Amended Complaint
[Doc. # 33], at ECF 9. For the same reason that Plaintiff cannot state a legally
viable claim against the HEB Defendants, he cannot state a claim against these two
FirstFleet Defendants and Plaintiff’s Title VII claims against these individuals
must also be dismissed.
On the other hand, Plaintiff has alleged, and FirstFleet does not dispute, that
FirstFleet was Plaintiff’s employer at the time of Plaintiff’s allegedly improper
termination. Consequently, FirstFleet does not challenge the applicability of Title
VII to Plaintiff’s claims against it. Instead, FirstFleet seeks dismissal of those
claims based on Plaintiff’s failure to timely initiate this lawsuit within the ninetydays of receiving a Notice of Right to Sue from the EEOC, as required by Title
VII. Reply [Doc. # 28]. Timeliness is the sole basis on which FirstFleet has moved
to dismiss Plaintiff’s Title VII claims against it.8 This claim fails, as explained

8

In its original Motion to Dismiss, FirstFleet averred that Plaintiff’s Title VII
claims should be dismissed on the grounds that he had failed to exhaust his
administrative remedies before seeking judicial relief in Federal Court. FirstFleet’s
Motion to Dismiss Original Complaint [Doc. # 17], at ECF 5-7. In the Amended
Complaint, Plaintiff alleges that he “filed an administrative complaint with the
EEOC and received a notice of suit rights” from the EEOC. Amended Complaint
(continued…)

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supra in Section I. The Court has found that Plaintiff’s Title VII claims against
Defendant FirstFleet were timely filed by initiation of this lawsuit.9 Therefore, as

(continued…)
[Doc. # 33], at ECF 10. Plaintiff attached a copy of what he represents is his
administrative complaint and the EEOC’s notice of suit rights as Exhibit A to the
Amended Complaint. Amended Complaint [Doc. # 33], at ECF 14-16. In the
Reply, the FirstFleet Defendants did not reassert their previous contention that
Plaintiff had failed to file an administrative complaint with the EEOC or obtain a
right-to-sue letter from the EEOC, nor did the FirstFleet Defendants challenge the
authenticity or applicability of the administrative documents Plaintiff attached as
Exhibit A to the Amended Complaint. Reply [Doc. # 28], at ECF 1-2.
“For Title VII and ADA claims, ‘[e]xhaustion occurs when the plaintiff files a
timely charge with the EEOC and receives a statutory notice of right to sue.’”
Garcia v. Penske Logistics, L.L.C., 631 F. App'x 204, 207 (5th Cir. 2015) (citing
Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir.2002)). When
evaluating a motion to dismiss pursuant to either Federal Rule of Civil Procedure
12(b)(1) or Rule 12(b)(6) the Court is entitled to consider documents that are
attached to the complaint. See Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238
(5th Cir.2009), cert. denied, 558 U.S. 1111 (2010) (“Moreover, under both Rule
12(b)(1) and Rule 12(b)(3), the court is permitted to look at evidence in the record
beyond simply those facts alleged in the complaint and its proper attachments.”);
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010) (“[On a Rule 12(b)(6) review], [t]he court's review is limited to the
complaint, any documents attached to the complaint, and any documents attached
to the motion to dismiss that are central to the claim and referenced by the
complaint.”). See also Clark v. Huntleigh Corp., 119 F. App'x 666, 667 (5th Cir.
2005) (“Significantly, because of [plaintiff]’s pro se status, our precedent compels
us to examine all of his complaint, including the attachments [when considering a
Rule 12(b)(6) motion to dismiss].”) Based on Exhibit A to the Amended
Complaint, which FirstFleet has not disputed, the Court denies the FirstFleet
Defendants’ motion to dismiss Plaintiff’s Title VII claim for failure to exhaust his
administrative remedies as it relates to Defendant FirstFleet.
9

Although not challenged by FirstFleet, the Court has reviewed Plaintiff’s
allegations in the Amended Complaint regarding his Title VII claims and has
concluded that those allegations are sufficient to state a viable claim under Title
VII. “At this [Motion to Dismiss] stage of the litigation, Plaintiff need only allege
enough facts to plausibly suggest that h[is] employer discriminated against h[im]
(continued…)

