Grost v. United States Of America
ORDER GRANTING 13 Motion to Dismiss Signed by Judge Kathleen Cardone. (dl1)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CRISTINA CRUZ GROST, M.D.,
UNITED STATES OF AMERICA,
On this day, the Court considered the Motion to Dismiss (the “Motion”) filed by
Defendant United States of America (“Defendant”), ECF No. 13, in the above-captioned case
(the “Case”). For the reasons set forth herein, the Motion is GRANTED.
On May 8, 2013, Plaintiff Cristina Cruz Grost (“Plaintiff”) filed her Original Complaint
in the Case, ECF No. 1. On May 25, 2013, Plaintiff filed a First Amended Complaint (the
“Amended Complaint”), ECF No. 4. As is appropriate at this stage of the proceedings, the Court
takes as true the following factual allegations in the Amended Complaint:
Plaintiff is a psychiatrist. Beginning in 2006, Plaintiff practiced psychiatry at William
Beaumont Army Medical Center (“WBAMC”) in El Paso, Texas without complaints by patients
or staff. Am. Compl. 4. Defendant owned, operated, and controlled WBAMC, but it did not
employ Plaintiff directly; instead, Plaintiff worked as an independent contractor pursuant to a
contract with Spectrum Health Care, Inc. (“Spectrum”). Id. at 1, 4.
In 2008, certain employees of Defendant were transferred to WBAMC, among them Col.
Ron Moruzzi (“Moruzzi”) and Maj. Artin Terhakopian (“Terhakopian”). Id. at 4. Soon
thereafter, Moruzzi and Terhakopian started to manufacture complaints about Plaintiff, and made
false statements about her to her employer, in an effort to have her employment terminated. Id.
Beginning in May 2011, Defendant’s employees, including Moruzzi and Terhakopian,
began to professionally harass, verbally abuse, and threaten Plaintiff, and subject her to offensive
conduct. Id at 2. This conduct was intended to inflict emotional distress and anxiety on Plaintiff
and cause her to quit her job. Id. Defendant had actual and constructive notice of its employees’
behavior but took no steps to reduce or eliminate it. Id.
Also beginning in May 2011, and continuing through January 2012, Defendant’s
employees, including Moruzzi and Terhakopian, made knowingly false statements about Plaintiff
to the Chief of the Department of Behavioral Health and to Spectrum in an effort to have
Plaintiff’s employment terminated.1 Id. at 5. The false accusations concerned patients’ length of
stay and the use of electronic medical records. Id. Defendant’s employees provided no
documentation of their complaints when they were asked to do so. Id. Defendants’ employees
mistreated Plaintiff, favored other workers, and excluded her from professional and social
activities, all of which were intended to cause her emotional distress and anxiety. Id.
At some point, Plaintiff protested to the Chief of the Department of Behavioral Health
and to the Chief of the Hospital Clinical Command that she was being mistreated and falsely
accused. Id. At that or another time, Plaintiff “report[ed] poor patient care, violations of
regulations and deficits in clinical safety to the proper authorities.” Id. at 7. Defendants’
employees, including Moruzzi and Terhakopian, then retaliated against Plaintiff by severely
It is unclear how, if at all, these allegations relate to the course of false statements that allegedly began in 2008.
limiting her patient contact, thereby leaving her with long periods of inactivity. Id. at 5. These
“biased interventions  ostracized  Plaintiff.” Id. at 6. However, despite the mistreatment
Plaintiff faced, she “persevered in completing her tasks.” Id. Defendant’s employees then further
retaliated against Plaintiff “by causing the staff [of the unit in which she worked] to ostracize
The work climate at WBAMC caused Plaintiff severe emotional and professional harm.
Id. Specifically, it caused her to “terminate her business relationship with Spectrum Healthcare
Resources.”2 Id. at 7. Defendant and its employees interfered with Plaintiff’s “past and future
employers,” thereby preventing her from obtaining other suitable employment. Id. at 6.
On February 21, 2012, Plaintiff filed suit against Moruzzi and Terhakopian in state court
in El Paso, Texas, “appear[ing] to bring claims for libel, slander, intentional infliction of
emotional distress, breach of contract, and others.” Order at 1, Grost v. Terhakopian, No. 3:12CV-114-KC (W.D. Tex. Apr. 20, 2012), ECF No. 4. On March 29, 2012, the defendants
removed that case to this Court. See Notice of Removal, Grost v. Terhakopian, No. 3:12-CV114-KC (W.D. Tex. Mar. 29, 2012), ECF No. 1. Upon the United States’ motion, the Court
dismissed Moruzzi and Terhakopian and substituted the United States as the proper defendant.
See Order at 3, Grost v. Terhakopian, No. 3:12-CV-114-KC (W.D. Tex. Apr. 20, 2012), ECF
No. 4. On July 12, 2012, the Court dismissed that case, holding that the Court lacked subject
matter jurisdiction under the Federal Tort Claims Act (“FTCA”) because Plaintiff failed to
exhaust her administrative remedies prior to filing suit. See Order, Grost v. Terhakopian, No.
3:12-CV-114-KC (W.D. Tex. July 12, 2012), ECF No. 11. Even though Plaintiff was at that time
The Court assumes that Spectrum Health Care, Inc. and Spectrum Healthcare Resources are one and the same, and
hereafter refers to each as “Spectrum.”
either “in the process of filing her claim” or intended to file a claim in the future, her suit was
barred because she had not yet exhausted her administrative remedies. Id. at 4.
Shortly before the Court dismissed Plaintiff’s original lawsuit, Plaintiff submitted an
administrative claim to Defendant. See Resp., Ex. B. Plaintiff represents that she filed the
administrative claim “in order to meet [the] jurisdictional requirements of this [C]ourt.” Resp. 1.
By letter dated July 2, 2013, Defendant informed Plaintiff that it had received the administrative
claim, and explained that Plaintiff would be allowed to file suit under the FTCA six months after
she filed the claim, provided the claim was properly filed and adequately documented. See Resp.,
As noted, Plaintiff thereafter filed the instant Case on May 8, 2013, alleging the abovereferenced facts. Though the Amended Complaint is not a model of clarity, the Court
understands that the Amended Complaint asserts causes of action for tortious interference with
contractual relations, breach of contract, libel, slander, intentional infliction of emotional
distress, premises liability, violations of 29 U.S.C. § 660,3 retaliation and hostile work
environment under federal and/or state antidiscrimination laws, and, under six separate theories,
negligence. See Am. Compl. 1-7.
On August 2, 2013, Defendant filed an answer to the Amended Complaint, ECF No. 5
(“Answer”), and thereafter filed the Motion on February 26, 2014. By the Motion, Defendant
moves to dismiss all of Plaintiff’s claims. See Mot. 14. Plaintiff has filed a response to the
Motion, ECF No. 16 (“Response”), in which she withdraws or disclaims her allegations of libel,
slander, and breach of contract. See Resp. 6 (stressing that “at no time did Plaintiff allege acts of
As discussed further below, 29 U.S.C. § 660 prohibits employers from retaliating against employees for exercising
any right afforded by the Occupational Safety and Health Act.
slander or libel except as couched in terms of inflicting emotional distress”); Id. at 7-8 (stating
that Plaintiff had a “contract with [Spectrum] - not the [Defendant,]” and that “there is no privity
between the Plaintiff and the [Defendant]”). The Response also adds a new claim alleging that
Defendant violated 10 U.S.C. § 2409, which prohibits retaliation against employees of
government contractors for reporting misconduct or dangerous conditions. See Resp. 8; 10
U.S.C. § 2409. Finally, Defendant has filed a reply to the Response, ECF No. 17 (“Reply”).
Defendant moves to dismiss the Case under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). As explained below, the Court construes the Motion, to the extent it is made
pursuant to Rule 12(b)(6), to be a motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c). The Court therefore also sets forth the standard for a Rule 12(c)
Rule 12(b)(1) standard
Federal courts are courts of limited jurisdiction. Exxon Mobile Corp. v. Allapattah
Servs., 545 U.S. 546, 552 (2005); People’s Nat’l Bank v. Office of the Comptroller of the
Currency of the U.S., 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by
statute or the Constitution, federal courts lack the power to adjudicate claims. Exxon Mobil, 545
U.S at 552; People’s Nat’l Bank, 362 F.3d at 336. A party may challenge a district court’s
subject matter jurisdiction by filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1).
