Hamilton v. Henderson Control Inc et al
REPORT AND RECOMMENDATIONS that the District Court GRANT Defendant's 40 Motion to Dismiss for Failure to State a Claim. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JACQUES T HAMILTON
HENDERSON CONTROL, INC., et al.
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended
Complaint (Dkt. No. 40), and Plaintiff’s Motion Not to Dismiss Plaintiff [sic] Complaint (Dkt. No.
43). The District Court referred the above motion to the undersigned Magistrate Judge for report and
recommendation pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix
C of the Local Rules.
Jacques Hamilton, proceeding pro se, brings this case against Henderson Control, Inc.,
employees Reggie Carter and Ray Tovar, and “Plant Manager” Mike Jones. Hamilton claims that
while incarcerated at Lockhart Correctional Facility, he participated in a work program in which he
was employed by Henderson Control. However, in April or May 2014, Hamilton was dismissed.
In the Employee Disciplinary Notice given to Hamilton for his termination, Jones claimed that
Hamilton had attempted to establish an inappropriate relationship with, and improperly influence,
Hamilton’s supervisors, Carter and Tovar. According to Henderson Control’s guidelines, the
company has strict rules regarding inmate-employee relations with other employees.
Hamilton, however, argues that Henderson’s allegations were false and a mere pretext for
his termination. He alleges that he never experienced problems at work previously. Moreover,
according to Hamilton, if the allegations had been true, there were a number of procedures that
would have been taken concurrent with, or prior to, his dismissal. None of these actions were taken.
Instead, Hamilton claims that Jones falsely alleged this infraction as a pretext for terminating his
employment on the basis of his sexual orientation. Following his termination, Hamilton filed a
complaint with the Equal Employment Opportunity Commission (“EEOC”). Dkt. No. 1-1 at 28.
He attached this form to his complaint, as well as his right to sue letters from the EEOC. Id. at 29,
31. Hamilton then filed suit, alleging employment discrimination against him on the basis of his
sexual orientation in violation of Title VII. Additionally, he alleges wrongful termination and
defamation under Texas state law. The defendants collectively bring this motion to dismiss for
failure to state a claim.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Pro se complaints
are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In
deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted),
cert. denied, 552 U.S. 1182 (2008). While a complaint attacked by a Rule 12(b)(6) motion does not
need detailed factual allegations in order to avoid dismissal, the plaintiff's factual allegations “must
be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). A plaintiff’s obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. The Supreme Court has
explained that a complaint must contain sufficient factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the
court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Hamilton alleges three claims in his Amended Complaint. First, he claims that his
termination was a result of discrimination on the basis of his sexual orientation in violation of Title
VII. Next, he alleges that he was wrongfully terminated from Henderson Control. Lastly, he alleges
defamation from the false allegations included in the Employee Disciplinary Notice. As the
defendants jointly move for dismissal—and Hamilton makes no attempt to distinguish the
defendants’ individual liability for each of his claims—the Court will address the claims as against
all the defendants jointly (collectively, “Henderson”).
First, Hamilton claims that Henderson dismissed him on the basis of his sexual orientation
in violation of Title VII. Under Title VII, it is unlawful for an employer “to discharge any individual
. . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.
Though the EEOC has indicated that it considers sexual orientation as a class of “sex” or “gender”
that would be protected by Title VII, the Fifth Circuit has conclusively stated that “Title VII in plain
terms does not cover ‘sexual orientation.’” Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir.
2015); Brown v. Subway Sandwich Shop of Laurel, Inc., No. 2:15-CV-77, 2016 WL 3248457, at *2
(W.D. Miss. June 13, 2016). Moreover, nearly all other circuits to address this argument have
agreed with the Fifth Circuit. See, e.g., Hively v. Ivy Tech Community College, 830 F.3d 698, 703714 (7th Cir. 2016) (compiling cases), vacated and rehearing en banc granted, 2016 WL 6768628
(Oct. 10, 2016).1 As Hamilton does not allege another basis of discrimination, he cannot establish
a valid claim under Title VII.