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it relates solely to Defendant FirstFleet, the FirstFleet Defendants’ Motion to
Dismiss Plaintiff’s Title VII racial discrimination claim is denied.
State Law Claims.—

Plaintiff claims that Defendants FirstFleet and

McClelland each failed to “adequately train and supervise [their] employees.”
Amended Complaint [Doc. # 33], at ECF 8, and 13. Plaintiff claims that, as a
result, he was “discriminated against and treated unequally in regard to the unsafe
driving complaint submitted by Defendant Beohn.” Id. To the extent Plaintiff
asserts common law claims of negligent hiring, training, supervision, or retention
against either FirstFleet or McClelland, Plaintiff’s allegations are legally
insufficient to state a viable claim.
To support a claim of negligent hiring, training, supervision, or retention
under Texas state law, Plaintiff must show (1) FirstFleet or McClelland owed
Plaintiff a legal duty to hire, train, supervise and retain competent employees, (2)

(continued…)
due to h[is] membership in a protected group.” Roberts v. Lubrizol Corp., 2013
WL 12099843, at *5 (S.D. Tex. June 28, 2013). Liberally construed, Plaintiff
alleges in the Amended Complaint that (1) he is a member of a protected racial
group, (2) he was qualified for his position as a truck driver at FirstFleet given his
twenty-nine years of experience, (3) FirstFleet treats employees of Plaintiff’s
racial group less favorably than it treats its white employees and (4) he was
terminated due to his race following a flawed and incomplete incident
investigation that was tainted by racial animus. See generally Amended Complaint
[Doc. # 33]. Given Plaintiff’s status as a pro se litigant, the Court finds that,
liberally construed, the allegations in the Amended Complaint are sufficient to
plausibly suggest that FirstFleet terminated Plaintiff based on his race in violation
of Title VII.

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FirstFleet or McClelland breached that duty, and (3) that breach proximately
caused Plaintiff’s injury. See Phillips v. Super Servs. Holdings, LLC, 189 F. Supp.
3d 640, 648 (S.D. Tex. 2016). An employer cannot be held liable for breach of
duty, however, if the employee does not commit an actionable tort recognized
under Texas common law. Plaintiff does not allege facts that state a claim for any
such tort. Additionally, “[t]he duty of the employer extends only to prevent the
employee or independent contractor from causing physical harm to a third person.”
Olivarez v. Get Cargo, Inc., SA–13–CA–391–OLG (HJB), 2014 WL 12588337, at
*2 (W.D. Tex. Sept. 24, 2014) (citing Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d
489, 496 (Tex. App.—Fort Worth 2002, no pet.)). Plaintiff fails to allege any such
physical injury or harm proximately caused by any of the FirstFleet or HEB
Defendants’ alleged negligence. As such, Plaintiff’s allegations with respect to his
Texas state law claims fail to state a claim upon which relief may be granted under
Texas law and must be dismissed against each of the HEB and FirstFleet
Defendants.
V.

CONCLUSION AND ORDER
Plaintiff has pleaded a viable claim for relief under Title VII against

Defendant FirstFleet but none of the other FirstFleet or HEB Defendants. In all
other respects, Plaintiff has failed to plead a claim against any of the HEB or
FirstFleet Defendants upon which relief may be granted. Accordingly, it is hereby
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ORDERED that the Motion to Dismiss Plaintiff’s Complaint filed by
Defendants FirstFleet, Inc., Brandon Holloway and Diane Hill [Doc. # 17] is
DENIED with respect to Plaintiff’s racial discrimination claims against Defendant
FirstFleet, Inc. pursuant to Title VII, but is GRANTED with respect to all other
claims asserted against the FirstFleet Defendants. All claims against the FirstFleet
Defendants except the Title VII claim against FirstFleet itself are DISMISSED
with prejudice. It is further
ORDERED that the Motion to Dismiss Plaintiff’s First Amended
Complaint filed by Defendants Scott McClelland, Chris Boehn, Barnard Douglas,
and Bridgett Mervin (collectively, “HEB Defendants”) [Doc. # 29] is GRANTED
and Plaintiff’s claims against the HEB Defendants are DISMISSED with
prejudice.
SIGNED at Houston, Texas, this 18th day of September, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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