Summary
holding that a defendant's conduct was not sufficiently extreme or outrageous where defendant was alleged to have made sexual innuendos and lewd sexual comments toward the plaintiff, persistently tried to persuade the plaintiff to have a relationship despite her objections, arranged a business trip so as to require the plaintiff to stay in his hotel room, enquired about the type of undergarments the plaintiff wore, and subjected the plaintiff to retaliatory treatment when rebuffed
Summary of this case from Rogers v. American Heritage Life Insurance CompanyOpinion
NO. 4:01-CV-0254-A
June 1, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motions of plaintiff, Dawn Anderson, to remand and for leave to amend pleadings, and the motion of defendant Bruce Christensen ("Christensen") to dismiss. The court, having considered the motions, the responses and replies to the motions to remand and to dismiss, the record, and applicable authorities, finds that plaintiff's motions should be denied and that Christensen's motion should be granted.
I. Plaintiff's Claims
On February 20, 2001, plaintiff filed her original petition in the 141st District Court of Tarrant County, Texas. By notice of removal filed March 27, 2001, the action was brought before this court. In her original petition, plaintiff asserts claims against Conseco for discrimination and retaliation. She asserts a claim against Christensen for intentional infliction of emotional distress. Plaintiff alleges:
In its notice of removal, defendant Conseco Finance Leasing Trust ("Conseco") asserts that defendant Christensen, a Texas resident, has been fraudulently joined in an attempt to defeat diversity jurisdiction.
In February 1998, she began employment with Conseco. At all pertinent times, Christensen was her supervisor. Beginning in January 1999, Christensen began sexually harassing plaintiff, first engaging in sexual innuendos, then becoming more direct. That month, Christensen arranged a business trip to New York City, telling plaintiff that the trip would be a good opportunity for him to seduce her. He booked only one hotel room and, because of a shortage of rooms, plaintiff was forced to stay in that hotel room with Christensen, although in a separate bed. Christensen made lewd comments when plaintiff was in the bathroom and attempted to open the locked bathroom door. Upon returning from New York, Christensen stated his intention to pursue a romantic relationship with plaintiff and told her that he had recently separated from his wife because he knew that plaintiff would not date a married man. Although plaintiff repeatedly told Christensen that she did not want anything other than a business relationship, he persisted in trying to persuade her to have a relationship with him.
In February of 1999, Christensen called plaintiff in her hotel room following a business meeting and asked her to come to his room to discuss the meeting. She declined. Also in February 1999, Christensen called plaintiff at her home from his hotel room in another city to announce that she would be promoted. He told her that he wished she was in his hotel room to share a warm bath with him and made other lewd comments.
During the workday, Christensen made comments constantly about plaintiff's physical appearance and frequently commented on the type of underwear she might be wearing. He tossed a Victoria's Secret catalog on her desk, opened to a very revealing undergarment, and asked if she wore that outfit. He gave her sexually crude and offensive cartoons and pictures. Whenever plaintiff rejected Christensen's advances, he became extremely demanding and cold and followed up with retaliatory treatment such as moving up deadlines, tampering with plaintiff's computer to create document errors, and limiting plaintiff's participation in sales meetings and training calls.
On October 14, 1999, plaintiff filed a charge of discrimination and retaliation with the Texas Commission on Human Rights. At the end of December 1999, following Conseco's receipt of the charge, plaintiff was assigned to work out of another office to separate her from Christensen. As a result, plaintiff had a lengthy commute and was isolated from her sales team.
Ultimately, on or about August 1, 2000, plaintiff was told to close her office and go home until further notice as to the status of her position. Subsequently, she was told that her position had been eliminated and that, as of September 18, 2000, she was terminated.
II. Pending Motions
Plaintiff argues that Christensen is a proper party defendant and that this action should be remanded to the state court because diversity jurisdiction does not exist. Defendants, on the other hand, urge that the claims against Christensen are fraudulent and should be dismissed. Plaintiff, apparently recognizing a deficiency in her state court pleading, requests leave of court to amend her complaint to more specifically describe the injuries she allegedly suffered as a result of Christensen's actions.
