MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nacy Stein Nowak, United States Magistrate Judge

I. Introduction

This is an employment discrimination action filed by pro se plaintiff, Rebecca Rodriguez. In sum, Rodriguez' original complaint alleges that her former employer, defendants CorVel Corporation ("CorVel") and Douglas Martin ("Martin"), CorVel's district manager and her immediate supervisor, discriminated against her on the basis of her gender in the form of hostile work environment sexual harassment, in violation of Title VII of the Civil Rights Act of 1964. In addition, plaintiff alleges a cause of action under the Americans with Disabilities Act ("ADA") and contends that defendants "regarded" her as being disabled. Specifically, Rodriguez complains that Martin subjected her to offensive behavior on at least two occasions when, in ordering her to perform a function of her job as a medical analyst processor (i.e., process hospital bills), he threatened her with his switchblade. It appears that immediately thereafter Rodriguez filed a police report complaining of Martin's actions at the workplace. Since the incidents with Martin, Rodriguez claims she began suffering from post-traumatic stress disorder and severe depression. Consequently, Rodriguez filed a workers' compensation claim to receive medical treatment for her condition. Rodriguez contends that her subsequent termination from employment was in retaliation for having filed a workers' compensation claim.

In addition to her causes of action described above under Title VII, the ADA, and the Texas Workers' Compensation Act, Rodriguez has pleaded violations of the Texas Whistleblower Act and the Fair Labor Standnrds Act ("FLSA")/Enterprise Rule. She has also asserted causes of action for intentional infliction of emotion distress, and perjury or subordination of perjury based on defendants' actions during the EEOC investigation of her discrimination charge and the law enforcement investigation of her complaints.

The matter before me is the motion for partial dismissal filed by defendants Corvel Corporation and Douglas Martin. Docket Entry 38. Specifically, defendants seek a dismissal of Rodriguez's causes of action under the Texas Whistleblower Act, the FLSA/Enterprise Rule, and for perjury or subordination of perjury. In addition, defendant Martin argues that as a matter of law, he cannot be held individually liable under Title VII, the ADA and the Texas Workers' Compensation Act; and as such, Rodriguez's claims against him under those statutes should be granted. Rodriguez has filed a motion "to strike" which I have construed as her substantive response to defendants' motion.

I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.

II. Jurisdiction

III. Issues Presented

Defendants' motions for partial dismissal presents the following four issues for disposition:

1. Whether a private whistleblower cause of action exists under Texas common law?

2. Whether Rodriguez's claim pursuant to the FLSA/Enterprise Rule should be dismissed for failure to state a claim upon which relief may be granted?

3. Whether Texas law recognizes a civil cause of action for perjury or subordination of perjury?

4. Whether Martin can be held individually liable under Title VII, the ADA and the Texas Workers' Compensation Act (as codified in the Texas Labor Code)?

IV. Analysis

Pursuant to FED. R. Civ. P. 12(b)(6), a plaintiff's claim should be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiff's complaint in the light most favorable to her and drawing all reasonable inferences in her favor, it appears certain that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiffs claim, a court is justified in assuming the nonexistence of those facts. B. No Private Whistleblower Cause of Action Exists under Texas Common Law

In her complaint, Rodriguez alleges that CorVel and Martin violated the "Texas Whistleblower Act" when they terminated her employment in retaliation for her having complained to law enforcement about Martin's purported unlawful actions at the workplace. Defendants have moved for dismissal arguing that Texas common law does not recognize such a claim in the private employment context. Because Rodriguez has failed to state a viable cause of action for whistleblowing, under either statutory or common state law, it is my recommendation that this cause of action be dismissed.

