Balderrama v. Pride Industries, Inc.

Filing 8

ORDER GRANTING IN PART AND DENYING IN PART 2 Motion to Dismiss Signed by Judge Kathleen Cardone. (dl1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
BENITO BALDERRAMA,
Plaintiff,
v.
PRIDE INDUSTRIES, INC.,
Defendant.

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EP-13-CV-169-KC

ORDER
On this day, the Court considered Defendant’s Motion to Dismiss, ECF No. 2, in the
above-captioned case. As explained below, Plaintiff’s statutory claims of discrimination and
retaliation under the Americans with Disabilities Act (“ADA”) and the Texas Labor Code are
sufficiently alleged to withstand Defendant’s Motion to Dismiss. Defendant’s Motion is
therefore denied as to these claims. Defendant’s Motion must be granted, however, with respect
to Plaintiff’s claims of negligence, gross negligence, and negligent investigation. Finally,
Defendant’s request for a more definite statement under Rule 12(e) of the Federal Rules of Civil
Procedure is granted with respect to Plaintiff’s claims of intrusion upon seclusion, intentional
infliction of emotional distress (“IIED”), wrongful termination, and negligent hiring. For these
reasons, Defendant’s Motion is GRANTED in part and DENIED in part.
I.

BACKGROUND
Plaintiff filed a Petition in El Paso County Court at Law No. 384 on April 19, 2013.

Def.’s Notice of Removal 7 (“Plaintiff’s Petition”), ECF No. 1. In his Petition, Plaintiff alleges
that he is a resident of Las Cruces, New Mexico, and that he began working in October 2011 as a
1

laborer in “El Paso/Fort Bliss, Texas” for Defendant, a corporation headquartered in California.
Pl.’s Pet. 1-4.
Plaintiff alleges that he has a mental disability. Id. at 2. According to the Petition,
Defendant’s employees discriminated against Plaintiff by subjecting him to unsafe working
conditions and harassment because of his mental disability. Id. at 2-4. Plaintiff further alleges
that Defendant’s unsafe practices, such as requiring employees to work in rat-infested sewers
without proper safety equipment, were in violation of the Occupational Safety and Health Act
(“OSHA”). Id. at 3. Plaintiff also alleges that he became physically injured at his workplace
while using a motor vehicle that was attached to a damaged trailer. Id. Plaintiff alleges that the
trailer became unhooked and caused the motor vehicle to stop abruptly, thereby injuring
Plaintiff. Id.
According to the Petition, Plaintiff subsequently filed a workers’ compensation claim
based on Plaintiff’s workplace injury. Id. at 5-6. Plaintiff also allegedly filed a complaint with
the Equal Employment Opportunity Commission (“EEOC”) regarding the discriminatory
treatment that Plaintiff had experienced while working for Defendant, after which Defendant’s
employees retaliated against him with additional harassment. Id. at 4.
Although the Petition is ambiguous about the circumstances surrounding the termination
of Plaintiff’s employment, Defendant is alleged either to have constructively discharged Plaintiff
in October 2012 or fired Plaintiff on April 11, 2013. Id. at 3-4. According to the Petition,
Plaintiff’s employment was terminated either because of his mental disability, because Plaintiff
filed the worker’s compensation claim after his workplace injury, because Plaintiff filed a
complaint with the EEOC, or because Plaintiff refused to participate in Defendant’s violations of
OSHA. See id. at 3-11.
2

Plaintiff’s Petition raises ten causes of action based on Defendant’s treatment of Plaintiff,
four of which arise under federal or Texas statutes and six of which arise under Texas common
law. Id. at 2-10. As to all of his claims, Plaintiff alleges that the injurious conduct was
committed by Guadalupe Hernandez, Luis Marquez, Alejandro Cortez, and Alma Blair, all of
whom were “agents, servants, and employees of Defendant” and were acting in the course and
scope of their authority when they allegedly caused injury to Plaintiff. See id. at 3, 9-10.
Though none of these individuals is a named defendant in this case, Plaintiff claims that
responsibility for these individuals’ actions should be imputed to Defendant under the doctrine of
vicarious liability. See id.
In support of his first and second statutory claims, Plaintiff alleges that Defendant
discriminated against Plaintiff on the basis of his mental disability and thereby violated the
federal ADA and § 21.051 of the Texas Commission on Human Rights Act (“TCHRA”).1 Id. at
4-5. In his third claim, Plaintiff alleges that Defendant violated § 21.055 of the TCHRA by
retaliating against Plaintiff for contacting the EEOC. Id. at 4. In his fourth claim, Plaintiff
alleges that Defendant also violated § 451.001 of the Texas Labor Code (“the Anti-Retaliation
Law”)2 by retaliating against Plaintiff after he instituted a claim under the Texas Workers’
Compensation Act (“TWCA”) based on his workplace injury involving the damaged trailer. Id.
1

Although the Texas Commission on Human Rights has been replaced with the Texas Workforce Commission’s
civil rights division, Texas courts often continue to refer to Chapter 21 of the Texas Labor Code as the Texas
Commission on Human Rights Act (“TCHRA”). See Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 502
n.1 (Tex. 2012); Waffle House, Inc. v. Williams, 313 S.W.3d 796, 798 n.1 (Tex. 2010).

2

The Anti-Retaliation Law is codified at Chapter 451 of the Texas Labor Code. Travis Cent. Appraisal Dist. v.
Norman, 342 S.W.3d 54, 54 (Tex. 2011). Texas courts often refer to the Anti-Retaliation Law as a part of the
Texas Workers’ Compensation Act (“TWCA”), although the original version of the TWCA was enacted in
1913—decades prior to the enactment of the Anti-Retaliation Law in 1971. See In re Poly-Am., L.P., 262 S.W.3d
337, 349-50 (Tex. 2008). Because these statutes’ dates of enactment are significant to the Court’s analysis of
these statutes under the federal enclave doctrine, as explained further below, this Court uses separate terms in this
decision to distinguish between Chapter 451 and the other provisions of the TWCA.

3

at 5.
Plaintiff brings his fifth claim for common-law negligence and gross negligence based on
Defendant’s failure to follow proper safety protocols and creation of hazardous working
conditions. Id. at 3, 9. In his sixth claim, Plaintiff alleges that Defendant committed the tort of
negligent investigation by firing Plaintiff on the basis of an inadequate investigation. See id. at
10-11. In his seventh claim, Plaintiff alleges that Defendant intentionally invaded Plaintiff’s
solitude, seclusion, and privacy by making lewd comments, physically touching Plaintiff,
eavesdropping on Plaintiff’s private conversations, and continually berating and harassing
Plaintiff. Id. at 7. In his eighth claim, Plaintiff alleges that Defendant committed the commonlaw tort of IIED. Id. at 8. In his ninth claim, Plaintiff alleges that Defendant wrongfully
terminated Plaintiff for refusing to participate in an illegal act. Id. at 3, 11. In his tenth and final
claim, Plaintiff alleges that Defendant violated a common-law duty owed to Plaintiff by
negligently hiring, training, and retaining Plaintiff’s supervisors, and thereby causing injury to
Plaintiff. See id. at 6.
Defendant removed this action on May 17, 2013, invoking this Court’s jurisdiction on
two distinct grounds. First, Defendant asserts that this case falls within the Court’s federal
question jurisdiction under 28 U.S.C. § 1331, because Plaintiff asserts a claim under the ADA
and because the conduct at issue occurred on Fort Bliss, which Defendant characterizes as a
federal enclave. Def.’s Notice of Removal 2, ECF No. 2. Second, Defendant asserts that this
case falls within the Court’s diversity jurisdiction under 28 U.S.C. § 1332, because Plaintiff is a
citizen of New Mexico, Defendant is a citizen of California, and the amount in controversy
exceeds $75,000. Id. at 2-3.

4

On June 14, 2013, Defendant filed the present Motion to Dismiss. See Def.’s Mot., ECF
No. 2.
II.

DISCUSSION
A.

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 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 Hotel-Motel Ass’n v. Miss. 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, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
5

B.