A federal court must consider a motion to dismiss pursuant to Rule 12(b)(1) before any
other challenge because a court must have subject matter jurisdiction before determining the
validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). The
party asserting jurisdiction constantly bears the burden of proof that the jurisdiction does in fact
exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Where the motion to
dismiss is based on the complaint alone, the court must decide whether the allegations in the
complaint sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger,
644 F.2d 521, 523 (5th Cir. 1998).
Rule 12(b)(6) standard
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 a 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) (internal quotation marks omitted) (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)); 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; Colony Ins. Co., 647 F.3d at 252. 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 wellpleaded 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, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Rule 12(c) standard
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the
pleadings after the pleadings are closed, but early enough not to delay trial. Fed. R. Civ. P. 12(c).
“The standard for deciding [a Rule 12(c)] motion is the same as that for a Rule 12(b)(6) motion
to dismiss for failure to state a claim.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007). “A motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc. 528 F.3d 413, 418
(5th Cir. 2008) (citation omitted).
The Court first addresses Plaintiff’s argument that the Motion is untimely, and then
determines whether each of Plaintiff’s claims must be dismissed pursuant to Rules 12(b)(1) or
Timeliness of the Motion
Plaintiff argues that the Motion is untimely because Defendant previously filed an
Answer. See Resp. 2-5. Motions raising defenses under Rule 12(b) “must be made before
pleading.” Fed. R. Civ. P. 12(b). Defendant filed the Answer, which is a responsive pleading, on
August 2, 2013, and filed the Motion on February 26, 2014. The Motion is therefore untimely.
Plaintiff raises a number of underdeveloped arguments as to the implications of the
Motion’s untimeliness. See Resp. 2-5. Plaintiff appears to argue that the Court must treat the
Motion as a motion for judgment on the pleadings or a motion for summary judgment, or that
Defendant has waived the defenses it now asserts, such that in either case, the Court must deny
the Motion to allow Plaintiff an opportunity to conduct discovery. See id.
Plaintiff’s arguments fail. First, “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “Subject-matter
jurisdiction cannot be forfeited or waived.” Iqbal, 556 U.S. at 671. The untimeliness of the
Motion is thus no bar to considering its arguments that the Court lacks subject matter
Second, a district court may – as Plaintiff indeed argues – construe an untimely Rule
12(b)(6) motion as a Rule 12(c) motion for judgment on the pleadings. Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999); Martinez v. City of Weslaco Tex., Civil Action No. 7:12-CV-417,
2013 WL 2951060, at *1 (S.D. Tex. June 14, 2013). A defendant may assert by a Rule 12(c)
motion that the plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(h)(2)(B); see Greninger, 188 F.3d at 324. Such a motion is timely so long as it is “early
enough not to delay trial.” Fed R. Civ. P. 12(c). The Case is not set for trial until September 26,
2013, so entertaining a Rule 12(c) motion at this time poses no risk of delaying the trial. The
Court accordingly construes the Motion, to the extent it argues that Plaintiff has failed to state a
claim upon which relief can be granted, to be a Rule 12(c) motion for judgment on the pleadings.
See Greninger, 188 F.3d at 324. Plaintiff’s contention that the Court should deny the Motion
because she is entitled to conduct discovery is without merit.
Motion to dismiss under Rules 12(b)(1) and 12(c)
Defendant raises challenges to the Court’s subject matter jurisdiction under Rule 12(b)(1)
and to the sufficiency of Plaintiff’s allegations under Rule 12(c). The parties’ dispute over the
Court’s subject matter jurisdiction revolves around whether the United States has waived its
sovereign immunity with regard to each of Plaintiff’s causes of action. The Court therefore first
explains the general nature of sovereign immunity and its applicability in FTCA cases, and then
analyzes each of Plaintiff’s claims in light of those principles.
“As the sovereign, the United States is immune from suit unless, and only to the extent
that, it has consented to be sued.” Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994)
(citation omitted). “Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the terms of the
United States’ consent to be sued in any court define that court’s jurisdiction to entertain the
suit.” Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994) (quotation marks and citations
Through the FTCA, 28 U.S.C. §§ 2671-80, the United States waived its sovereign
immunity under some circumstances. Id. § 2674. “The FTCA imposes liability upon the United
States for the tortious conduct of its employees, when acting within the course and scope of their
employment, in the same manner and to the same extent as a private individual under like
circumstances.” Hebert v. United States, 438 F. 3d 483, 486 (5th Cir. 2006) (citing 28 U.S.C. §§
2674, 1346). However, Congress imposed special administrative requirements on parties wishing
to sue the United States, and explicitly preserved the United States’ sovereign immunity for
certain intentional torts committed by its employees. 28 U.S.C. §§ 2675(a), 2680(h).
First, under circumstances such as those here, one may not sue the United States unless
they first present their claim to the appropriate federal agency and the agency either finally
denies it or fails to dispose of it within six months. See id. § 2675(a). As discussed, the Court
dismissed Plaintiff’s earlier lawsuit against Defendant because Plaintiff failed to exhaust her
administrative remedies. See Order, Grost v. Terhakopian, No. 3:12-CV-114-KC (W.D. Tex.
July 12, 2012), ECF No. 11. Plaintiff has now attached to her Response an administrative claim
which she filed with WBAMC on June 21, 2012, and a letter dated July 2, 2012, acknowledging
receipt of the claim. See Resp., Ex. B. The letter notes that Plaintiff may, per the FTCA, file suit
six months after filing her administrative claim. See id. Plaintiff filed the Case on May 8, 2013,
more than six months after she filed her administrative claim. Plaintiff avers that she thereby
“met the jurisdictional requirements of 28 U.S.C. 2675(a),” which Defendant does not dispute.
See Resp. 8; Reply 1-6. The Court accordingly holds that Plaintiff has exhausted her
administrative remedies and may file suit against Defendant under the FTCA.
Second, the FTCA excepts from its waiver of sovereign immunity “[a]ny claim arising
out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. §
2680(h) (emphasis added). To determine whether a claim “arises out of” one of the enumerated
intentional torts, a court must “focus on the conduct upon which the plaintiff's claim is based.”
Truman, 26 F.3d at 594.
If the conduct upon which a claim is based constitutes a claim arising out of any
one of the torts listed in section 2680(h), then the federal courts have no
jurisdiction to hear that claim. Even if a plaintiff styles a claim so that it is not one
that is enumerated in section 2680(h), the plaintiff’s claim is still barred when the
underlying governmental conduct essential to the plaintiff's claim can fairly be
read to arise out of conduct that would establish an excepted cause of action.
Id. (quotation marks and citations omitted).
Thus, a plaintiff may not avoid the § 2680(h) bar by “framing his complaint in terms of
the government’s negligent failure to prevent the excepted harm.” Id. at 594-95 (citing McNeily
v. United States, 6 F.3d 343, 347 (5th Cir. 1993)). Such a negligence claim “arises out of” the
excepted intentional tort, and is therefore barred. See id. (citing Garcia v. United States, 776 F.2d
116 (5th Cir. 1985)). However, “[s]o long as some aspect of the conduct upon which a plaintiff
bases a tort claim does not constitute a tort listed in section 2680(h), the suit is not barred.” Id. at
595. In other words, “in cases in which the facts alleged in a complaint have two distinct aspects
that may give rise to two similar torts,” the fact that one such tort is barred by § 2680(h) does not
mean that the other tort is also barred. See id. “Although there is no justification for any court to
read exemptions into the [FTCA] beyond those provided by Congress, the exceptions that do
appear in the FTCA must be strictly construed in favor of the government.” Id. at 594. “The
question of whether the United States has waived sovereign immunity pursuant to the FTCA
goes to the court’s subject-matter jurisdiction, and may therefore be resolved on a Rule 12(b)(1)
motion to dismiss.” Willoughby v. United States ex rel. U.S. Dep’t of the Army, 730 F.3d 476,
479 (5th Cir. 2013) (citation omitted).
The Court now considers in turn whether each of Plaintiff’s causes of action must be
dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(c). “When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack on the merits.” Id. (citation omitted).
Therefore, where applicable, the Court first addresses Defendant’s attacks on the Court’s subject
matter jurisdiction, such as those based on sovereign immunity, before addressing the sufficiency
of Plaintiff’s allegations.
Tortious interference with contract
The FTCA preserves the sovereign immunity of the United States for claims “arising out
of . . . interference with contract rights.” 28 U.S.C. § 2680(h). Defendant argues that Plaintiff’s
claim for “interference with [her] business and occupation” must therefore be dismissed. See
Mot. 5. Plaintiff argues that she has “alleged tortious interference with her contract with her third
party employer – not the United States[,]” and that this sort of claim is not barred because it is
“not listed as a statutory exception under Section 2680(h) of the [FTCA].” Resp. 7-8.