As statutory authority for the violation pleaded in her complaint, Rodriguez cites to the section of the Texas Labor Code prohibiting retaliation for filing a workers' compensation claim in good faith. See TEX. LAB. CODE ANN. § 451.001 (Vernon 1996 Supp. 2001). Then, in her response to dismissal, she quotes the language of the Texas Government Code which protects public employees from retaliation for reporting, in good faith, the employing governmental entity's or fellow employees' violations of law to an appropriate law enforcement agency. See TEX. GOV'T CODE ANN. § 554.002 (Vernon 1994 Supp. 2000). It is evident, however, that § 554.002 does not apply to Rodriguez because she was a private employee working at a (private) corporation. With respect to § 451.001 of the Texas Labor Code, that section supports her workers' compensation retaliatory discharge claim but not her whistleblower claim. Because Rodriguez has failed to identify any Texas statutory authority (nor have I found any) for her whistleblower cause of action against defendants under the factual circumstances presented in this case, the claim should be dismissed.

Moreover, to the extent that Rodriguez has pleaded a whistleblower cause of action under Texas common law, the Texas Supreme Court has specifically held that no such action exists in the private employment context. See Austin v. Healthtrust, Inc., 967 S.W.2d 400, 401-03 (Tex. 1998) (and cases and statutory authorities cited therein).

C. Rodriguez Has Failed to State a Claim Under the FLSA

Rodriguez has attempted to plead a cause of action under the ELSA, 29 U.S.C.A. § 201 et seq. (West 1998 Supp. 2000), and more specifically the "Enterprise Rule," by stating that her former job as a CorVel medical analyst processor which involved the production of goods for interstate commerce, is an activity covered by the Act. Besides alleging that her employment as a medical analyst processor is an activity covered under the ELSA entitling her to "unemployment wages and/or workers' compensation wages," Rodriguez fails to plead any factual allegations entitling her to relief under the Act. Moreover, at the inception, it should be noted that FLSA governs violations of minimum wage and overtime compensation, and imposes various record-keeping requirements on employers that fall within the Act's coverage. It does not address the relief requested by Rodriguez.

The "Enterprise Rule," as Rodriguez refers to it, is the standard of coverage under the FLSA which creates "coverage for an employer's employees based on the interstate activities of the business as a whole" rather than the activities of the individual employee. See 29 U.S.C.A. § 203(s)(1); and Brennan v. Greene's Pronane Gas Service, Inc., 479 F.2d 1027, 1030-31 (5th Cir. 1973) ("The `enterprise' coverage under the [FLSA] does not depend on the individual employees being engaged in commerce or production of goods for commerce . . . ."). Under the "enterprise standard of coverage, an employer is covered if two or more of its employees engage directly in interstate commerce or in the production of goods for interstate commerce and if certain other tests are met. Once an employer satisfies the criteria, all of the enterprise's employees are covered, irrespective of individual involvement in interstate commerce. Asserting "enterprise" coverage, without more, is not sufficient to state a claim under the FLSA. For this reason, Rodriguez's FLSA claim should be dismissed .

D. Rodriguez Has Failed to State a Civil Claim for Perjury or Subordination of Perjury

Rodriguez alleges a cause of action for perjury or subordination of perjury, claiming that "CorVel Corp. and its Representatives, falsely swore to the EEOC, Law Enforcement Officer, and Travelers Insurance Rep. [sic] events ever occurred." Defendants have moved for dismissal of this claim arguing that Texas law does not recognize a separate cause of action to recover damages for perjury. I agree.

Texas courts, addressing the issue, have held that there is no separate cause of action for civil perjury. See Kale v. Palmer, 791 S.W.2d 628, 631 (Tex.App. — Beaumont 1990) (citing Horlock v. Horlock, 614 S.W.2d 478 (Tex.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.), where the court affirmed the trial court's refusal to submit plaintiff's requested special issues for fraud based on misrepresentation by defendant in former divorce trial). See also Chandler v. Gillis, 589 S.W.2d 552, 554 (Tex.App. — El Paso 1979, writ ref'd n.r.e.) (affirming summary judgment against plaintiff who alleged a "civil wrong" based upon former perjured testimony); Morris v. Taylor, 353 S.W.2d 956, 958 (Tex.App.-Austin 1962, writ ref'd n.r.e.) (affirming summary judgment against plaintiff alleging malicious prosecution based upon perjured testimony in former suit), cert. denied, 371 U.S. 842 (1962).