Analysis

In its Motion to Dismiss, Defendant raises three categories of arguments. First,
Defendant argues that Plaintiff’s claims for discrimination and retaliation under the TCHRA and
the Anti-Retaliation Law must be dismissed because the relevant provisions of these statutes
were enacted after Fort Bliss became a federal enclave and, therefore, have no force on Fort Bliss
under the federal enclave doctrine. Def.’s Mot. 3. Second, Defendant argues that each of
Plaintiff’s six common-law claims must be dismissed to the extent that they are based on the
same conduct as Plaintiff’s claims under Texas statutes. See id. at 11; Def.’s Reply 3, ECF No.
3. Third, Defendant argues that Plaintiff has failed to allege sufficient facts to support eight of
his ten claims under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure, although
this argument is not raised with respect to Plaintiff’s claims of retaliation under the TCHRA and
the Anti-Retaliation Law. See Def.’s Mot. 6-11. Finally, in the event that the Court does not
dismiss Plaintiff’s claims on these grounds, Defendant moves under Rule 12(e) of the Federal
Rules of Civil Procedure for a more definite statement. Id. at 11.
As explained further below, Defendants’ first and second arguments both concern the
relationship between the federal enclave doctrine and the Texas Labor Code. Therefore, after
first examining the relevant background of the federal enclave doctrine, the Court addresses
Defendant’s first and second arguments together. The Court then addresses each of Defendant’s
arguments regarding the insufficiency of the factual allegations supporting Plaintiff’s individual
claims under Rules 8(a) and 12(b)(6). Finally, the Court identifies those of Plaintiff’s claims for
which a more definite statement is required under Rule 12(e).
1.

The federal enclave doctrine, Texas statutes, and Texas common law

The first argument raised in Defendant’s Motion to Dismiss is that Plaintiff’s claims for
6

discrimination and retaliation under the TCHRA and the Anti-Retaliation Law must be dismissed
because the provisions creating these causes of action were enacted “after Fort Bliss became a
federal enclave” and, therefore, have no force on Fort Bliss under the federal enclave doctrine.
Def.’s Mot. 3-4. The second argument raised by Defendant is that Plaintiff’s common-law
claims for negligence and gross negligence, negligent investigation, intrusion upon seclusion,
IIED, wrongful termination, and negligent hiring all must be dismissed because they were
abrogated by the TCHRA and the TWCA. Def.’s Mot. 5; Def.’s Reply 3. Put more succinctly,
Defendant argues that the federal enclave doctrine prevents Plaintiff from invoking the TCHRA
and the Anti-Retaliation Law as statutory sources of liability, but does not prevent Defendant
from invoking the TCHRA and the TWCA as statutory shields against common-law liability.
The federal enclave doctrine arises under Article I, Section 8, Clause 17, of the United
States Constitution, which authorizes the federal government to acquire land from the states for
certain specified uses and to exercise exclusive legislative jurisdiction over such lands. Lord v.
Local Union No. 2088, Int’l Bhd. of Elec. Workers, AFL-CIO, 646 F.2d 1057, 1059 (5th Cir.
1981); Morgan v. Rankin, 436 F. App’x 365, 365 (5th Cir. 2011). With several exceptions,3 any
“laws of the state adopted after the cession [of land to the federal government] are without any
force or effect on the federal enclave.” Lord, 646 F.2d at 1059-60; Morgan, 436 F. App’x at
3

The first of these exceptions arises where Congress has provided for the application of certain discrete bodies of
state law enacted after the creation of the federal enclave. For example, Congress made such a provision in the
Assimilative Crimes Act, which is codified at 18 U.S.C. § 13. See United States v. Sharpnack, 355 U.S. 286, 29495 (1958); United States v. Martinez, 274 F.3d 897, 900 (5th Cir. 2001); United States v. Prejean, 494 F.2d 495,
496-97 (5th Cir. 1974). This exception is implicated by Defendant’s Motion to Dismiss under a different statute,
40 U.S.C. § 3172 (previously codified at 40 U.S.C. § 290), and is applied below in Section II-B-1-b. A second
exception arises where states expressly reserve certain powers at the time when they consent to the cession of land
to the United States. See James v. Dravo Contracting Co., 302 U.S. 134, 146 (1937); Mississippi River Fuel
Corp. v. Cocreham, 390 F.2d 34, 37 (5th Cir. 1968). A third exception arises where state regulatory schemes
were already in place when the state ceded sovereignty but require ongoing maintenance from a regulatory body
subsequent to the date of cession. See Paul v. United States, 371 U.S. 245, 269 (1963); Allison v. Boeing Laser
Technical Servs., 689 F.3d 1234, 1238 (10th Cir. 2012). Neither the second nor the third of these exceptions is
implicated by Defendant’s Motion to Dismiss.

7

365. To ensure, however, that “no area, however small, will be left without laws regulating
private rights,” the federal enclave doctrine effectively freezes pre-existing state law within the
area of exclusive federal jurisdiction at the date of cession “until [the pre-existing state law is]
abrogated or altered by the new sovereign.” Mater v. Holley, 200 F.2d 123, 124 (5th Cir. 1952).
The act of cession therefore incorporates into the federal law governing these lands all state law
that “was in force at the time of the cession, where such state law is not inconsistent with federal
law or policy.” Lord, 646 F.2d at 1059-60; Morgan, 436 F. App’x at 365.
Many of the judicial decisions considering the applicability of state law within an area of
exclusive federal jurisdiction have addressed states’ legislative acts passed before or after the
date of cession. See, e.g., Pac. Coast Dairy v. Dep’t of Agric. of Cal., 318 U.S. 285, 294 (1943)
(finding that “[t]he state statute involved was adopted long after the transfer of sovereignty and
was without force in the enclave”); Chicago, R.I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 544,
547 (1885) (finding that a Kansas statute enacted in 1874 remained in effect on Fort
Leavenworth, even after the land was ceded to the United States in 1875); Lord, 646 F.2d at
1060-63 (considering whether a 1944 amendment to the Florida constitution was applicable on
Cape Canaveral Air Force Station, which was ceded to the United States in 1955, or to Patrick
Air Force Base, which was ceded to the United States in 1940, and concluding that a federal
policy barred application of Florida’s constitutional amendment to either installation).
Far fewer courts, however, have addressed how the federal enclave doctrine applies to
common-law causes of action recognized by a state’s judiciary after the date of cession. The
Court is not aware of any decisions where the courts of the Fifth Circuit have considered this
question, and neither Plaintiff nor Defendant has identified any such decisions. A number of
courts outside the Fifth Circuit, however, have found that the federal enclave doctrine does
8

“apply to new laws created by courts the same way that it applies to new laws created by
legislatures.” See Allison v. Boeing Laser Technical Servs., 689 F.3d 1234, 1240 (10th Cir.
2012); Cooper v. S. Cal. Edison Co., 170 F. App’x 496, 497 (9th Cir. 2006); Sundaram v.
Brookhaven Nat. Laboratories, 424 F. Supp. 2d 545, 570 (E.D.N.Y. 2006); Orlovetz v. Day &
Zimmerman, Inc., 848 P.2d 463, 466-68 (Kan. Ct. App. 1993). The Court is not aware of any
contrary authority, and the parties have not presented any arguments in favor of analyzing
statutory and common-law claims differently. Accordingly, this Court also concludes that,
where a state’s courts recognize new common-law causes of action after the date when the state
ceded certain lands to the exclusive jurisdiction of the federal government, those common-law
causes of action have no force on these federal lands. Allison, 689 F.3d at 1243-44; Cooper, 170
F. App’x at 497.
Conversely, a pre-existing common-law cause of action may remain viable on an area of
exclusive federal jurisdiction after the date of cession, even where the state’s legislature has
subsequently enacted a statute to abrogate this common-law cause of action as to the areas of the
state outside the federal enclave. See James Stewart & Co. v. Sadrakula, 309 U.S. 94, 100
(1940) (analyzing Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929)); Buttery v. Robbins, 14
S.E.2d 544, 548 (Va. 1941) (analyzing Fant). For example, the United States Supreme Court
held in Fant that an innkeeper’s guests could bring a common-law cause of action against the
innkeeper for fire damage to the guests’ personal property in Hot Springs Park, even though the
Arkansas legislature had abrogated this common-law cause of action by statute. See Fant, 278
U.S. at 445-46, 455. Because Hot Springs Park had been ceded to the federal government in
1904 and the Arkansas statute abrogating innkeepers’ liability for fire damage was not enacted
until 1913, the common-law cause of action survived within the area of exclusive federal
9

