Leal v. Sinclair Broadcasting Group, Inc. et al
Filing
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REPORT AND RECOMMENDATIONS re 6 Motion to Dismiss for Failure to State a Claim filed by Ana Maria Lamas, San Antonio Television, LLC, Sinclair Broadcasting Group, Amy Villarreal. Signed by Judge Andrew W. Austin. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FRANKLIN LEAL
VS.
SINCLAIR BROADCAST GROUP, INC.,
SAN ANTONIO TELEVISION, LLC,
AMY VILLARREAL IN HER
INDIVIDUAL CAPACITY, AND
ANA MARIA LAMAS IN HER
INDIVIDUAL CAPACITY
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A-16-CV-679 LY
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion to Dismiss (Dkt. No. 6); Plaintiff’s Response to Rule
12(b)(6) Motion to Dismiss (Dkt. No. 11); and Defendants’ Reply (Dkt. No. 14). The undersigned
submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C.
§ 636(b) and Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court
for the Western District of Texas.
I.
GENERAL BACKGROUND
Franklin Leal worked as a television news producer for the local Telemundo television
station run by KEYE-TV, a Texas-based CBS Television affiliate. Leal, who is Hispanic, produced
the Spanish language news segments for the television station until he was terminated on September
11, 2015. Leal alleges he was discriminated against, retaliated against, and ultimately fired because
of his national origin and alleged mental disability.
On May 10, 2016, Leal filed this lawsuit in the 250th Judicial District of Travis County, Texas
against Sinclair Broadcast Group, Inc.,1 the owner and operator KEYE-TV, San Antonio Television,
LLC, a subsidiary of Sinclair, Telemundo Austin KEYE-TV, Amy Villarreal, in her individual
capacity, and Ana Maria Lamas, in her individual capacity (“Defendants”). Leal’s lawsuit alleges
(1) discrimination and hostile work environment claims under Title VII of the Civil Rights Act of
1964 and the Texas Commission on Human Rights Act; (2) retaliation claims under Title VII and
the TCHRA; (3) discrimination on the basis of, and failure to accommodate, his alleged mental
disability under the Americans with Disabilities Act and the TCHRA; (4) intentional infliction of
emotional distress under Texas law; and (5) wrongful discharge under Texas law.
On June 10, 2016, Defendants removed the case on the basis of federal question jurisdiction
under 28 U.S.C. § 1331. Defendants now move to dismiss the case pursuant to Federal Rule of Civil
Procedure 12(b)(6), seeking the dismissal of Leal’s IIED and wrongful discharge claims, and of the
individual defendants.
II. STANDARD OF REVIEW
Rule 12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief
can be granted.” 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
1
Plaintiff’s Petition incorrectly refers to Sinclair Broadcast Group, Inc. as “Sinclair
Broadcasting Group.”
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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 plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. In evaluating a
motion to dismiss, the Court must construe the complaint liberally and accept all of the plaintiff's
factual allegations in the complaint as true. See In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2009).
III. ANALYSIS
A.
Improper Defendants
1.
Telemundo Austin KEYE-TV
Leal has named “Telemundo Austin KEYE-TV” as a defendant in this case. Defendants
point out that Telemundo Austin KEYE-TV is not a legal entity capable of being sued. Leal does
not dispute this contention and in his response, he removed “Telemundo Austin KEYE-TV” from
the style of this case. See Dkt. No. 11 at 1. It thus appears that he does not contest this portion of
the motion. Because it is undisputed that Telemundo Austin KEYE-TV is not a proper legal entity,
the Court recommends that the motion to dismiss be granted as to Telemundo Austin KEYE-TV.
2.
Individual Defendants
In addition to bringing his discrimination claims against his employer, Leal has also brought
these claims against his former manager, Amy Villarreal, and former supervisor, Ana Maria Lamas,
in their individual capacities. However, Title VII, the TCHRA and the ADA only permit recovery
against an “employer,” not against an individual employee. There is no individual liability for
employees under Title VII, the TCHRA or the ADA. See Evans v. Greuschow, 314 F. App’x 716,
718 (5th Cir. 2009) (holding that supervisor could not be found individually liable under Title VII);
Smith v. Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002) (“[T]here is no individual liability for
employees under Title VII”); Wellington v. Texas Guaranteed, 2014 WL 2114832, at * 4 (W.D. Tex.