Plaintiff’s argument does not help her cause. As noted above, the plain terms of the
FTCA bar claims “arising out of . . . interference with contract rights.” 28 U.S.C. § 2680(h). To
the extent Plaintiff argues, as she appears to, that this provision bars claims arising from the
United States’ interference with its own contracts, but allows claims for the United States’
interference with contracts to which it is not a party, she is incorrect. As the Fifth Circuit has
explained, “interference by the government with contract rights existing between the government
and an FTCA plaintiff is merely breach of contract, not a tort at all. Thus, § 2680(h) only applies
to contracts to which the government is not a party, because only interference with those
contracts gives rise to an action sounding in tort.” Williamson v. U.S. Dep’t of Agric., 815 F.2d
368, 378 n.13 (5th Cir. 1987) (emphasis added); see Vander Zee v. Reno, 100 F.3d 952, 1996
WL 625346, at *4 (5th Cir. 1996) (holding that the FTCA barred a claim alleging that the United
States interfered with the plaintiff’s contract with his private employer).
Moreover, the FTCA bars claims for interference with both existing and prospective
contracts. See Bosco v. U.S. Army Corps of Eng’rs, Fort Worth Dist., 611 F. Supp. 449, 453-54
(N.D. Tex. 1985) (citing Art-Metal U.S.A., Inc. v. United States, 753 F.2d 1151, 1154-55 (D.C.
Cir. 1985)). Thus, Plaintiff’s claim is barred regardless of whether she complains that Defendant
interfered with her existing contract with Spectrum or prevented her from contracting with other
potential employers. See id.; Am. Compl. 6 (alleging that Defendant has interfered with or
continues to interfere with Plaintiff’s “past and future employers”).
Similarly, although tortious interference with business relations is an independent cause
of action under Texas law, the FTCA bars it because it arises out of interference with contract
rights. See Bosco, 611 F. Supp. at 453-54 (noting that “[t]he distinction is one without a
difference  for purposes of the FTCA exceptions”) (citing C.F. & I. Steel Corp. v. Peter Sublett
& Co., 623 S.W.2d 709, 715 (Tex. App. 1981)); Maibie v. United States, No. 3-07-CV-0858-D,
2008 WL 4488982, at *3 (N.D. Tex. Oct. 7, 2008). Plaintiff’s claim is therefore barred regardless
of whether she labels it “malicious interference with the business and occupation of Plaintiff” or
“tortious interference with her lawful business and occupation,” as she does in the Amended
Complaint, or “tortious interference with her contract,” as she does in the Response. See Am.
Compl. 7; Resp. 7. In sum, however Plaintiff characterizes or labels this cause of action, it is
barred by the FTCA because it arises out of interference with contract rights.
Intentional infliction of emotional distress
The parties dispute whether the United States has waived its sovereign immunity
with regard to claims for intentional infliction of emotional distress (“IIED”). IIED is not
one of the intentional torts listed in § 2680(h) for which the United States explicitly
retained its sovereign immunity. See 28 U.S.C. § 2680(h). Whether Plaintiff’s IIED claim
is barred therefore turns on whether it arises out of conduct that would establish an
excepted cause of action. See Truman, 26 F.3d at 594. In the event that the FTCA does
not bar Plaintiff’s IIED claim, the parties also dispute whether Plaintiff has stated a claim
for IIED upon which relief can be granted.
Sovereign immunity for IIED claims
Defendant argues that Plaintiff’s IIED allegations arise out of her sincedisclaimed libel and slander allegations. Libel and slander are among the intentional torts
listed in § 2680(h) for which the United States has not waived its sovereign immunity.
Defendant argues that Plaintiff’s IIED claim is therefore barred because “the underlying
governmental conduct essential to the plaintiff’s claim can fairly be read to arise out of
the conduct that would establish an excepted cause of action.”4 Mot. 6 (quoting Truman,
26 F.3d at 594). Plaintiff responds that “[t]he best the Defendant has is a potential overlap
of claims and as set out in Truman, that does not warrant dismissal and bar the Plaintiff
from pursuing a distinct claim arising out of other aspects of the Government’s conduct.”
Resp. 7. Plaintiff does not explain how her claims arise out of aspects of Defendant’s
conduct that do not constitute libel or slander.
The Fifth Circuit held in Truman that a claim for IIED is not necessarily barred by
§ 2680(h). 26 F.3d at 595. In that case, the plaintiff alleged that her supervisor mistreated
her in numerous ways, made offensive comments, criticized her to others, and once
“reached behind himself in a low grabbing manner, aiming his hand towards [the
plaintiff’s] crotch area.” Id. at 593 (quotations marks omitted). The district court held that
the plaintiff’s claims arose out of an assault or a battery, and were thus barred by the
FTCA. See id. at 596. The Fifth Circuit reversed. Because the plaintiff did not allege that
Though the disjointed nature of the Amended Complaint makes it difficult to determine which allegations underlie
each cause of action, the Court concludes that all of Plaintiff’s allegations are intended to support her IIED claim. In
any case, Defendant is incorrect to assert that “[a]part from her grievance that Defendant ‘severely limited her
patient contact,’ the only factual allegations Plaintiff makes in her Complaint are those that concern the allegedly
false statements made by Defendant’s employees.” Mot. 5-6. Plaintiff also alleges, albeit in a conclusory manner,
that Defendant’s employees abused, harassed, threatened, and mistreated her, subjected her to offensive conduct,
caused her to be ostracized, and caused her to be without employment.
the supervisor’s actions resulted in offensive contact or fear of imminent offensive
contact – which are critical elements of assault and battery – the underlying conduct was
not assault or battery. Id. The district court had also held that the plaintiff’s suit had to be
dismissed in its entirety because the offensive behavior she alleged included three
instances of slander. Id. The Fifth Circuit reversed as to that holding as well. Because the
plaintiff’s allegations went far beyond the three instances of slander, those “other aspects
of the conduct pleaded c[ould] form the basis for a suit brought under the FTCA.” Id.
Thus, because the underlying governmental conduct was not the excepted torts of assault
or battery, and at least some of it was not the excepted tort of slander, the plaintiff’s IIED
claim was not barred. See id. at 597. Therefore, Plaintiff’s IIED claim in the Case is
barred only if it arises entirely out of conduct that would establish an excepted cause of
action. See id. at 596-97.
Whether the conduct of Defendant and its employees establishes an excepted
cause of action is a question of federal common law. See United States v. Neustadt, 366
U.S. 696, 705-06 (1961). “Although state law governs the scope of the United States’
substantive tort liability, we must look to federal statutory and common law to determine
whether a claim is procedurally barred or excluded under the FTCA.” Schwarder v.
United States, 974 F.2d 1118, 1127 (9th Cir. 1992) (citing Neustadt, 366 U.S. at 705-11);
see Leleux v. United States, 178 F.3d 750, 755 n.2 (5th Cir. 1999) (“It is a matter of
federal law, not state law, whether [an] exception  applies.”) (citations omitted).
To construe the FTCA exceptions, the Court “must turn to the traditional and
commonly understood definition of the tort in question, consulting such appropriate
sources as the Restatement (Second) of Torts and federal cases construing the exception.”
Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir. 1991) (quotation marks and
citations omitted). “State law is relevant only in determining the standard of negligence to
apply in an FTCA case that has not been exempted under § 2680(h).” Leleux, 178 F.3d at
755 n.2 (citations omitted). Both the Fifth Circuit and district courts within the circuit
have turned to the Restatement’s definition of excepted torts to determine whether claims
under the FTCA were barred by § 2680(h). See, e.g., Leleux, 178 F.3d at 755-56; Truman,
26 F.3d at 596; Griego v. United States, No. EP-99-CA-164-DV, 2000 WL 33348763, at
*1 (W.D. Tex. June 2, 2000); Bosco, 611 F. Supp. at 453.
However, notwithstanding the preference to use cases applying federal common
law and other appropriate sources like the Restatement to determine the scope of the
FTCA exceptions, courts sometimes draw from state law when it will assist in shedding
light upon “the traditional and commonly understood definition of the tort in question.”
Talbert, 932 F.2d at 1066 (quotation marks and citations omitted). See, e.g., Davila v.
United States, 713 F.3d 248, 261-62 (5th Cir. 2013) (using Texas law on assault and false
imprisonment); Truman, 26 F.3d at 596 (using both the Restatement and Texas law on
battery); Knowles v. United States, ex rel. F.B.I., No. 4:07-CV-578, 2009 WL 2882956,
at *5 (E.D. Tex. Aug. 31, 2009) (using Texas law on defamation).