jurisdiction. See id.; see also Sadrakula, 309 U.S. at 100 (analyzing Fant); Buttery, 14 S.E.2d at
548 (analyzing Fant).
Therefore, to summarize the basic contours of the federal enclave doctrine as it relates to
Defendant’s Motion to Dismiss, all state laws “in force at the time of the cession” remain in
force after the date of cession unless contrary to existing federal law or policy, or until such state
laws are subsequently abrogated by the federal government, whereas any “laws of the state
adopted after the cession are without any force or effect on the federal enclave.” Lord, 646 F.2d
at 1059-60. This principle does not distinguish between “laws of the state adopted after the
cession” by a legislature and those that are “adopted” by the judiciary into a state’s common law.
Allison, 689 F.3d at 1243-44; Cooper, 170 F. App’x at 497. Similarly, this principle does not
distinguish between statutes that create new sources of liability and those that abrogate preexisting common-law causes of action. See Fant, 278 U.S. at 445-46, 455; see also Sadrakula,
309 U.S. at 100 (analyzing Fant); Buttery, 14 S.E.2d at 548 (analyzing Fant). Put simply, only
“the new sovereign” can act to abrogate or alter any pre-existing law after sovereignty over land
has been transferred from the state to the United States. See Mater, 200 F.2d at 124.
As a final matter, before turning to address the arguments in Defendant’s Motion to
Dismiss, the Court emphasizes that not all lands owned and used by the federal government are
subject to its exclusive jurisdiction. According to the terms of Article I, Section 8, Clause 17, of
the Constitution, the United States may exercise “exclusive” legislative jurisdiction over land
only where the transfer of such land was approved by “the Consent of the Legislature of the State
in which the same shall be.” U.S. Const., Art. I, § 8. “[W]ithout the State’s consent,” the United
States’ power over the land it “acquire[s] by purchase or condemnation” is “simply that of an
ordinary proprietor,” rather than the authority of the exclusive sovereign. Paul v. United States,
10

371 U.S. 245, 264-65 (1963); United States v. Gliatta, 580 F.2d 156, 158 n.6 (5th Cir. 1978);
DeKalb Cnty., Ga. v. Henry C. Beck Co., 382 F.2d 992, 994-95 (5th Cir. 1967); Wood v. Am.
Crescent Elevator Corp., CIV.A. 11-397, 2011 WL 1870218, at *2 (E.D. La. May 16, 2011).
Where the federal government owns and uses certain land not as its exclusive sovereign, but
merely as its proprietor due to the absence or defectiveness of the state’s consent to the federal
acquisition, then these segments of the federal facility are not subject to the federal enclave
doctrine and the state’s law applies of its own force. See Paul, 371 U.S. at 269-70.
Accordingly, due to the piecemeal manner in which such federal installations are often
acquired by the United States, military bases may contain “numerous units [of land] acquired at
various times, some of which may be subject to ‘exclusive’ federal jurisdiction and some of
which may not be.” See Paul, 371 U.S. at 269-70 (discussing the nature of federal authority over
Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal); Torrens v.
Lockheed Martin Servs. Grp., Inc., 396 F.3d 468, 469 (1st Cir. 2005) (considering whether the
“piers area” of a Navy base at Roosevelt Roads was subject to the Puerto Rican local law in force
at the time of the suit or, like the rest of the Navy base, was an area of exclusive federal
jurisdiction); see also Commonwealth of Va. v. Reno, 955 F. Supp. 571, 573 (E.D. Va. 1997)
(finding that a federal correctional facility in Virginia was acquired by the United States in a
series of separate transactions occurring between 1910 and 1953, such that “[t]he United States
has varying degrees of jurisdiction over [the federal facility’s] nine parcels”) (vacated for
mootness prior to appeal by Commonwealth of Virginia v. Reno, 122 F.3d 1060 (4th Cir. 1997)).
Therefore, on those segments of a federal facility where the United States does not act as
the exclusive sovereign, but merely as the proprietor, then these segments of the federal facility
are not subject to the federal enclave doctrine. See Paul, 371 U.S. at 269-70; Torrens, 396 F.3d
11

at 469. Indeed, because different sections of Fort Bliss were acquired in a series of different
transactions over many decades, it may be that not all of Fort Bliss is subject to the same
jurisdiction under the federal enclave doctrine.4 See Cent. Ed. Agency v. Indep. Sch. Dist. of City
of El Paso, 254 S.W.2d 357, 358-59 (Tex. 1953) (observing that while “Fort Bliss Military
Reservation contained an area of 8.98 square miles” in 1939, the federal government had
“enlarged the area” to contain “approximately 101 square miles” by 1949); Hardcastle v. Sibley,
107 S.W.2d 432, 437 (Tex. Civ. App. 1937) (describing an appropriation by the United States in
1930 “for the purpose of acquiring land adjacent to Fort Bliss for the enlargement of said fort”);
see also Hart’s Adm’r v. United States, 15 Ct. Cl. 414, 425 (1879) (referring to contracts for the
delivery of flour to Fort Bliss “during the first quarter of 1861”); Moore & Boice v. United
States, 1 Ct. Cl. 90, 90-91 (1863) (discussing a 1859 invitation for bids that mentioned Fort
Bliss).
a.

Plaintiff’s statutory claims and the federal enclave doctrine

Defendant argues that Plaintiff’s claims for discrimination and retaliation under the
TCHRA and the Anti-Retaliation Law must be dismissed because both of these statutes were
enacted “after Fort Bliss became a federal enclave” and, therefore, have no force on Fort Bliss
under the federal enclave doctrine. Def.’s Mot. 3-4. Texas enacted § 21.051 and § 21.055 of the
Texas Labor Code in 1983, and § 451.001 in 1971. See Commission on Human Rights Act,
1983 Tex. Gen. Laws 37, 37-58 (codified under Chapter 21 of the Texas Labor Code, 1993 Tex.
4

This Court also recognizes the corollary that where a federal installation encompasses many “parcels of land
acquired over a period” of many years, “[t]he application of state law as it existed at the time of federal
acquisition” may require the “application of different law to the various components” of the federal installation,
even where sovereignty as to the entire federal installation has been ceded to the federal government. See Bd. of
Sup'rs of Fairfax Cnty., Va. v. United States, 408 F. Supp. 556, 564 (E.D. Va. 1976) dismissed sub nom. Bd. of
Sup'rs of Fairfax Cnty., Va. v. Levi, 551 F.2d 305 (4th Cir. 1977) and dismissed sub nom. Bd. of Supervisors of
Fairfax Cnty., Va. v. Dist. of Columbia, 551 F.2d 305 (4th Cir. 1977). At the present stage of these proceedings,
however, this Court need not reach this question.