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May 20, 2014) (holding that individual defendant must be dismissed because like Title VII,
individuals cannot be held liable under the ADA); McLennan v. Oncor Electric Delivery Co., LLC,
2012 WL 3072340, at * 3 (N.D. Tex. July 6, 2012) (“Plaintiff cannot maintain a suit against
Individual Defendants under the ADA.”), aff’d, 519 F. App’x 260 (5th Cir. 2013); Vincent v.
Coates, 2004 WL 1787838, at *3 (N.D. Tex. July 2, 2004) (“[I]ndividual liability is not available
under the TCHRA.”) (citing Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex. App.–
Waco 2000, pet. denied)). Leal has acknowledged that his claims against the individual defendants
are improper. See Dkt. No. 11 at 2 (“Leal recognizes that the statutory claims against the individual
defendants . . . are impermissible.”). Based upon the foregoing, Amy Villarreal and Ana Maria
Lamas must be dismissed form this lawsuit under Rule 12(b)(6).
B.
Intentional Infliction of Emotional Distress Claim
In addition to his statutory claims under Title VII, the TCHRA and the ADA, Leal asserts a
Texas state law claim for intentional infliction of emotional distress (“IIED”) against the Defendants.
Specifically, Leal alleges that the Defendants:
acted intentionally and recklessly in overloading him at work and removing financial
and staff resources, calling the Austin Police Department and falsely reporting that
Franklin Leal was a threat after he suffered a nervous breakdown, terminating
Franklin Leal while he was out on medical leave and suffering a disability, hiring
additional security to keep Franklin Leal off the premises, defaming his person and
character among his prior co-workers by creating false allegations, and creating a
false situation to have him evicted and terminating his health care and unemployment
benefits. . . .
Petition at ¶ 24. Leal relies on the same set of facts to support his statutory claims under Title VII,
the TCHRA and the ADA. In Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68
(Tex.1998), the Texas Supreme Court recognized that an IIED claim is “a ‘gap-filler’ tort, judicially
created for the limited purpose of allowing recovery in those rare instances in which a defendant
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intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other
recognized theory of redress.” In Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447
(Tex. 2004), the Court further elaborated that:
The tort’s clear purpose. . .was to supplement existing forms of recovery by
providing a cause of action for egregious conduct that might otherwise go
unremedied. . . . In creating the new tort, we never intended that it be used to evade
legislatively-imposed limitations on statutory claims or to supplant existing common
law remedies. Properly cabined, the tort simply has no application when the actor
intends to invade some other legally protected interest, even if emotional distress
results. Where the gravamen of a plaintiff's complaint is really another tort,
intentional infliction of emotional distress should not be available.
(citations omitted). Thus, in Hoffmann–La Roche, the Court held that the plaintiff could not pursue
both an IIED claim and a sexual harassment claim under the TCHRA against her former employer
since the “CHRA provides a remedy for the same emotional damages caused by essentially the same
actions, there is no remedial gap in this case and thus no support for the award of damages under the
intentional-infliction claim.” Id. at 450. Therefore, “an IIED claim cannot be maintained if it is
aimed at addressing the same type of wrong that a statutory remedy was designed to cover.”
Bookman v. Aids Arms, Inc., 2014 WL 4968189, at * 5 (N.D. Tex. Oct. 3, 2014). Because Leal has
statutory remedies available to him under Title VII, the TCHRA and the ADA, he is precluded from
bringing an IIED claim based upon the same allegations as those offered to support his statutory
claims. See Wiggins v. St. Luke’s Episcopal Health System,517 F. App’x 249, 252 (5th Cir.) (finding
that plaintiff’s IIED claim was preempted by the TCHRA), cert. denied, 134 S.Ct. 396 (2013);
Jackai v. Affirmative Services, Inc., 2015 WL 264713, at * 5 (N.D. Tex. Jan. 21, 2015) (“Because
Plaintiff has statutory remedies available to him under Title VII and the ADEA, he is unable to
sustain a claim for IIED, and the court will dismiss this claim.”); Bookman, 2014 WL 4968189, at
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* 6 (“In light of the fact that the IIED claim is based on the same allegations as those offered in
support of the sexual harassment claim, the Court finds the IIED claim invalid.”). Accordingly,
Leal’s IIED claim must be dismissed under Rule 12(b)(6).
C.
Wrongful Discharge Claim
Leal’s Petition also asserts a wrongful discharge/termination claim under Texas law in which
he contends that the Defendants breached his employment contract by: (1) “putting Franklin Leal in
a position in which he was unable to perform his duties, responsibilities and obligations due to cuts
in financial and staff resources. . .”; (2) “allowing the continuous bullying on a daily basis. . .”; (3)
firing him while he was on medical leave; (4) making false reports to the police; (5) canceling his
medical insurance and denying him unemployment benefits; and (6) wrongfully discharging him.