The Court finds that Texas law on libel and slander is instructive here because, in an
apparent attempt to plead her now-disavowed claims for libel and/or slander, Plaintiff explicitly
alleged all the elements of libel and slander under Texas law. Additionally, Texas courts
regularly cite the Restatement when discussing the Texas law of defamation, which encompasses
both libel and slander. See, e.g., Neely v. Wilson, 418 S.W.3d 52, 61 (Tex. 2013); GoDaddy.com,
LLC v. Toups, --- S.W.3d ----, 2014 WL 1389776, at *5 (Tex. App. Apr. 10, 2014); World Car
Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457, 2013 WL 3963700, at *5 (Tex. App. July
31, 2013). Because Texas law draws heavily from the Restatement, the Court believes that Texas
libel and slander law is, for the purpose at hand, a reasonable proxy for the federal common law
of FTCA exceptions as it pertains to libel and slander claims.
Under Texas law, the elements of libel are “that the defendant (1) published a statement;
(2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the
plaintiff was a public official or public figure, or negligence, if the plaintiff was a private
individual, regarding the truth of the statement.” Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d
716, 727 (Tex. App. 2013) (quoting WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998)) (quotations marks omitted). Slander is a defamatory statement that is orally
communicated or published to a third person without legal excuse. Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (citations omitted). A statement is defamatory when
a person of ordinary intelligence would interpret it in a way that tends to injure the subject's
reputation and thereby expose the subject to public hatred, contempt, or ridicule, or financial
injury, or to impeach the subject's honesty, integrity, virtue, or reputation. Rehak Creative Servs.,
404 S.W.3d at 728 (citing Tex. Civ. Prac. & Rem. Code. Ann. § 73.001; Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 114–15 (Tex. 2000)).
Plaintiff pleaded that the employees “circulated written materials and made
statements” and “published . . . statements with actual malice” which they “knew were
false” and which “constituted defamation” because they “impeach the Plaintiff’s honesty,
professional reputation, and character.” Am. Compl. 3-4. If Plaintiff’s conclusory
allegations are true, Defendant’s employees committed libel and/or slander under Texas
law. See Rehak Creative Servs., 404 S.W.3d at 727-28 (citations omitted); Randall’s
Food Mkts. 891 S.W.2d at 646 (citations omitted). Moreover, though Plaintiff disclaimed
or abandoned her libel and slander causes of action in her Response, she continues to
maintain that she alleged “acts of libel or slander” in support of her IIED claim. Resp. 6.
The Court concludes that Plaintiff’s recitation of the elements of libel and slander under
Texas law, coupled with her averment that she alleged “acts of libel and slander,”
demonstrate that at least some of the conduct underlying Plaintiff’s IIED claim falls
squarely within the “commonly understood definition” of libel and slander under federal
common law. See Talbert, 932 F.2d at 1066 (quotation marks and citations omitted). Any
claims arising out of that conduct are therefore barred by the FTCA. See Truman, 26 F.3d
The question remains, however: which acts underlying Plaintiff’s vague and
conclusory IIED claim arise out of libel or slander? The Court concludes that the
allegations concerning the publication of false statements about Plaintiff arise out of
conduct that would establish libel or slander. See Rehak Creative Servs., 404 S.W.3d at
727-28 (citations omitted); Randall’s Food Mkts. 891 S.W.2d at 646 (citations omitted).
Specifically, Plaintiff’s allegations that Defendant’s employees “manufacture[d]
complaints about Plaintiff in an effort to have her employment terminated” and “made
false accusations to the Chief of the Behavioral Health Department and to [Spectrum]”
therefore arise from libel or slander. Am. Compl. 4, 5; see Rehak Creative Servs., 404
S.W.3d at 727-28 (citations omitted); Randall’s Food Mkts. 891 S.W.2d at 646 (citations
omitted). Plaintiff’s IIED claim is therefore barred by the FTCA to the extent it arises
from those or similar acts. See Truman, 26 F.3d at 594; Cox v. United States, No. C-07235, 2007 WL 1795711, at *3 (S.D. Tex. June 20, 2007) (IIED allegation based on “false
publication” barred because it arose out of defamation); Doe v. United States, 83 F. Supp.
2d 833, 839 (S.D. Tex. 2000) (IIED claim barred because plaintiffs did not “allege any
government misbehavior other than the publication of  false information.”).
By contrast, the allegations that Defendant’s employees abused, harassed,
threatened, and mistreated Plaintiff, subjected her to offensive conduct, caused her to be
ostracized, and caused her to be without employment do not arise out of libel or slander
because they do not concern the publication of false statements about Plaintiff. See Rehak
Creative Servs., 404 S.W.3d at 727-28; Randall’s Food Mkts, 891 S.W.2d at 646.
Because those allegations do not arise from libel or slander, they are not barred by the
intentional tort exception to the FTCA. See Truman, 26 F.3d at 594-97. Thus, because
“aspects of the conduct alleged in [Plaintiff’s] complaint do not constitute a tort
enumerated in section 2680(h),” her IIED claim is not barred to the extent it is based on
that conduct. Id. at 596.
Sufficiency of Plaintiff’s remaining IIED allegations
under Rule 12(c)
Though Plaintiff’s IIED allegation is not barred to the extent it is not rooted in libel or
slander, it must nonetheless be dismissed because it fails to state a claim upon which relief can
Under the FTCA, the United States is liable in tort if a private person would be liable
under “the law of the place where the act or omission occurred.” 28 U.S.C § 1346(b)(1); see id. §
2674. Because the events in question occurred in Texas, the Court applies Texas law. See
Meyer, 510 U.S. at 478 (“[Section] 1346(b)’s reference to the ‘law of the place’ means law of the
State—the source of substantive liability under the FTCA.”) (citations omitted); Hawkins v.
United States, No. EP-93-CA-193-H, 1994 WL 802850 at *1, *3-4 (W.D. Tex. Nov. 29, 1994)
(applying Texas law to IIED claim under the FTCA where the events in question occurred in
To recover for intentional infliction of emotional distress under Texas law, “a plaintiff
must prove that (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct
was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress;
and (4) the emotional distress suffered by the plaintiff was severe.” Twyman v. Twyman, 855
S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct is “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Randall’s Food Mkts., 891 S.W.2d
at 644 (quotation marks and citations omitted). “Liability does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” Tyson v. Austin Eating
Disorders Partners, LLC, No. A-13-CA-180-SS, 2013 WL 3197641, at *8 (W.D. Tex. June 21,
2013) (citing Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004)).
In the workplace context, conduct “including demeaning comments, unfair criticism,
demotion, termination or other harassment, is not sufficiently ‘extreme and outrageous,’ however
deplorable it may be.” Cardiel v. Worldwide Tech Holding Co., No. EP-11-CV-256, 2011 WL
3047712, at *2 (W.D. Tex. July 22, 2011) (Cardone, J.) (citing Bird v. Simpson Inv., 121 F.3d
705, at *7 (5th Cir. 1997) (unpublished)). The bar for outrageous conduct is high; “[i]t is only in
the most unusual of employment cases that an employer’s conduct rises to the level of extreme
and outrageous conduct.” Id. (citing GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 613 (Tex. 1999)).
“Thus, to establish a cause of action for intentional infliction of emotional distress in the
workplace, ‘an employee must prove the existence of some conduct that brings the dispute
outside the scope of an ordinary employment dispute and into the realm of extreme and
outrageous conduct.’” Id. (quoting GTE Sw., 998 S.W.2d at 613).
Assuming without deciding that Plaintiff has adequately pleaded that Defendant’s
employees acted recklessly or intentionally and caused her severe emotional distress, her IIED
claim fails because she does not allege facts showing that the employees’ conduct was “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Randall’s Food Mkts., 891 S.W.2d at 644.
Plaintiff alleges only in the vaguest terms that she suffered harassment, verbal abuse,
threats, offensive behavior, mistreatment, favoritism of other workers, ostracism, exclusion from
professional activities, limitation of patient contact, and obstruction of her employment
prospects. However, nowhere does Plaintiff straightforwardly state what Defendant’s employees
said or did to cause her severe emotional distress. “[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. Thus,
though Plaintiff may have been subjected to troubling conduct, the Court cannot simply accept
her conclusion that the employees’ behavior constituted, for instance, “harassment” or
“mistreatment,” let alone that it was sufficiently extreme and outrageous so support a claim for
IIED. Because Plaintiff does not adequately plead the element of “extreme and outrageous”
conduct, her IIED claim must be dismissed in its entirety. See Randall’s Food Mkts., 891 S.W.2d
at 644; Twombly, 550 U.S. at 555.