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Gen. Laws 987, 995-96); Workmen’s Compensation Act—Protection of Claimants, 1971 Tex.
Gen. Laws 884, 884-85 (codified under Chapter 451 of the Texas Labor Code, 1993 Tex. Gen.
Laws 1235); see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)
(discussing the enactment of the TCHRA in 1983); Travis Cent. Appraisal Dist. v. Norman, 342
S.W.3d 54, 55 (Tex. 2011) (discussing the enactment of the Anti-Retaliation Law in 1971).
Under the federal enclave doctrine, therefore, Plaintiff’s claims under the TCHRA cannot be
sustained on any lands of exclusive federal jurisdiction ceded before 1983, and Plaintiff’s claims
under the Anti-Retaliation Law must fail on any lands of exclusive federal jurisdiction ceded
before 1971. Lord, 646 F.2d at 1059-60; Morgan, 436 F. App’x at 365.
When viewed “in the light most favorable” to Plaintiff, however, the Petition may be read
to allege that Defendant’s acts of discrimination and retaliation did not occur on Fort Bliss,
which would render the federal enclave doctrine irrelevant in this case. See Calhoun, 312 F.3d at
733; Collins, 224 F.3d at 498. In cases involving the relationship between the federal enclave
doctrine and claims of discrimination and retaliation under the Texas Labor Code, this Court has
held that these causes of action occur at “the locus of decision-making.” Sturgeon v. Jackson,
EP-10-CV-244-PRM, 2011 WL 3678472, at *4 (W.D. Tex. Feb. 9, 2011); Camargo v. Gino
Morena Enterprises, L.L.C., EP-10-CV-242-KC, 2010 WL 3516186, at *2 (W.D. Tex. Sept. 2,
2010); Lawler v. Miratek Corp., EP-09-CV-252-KC, 2010 WL 743925, at *4 (W.D. Tex. Mar. 2,
2010). “The fact that the employee’s day-to-day job site is on a federal enclave, alone, is not
sufficient for these purposes; rather the location where management made the allegedly illegal
decision controls.” Sturgeon, 2011 WL 3678472, at *4 (citing Lawler, 2010 WL 743925, at *34).

13

Here, Defendant argues that Plaintiff’s “employment was limited to work on federal
property,” but this is not apparent from the face of the Petition itself. See Def.’s Notice of
Removal 1. Plaintiff refers to his “employment with [Defendant] in El Paso/Fort Bliss,” which
suggests that Plaintiff may have performed some of the duties associated with his position in a
part of El Paso that is distinct from Fort Bliss. Id. at 2. It is also relevant that, wherever Plaintiff
performed his day-to-day duties, the Petition states that Defendant “did business in El Paso, El
Paso County, Texas that caused the ‘incident’ that is the subject of this lawsuit,” and that
Defendant’s headquarters is based in California. Pl.’s Pet. 1-2. These statements can be read to
allege that Defendant made the allegedly discriminatory and retaliatory decisions in El Paso, but
off of Fort Bliss, or at Defendant’s headquarters in California. See Sturgeon, 2011 WL 3678472,
at *4 (citing Lawler, 2010 WL 743925, at *3-4). Therefore, construing the Petition in the light
most favorable to Plaintiff, Defendant’s allegedly injurious conduct did not occur on Fort Bliss.
See Calhoun, 312 F.3d at 733; Collins, 224 F.3d at 498. The federal enclave status of Fort Bliss
thus is no obstacle to this group of Plaintiff’s claims. See Lord, 646 F.2d at 1059-60; Morgan,
436 F. App’x at 365.
Second, even if Defendant’s allegedly retaliatory or discriminatory decisions did occur on
Fort Bliss or “on federal property,” as Defendant urges the Court to construe the Petition, see
Def.’s Notice of Removal 1, such decisions still may have occurred on parts of Fort Bliss that do
not constitute areas of exclusive federal jurisdiction. The federal enclave doctrine is not
applicable to all land that has been acquired by the United States “by purchase or
condemnation,” but arises only where the state has consented to the transfer of sovereignty. See
Paul, 371 U.S. at 264-65; Gliatta, 580 F.2d at 158 n.6; DeKalb Cnty., 382 F.2d at 994-95; Wood,
2011 WL 1870218, at *2. A military base such as Fort Bliss, for example, may contain
14

“numerous units [of land] acquired at various times, some of which may be subject to ‘exclusive’
federal jurisdiction and some of which may not be.” See Paul, 371 U.S. at 269-70; Torrens, 396
F.3d at 469; Reno, 955 F. Supp. at 573 (vacated for mootness by Reno, 122 F.3d at 1060).
Indeed, because different parts of Fort Bliss were acquired in a series of different transactions,
these different units of land may not all be subject to the same jurisdiction under the federal
enclave doctrine. See Cent. Ed. Agency, 254 S.W.2d at 358-59; Hardcastle, 107 S.W.2d at 437.
Therefore, even if Defendant’s allegedly retaliatory or discriminatory decisions occurred
on federal property associated with Fort Bliss, nothing in Plaintiff’s Petition indicates that such
decisions necessarily occurred on those segments of the installation5 where the federal
government has acquired exclusive federal jurisdiction, as opposed to the powers of an ordinary
proprietor. See Paul, 371 U.S. at 264-65; Gliatta, 580 F.2d at 158 n.6; DeKalb Cnty., 382 F.2d
at 994-95. Defendant also has not adduced any public records or identified any reason that the
Court should conclude at this early stage of the proceedings that all of the lands comprising Fort
Bliss are necessarily areas of exclusive federal jurisdiction. If Defendant’s allegedly unlawful
conduct occurred on segments of Fort Bliss where the federal government acts only as a
proprietor, such that Texas statutory law enacted after the date of federal acquisition continues to
apply of its own force, then the federal enclave doctrine provides no basis for the dismissal of
Plaintiff’s claims under the TCHRA and the Anti-Retaliation Law. See Paul, 371 U.S. at 2645

According to Fifth Circuit case law, at least some portions of Fort Bliss do constitute areas of exclusive federal
jurisdiction under the federal enclave doctrine. See Prejean, 494 F.2d at 496-97. Indeed, as Defendant points out,
the United States Court of Appeals for the Fifth Circuit and another judge of this Court have found in unpublished
decisions that claims under the TCHRA should be dismissed where the parties had not disputed that the
discriminatory conduct took place within areas of exclusive federal jurisdiction. See Morgan, 436 F. App’x at
365; Morgan v. Rankin, EP-10-CV-143-FM, at *5-6 (W.D. Tex. Aug. 25, 2010); Rodriguez v. HCI Integrated
Solutions, EP-09-CV-311-FM, at *8-9 (W.D. Tex. Dec. 18, 2009). The present case is distinguishable from these
decisions, however, because Plaintiff has not conceded the applicability of the federal enclave doctrine to his
statutory claims and has explicitly argued that Defendant’s unlawful actions did not take place “wholly within the
enclave.” See Pl.’s Resp. 3, ECF No. 5.

15

65; Gliatta, 580 F.2d at 158 n.6; DeKalb Cnty., 382 F.2d at 994-95; Wood, 2011 WL 1870218, at
*2.
For these two distinct reasons,6 therefore, the Court cannot dismiss Plaintiff’s claims of
disability discrimination under § 21.051 of the TCHRA, retaliation for filing a complaint with
the EEOC under § 21.055 of the TCHRA, or retaliation for filing a worker’s compensation claim
under § 451.001 of the Anti-Retaliation Law based on the federal enclave doctrine. While the
Petition can be construed, as Defendant argues, to allege that Defendant’s unlawful actions
occurred entirely on areas of exclusive federal jurisdiction that were ceded to the United States
prior to the enactment of the TCHRA and the Anti-Retaliation Law, the Petition can also be read
to allege that the unlawful decisions were made in California, in areas of El Paso outside of Fort
Bliss, or on sections of Fort Bliss as to which the United States is the proprietor but not the
exclusive sovereign. See Sturgeon, 2011 WL 3678472, at *4 (citing Lawler, 2010 WL 743925,
at *3-4). Accordingly, at this stage in the proceedings, the Court must accept this construction of

