Nadeau v. Echostar et al

Filing 17

ORDER GRANTING 16 Motion to Dismiss Signed by Judge Kathleen Cardone. (mc6)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LEAH A. NADEAU,

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Plaintiff,
v.
ECHOSTAR; ECHOSPHERE L.L.C.;
and DISH NETWORK L.L.C.,
Defendants.

EP-12-CV-433-KC

ORDER
On this day, the Court considered Defendants’ Partial Motion to Dismiss, ECF No. 16.
For the reasons set forth below, Defendants’ Partial Motion to Dismiss is GRANTED.
I.

BACKGROUND
Plaintiff filed her Third Amended Complaint, ECF No. 11, on January 2, 2013. In this

pleading, Plaintiff claims that Defendants, her former employers, committed various acts of
employment-related discrimination and retaliation against Plaintiff in violation of the Americans
with Disabilities Act of 1990 (“ADA”) and the Age Discrimination in Employment Act of 1967
(“ADEA”). Pl.’s Third Am. Compl. ¶¶ 18-36. Plaintiff also brings two “common-law causes of
action” against Defendants for injuring Plaintiff through acts of intentional infliction of
emotional distress (“IIED”) and for negligent supervision of Defendants’ employees, who in turn
discriminated against Plaintiff. Id. ¶¶ 2, 37-40.
As stated in her Third Amended Complaint, all of Plaintiff’s claims are closely
interrelated with one another. First, Plaintiff’s IIED claim is based on the same adverse
employment actions that give rise to her claims of discrimination and retaliation under the ADA

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and ADEA. Id. ¶ 39. That is, Plaintiff claims that “Defendants further intentionally inflicted
emotional distress on Plaintiff by taking adverse employment action against her and making up
performance issues and alleging work mistakes on the part of Plaintiff which were not true, and
sadistically writing Plaintiff up for these matters.” Id.; see also id. ¶¶ 33-34 (alleging that
Defendants also violated the ADA and ADEA by these same actions). In Plaintiff’s view, these
allegations give rise to a claim for IIED. Id. ¶ 39-40.
Similarly, Plaintiff’s claim for negligent supervision is also connected to her
discrimination claims. See id. ¶¶ 37-38. That is, Plaintiff’s theory of liability is that Defendants
“had a duty to apprise themselves of the provisions of the ADA and ADEA, and to adequately
train and supervise their managers and supervisors to avoid discriminating against Plaintiff,” but
nonetheless “allowed their employees to harass and humiliate Plaintiff and to commit acts of age
discrimination and disability discrimination against Plaintiff.” Id. In Plaintiff’s view, these
allegations give rise to a claim for negligent supervision. Id.
On January 23, 2013, Defendants filed the present Partial Motion to Dismiss, ECF No.
16, in which Defendants request this Court to dismiss Plaintiff’s claims for IIED and for
negligent supervision under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants’
Partial Motion to Dismiss does not contest the factual or legal sufficiency of Plaintiff’s claims
for discrimination and retaliation under the ADA and ADEA. Plaintiff did not file a response
within the fourteen-day period specified in Local Court Rule CV-7(e) or at any time thereafter.
II.

DISCUSSION
Because Plaintiff has filed no response to Defendants’ Partial Motion to Dismiss, the

Motion is therefore deemed unopposed pursuant to Local Court Rule CV-7(e). The Court will

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nonetheless assess the merits of the Motion to determine whether dismissal is warranted under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A.

Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it
fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a
Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and view them in the light
most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need
not contain “detailed” factual allegations, a plaintiff’s complaint must allege sufficient facts “to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011).
“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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted); Gulf Coast HotelMotel Ass’n v. Mississippi Gulf Coast Golf Course Ass’n, 658 F.3d 500, 506 (5th Cir. 2011).
Ultimately, the “[f]actual allegations [in the complaint] must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted).
Nevertheless, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly,

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550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
B.

Intentional Infliction of Emotional Distress

Under Texas law, Plaintiff’s claim for common-law IIED must be dismissed because it is
duplicative of Plaintiff’s other claims for statutory remedies under the ADA and ADEA. See
Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); see also Creditwatch,
Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). “[I]ntentional infliction of emotional distress
is a ‘gap-filler’ tort never intended to supplant or duplicate existing statutory . . . remedies. Even
if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.”
Creditwatch, 157 S.W.3d at 816. The tort of IIED’s “clear purpose,” as the Supreme Court of
Texas has stated consistently, is “‘to supplement existing forms of recovery by providing a cause
of action for egregious conduct’ that might otherwise go unremedied.” Hoffman-La Roche, 144
S.W.3d at 447 (quoting Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex.
1998)). “[T]he tort simply has no application when the [defendant] ‘intends to invade some
other legally protected interest,’ even if emotional distress results.” Id. (quoting Standard Fruit,
985 S.W.2d at 67). Where a statutory claim “provides a remedy for the same emotional damages
caused by essentially the same actions, there is no remedial gap . . . and thus no support for the
award of damages under the intentional-infliction claim.” See id. at 450.
Based on these straightforward precedents, federal district courts applying Texas law
have consistently held that an IIED claim cannot arise from the same events and injuries that
support a claim brought simultaneously by the same plaintiff under the ADA and ADEA.
Williamson v. Am. Nat’l Ins. Co., 695 F. Supp. 2d 431, 467 (S.D. Tex. 2010); Gonnering v. Blue
Cross & Blue Shield of Tex., 420 F. Supp. 2d 660, 665-66 (W.D. Tex. 2006); Swafford v. Bank of