Defendants first argue that Leal’s wrongful discharge claim should be dismissed because
Texas is an employment at will state and does not recognize a general wrongful discharge claim.
Defendants are correct that “the general rule in this State, as in most American jurisdictions, has been
that absent a specific agreement to the contrary, employment may be terminated by the employer or
the employee at will, for good cause, bad cause, or no cause at all.” Montgomery Cty. Hosp. Dist.
v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). See also, East Line & R.R.R. Co. v. Scott, 72 Tex. 70,
10 S.W. 99 (1888) and Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex. 1985).
However, “[e]ither party to an employment-at-will relationship may impose modifications to
employment terms.” Malone v. Ariba, Inc., 99 F. App'x 545, 552 (5th Cir. 2004) (quoting
Burlington Northern R. Co. v. Akpan, 943 S.W.2d 48, 50 (Tex. App.-Ft. Worth, 1996). See also,
United Transp. Union v. Brown, 694 S.W.2d 630, 632 (Tex. App. 1985, writ ref’d n.r.e.) (noting that
although Texas is at will, “valid contractual limitations on the right to terminate may be imposed by
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agreement of the parties.”). In order to establish a wrongful termination claim, “an employee must
first prove that he and his employer had a contract specifically depriving the employer of the right
to terminate the employee at will.” Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th
Cir.), cert. denied, 502 U.S. 984 (1991). “To rebut the presumption of employment at will, an
employment contract must directly limit in a ‘meaningful and special way’ the employer’s right to
terminate the employee without cause.” Hamilton v. Segue Software Inc., 232 F.3d 473, 478 (5th Cir.
2000) (quoting Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 815 (Tex. App.– Corpus
Christi 1996, writ denied)). “An employee must also prove that the contract or agreement was in
writing or, if oral, is enforceable under the statute of frauds.” Zimmerman, 932 F.2d at 471.
Based upon the foregoing, Leal is permitted to assert a wrongful discharge claim under Texas
law against his employer in this case. However, Leal’s Petition fails to point to the specific contract
at issue and fails to provide the Court with the contents of the alleged employment contract. In
addition, Leal fails to allege that he had a written employment contract specifically depriving Sinclair
of its right to terminate Leal at will. The Court is unable to determine at this point whether there was
a valid employment contract and whether such a contract even required Sinclair to have good cause
to terminate Leal. Accordingly, Leal has failed to plead a plausible wrongful discharge claim under
Texas law. Instead of recommending dismissal of this claim, however, the Court recommends that
the District Court permit Leal to re-plead his wrongful discharge claim to address these defects.
D.
Summary
Defendants’ Motion to Dismiss should be granted in part and denied in part. Defendants
Amy Villarreal and Ana Maria Lamas should be dismissed from this lawsuit because they are not
proper defendants under the relevant statutes. The Court also finds that Leal’s state law claim for
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intentional infliction of emotional distress should be dismissed because he is precluded from
bringing such a claim based upon the same allegations as those offered to support his statutory
claims under Title VII, the ADA and the TCHRA. Finally, the Court recommends that Leal be
permitted to re-plead his wrongful discharge claim under Texas law. The Court notes Leal’s claims
against Sinclair Broadcast Group, Inc. and San Antonio Television, LLC under Title VII, the ADA
and the TCHRA remain in this lawsuit, as they were not the subjects of the motion to dismiss.
IV. RECOMMENDATION
Based upon the foregoing, the undersigned Magistrate Judge RECOMMENDS that
Defendants’ Motion to Dismiss (Dkt. No. 6) be GRANTED IN PART AND DENIED IN PART.
The Court RECOMMENDS that the District Court DISMISS Telemundo Austin KEYE-TV as a
Defendant, as it is not a legal entity capable of being sued. The Court FURTHER RECOMMENDS
that Defendants Amy Villarreal and Ana Maria Lamas be dismissed from this lawsuit as they are not
subject to suit. In addition, the Court RECOMMENDS that the District Court DISMISS Franklin
Leal’s state law claim for intentional infliction of emotional distress from this lawsuit for failure to
state a claim on which relief may be granted. Finally, the Court RECOMMENDS that the District
Court DENY the Motion to Dismiss with regard to the state law wrongful discharge claim but permit
Franklin Leal to file an Amended Complaint in order to re-plead this claim to cure the defects set
out herein.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
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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
banc).
SIGNED this 26th day of September, 2016.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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