6

A third reason that potentially affects only Plaintiff’s claim under § 451.001 of the Anti-Retaliation Law is that a
federal statute, 40 U.S.C. § 3172, may provide for the application of the Anti-Retaliation Law even within areas of
exclusive federal jurisdiction. This statute permits “[t]he state authority charged with enforcing and requiring
compliance with the state workers’ compensation laws and with the orders, decisions, and awards of the authority
may apply the laws to all land and premises in the State which the Federal Government owns or holds by deed or
act of cession.” See 40 U.S.C. § 3172.
As this Court explains in greater detail below in Section II-B-1-b, this statute does apply to other provisions
of the Texas Labor Code, including the scheme for workers’ compensation in Texas under the TWCA. See
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 183 (1988); Knox v. Ball, 191 S.W.2d 17, 18 (Tex. 1945). The
Anti-Retaliation Law, however, is generally enforced by the injured employee himself in a private lawsuit, rather
than by the Texas Workforce Commission. See, e.g., Travis Cent. Appraisal Dist., 342 S.W.3d at 55. It is
therefore uncertain that 40 U.S.C. § 3172, which expressly empowers only “[t]he state authority charged with
enforcing and requiring compliance” to act within the federal enclave, also contemplated retaliation claims
brought by private parties such as Plaintiff. See 40 U.S.C. § 3172. On the other hand, the Anti-Retaliation Law
and the TWCA are closely interconnected, because the TWCA “would be completely useless and would not
accomplish the purpose for which it was enacted” if employers were not prohibited under the Anti-Retaliation
Law from retaliating against employees for invoking the TWCA. See Poly-Am., L.P., 262 S.W.3d at 350.
In any case, since neither Plaintiff nor Defendant has addressed this possibility and because the Court
cannot grant Defendant’s Motion to Dismiss as to Plaintiff’s retaliation claim under § 451.001 for the two
independent reasons set forth above, the Court need not reach any conclusions about the application of 40 U.S.C.
§ 3172 to the Anti-Retaliation Law at this stage of the proceedings.

16

the Petition. See Calhoun, 312 F.3d at 733; Collins, 224 F.3d at 498. The Court cannot,
therefore, accept Defendant’s argument that the federal enclave doctrine necessarily applies to
foreclose any of Plaintiff’s statutory claims. See Paul, 371 U.S. at 264-65, 69-70; Gliatta, 580
F.2d at 158 n.6.
b.

Plaintiff’s common-law claims and the federal enclave doctrine

Defendant also argues that Plaintiff’s common-law claims for negligence and gross
negligence, negligent investigation, intrusion upon seclusion, IIED, wrongful termination, and
negligent hiring all must be dismissed to the extent they are “based on the same alleged conduct”
as Plaintiff’s statutory claims under the TCHRA and the Anti-Retaliation Law. Def.’s Mot. 5.
Clarifying this argument in its Reply,7 Defendant argues that Plaintiff’s common-law claims are
barred by various provisions of Texas statutory law, including the preclusive effects of the
TCHRA as a whole and § 408.001(a) of the TWCA and the Anti-Retaliation Law. Def.’s Reply
3.
Under Texas law, “the enactment of a statutory cause of action” will “abrogat[e] a
common-law claim if there exists ‘a clear repugnance’ between the two causes of action.” See
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010); Cash Am. Int’l Inc. v. Bennett,
35 S.W.3d 12, 16 (Tex. 2000). Accordingly, the Supreme Court of Texas has held that because
the TCHRA constitutes “the Legislature’s specific and tailored anti-harassment remedy,” this

7

In Defendant’s Motion to Dismiss, Defendant argues that all such common-law claims are “gap-fillers,” but cites
only to cases that address the tort of IIED. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005);
Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). The Court is not aware of any
decisions that have analyzed the torts of negligence, gross negligence, negligent hiring, negligent investigation,
intrusion upon seclusion, or wrongful termination as “gap-fillers,” and therefore will address the “gap-filler”
argument below in Section II-B-3-b with specific reference only to Plaintiff’s IIED claim. Based on the
clarifications in Defendant’s Reply, the Court considers Defendant’s “gap-filler” argument in relation to
Plaintiff’s other claims as a reference to the principle governing the implicit abrogation of common-law claims by
statute that was described by the Supreme Court of Texas in Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802
(Tex. 2010).

17

statute preempts common-law claims of negligent hiring where “the complained-of negligence is
entwined with the complained-of harassment.” See Waffle House, Inc., 313 S.W.3d at 799, 802;
Woldetadik v. 7-Eleven, Inc., 881 F. Supp. 2d 738, 743 (N.D. Tex. 2012). Similarly, the TWCA
created a legislative scheme that “replaced the common law negligence remedy with limited but
more certain benefits for injured workers” in actions against their employers. Texas Workers’
Comp. Comm’n v. Garcia, 893 S.W.2d 504, 510-11 (Tex. 1995); see also In re Poly-Am., L.P.,
262 S.W.3d 337, 350 (Tex. 2008) (“[R]ecovery of benefits under the Workers’ Compensation
Act is the exclusive remedy available to injured employees of subscribing employers.”).
Here, Defendant’s arguments regarding the effects of the TCHRA and the TWCA on
Plaintiff’s claims of negligence and gross negligence, negligent investigation, intrusion upon
seclusion, IIED, wrongful termination, and negligent hiring must be analyzed individually. The
Court has already recognized in its preceding analysis that the TCHRA may be applicable to
some or all of Defendant’s alleged conduct in this case. Plaintiff’s Petition can be read to allege
that Defendant’s unlawful conduct occurred in California, in areas of El Paso distinct from Fort
Bliss, or within sections of Fort Bliss as to which the United States acts as the proprietor but not
the exclusive sovereign. See Sturgeon, 2011 WL 3678472, at *4 (citing Lawler, 2010 WL
743925, at *3-4). In such locations, the federal enclave doctrine cannot prevent or alter the
application of the TCHRA in any way. See Paul, 371 U.S. at 264-65, 69-70; Gliatta, 580 F.2d at
158 n.6. In such locations, therefore, the TCHRA will abrogate any common-law claim where
“a clear repugnance” exists between the remedies available under the TCHRA and the commonlaw claim. See Waffle House, Inc., 313 S.W.3d at 802; Cash Am. Int’l Inc., 35 S.W.3d at 16.
On the other hand, as Defendant itself has argued in the context of Plaintiff’s statutory
claims for discrimination and retaliation, the Petition can also be construed to allege that Plaintiff
18

was injured on Fort Bliss in an area of exclusive federal jurisdiction that was ceded before the
enactment of the TCHRA. See Pl.’s Pet. 2-3; Def.’s Mot. 1, 3-4. Plaintiff refers to his
“employment with [Defendant] in El Paso/Fort Bliss,” which suggests that he may have
performed some of the duties associated with his position on Fort Bliss itself. Pl.’s Pet. 2.
Indeed, while the area constituting Fort Bliss has certainly not been static in size or location
during its history, the Fifth Circuit had already explicitly recognized—nearly a decade prior to
the enactment of the TCHRA—that at least certain sections of Fort Bliss constitute areas of
exclusive federal jurisdiction. See United States v. Prejean, 494 F.2d 495, 496-97 (5th Cir.
1974).
Therefore, at this stage in the proceedings, the Court need not make any finding as to
whether any of Plaintiff’s common-law claims for negligence and gross negligence, negligent
investigation, intrusion upon seclusion, IIED, wrongful termination, and negligent hiring are
abrogated by the TCHRA. Even if this statute did abrogate one or more of Plaintiff’s commonlaw claims when it was enacted in 1983, Defendant’s relevant conduct may have occurred within
an area of exclusive federal jurisdiction that pre-dated the statute’s enactment. If such is the
case, then Plaintiff’s common-law claims were preserved from statutory abrogation under the
federal enclave doctrine—much like the innkeeper’s common-law liability for fire damage
described in Fant by the Supreme Court. See Fant, 278 U.S. at 445-46, 455; Sadrakula, 309
U.S. at 100 (analyzing Fant); Buttery, 14 S.E.2d at 548 (analyzing Fant); see also Prairie View A
& M Univ., 381 S.W.3d at 507 (discussing the enactment of Chapter 21 in 1983). Therefore,
construing the Petition in the light most favorable to Plaintiff, Defendant’s Motion cannot be
granted on the basis that any of Plaintiff’s claims are precluded by the TCHRA. See Calhoun,
312 F.3d at 733; Collins, 224 F.3d at 498.
19