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Am. Corp., 401 F. Supp. 2d 761, 764-65 (S.D. Tex. 2005); Johnson v. Blue Cross/Blue Shield,
375 F. Supp. 2d 545, 549-50 (N.D. Tex. 2005). Where a common-law IIED claim relies upon
“the very same facts cited by Plaintiff in support of his claim under the ADA,” the IIED claim is
barred as a matter of Texas law. Gonnering, 420 F. Supp. 2d at 665-66 (analyzing Hoffman-La
Roche, 144 S.W.3d at 441).
Here, Plaintiff’s claim for IIED must therefore be dismissed. As stated in Plaintiff’s
Third Amended Complaint, Plaintiff’s IIED claim is based on precisely the same facts as her
claims of discrimination and retaliation under the ADA and ADEA. Pl.’s Third Am. Compl. ¶
39. That is, Plaintiff claims that “Defendants intentionally inflicted emotional distress on
Plaintiff not only by failing to take corrective action in response to her having reported the
ongoing disability discrimination and age discrimination,” but also “by taking adverse
employment action against her and making up performance issues and alleging work mistakes on
the part of Plaintiff which were not true, and sadistically writing Plaintiff up for these matters.”
Id. In other words, Plaintiff argues that Defendants committed IIED by discriminating against
Plaintiff on the basis of age and disability, and then by retaliating against her for taking action to
protect her rights to equal treatment. Id. These are precisely the activities prohibited by the antidiscrimination and anti-retaliation provisions of the ADA, at 42 U.S.C. § 12203 and § 12112,
and the ADEA, at 29 U.S.C. § 623(a) and § 623(d).
Therefore, because Plaintiff’s IIED claim is based on the same allegations as her claims
of discrimination and retaliation under the ADA and ADEA, Plaintiff’s IIED claim must be
dismissed. See Hoffman-La Roche, 144 S.W.3d at 447; Creditwatch, 157 S.W.3d at 816; see
also Williamson, 695 F. Supp. 2d at 467; Gonnering, 420 F. Supp. 2d at 665-66.

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C.

Negligent Supervision

Plaintiff’s claim against Defendants for negligent supervision of their employees must
likewise be dismissed, because Plaintiff has failed to identify an actionable, common-law tort
that Defendants’ employees might have committed. In Texas, an employer cannot be held liable
for the “negligent hiring, retaining, training, or supervising” of an employee unless the employee
committed an actionable, common-law tort. Garcia v. Allen, 28 S.W.3d 587, 593 (Tex. App.
2000); Gonzales v. Willis, 995 S.W.2d 729, 738-39 (Tex. App. 1999); see also Williamson, 695
F. Supp. 2d at 468; Gonzales v. Fidelity Distribs. Corp., No. 3:00-CV-1197, 2003 WL
21266707, at *4 (N.D. Tex. May 30, 2003).
Accordingly, federal district courts applying Texas law consistently dismiss claims of
negligent supervision where the wrongdoing allegedly committed by the defendant’s employees
consists only of employment-related discrimination and retaliation. See Williamson, 695 F.
Supp. 2d at 468, 471; Staples v. Caremark, LLC, No. SA-08-CV-831, 2009 WL 3634079, at *5-6
(W.D. Tex. Oct. 29, 2009); Udoewa v. Plus4 Credit Union, No. H-08-3054, 2009 WL 1856055,
at *7-8 (S.D. Tex. June 29, 2009); Johnson, 375 F. Supp. 2d at 550. Because such acts are not
common-law torts, they cannot provide a basis for claims of negligent supervision. Williamson,
695 F. Supp. 2d at 468, 471; Johnson, 375 F. Supp. 2d at 550.
Here, Plaintiff’s claim against Defendants for negligent supervision therefore must be
dismissed, because Plaintiff has failed to identify “an independent, actionable common law tort”
that Defendants’ employees have committed against her. See Williamson, 695 F. Supp. 2d at
468, 471. Plaintiff’s claim for negligent supervision is based entirely on acts of employmentrelated discrimination committed by Defendants’ employees. See Pl.’s Third Am. Compl. ¶ 37-

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38. That is, Plaintiff’s theory of liability is that Defendants “had a duty to apprise themselves of
the provisions of the ADA and ADEA, and to adequately train and supervise their managers and
supervisors to avoid discriminating against Plaintiff,” but nonetheless “allowed their employees
to harass and humiliate Plaintiff and to commit acts of age discrimination and disability
discrimination against Plaintiff.” Id.
Accordingly, whatever Plaintiff’s prospects may be in this case for recovery under the
ADA and ADEA, the Court must now dismiss Plaintiff’s common-law claim for negligent
supervision. Because Plaintiff “has no independent common law tort claim pending before this
Court, [but] only [her] statutory claims,” Plaintiff’s claim for negligent supervision cannot
succeed. See Johnson, 375 F. Supp. 2d at 550; see also Williamson, 695 F. Supp. 2d at 468, 471.
III.

CONCLUSION
For the reasons set forth above, the Court ORDERS that Defendants’ Partial Motion to

Dismiss, ECF No. 16, is GRANTED.
SO ORDERED.
SIGNED this 19th day of April, 2013.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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