Plaintiff attempts to allege that Defendant is liable to her in premises liability. She fails to
state a claim for which relief can be granted because she does not allege key elements of a
premises liability claim.
Because the events in question occurred in Texas, the Court applies Texas law. See
Viveros v. United States, 494 F. App’x 437, 439 (5th Cir. 2012) (applying Texas law to a
premises liability claim under the FTCA where the events in question occurred in Texas);
Antunez v. United States, No. 05-CV-55, 2006 WL 2933885, at *1 (S.D. Tex. 2006) (same).5
Under Texas law, an invitee must prove the following to establish a claim for premises liability:6
(1) Actual or constructive knowledge of some condition on the premises by the
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner/operator did not exercise reasonable care to reduce or
eliminate the risk; and
(4) That the owner/operator's failure to use such care proximately caused the
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
Plaintiff fails to allege that Defendant was aware of a condition on the premises which
posed an unreasonable risk of harm. Instead, Plaintiff merely alleges that she was “professionally
There is some authority from district courts in this circuit indicating that the FTCA bars general premises liability
claims against the United States where the plaintiff does not allege that the dangerous condition was caused by the
negligence of a specific federal employee. “By expressly waiving immunity for the tortious conduct of its
employees, and only its employees, the FTCA requires a more focussed approach that requires the courts to
determine the relationship to the United States of the actor whose negligence might be imputed to the government
under state law.” Cupit v. United States, 964 F. Supp. 1104, 1112 (W.D. La. 1997) (quoting Berkman v. United
States, 957 F.2d 108, 113 (4th Cir. 1992)); see Longino v. U.S. Dep’t of Agric., 912 F. Supp. 2d 424, 428 (W.D. La.
2012) (collecting cases and noting that the Fifth Circuit has not ruled on the issue); Jamison v. United States, 491 F.
Supp. 2d 608, 615-20 (W.D. La. 2007) (collecting cases). The Court need not resolve this question because Plaintiff
fails to state a claim for premises liability.
It is not clear in the first instance whether Plaintiff should be considered an invitee and Defendant a landowner, or
Plaintiff an employee and Defendant an employer. However, that distinction is unimportant under the circumstances,
because “[a]lthough the two fields of law (landowners-invitee and master-servant) are entirely separate, Texas courts
generally apply premises-liability principles in suits by injured employees.” Austin v. Kroger Tex. L.P., --- F.3d ----,
2014 WL 1142325, at *4 n.3 (5th Cir. Mar. 21, 2014) (quotation marks and citations omitted).
harassed, verbally abused, threatened, and subjected to offensive conduct by Defendant’s
employees,” recites in paraphrase the elements of premises liability, and concludes that
“Defendant owed a duty to Plaintiff not to cause harm and damage to her as an invitee at its
hospital.” See Am. Compl. 1-2. Had Plaintiff attempted to define Defendant’s employees’
conduct as a “condition on the premises,” her claim would fail because “a possessor of land [may
be] subject to liability for physical harm caused to his invitees by a condition of the land.”
Corbin v. Safeway Stores, Inc. 648 S.W.2d 292, 295 (Tex. 1983) (quoting Restatement (Second)
of Torts § 343 (1965)) (emphasis added); accord Bustamante v. Gonzalez, No. 04-09-00481-CV,
2010 WL 2298841, at *4 (Tex. App. June 9, 2010) (citation omitted); Strunk v. Belt Line Road
Realty Co., 225 S.W.3d 91, 100 (Tex. App. 2005) (citation omitted). Nowhere does Plaintiff so
much as imply that she suffered any physical harm due to Defendant’s employees’ alleged
misconduct, or that the harm she suffered was the result of a condition on the land. As such, her
premises liability claim consists of nothing more than “labels and conclusions,” and it must be
dismissed. See Twombly, 550 U.S. at 555.
29 U.S.C. § 660
Plaintiff alleges that Defendant and its employees violated 29 U.S.C. § 660 by
“retaliating against Plaintiff for reporting poor patient care, violations of regulations and deficits
in clinical safety to the proper authorities.” 29 U.S.C. § 660 is a section of the Occupational
Safety and Health Act (the “Act”) which, in pertinent part, prohibits discharging or
discriminating against any employee for exercising any right afforded by the Act. Id. § 660(c)(1).
An employee who believes he has been discharged or discriminated against in violation of that
prohibition may, within thirty days of the violation, file a complaint with the Secretary of Labor
(the “Secretary”). Id. § 660(c)(2). The Secretary must investigate the complaint, and, if he
determines that the relevant provisions of the Act have been violated, he must bring an action in
federal court against the perpetrator of the prohibited discrimination. Id.
The Fifth Circuit has held that because the Act permits only the Secretary to bring an
action in response to a violation of the Act’s anti-retaliation provision, the Act does not create a
private right of action. See George v. Aztec Rental Ctr., 763 F.2d 184, 186 (5th Cir. 1985)
(holding that “there is no private cause of action under federal law for a private employer's
retaliatory discharge of an employee contrary to [§ 660]”); Martinez v. DuPont Powder Coatings
USA, Inc., Civil Action No. H-06-1449, 2006 WL 1789057, at *2 (S.D. Tex. June 26, 2006).
Because there is no private right of action under § 660, Plaintiff’s allegation that Defendant
violated § 660 must be dismissed for failure to state a claim upon which relief can be granted.7
10 U.S.C. § 2409
Plaintiff asserts for the first time in her Response that she
was the employee of a government contractor [and] [a]s such she has an absolute
right to file complaints against federal employees. Under 10 U.S.C. §2409,
Plaintiff is entitled to protection from reprisal for disclosure of information
relating to poor patient care at [WBAMC]. Plaintiff has complied with the statute
and now brings this Whistle Blower retaliation action.
The Court understands Plaintiff to assert a cause of action for the violation of 10 U.S.C. § 2409.
Generally, “[a]llegations outside of the Petition may not be considered by the court” on a
motion to dismiss. Renfrow v. CTX Mortg. Co., LLC, Civil Action No. 3:11-CV-3132-L, 2012
WL 3582752, at *4 (N.D. Tex. Aug 20, 2012) (citing St. Paul Ins. Co. v. AFIA Worldwide Ins.
Co., 937 F.2d 274, 279 (5th Cir. 1991)). That said, when a plaintiff’s response to a motion to
dismiss contains new allegations, the court should treat the response as a motion to amend the
Though the Court dismisses Plaintiff’s § 660 claim for the above-stated reason, the Court additionally notes that
the United States is apparently not subject to suit under this provision. See 29 U.S.C. § 652(4)-(6).
pleadings. See Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008)
(citing, inter alia, Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th Cir. 1993)) (holding
that it is proper for district courts to treat new claims raised in response to dispositive motions as
motions to amend the pleadings).
Assuming without deciding that Plaintiff may amend her pleading to allege a violation of
§ 2409, she fails to state a claim upon which relief can be granted. Section 2409 prohibits
retaliation against employees of defense contractors who report misconduct related to
Department of Defense contracts, or any “substantial and specific danger to public health or
safety,” to certain specified people. See 10 U.S.C § 2409(a)(1). Employees who believe they
were subject to retaliation in violation of the statute may file a complaint with the Inspector
General of the Department of Defense, who must investigate the complaint and submit a report
on the findings of the investigation to the head of the agency. See id. § 2409(b). The head of the
agency must then determine whether to deny or grant relief, which can consist of, for instance,
ordering the contractor to abate the reprisal. See id. § 2409(c)(1). Only if the head of the agency
fails to issue an order within a certain period of time, or issues an order denying relief, “the
complainant shall be deemed to have exhausted all administrative remedies with respect to the
complaint, and the complainant may bring a de novo action at law or equity against the
contractor to seek compensatory damages and other relief available under this section in the
appropriate district court of the United States.” Id. § 2409(c)(2) (emphasis added).
Here, Plaintiff has not submitted a complaint to the Inspector General of the Department
of Defense, and the other administrative prerequisites to filing suit therefore remain unfulfilled.
See 10 U.S.C. 2409(c)(2). Her letter to a member of the United States Congress, see Resp., Ex.
A, might be the sort of report that triggers § 2409’s protection against reprisals, but only a
complaint to the Inspector General triggers the statute’s private right of action.8 See 10 U.S.C.