However, with respect to the TWCA, which was enacted in 1913, the analysis is altered
by a federal statute, codified at 40 U.S.C. § 3172 (previously codified at 40 U.S.C. § 290 until
2002), that permits the application of all “state workers’ compensation laws” even within areas
of exclusive federal jurisdiction. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 183
(1988); Sadrakula, 309 U.S. at 100-01 n.10; Thomas v. Calavar Corp., 679 F.2d 416, 419 n.4
(5th Cir. 1982); Roelofs v. United States, 501 F.2d 87, 91 (5th Cir. 1974); Knox v. Ball, 191
S.W.2d 17, 18 (Tex. 1945). As the United States Supreme Court explained in Sadrakula, certain
statutes have been enacted to create uniformity “between the municipal laws of the state and
those of the federal parcel” as to certain bodies of law, including laws governing worker’s
compensation. Sadrakula, 309 U.S. at 100. Accordingly, “the same workers’ compensation
award” is available “for an employee injured at a federally owned facility as the employee would
receive if working for a wholly private facility.” Goodyear Atomic Corp., 486 U.S. at 183-84.
The TWCA therefore applies even within those areas of Fort Bliss that are under
exclusive federal jurisdiction. In Goodyear Atomic Corporation, the United States Supreme
Court specifically cited the Texas Workers’ Compensation Act as an example of “the type of
workers’ compensation scheme” contemplated by Congress when it enacted the previous version
of 40 U.S.C. § 3172.8 Id. at 183-85 n.6; see also Knox, 191 S.W.2d at 18 (referring to the
previous version of 40 U.S.C. § 3172 in a case involving “certain workmen’s compensation and
public liability insurance policies” applicable in the City of Houston). This Court therefore
concludes that, like all “state workers’ compensation laws” described in 40 U.S.C. § 3172, the
8

In Goodyear Atomic Corporation, the United States Supreme Court cited § 5 of Chapter 103 of the 1917 Texas
General Laws, which replaced § 5 of the original 1913 version of the TWCA at Chapter 179 of the 1913 Texas
General Laws, because the 1917 version was in effect when the predecessor to 40 U.S.C. § 3172 was enacted in
1936. See Goodyear Atomic Corp., 486 U.S. at 183-85 n.6. The differences between these two versions of the
TWCA are irrelevant to the applicability of 40 U.S.C. § 3172 to the TWCA. Compare 1913 Tex. Gen. Laws 429,
430, with 1917 Tex. Gen. Laws 269, 271.

20

Texas Workers’ Compensation Act applies “to all land and premises in the State which the
Federal Government owns or holds by deed or act of cession.” See 40 U.S.C. § 3172; Goodyear
Atomic Corp., 486 U.S. at 183-84; Sadrakula, 309 U.S. at 100-01 n.10; Thomas, 679 F.2d at 419
n.4; Knox, 191 S.W.2d at 18.
Accordingly, because the federal enclave doctrine does not prevent the application of the
TWCA even within those parts of Fort Bliss that are under the exclusive legislative jurisdiction
of the federal government, the Court must consider the effects of the TWCA in this case.
Defendant has correctly argued that the 1913 version of the TWCA “replaced the common law
negligence remedy with limited but more certain benefits for injured workers” as “part of a
nationwide compensation movement.” Garcia, 893 S.W.2d at 510-11; Poly-Am., L.P., 262
S.W.3d at 350. Additionally, § 408.001(a) of the TWCA makes explicit that employees can only
recover for a work-related injury through the recovery of workers’ compensation benefits.9
Poly-Am., L.P., 262 S.W.3d at 350. Therefore, Plaintiff’s claim that he was injured through
Defendant’s negligence and gross negligence in the workplace must be dismissed. See Garcia,
893 S.W.2d at 510-11; Poly-Am., L.P., 262 S.W.3d at 350.
As to Plaintiff’s remaining claims for negligent investigation, intrusion upon seclusion,
IIED, wrongful termination, and negligent hiring, Defendant has made no argument that these
causes of action are precluded by the TWCA. Neither party has cited any authority addressing
whether or not there exists “a clear repugnance” between any of these five remaining commonlaw claims and the TWCA. See Waffle House, 313 S.W.3d at 802; Cash Am. Int’l Inc., 35
9

Under § 408.001(b) of the TWCA, the TWCA permits lawsuits against employers for gross negligence outside of
the workers’ compensation scheme only “by the surviving spouse or heirs of the body of a deceased employee”
who bring a claim for wrongful death. See R&R Contractors v. Torres, 88 S.W.3d 685, 689 (Tex. App. 2002).
Because Plaintiff’s claim of gross negligence arises from an alleged personal injury, but is unrelated to wrongful
death, § 408.001(b) is irrelevant to this case.

21

S.W.3d at 16. The Court’s own review of the case law demonstrates that the tort of IIED, at
least, is not barred by the TWCA in all cases. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 610-11
(Tex. 1999).10 It also appears highly unlikely, based on the analysis of the Supreme Court of
Texas in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex. 1985), that the tort of
wrongful termination for refusal to commit an illegal act has been abrogated by the TWCA.11 In
any event, because neither party has made any arguments as to whether the TWCA abrogates
Plaintiff’s claims of negligent investigation, intrusion upon seclusion, IIED, wrongful
termination, and negligent hiring in general or based on the facts alleged in the Petition, the
Court need not further pursue these possibilities at this stage.
To conclude, the Court finds based on its foregoing analysis that the TCHRA does not
require the dismissal of Plaintiff’s common-law claims, because Defendant’s injurious conduct
may have occurred within an area of Fort Bliss where the pre-existing common law has not been
abrogated by the TCHRA. See Fant, 278 U.S. at 445-46, 455; Sadrakula, 309 U.S. at 100
(analyzing Fant); Buttery, 14 S.E.2d at 548 (analyzing Fant); see also Prairie View A & M
Univ., 381 S.W.3d at 507 (discussing the enactment of Chapter 21 in 1983). By contrast, the
TWCA is applicable in this case whether or not Defendant’s injurious conduct is alleged to have

10

In GTE Southwest, the Supreme Court of Texas held that the TWCA does not abrogate IIED where the injury
results from “continuing harassment and abuse” inflicted over a period of years, because the TWCA does not
provide relief for “repetitive mental trauma.” GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 610-11 (Tex. 1999); see
also Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817 n. 13, 818 n.24 (Tex. 2005) (citing the facts of GTE Sw.,
998 S.W.2d at 613-14, as an example where an IIED claim may be brought in the workplace); Bell v. Express
Energy Servs. Operating, LP, 02-11-00019-CV, 2012 WL 2036437, at *4 (Tex. App. June 7, 2012) (same).

11

In Sabine, the Supreme Court of Texas first recognized an exception to the “employment-at-will doctrine” that
permits an employee to bring an action against his employer for terminating the employee “for the sole reason that
the employee refused to perform an illegal act.” Sabine, 687 S.W.2d at 734-35. Both the majority’s decision and
Justice Kilgarlin’s concurrence in Sabine analyzed the Anti-Retaliation Law as a statutory exception to the
employment-at-will doctrine within the framework of the TWCA, suggesting that the TWCA could not have
abrogated the tort of wrongful termination. See Sabine, 687 S.W.2d at 734-35; id. at 736 (Kilgarlin, J.,
concurring) (concluding that the Anti-Retaliation Law “should serve as a guide” in assessing damages against an
employer who commits wrongful termination).

22

occurred on Fort Bliss, because Congress has extended this statute’s reach into federal enclaves
by enacting 40 U.S.C. § 3172. See Goodyear Atomic Corp., 486 U.S. at 183-85 n.6; Knox, 191
S.W.2d at 18. Accordingly, the TWCA precludes Plaintiff’s claim against Defendant for
negligence and gross negligence. See Garcia, 893 S.W.2d at 510-11; Poly-Am., L.P., 262
S.W.3d at 350. In the absence of any argument from the parties, however, the Court will draw
no similar conclusions regarding Plaintiff’s common-law claims of negligent investigation,
intrusion upon seclusion, IIED, wrongful termination, and negligent hiring.
2.