III. Whether Christensen was Fraudulently Joined
The presence of Christensen as a defendant is to be disregarded for removal purposes if his joinder was fraudulent. Burden v. General Dynamics Corp., 60 F.3d 213, 217-18 (5th Cir. 1995); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Whether a case has been properly removed despite the presence in the suit of a resident defendant is determined by reference to the plaintiff's state court pleadings. Tedder v. FMC Corp., 590 F.2d 115, 116-17 (5th Cir. 1979). If there is no reasonable basis for predicting that state law might impose liability on the resident defendant under the facts alleged, then the claim is deemed fraudulent and its presence will not prevent removal. Id. at 117. Accordingly, the court considers whether defendants have shown that there is no possibility that plaintiff will be able to establish a cause of action for intentional infliction of emotional distress. See Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999).
Accordingly, the court is denying plaintiff's motion to amend her complaint.
The elements of a cause of action for intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused plaintiff emotional distress; and (4) the emotional distress suffered by plaintiff was severe. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 195 (5th Cir. 1996);Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). To prevail on such claim, plaintiff would have to show that Christensen engaged in conduct that was so outrageous in character and extreme in degree that it surpassed "`all possible bounds of decency,' such that it was `utterly intolerable in a civilized community.'" Ward v. Bechtel Corp., 102 F.3d 199, 203 (5th Cir. 1997); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989) (quoting Restatement (Second) of Torts, § 46, cmt. d); Sauls v. Union Oil Co., 750 F. Supp. 783 (E.D. Tex. 1990). The court is to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Danawalla v. Houston Lighting Power Co., 14 F.3d 251, 256 (5th Cir. 1993); Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions.Weller, 84 F.3d at 195. Incidents in which a Texas court has determined the conduct of an employer with regard to an employee to be extreme and outrageous are few. Horton v. Montgomery Ward Co., Inc., 827 S.W.2d 361, 369 (Tex.App.-San Antonio 1992, writ denied).
Here, the conduct alleged is certainly "within the realm of an ordinary employment dispute" and does not rise to a level of extreme and outrageous conduct. Johnson v. Merrell Dow Pharmaceuticals. Inc., 965 F.2d 31, 33-34 (5th Cir. 1992); Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1013 (N.D. Tex. 1996) (citing cases); Gearhart v. Eye Care Ctrs. of Am., Inc., 888 F. Supp. 814, 819-23 (S.D. Tex. 1995) (citing cases). Plaintiff alleges that the offensive conduct began in January 1999. However, she did not complain to anyone other than Christensen until October 1999. Plaintiff does not allege that Christensen did anything objectionable after October of 1999. Moreover, she does not allege that she suffered so severely as a result of Christensen's actions that no reasonable person could have been expected to endure that level of distress. McKethan, 996 F.2d 734, 742 (5th Cir. 1993) (quoting K.B. v. N.D., 811 S.W.2d 634, 640 (Tex.App.-San Antonio 1991, writ denied); Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 660 (Tex.App. — Corpus Christi 1994, writ denied). The humiliation, embarrassment, and harassment plaintiff alleges she suffered is insufficient to meet the fourth element of the cause of action. Ewald, 878 S.W.2d at 660.
IV. ORDER
Because defendants have shown that plaintiff cannot prevail on the facts pleaded by her in support of a claim for intentional infliction of emotional distress against Christensen, the court is denying plaintiff's motion to remand. The court is granting Christensen's motion to dismiss.
The court ORDERS that:
(1) Plaintiff's motion to remand be, and is hereby, denied;
(2) Christensen's motion to dismiss be, and is hereby, granted and plaintiff's claims against him be, and are hereby, dismissed; and
(3) Plaintiff's motion for leave to amend pleadings be, and is hereby, denied.
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against Christensen.