§2409(b)-(c). Moreover, § 2409 allows for suit only “against the contractor” that carried out the
prohibited reprisal. Id. § 2409(c)(2). Though Plaintiff was employed by a contractor, the only
defendant in the Case is the United States, which is not subject to suit under § 2409 because it is
not a contractor. See Manion v. Spectrum Healthcare Res., --- F. Supp. 2d ----, 2013 WL
4014976, at *4 (E.D.N.C. Aug. 6, 2013). Plaintiff has not sued any contractor in the Case. The
Court therefore dismisses Plaintiff’s cause of action for the violation of 10 U.S.C. § 2409
because she fails to state a claim upon which relief can be granted.
Hostile work environment and retaliation
Plaintiff alleges that Defendant “creat[ed] a hostile work environment in the hospital” and
that “through continued biased interventions that ostracized the Plaintiff, a hostile work
environment was created.” Am. Compl. 3, 6. Plaintiff also alleges that Defendants’ employees
“set forth a plan of retaliation by severely limiting her patient contact” and “further retaliated by
causing the staff on 11 West to ostracize her.” Am. Compl. 5, 6. The Court understands Plaintiff
to attempt to assert causes of action for retaliation and hostile work environment pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and/or the Texas
Commission on Human Rights Act (“TCHRA”), Texas Labor Code §§ 21.001, et seq.
Title VII generally prohibits private employers from discriminating against employees on
the basis of race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a). Though the
Section 2409 was amended in 2008 to include a private right of action. See Act of Jan. 8, 2008, Pub. L. No. 110181, 122 Stat 3. Thus, Defendant’s argument that the statute does not afford a private right of action is incorrect, and
the case she cites in support of that proposition is no longer good law. Based upon the Court’s research, the only
case that directly addresses the private right of action under the current version of the statute is Manion v. Spectrum
Healthcare Res., --- F. Supp. 2d ----, 2013 WL 4014976, at *4 (E.D.N.C. Aug. 6, 2013).
United States is not subject to Title VII in the first instance, see id. § 2000e(b), a separate
provision mandates that all personnel actions affecting certain federal employees be made free
from such discrimination.9 42 U.S.C. § 2000e-16(a). Title VII also generally outlaws retaliating
against private employees for opposing any practice prohibited by Title VII, making a charge
under Title VII, or participating in any manner in any proceeding under Title VII. See id. §
2000e-3(a). Although the sections of Title VII that are applicable to federal employees do not
expressly prohibit retaliation or reference the general anti-retaliation provision in § 2000e-3(a),
“it is clear that Congress incorporated the protections against retaliation in its enactment of §
2000e–16,” such that “[i]n short, § 2000e–16 bars retaliation” against federal employees as well.
Brazoria Cnty., Tex. v. Equal Emp’t Opportunity Comm’n, 391 F.2d 685, 690 (5th Cir. 2004).
Federal employees who believe they were subject to unlawful discrimination or retaliation may,
under some circumstances and after fulfilling certain prerequisites, file suit in federal court. See
42 U.S.C. §§ 2000e-5; 2000e-16.
As an initial matter, Plaintiff may only sue Defendant under Title VII if she was
Defendant’s employee. See id. § 2000e-16(a); Luna v. Roche, 89 F. App’x 878, 881 (5th Cir.
2004) (“[E]mployment discrimination claims [under Title VII] require the existence of an
employer-employee relationship.”). Although Plaintiff was employed by Spectrum, not by
Defendant, entities that employ contractors may have an employment relationship for Title VII
purposes with the contractor’s employees. See Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5
F.3d 117, 118-19 (5th Cir. 1993); Garcia v. Shell Oil Co., Civil Action No. H-08-1734, 2009 WL
2047898, at *4-5 (S.D. Tex. July 10, 2009).
Among the employees included in this provision are those “employed in military departments” such as the
Department of the Army. See id; 5 U.S.C. § 102. To the extent Plaintiff was an employee of Defendant, she was an
employee of the Department of the Army, which operates WBAMC. See Resp., Ex. B.
To determine whether an employment relationship exists within the meaning of Title VII,
the Fifth Circuit applies a “hybrid economic realities/common law control test.” Deal, 5 F.3d at
118-19 (citation omitted). “The right to control an employee’s conduct is the most important
component of this test.” Id. (citation omitted). The right to control depends upon “whether the
alleged employer has the right to hire and fire the employee, the right to supervise the employee,
and the right to set the employee’s work schedule. Id. (citation omitted). The “economic
realities” component of the test focuses on “whether the alleged employer paid the employee’s
salary, withheld taxes, provided benefits, and set the terms and conditions of employment.” Id.
(citation omitted). The same analysis applies when the alleged employer is the United States. See
Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985).
In this case, the Court lacks sufficient information to apply the Deal test to determine
whether Plaintiff had an employment relationship with Defendant. Because Plaintiff’s
employment discrimination claims fail in any event, the Court assumes without deciding that
Plaintiff was Defendant’s employee for Title VII purposes.10
Federal employees wishing to file suit under Title VII must clear two administrative
hurdles: they must first consult an agency Equal Employment Opportunity counselor, after which
they must file a formal complaint with the Equal Opportunity Office of the agency. See 29 CFR
§§ 1614.105-106; Pacheco v. Mineta, 448 F.3d 783, 786-88 (5th Cir. 2006); Ramsey v.
Henderson, 286 F.3d 264, 269 (5th Cir. 2002). The employee may sue only if they are aggrieved
Plaintiff stresses in her Response that she was never an employee of the United States, and that “she worked
exclusively for Spectrum.” Resp. 1. Defendant argues that by this statement, Plaintiff “appears to withdraw her
employment discrimination claim.” Reply. 2 n.3. However, Plaintiff does not delve into the legal implications of her
claim that she “worked exclusively for Spectrum,” and does not otherwise explicitly disavow or retract her hostile
work environment and retaliation claims. Because it is possible that Plaintiff might qualify as a Title VII employee
under the Deal test, the Court declines to construe Plaintiff’s statement as a withdrawal of her employment
by the final disposition of their complaint or by a failure to take action on their complaint within
a specified period of time. “Administrative remedies are exhausted when the federal agency
gives notice of its final action, or when 180 days have passed since the initial formal charge was
filed with the agency.” Thomas v. Napolitano, 449 F. App’x 373, 374-75 (5th Cir. 2011) (citing
42 U.S.C. § 2000e-16(c); Martinez v. Dep’t of U.S. Army, 317 F.3d 511, 513 (5th Cir. 2003);
Munoz v. Aldridge, 894 F.2d 1489, 1493-94 (5th Cir. 1990)).
Plaintiff does not allege that she pursued or exhausted any pertinent administrative
remedies, whether consulting an agency counselor or filing a formal complaint. The Court must
therefore dismiss her Title VII claim because she has failed to exhaust her administrative
remedies. See Pacheco, 448 F.3d at 787-88; 42 U.S.C. § 2000e-16(c).11
Moreover, had Plaintiff exhausted her administrative remedies, her employment
discrimination claims would fail on the merits.
“A hostile work environment claim . . . necessarily rests on an allegation that an
employer has created a working environment heavily charged with discrimination.” Raj. v. La.
State Univ., 714 F.3d 322, 330-31 (5th Cir. 2013) (citing Rogers v. EEOC, 454 F.2d 234, 238
(5th Cir. 1971) (quotation marks omitted). Such a claim is properly dismissed when the plaintiff
“does not allege any facts that link the alleged harassment” with their membership in a protected
group. Id. The Amended Complaint does not allege any connection between the mistreatment
“There is disagreement in this circuit on whether a Title-VII prerequisite, such as exhaustion, is merely a
prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject
matter jurisdiction.” Pacheco, 448 F.3d at 788 n.7 (collecting and comparing cases). Because waiver and estoppel
are not at issue here, the Court need not determine whether Plaintiff’s failure to exhaust her administrative remedies
deprives the Court of subject matter jurisdiction. See id. (noting that “[b]ecause neither party has a winning waiver
or estoppel argument, we need not take sides in this dispute”).
Plaintiff suffered and her membership in any protected group.12 As such, she “has not pled a
claim of hostile work environment that raises [her] right to relief above the speculative level.” Id.
(quotation marks and citation omitted).