Defendant’s challenges to Plaintiff’s individual claims

Defendant also makes individual challenges to eight of the ten claims presented in
Plaintiff’s Petition based on the sufficiency of Plaintiff’s factual allegations under Rules 8(a) and
12(b)(6) of the Federal Rules of Civil Procedure and, in the alternative, requests that Plaintiff
clarify these allegations with a more definite statement under Rule 12(e). See Def.’s Mot. 6-12.
These requests are directed at all of Plaintiff’s claims other than Plaintiff’s claims of retaliation
under the TCHRA and the Anti-Retaliation Law, which Defendant does not challenge on the
basis of insufficient factual allegations. See id.
Since Plaintiff’s claim for negligence and gross negligence is abrogated by the Texas
Workers’ Compensation Act, the Court need only individually address the seven remaining
challenges under either Rule 12(b)(6) or Rule 12(e). As explained below, Plaintiff’s claims of
discrimination under the ADA and § 21.051 of the TCHRA have been sufficiently alleged, and
Defendant’s Motion to Dismiss must be denied as to these claims. Defendant’s Motion to
Dismiss must be granted, however, with respect to Plaintiff’s claim of negligent investigation,
because this cause of action has never been permitted under Texas law.
Finally, Defendant’s request for a more definite statement under Rule 12(e) is granted
23

with respect to Plaintiff’s claims of intrusion upon seclusion, IIED, wrongful termination, and
negligent hiring. As explained below, the relevant portions of Plaintiff’s Petition are sufficiently
“vague or ambiguous” that Defendant cannot “reasonably prepare a response” to these four
claims. See Fed. R. Civ. P. 12(e); Sisk v. Tex. Parks and Wildlife Dep’t, 644 F.2d 1056, 1059
(5th Cir. 1981).
a.

Discrimination under the ADA and the TCHRA

Defendant challenges the sufficiency of Plaintiff’s allegations that Defendant
discriminated against Plaintiff on the grounds of his disability in violation of the ADA’s antidiscrimination provision at 42 U.S.C. § 12112(a), and § 21.051 of the TCHRA. Def.’s Mot. 6-7.
Under the ADA, no covered employer “shall discriminate against a qualified individual on the
basis of disability” in regard to that employee’s “discharge” or “other terms, conditions, and
privileges of employment.” See 42 U.S.C. § 12112(a). Similarly, under § 21.051 of the
TCHRA, “[a]n employer commits an unlawful employment practice if because of . . . disability .
. . the employer . . . discriminates in any . . . manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment.” See Tex. Labor Code §
21.051. “Given the similarity between the ADA and the TCHRA, Texas courts look to
analogous federal precedent for guidance when interpreting the Texas Act,” and generally
analyze such claims together. See Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468,
474 (5th Cir. 2006) (internal quotation marks omitted); Talk v. Delta Airlines, Inc., 165 F.3d
1021, 1024 (5th Cir. 1999); NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999);
Herrera v. CTS Corp., 183 F. Supp. 2d 921, 925 (S.D. Tex. 2002).
A plaintiff may state a claim under the ADA by alleging (1) that he has a disability, (2)
that he is qualified for the job, and (3) that an adverse employment decision was made because of
24

his disability. Shirley v. Precision Castparts Corp., 2013 WL 4051760, at *3 (5th Cir. Aug. 12,
2013); Atkins v. Salazar, 677 F.3d 667, 675 (5th Cir. 2011); Turco v. Hoechst Celanese Corp.,
101 F.3d 1090, 1092 (5th Cir. 1996); Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d
758, 763 (5th Cir. 1996). The same elements must be alleged to support a claim under § 21.051
of the TCHRA. See Gober v. Frankel Family Trust, 2013 WL 3929971, at *2 (5th Cir. July 31,
2013); Gonnering v. Blue Cross & Blue Shield of Texas, 420 F. Supp. 2d 660, 668 (W.D. Tex.
2006).
In this case, Defendant does not contest that Plaintiff has a disability or that Plaintiff was
qualified for his job. See Def.’s Mot. 6-8. Rather, Defendant argues only that Plaintiff “offers
no facts” to support the allegation that Plaintiff was fired or otherwise discriminated against
“because of” his mental disability, and that Plaintiff’s allegations are therefore “conclusory.”
See id. at 7-8. This argument cannot be sustained, however. Plaintiff has alleged that he was
made to work without the proper safety equipment and subsequently fired or constructively
discharged, and that these instances of adverse treatment occurred “because of” Plaintiff’s actual
or perceived disability. Pl.’s Pet. 2-4. These contentions are sufficient to give Defendant fair
notice of Plaintiff’s claim that such treatment occurred “by reason of [Plaintiff’s] disability” and
that Plaintiff’s disability was the “determining factor” in Defendant’s adverse decisions. See
Penny v. New Caney Indep. Sch. Dist., CIV.A. H-12-3007, 2013 WL 2295428, at *6-7 (S.D.
Tex. May 23, 2013); Young v. Cooper Lighting, Inc., 5-07-CV-211-DCB, 2008 WL 4491396, at
*1-2 (S.D. Miss. Oct. 1, 2008).
The Court must construe Plaintiff’s Petition in the light most favorable to Plaintiff when
ruling upon Defendant’s Motion to Dismiss. See Calhoun, 312 F.3d at 733; Collins, 224 F.3d at
498. Applying this standard, Plaintiff’s Petition contains a sufficient allegation that various
25

adverse employment decisions were made as a consequence of Plaintiff’s disability. See Shirley,
2013 WL 4051760, at *3; Atkins, 677 F.3d at 675.
b.

Negligent investigation

Defendant also challenges the sufficiency of Plaintiff’s allegations as to Plaintiff’s claim
of “negligent investigation.” Def.’s Mot. 8-9. In particular, Plaintiff alleges that Defendant
acted negligently by “[f]ailing to conduct a proper and thorough investigation” and “[f]iring
Plaintiff on the basis of an inadequate investigation.” Pl.’s Pet. 11.
No common-law tort of “negligent investigation,” however, has ever been recognized by
Texas courts. See Texas Farm Bureau Mut. Ins. Companies v. Sears, 84 S.W.3d 604, 607 (Tex.
2002). “In Texas, an employer generally can terminate an at-will employee for any reason or no
reason at all.” Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 715 (Tex. 2003);
Sears, 84 S.W.3d at 609 (“[T]he employment-at-will doctrine does not require an employer to be
reasonable, or even careful, in making its termination decisions.”); Exxon Mobil Corp. v. Hines,
252 S.W.3d 496, 503 (Tex. App. 2008) (“Texas does not recognize a cause of action for
‘negligent investigation’ in the employment context.”). Since Texas has never recognized this
tort, moreover, there are no consequences for Plaintiff’s claim of negligent investigation under
the federal enclave doctrine. The Court therefore must grant Defendant’s Motion to Dismiss
Plaintiff’s claim for negligent investigation as a matter of law.
3.

Application of Rule 12(e)

As to Plaintiff’s four remaining claims, Defendant’s request for a more definite statement
under Rule 12(e) of the Federal Rules of Civil Procedure is granted. “A party may move for a
more definite statement of a pleading to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e);
26

Sisk v., 644 F.2d at 1059. Whether to grant a motion for more definite statement is within the
Court’s sound discretion. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir. 1959);
Travelers Indem. Co. of Conn. v. Presbyterian Healthcare Res., 313 F. Supp. 2d 648, 653-54
(N.D. Tex. 2004). A motion under Rule 12(e) is the proper remedy where allegations in a
complaint are “conclusory, confused, and unclear,” but do not “justify dismissal of the suit on the
merits and without leave to amend.” See Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 1161, 1180
(5th Cir. 1985).
a.