Further, Hamilton does not allege an actionable wrongful termination claim. Under Texas
state law, employment is generally considered to be at-will unless there is a specific agreement to
the contrary. Montgomery Co. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). Here,
Hamilton has not provided an agreement that would overcome this presumption. Therefore, absent
an exception, Henderson was permitted to terminate Hamilton’s employment at any time and for any
reason. See Little v . Bryce, 733 S.W.2d 937, 940 (Tex. App.–Houston [1st Dist. 1987) (Levy, J.,
concurring) (compiling a list of exceptions to the employment-at-will doctrine, including
discrimination based on “sex”); TEX. LAB. CODE § 21.051. As in his Title VII claim, Hamilton
argues that he was wrongfully terminated on the basis of his sexual orientation. However,
“analogous federal statutes and the cases interpreting them guide our reading of” the Texas
The court in Hively noted that while it agreed with the EEOC that discrimination based on
sexual orientation was actionable under Title VII as “sex” based discrimination, and that the “writing
was on the wall” that courts around the country were reaching the same conclusion, it was bound to
follow circuit precedent until “the writing comes in the form of a Supreme Court opinion or new
legislation.” Id. at 718.
discrimination statutes. See Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
Therefore, courts interpret TEXAS LABOR CODE § 21.051 in accordance with federal law. As such,
there is no exception to the employment-at-will doctrine for discrimination on the basis of sexual
Additionally, Hamilton appears to argue that he was wrongfully terminated based on false
allegations made by Henderson. However, this argument does not fit into any of the established
exceptions; instead it clearly falls into the general employment-at-will doctrine. Therefore, Hamilton
has not alleged a wrongful termination claim upon which relief may be granted.
Defamation/ False Allegations
Lastly, Hamilton alleges a claim for defamation based on the false allegations made by
Henderson. To prove defamation, the plaintiff must show: “(1) the publication of a false statement
of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree
of fault, and (4) damages, in some cases.” In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). A
statement is defamatory when “the words tend to injure a person’s reputation, exposing the person
to public hatred, contempt, ridicule, or financial injury.” Id. (citing TEX. CIV. PRAC. & REM. CODE
ANN. § 73.001). For private individuals, “actual malice” is not required, and the plaintiff need only
show negligence. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Additionally,
a plaintiff must show some form of economic damages unless he is alleging defamation per se.
Hancock v. Variyam, 400 S.W.3d 59, 63-64 (Tex. 2013).
Here, Henderson argues that Hamilton failed to identify any false defamatory statements.
Yet, Hamilton clearly referenced “false allegations” made by Henderson claiming that Hamilton
attempted to establish an inappropriate relationship with another employee. Dkt. No. 1 at 3.
Moreover, Hamilton seems to argue that the reason for his termination was a mere pretext, thus
establishing at least prima facie evidence of fault. Dkt. No. 1-1 at 3. Finally, as Hamilton was
dismissed based on the allegations, he has established a basis for damages. Thus, Hamilton likely
can show more than a speculative basis for a defamatory statement, made with the requisite degree
of fault, that caused damages.
However, Hamilton fails to establish that the statement was published. A statement is
published when it is “communicated orally, in writing, or in print to some third person capable of
understanding [its] defamatory import and in such a way that the third person did so understand.”
Austin v. Inet Tech., Inc., 118 S.W.3d 491, 496 (Tex. App.–Dallas 2003). The Texas Supreme Court
has held that “an employer has a conditional or qualified privilege that attaches to communications
made in the course of an investigation following a report of employee wrongdoing.” Randall’s Food
Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Therefore, “as long as communications
pass only to persons having an interest or duty in the matter to which the communications relate,”
the statement is not published. Id. Hamilton nowhere alleges that the allegedly defamatory
statement was published to anyone other than Henderson employees involved in his termination.
Instead, Hamilton only alleges that the statement was included in his Employee Disciplinary Notice.
Dkt. No. 1-1 at 20. A statement included in a disciplinary report, even if false, is clearly protected
and would not establish publication of the defamatory statement. As Hamilton has not alleged any
further publication of the statement, Hamilton did not sufficiently plead an allegation of defamation.
The undersigned RECOMMENDS that the District Judge GRANT Defendants’ Motion
to Dismiss (Dkt. No. 40), and DISMISS WITH PREJUDICE all claims by the Plaintiff.
The parties may file objections to the Recommendations contained above. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
SIGNED this 22nd day of November, 2016.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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