Similarly, a valid retaliation claim requires that the plaintiff demonstrate, among other
things, that she engaged in activity protected by Title VII. Carter v. Target Corp., 541 F. App’x
413, 417 (5th Cir. 2013) (citing Evans v. City of Hous., 246 F.3d 344, 352 (5th Cir. 2001)
(quotation marks omitted)). “An individual engaged in a protected activity if she: (i) made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under Title VII, or (ii) opposed any practice made an unlawful employment practice by
Title VII.” Id. at 417-18 (citing Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000))
(quotation marks omitted); see 42 U.S.C. § 2000e–3(a). Here, Plaintiff did make not a formal
complaint or participate in any proceeding under Title VII. Though she may have opposed
certain practices at WBAMC or protested Defendant’s employees’ treatment of her, nowhere
does Plaintiff so much as imply that she opposed a discriminatory employment practice made
unlawful by Title VII. “A vague complaint that does not reference a discriminatory employment
practice does not constitute a protected activity.” Carter, 541 F. App’x at 418 (affirming
dismissal of retaliation claim where plaintiff “did not make any reference to a discriminatory
Plaintiff attached to her Response a letter she sent to a United States Congressman in 2011. In that letter, she
states that she is a “62 year old female physician, born and raised in Havana, Cuba” and that she is the “most senior
physician on the unit.” Resp., Ex. A at 2-3. She alleges in the letter that Terhakopian’s “age (38) and his birth origin,
Iran (Armenia) are significant factors in his actions against me.” Id. at 2. Plaintiff appears to reference her own age,
gender, and national origin by way of background; nowhere in the letter, let alone in her pleadings, does she imply
that she was mistreated due to her membership in any of those groups. Her allegation that Terhakopian’s age and
national origin caused him to mistreat her is not relevant, as Title VII is concerned with discrimination due to an
employee’s protected status, not with misbehavior caused entirely by the wrongdoer’s own age or background. See
42 U.S.C. § 2000e-16. Thus, Plaintiff’s statements in the letter do not suffice to link the alleged harassment with
Plaintiff’s membership in a protected group.
practice”). Because Plaintiff does not allege that she engaged in a protected activity, she fails to
state a claim for retaliation upon which relief can be granted. See id.
To the extent Plaintiff asserts a TCHRA claim instead of or in addition to her apparent
Title VII claim, it fails either because it is barred by Title VII or because Plaintiff has not
exhausted her administrative remedies.
Title VII creates an “exclusive, pre-emptive administrative and judicial scheme for the
redress of federal employment discrimination.” Brown v. Gen. Serv. Admin., 425 U.S. 820, 82935 (1976). “[T]itle VII provides the exclusive remedy for employment discrimination claims
raised by federal employees.” Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (citations
omitted). “[W]hen a complainant against a federal employer relies on the same facts to establish
a Title VII claim and a non-Title VII claim, the non-Title VII claim is not sufficiently distinct to
avoid preemption.” Pfau v. Reed, 125 F.3d 927, 932 (5th Cir. 1997), vacated on other grounds,
525 U.S. 801 (1998), pertinent holding reinstated on remand, 167 F.3d 228, 229 (5th Cir. 1999)
(per curiam) (citations omitted). Thus, so long as Plaintiff is a federal employee, Title VII
preempts her from establishing any other claim – such as a state law claim under the TCHRA –
using the same facts she relies upon to establish a Title VII claim. See Pfau, 125 F.3d at 932-34;
Pickett v. Chertoff, No. H-06-1092, 2007 WL 43785, at *7 (S.D. Tex. Jan. 5, 2007) (concluding
that federal employee’s claims under “state law are preempted by Title VII because they arise
out of the same facts as the employment discrimination and retaliation claims that she has
asserted under Title VII”).
As discussed above, the Court assumed without deciding that Plaintiff was Defendant’s
employee for Title VII purposes. To the extent Plaintiff asserts a TCHRA claim for “hostile work
environment” and “retaliation,” she surely bases it upon the same skeletal allegations as her Title
VII claim. “[T]itle VII provides the exclusive remedy for employment discrimination claims
raised by federal employees.” Jackson, 99 F.3d at 716. Thus, because Plaintiff uses the “same
facts to establish a Title VII claim and a non-Title VII claim, the non-Title VII claim is not
sufficiently distinct to avoid preemption.” 13 Pfau, 125 F.3d at 932. However, because it is
possible that Plaintiff is not a federal employee for Title VII purposes, and that her TCHRA
claim may not be preempted, the Court briefly explains why her TCHRA claim fails even if it is
not barred by Title VII.
Similar to Title VII, the TCHRA prohibits discrimination based on an employee’s race,
color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.051(a); see
Brown v. CB&I, Inc., No. 09-12-521-CV, 2014 WL 172413, at *4 n.2 (Tex. App. Jan. 16, 2014)
(“The TCHRA is modeled after federal civil rights law.”). The TCHRA establishes an
administrative exhaustion regime similar to Title VII. See Tex. Lab. Code Ann. §§ 21.201-11;
Czerwinski v. Univ. of Tex. Health Sci. Ctr. Sch. Of Nursing, 116 S.W.3d 119, 122 (Tex. App.
2002) (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991)). An
aggrieved employee may file suit only after exhausting the required administrative remedies.
Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir. 2001). Specifically, an employee must first
file a complaint with either the Texas Workforce Commission or the EEOC, and may sue only if
the relevant agency dismisses the complaint or does not act upon it within a specified period of
If any of Plaintiff’s other causes of action were based upon the same facts underlying her hostile work
environment and retaliation claims, those causes of action – and not merely her TCHRA claim – might also be
preempted. See Pfau, 125 F.3d at 932. However, because, as the Court explains below, Plaintiff has failed to
establish a viable Title VII claim, and because her vague allegations leave unclear whether the same nucleus of facts
underlies all her claims, the Court concludes for the purpose of ruling on the Motion that Title VII does not preempt
her other claims.
time. See, e.g., Cisneros v. DAKM, Inc., No. 7:13-CV-556, 2014 WL 258755, at *2 (S.D. Tex.
Jan. 23, 2014) (citing, inter alia, Schroeder, 813 S.W.2d at 485).
Plaintiff does not allege that she has filed a complaint with the Texas Workforce
Commission or the EEOC, or that she has otherwise exhausted her administrative remedies. “If a
complainant fails to exhaust his state administrative remedies, the Texas Human Rights Act
jurisdictionally bars this court from hearing the case.” Grinnell Corp., 235 F.3d at 975; see
Manuel v. Sanderson Farms, Inc., 90 F. App’x 714, 717 (5th Cir. 2004) (holding that the district
court lacked subject matter jurisdiction over claims that were barred by the TCHRA’s exhaustion
requirement). Therefore, in the event that Plaintiff’s TCHRA claim is not barred by Title VII, the
Court must nevertheless dismiss that claim for lack of subject matter jurisdiction because
Plaintiff has failed to exhaust her state administrative remedies. See id.
Plaintiff alleges that Defendant was negligent under the following six theories, which the
Court reorders for analytical convenience, by: (1) “allowing its employees and agents to inflict
emotional distress on its invitees;” (2) “creating a hostile work environment;” (3) “creating an
environment that allowed professional harassment;” (4) “failing to supervise its employees and
agents;” (5) “failing to secure the hospital and provide a safe work environment;” and (6)
“failing to put into place and maintain proper employee procedures.” Am. Compl. 3.
“Under the FTCA, the United States is liable in damages only if a private person would
be liable for the same allegedly negligent act or omission under the laws of the state within
which the act or omission occurred.” Skipper v. United States, 1 F.3d 349, 352 (5th Cir. 1993)
(citations omitted) (applying Texas negligence law to claim under the FTCA where the events in
question occurred in Texas). Because Defendant’s alleged negligence occurred in Texas, the
Court applies Texas law to Plaintiff’s negligence claims. See id. “A cause of action for
negligence in Texas requires three elements. There must be a legal duty owed by one person to
another, a breach of that duty, and damages proximately caused by the breach.” D. Houston, Inc.
v. Love, 92 S.W.3d 450, 454 (Tex. 2002). For the reasons explained below, Plaintiff’s negligence
allegations fail because they are barred in part by the FTCA, and because they otherwise do not
state a claim upon which relief can be granted.
Negligently “allowing its employees and agents to inflict
emotional distress on its invitees”
As explained in the Court’s discussion of Plaintiff’s tortious interference with contract
and IIED allegations, claims against the United States are barred by the FTCA if they arise out of
any of the intentional torts listed in 28 U.S.C. § 2680(h). A claim “arises out of” an excepted tort
if the conduct upon which it is based constitutes an excepted tort. See Truman, 26 F.3d at 594. A
plaintiff may not avoid the § 2860(h) bar by “framing his complaint in terms of the government’s
negligent failure to prevent the excepted harm.” Id. at 594-95 (citing McNeily v. United States, 6
F.3d 343, 347 (5th Cir. 1993)). Such a negligence claim “arises out of” the excepted intentional
tort, and is therefore barred. See id. (citing Garcia v. United States, 776 F.2d 116, 118) (5th Cir.