Intrusion upon seclusion

Defendant’s request for a more definite statement is granted as to Plaintiff’s claim for
intrusion upon seclusion. Def.’s Mot. 9-10. To state such a claim under Texas law, Plaintiff
must allege (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion,
or private affairs or concerns that (2) would be highly offensive to a reasonable person.
Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993); Roberts v. CareFlite, 02-12-00105-CV,
2012 WL 4662962 (Tex. App. Oct. 4, 2012); Sumien v. CareFlite, 02-12-00039-CV, 2012 WL
2579525, at *2 (Tex. App. July 5, 2012). “[T]he core of the offense is prying into the private
domain of another, not the publicity that may result . . . .” Sumien, 2012 WL 2579525, at *2
(analyzing Clayton v. Richards, 47 S.W.3d 149, 153 (Tex. App. 2001)).
Although Plaintiff’s Petition accurately states the elements of this claim, that “Defendant
intentionally invaded” Plaintiff’s “solitude, seclusion, and privacy” in a manner that “would have
offended any reasonable person,” there are no details in Plaintiff’s petition regarding this cause
of action. Pl.’s Pet. 7. “[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
27

Coast Hotel-Motel Ass’n, 658 F.3d at 506. Though Plaintiff’s Response to Defendant’s Motion
to Dismiss contains the statement that “when an employee is on a bathroom break and makes a
cell phone call in a porta-potty, there is some modicum of privacy that must be respected,” there
are no allegations corresponding to this statement anywhere in Plaintiff’s Petition. See Pl.’s
Resp. 6. In the Court’s view, therefore, Plaintiff’s Petition is “ambiguous [and] does not contain
sufficient information to allow a responsive pleading to be framed,” such that Defendant’s
request for a more definite statement should be granted. See Sisk, 644 F.2d at 1059.
b.

IIED

Defendant also challenges Plaintiff’s claim for IIED on the grounds that it is duplicative
of the other remedies that Plaintiff requests. Def.’s Mot. 5. Indeed, Texas law does not permit
claims for common-law IIED where other remedies are available for the same alleged injuries.
See Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); Creditwatch, 157
S.W.3d at 816. “[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.
Federal district courts applying Texas law have therefore 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. 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 Am. Corp., 401 F. Supp. 2d 761, 764-65 (S.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).
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However, it is not obvious from the brief description of this claim in Plaintiff’s Petition
that Plaintiff’s claim for IIED is based on “the very same facts” that are alleged in support of
Plaintiff’s claim under the ADA or Plaintiff’s other claims. See Gonnering, 420 F. Supp. 2d at
665-66. In Plaintiff’s Response to Defendant’s Motion to Dismiss, Plaintiff suggests that
“[s]ome of [Defendant’s] wrongdoing is for reasons unrelated and independent” of Plaintiff’s
claims for retaliation and discrimination. See Pl.’s Resp. 4. The Court therefore finds in its
discretion that Plaintiff’s Petition is sufficiently ambiguous that a more definite statement must
be filed before Defendant can frame a responsive pleading. See Sisk, 644 F.2d at 1059.
Defendant’s request for a more definite statement under Rule 12(e) is therefore granted with
respect to Plaintiff’s IIED claim.
c.

Wrongful termination

Defendant also challenges Plaintiff’s claim for wrongful termination. Def.’s Mot. 11. In
his Petition, Plaintiff “pleads a cause of action against Defendant for wrongful termination for
refusing to perform an illegal act.” Pl.’s Pet. 11. In Texas, a “narrow exception” to the at-will
employment doctrine permits an employee to bring a cause of action against his employer if he is
discharged “for the sole reason that the employee refused to perform an illegal act.” Safeshred,
Inc. v. Martinez, 365 S.W.3d 655, 659 (Tex. 2012); Ed Rachal Found. v. D’Unger, 207 S.W.3d
330, 332 (Tex. 2006); Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
In Williams v. Enserch, a Texas appellate court found that the tort of wrongful
termination cannot be based upon an ordinary employee’s refusal to commit an OSHA violation,
because OSHA imposes criminal penalties only upon “an employer,” who is defined as “a person
engaged in a business affecting commerce who has employees.” Williams v. Enserch Corp., 0597-02071-CV, 2000 WL 31802, at *2-3 (Tex. App. Jan. 18, 2000). In that case, because the
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plaintiff “cited no authority establishing that he would be considered an employer under the Act”
or otherwise “requiring him to report the environmental noncompliance issues,” the plaintiff’s
wrongful termination claim could not be sustained under Texas law. Id.; see also Hawthorne v.
Star Enter., Inc., 45 S.W.3d 757, 761 (Tex. App. 2001) (assuming, without deciding, that
wrongful termination could be predicated upon a midlevel supervisor’s refusal to permit “the
employees under his direction” to commit an OSHA violation dangerous to their health).
Here, Plaintiff states in support of this claim of wrongful termination that he was asked to
“participate in a scheme that was illegal” and that, relatedly, he had “reported safety violations”
committed by his supervisors that were in violation of OSHA. Pl.’s Pet. 3, 11. As in Williams,
however, it is not clear at this stage how Plaintiff could have violated OSHA or how OSHA
could have imposed any criminal penalties on Plaintiff, such that the tort of wrongful termination
could arise from Plaintiff’s refusal to violate OSHA. See Williams, 2000 WL 31802, at *2-3.
Therefore, the Court in its discretion grants Defendant’s request for a more definite statement.
See Mitchell, 269 F.2d at 130; Travelers Indem. Co. of Conn., 313 F. Supp. 2d at 653-54. In the
Court’s view, Plaintiff’s allegations regarding his refusal to commit an illegal act, where the
illegal act in question was allegedly prohibited under OSHA, is sufficiently “conclusory,
confused, and unclear,” to justify clarification under Rule 12(e). See Cates, 756 F.2d at 1180.
d.

Negligent hiring

Finally, Defendant also challenges the sufficiency of the allegations supporting Plaintiff’s
claims for negligent hiring. Def.’s Mot. 8-9. As to this cause of action, Defendant raises only
one argument—that an employer cannot be held liable for negligent hiring of an employee unless
the employee committed an actionable, common-law tort. Id.
Indeed, Texas law does not impose liability on an employer for the negligent hiring or
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supervising of its employee unless the employee committed an actionable tort. See Schmieding
v. Mission Petroleum Carriers, Inc., 07-11-0151-CV, 2012 WL 4092716 (Tex. App. Sept. 18,
2012); Williamson v. Am. Nat. Ins. Co., 695 F. Supp. 2d 431, 455 (S.D. Tex. 2010); Staples v.
Caremark, LLC, No. Civ. A. SA-08-CV-831-XR, 2009 WL 3634079, *5-6 (W.D. Tex. Oct. 29,
2009); Udoewa v. Plus4 Credit Union, No. H-08-3054, 2009 WL 1856055 (S.D. Tex. June 29,
2009); Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex. App. 2005); Garcia
v. Allen, 28 S.W.3d 587, 593 (Tex. App. 2000).
Because of the Court’s rulings above, Plaintiff’s common-law claims have either been
dismissed or found to require a more definite statement. Therefore, Plaintiff has not sufficiently
alleged the existence of a common-law tort upon which the tort of negligent hiring could be
predicated. The Court has not ruled out the possibility, however, that one of Plaintiff’s
remaining common-law claims for intrusion upon seclusion, IIED, or wrongful termination may
be sustained in this case based upon a more definite statement of Plaintiff’s claims. The Court
will also permit Plaintiff to re-plead his claim of negligent hiring.
III.

CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss, ECF No. 2, is

GRANTED in part and DENIED in part, as follows.
IT IS ORDERED that Defendant’s Motion is DENIED as to Plaintiff’s statutory claims
of discrimination and retaliation under the ADA, the TCHRA, and the Anti-Retaliation Law.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss is GRANTED with
respect to Plaintiff’s claims of negligence, gross negligence, and negligent investigation.
IT IS FURTHER ORDERED that Defendant’s request for a more definite statement
under Rule 12(e) of the Federal Rules of Civil Procedure is GRANTED with respect to
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Plaintiff’s claims of intrusion upon seclusion, IIED, wrongful termination, and negligent hiring.
SO ORDERED.
SIGNED this 27th day of August, 2013.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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