Plaintiff’s claim that Defendant negligently allowed its employees to inflict emotional
distress upon her self-evidently arises out of her IIED claim. As explained above, Plaintiff’s
IIED claim is barred by the FTCA to the extent it arises out of Defendant’s employees’ false
statements about Plaintiff to others. Plaintiff’s negligence claim based on that libelous or
slanderous conduct is likewise barred by the FTCA. See id. at 594-95. As further explained
above, Plaintiff fails to state a claim for IIED on the basis of Defendant’s employees’ other
conduct. Her negligence claim, which is derivative of that conduct, therefore fails as well.
Additionally, “Texas does not recognize a cause of action for negligent infliction of emotional
distress.” Tolbert v. Otstott, No. 05-12-00024-CV, 2013 WL 3389041, at *2 (Tex. App. July 3,
2013) (citing Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993)). Plaintiff fails to demonstrate
that negligently allowing others to inflict emotional distress is nonetheless somehow actionable.
The Court therefore dismisses this claim.
Negligently “creating a hostile work environment”
To the extent this claim is based upon Plaintiff’s Title VII or TCHRA hostile work
environment claims, those claims fail for the reasons explained above. Her claim that Defendant
negligently created the hostile work environment therefore fails as well.
To the extent Plaintiff complains more abstractly of unwarranted hostility toward her,
there is no recognized tort under Texas law for negligently creating a hostile work environment
by allowing an employee’s coworkers to mistreat her; the Texas “hostile work environment”
cases the Court has identified invariably sound in employment discrimination under the TCHRA.
Cf. Udoewa v. Plus4 Credit Union, No. H-08-3054, 2009 WL 1856055, at *4 (S.D. Tex. June 29,
2009) (“There is simply no such thing as . . . negligent harassment . . . . There have been no cases
recognizing a claim for negligent harassment.”) (quotation marks and citations omitted). More
generally, Plaintiff has not adequately pleaded the elements of a cause of action for negligence,
namely, that Defendant owed her a duty not to allow “a hostile work environment,” that
Defendant breached that duty, and that Defendant’s breach of that duty proximately caused
Plaintiff damages. See D. Houston, Inc., 92 S.W.3d at 454. Plaintiff’s allegation that Defendant
negligently created a hostile work environment must therefore be dismissed for failure to state a
claim upon which relief can be granted.
Negligently “creating an environment that allowed
This allegation is functionally duplicative of Plaintiff’s allegation that Defendant
negligently created a hostile work environment, and it must therefore also be dismissed for
failure to state a claim.
Negligent failure to supervise
“The elements of a claim for negligent supervision, like all negligence claims, are (1) the
defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, (3) the plaintiff
suffered damages, and (4) the damages were proximately caused by the defendant's breach.”
Latimer v. Mem’l Hermann Hosp. Sys., No. 14—09-00925-CV, 2011 WL 175504, at *3 (Tex.
App. Jan. 20, 2011) (citation omitted). “To prevail on a claim for negligent hiring or supervision,
the plaintiff is required to establish not only that the employer was negligent in hiring or
supervising the employee, but also that the employee committed an actionable tort against the
plaintiff.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.2 (Tex. 2010) (quoting Brown
v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex. App. 2005)).
Plaintiff’s claim fails because she has not adequately pleaded that Defendant’s employees
committed an actionable tort against her. To the extent she alleges that Defendant’s employees
libeled or slandered her, those claims are barred by the FTCA, as are any claims arising from the
libel or slander. See 28 U.S.C. § 2680(h); Truman, 26 F.3d at 594-95. A plaintiff may not avoid
the § 2680(h) bar by “framing his complaint in terms of the government’s negligent failure to
prevent the excepted harm.” Truman, 26 F.3d at 594-95. Hence, any negligence claim arising
from the alleged libel or slander is likewise barred. To the extent Plaintiff alleges that
Defendant’s employees intentionally inflicted emotional distress on her, her cause of action for
IIED is barred in part by the FTCA because it arises out of libel or slander, and it otherwise fails
to state a claim for which relief can be granted, both as explained above. Plaintiff does not
identify any other actionable tort that Defendant’s employees may have committed. Because
Plaintiff fails to adequately plead that Defendant’s employees committed an actionable tort, her
claim for negligent supervision must be dismissed. See Waffle House, 313 S.W.3d at 801 n.2
Negligently “failing to secure the hospital and provide a
safe work environment”
This claim is duplicative of Plaintiff’s premises liability claim and fails for the same
reasons discussed above; Plaintiff simply has not pleaded in any fashion that WBAMC was
insecure or unsafe.
Negligently “failing to put into place and maintain
proper employee procedures”
Plaintiff fails to allege how Defendant owed her a duty to put “put into place and
maintain proper employee procedures,” how that duty was breached, and how that breach
proximately caused her damages. See D. Houston, Inc., 92 S.W.3d at 454. As with the rest of
Plaintiff’s negligence allegations, it must therefore be dismissed for failure to state a claim upon
which relief can be granted.
Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) mandates that courts should freely give
plaintiffs leave to amend their pleadings when justice so requires. Fed. R. Civ. P. 15(a)(2). “This
standard evinces a bias in favor of granting leave to amend. The policy of the Federal Rules is to
permit liberal amendment.”14 Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006)
(quotation marks and citation omitted). Thus, “[w]hen a plaintiff’s complaint fails to state a
claim, the court should generally give the plaintiff a chance to amend the complaint under Rule
15(a) before dismissing the action with prejudice, unless it is clear that to do so would be futile.”
Lopez v. Sovereign Bank, N.A., Civil Action No. H-13-1429, 2014 WL 1315834, at *3 (S.D. Tex.
Mar. 31, 2014) (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 329 (5th Cir. 2002)); see Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that a proper
reason to deny leave to amend is “futility of amendment”).
The Court holds that it would be futile for Plaintiff to replead the following claims, and
accordingly dismisses them with prejudice:
Plaintiff may not amend any claims that arise out of interference with contract rights
because such claims are barred by the FTCA.
Plaintiff may not amend her IIED claim to the extent it arises out of intentional torts
excepted by the FTCA, such as libel and slander, because such claims are barred by the FTCA.
Similarly, Plaintiff may not amend her negligence claims to the extent they arise out of libel or
Plaintiff may not amend her premises liability claim because she did not suffer physical
harm due to a condition of the land. For the same reason, Plaintiff may not amend her claim that
Defendant negligently failed to secure the hospital and provide a safe work environment.
Because Plaintiff’s deadline to move to amend the pleadings has passed, see Scheduling Order, ECF No. 11, she
must first demonstrate that there is good cause to amend the scheduling order in order to successfully move to
amend her pleading under “the more liberal standard of Rule 15(a).” Hawthorne Land Co. v. Occidental Chem.
Corp., 431 F.3d 221, 227 (5th Cir. 2005) (citation omitted); see Fed. R. Civ. P. 16(b)(4). The Court notes that
Defendant filed the Motion well after Plaintiff’s deadline to move to amend the pleadings, and that Plaintiff’s
burden under Rule 16 therefore may not be onerous.
Plaintiff may not amend her claim under 29 U.S.C. § 660 because that statute does not
provide for a private right of action.
Plaintiff may not amend her claim under 10 U.S.C. § 2409 because the United States is
not subject to suit under that statute.
By contrast, it would not necessarily be futile for Plaintiff to attempt to replead her IIED
allegation and her remaining negligence allegations on the basis of conduct which does not give
rise to an excepted intentional tort under the FTCA. It would likewise not be futile for Plaintiff to
amend her employment discrimination allegations to attempt to demonstrate that she has
exhausted her administrative remedies and can otherwise state a claim for hostile work
environment or retaliation under Title VII or the TCHRA. Plaintiff may therefore move for leave
to amend those claims.
For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 13, is GRANTED.
Plaintiff’s claims alleging the following are DISMISSED WITH PREJUDICE: tortious
interference with contract; intentional infliction of emotional distress, to the extent it is based on
an excepted tort under the FTCA; premises liability; negligence, to the extent it is based on an
excepted tort under the FTCA or arises from premises liability; and any claim alleging a
violation of 29 U.S.C. § 660 or 10 U.S.C. § 2409.
The following claims are DISMISSED WITHOUT PREJUDICE: intentional infliction
of emotional distress, to the extent it is not barred by the FTCA; negligence, to the extent it is not
barred by the FTCA and does not arise from premises liability; and employment discrimination
under the applicable statute.
The Court ORDERS Plaintiff to file any motion for leave to amend her pleadings within
SIGNED this 4th day of May, 2014.
UNITED STATES DISTRICT JUDGE
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