The Texas Supreme Court decision in Treviño v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998), is instructive on this issue. In discussing whether to recognize a separate negligence claim for spoliation of evidence, the Treviño Court drew an analogy between that cause of action and civil perjury stating that: "Like evidence spoliation, civil perjury . . . involve[s] improper conduct by a party or a witness within the context of an underlying lawsuit." Then, the Court cited a number of cases in which the courts disallowed the wronged party to bring a separate cause of action for civil perjury. Id . at 952 (and cases cited therein). These court decisions, according to the Treviño Court, rely on public policy concerns such as ensuring the finality of judgments, avoiding duplicative litigation, and recognizing the difficulty in calculating damages. Id . Accordingly, the Treviño Court held that recognizing a cause of action for spoliation of evidence (as civil perjury) would create an impermissible layering of liability and would allow a plaintiff to collaterally attack an unfavorable judgment with a different fact-finder at a later time, in direct opposition to the sound policy of ensuring the finality of judgments. Id .

Moreover, the only statute Rodriguez has cited in support of her claim for civil perjury is the misdemeanor perjury statute found in TEX. PEN. CODE ANN. § 37.01 (Vernon 1994 Supp. 2001). That criminal statute cannot support Rodriguez's purported claim for civil perjury.

Accordingly, it is my recommendation that Rodriguez's cause of action for civil perjury or subordination of perjury be dismissed .

E. No Individual Liability Exists Under Title VII, the ADA and the Texas Workers' Compensation Act

Defendant Martin argues that since he is not an "employer," as that term is defined under Title VII, the ADA, and the Texas Workers' Compensation Act, Rodriguez's claims against him in his individual capacity should be dismissed. Martin's position has merit.

With respect to personal liability under Title VII, it is well-settled that "individual defendants [such as employees, supervisors, or agents of the agency/corporate employer] cannot be held liable for damages under Title VII." See Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (if named defendant acted only in his individual capacity, he did not act as an "employer" and would not be liable under Title VII); and Grant v. Lone Star Co., B.L., 21 F.3d 649, 652-53 (5th Cir.), cert. denied, 513 U.S. 1015 (1994).

Likewise, the same rationale applies under the ADA. The ADA contains a statutory provision stating that it must be enforced in the same manner as Title VII. See 42 U.S.C. § 12117(a) ("The powers, remedies, and procedures set forth in [section 2000e-5, Title VII] of this title shall be the powers, remedies, and procedures this subchapter provides to . . . any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment."). Consequently, the district courts within the Fifth Circuit that have addressed the issue, have unequivocally held that the ADA's definition of "employer" mirrors the definitions of employer in Title VII. See Jenkins v. Board of Education of the Houston Independent School District, 937 F. Supp. 608, 612 (S.D. Tex. 1996) (granting dismissal in favor of school district officials, sued in their individual capacities, finding that employee/plaintiff failed to state a claim upon which relief could be granted under the ADA); and Miller v. Giglio Distributing Co., 899 F. Supp. 318, 319 (E.D. Tex. 1995) (granting summary judgment in favor of employer finding that no individual liability exists under the ADA and the Texas Commission on Human Rights Act).

Similarly, because the Texas employment discrimination statutes were modeled on federal law, Texas courts have consistently held that supervisors and managers who do not meet the definition of "employers" under Title VII, are not liable in their individual capacities for alleged acts of discrimination under the Texas Commission on Human Rights Act and the Texas Workers' Compensation Act. See Jenkins v. Guardian Industries Corp., 16 S.W.3d 431, 439 (Tex. App — Waco 2000, n.w.h.); and Stoker v. Furr's Inc., 813 S.W.2d 719, 721-24 (Tex. App — El Paso 1991, writ denied) (no claim can be brought against one who is not an "employer" under the Texas Workers' Compensation Act).

Consistent with my analysis of the applicable law, I need not look beyond the pleadings to determine that, as a matter of law, Rodriguez cannot prevail against defendant Martin. In this case, Rodriguez has named Martin in her complaint and has described him by his title as an employee of defendant CorVel. Accordingly, defendant Martin's motion for dismissal of these claims brought against him in his individual capacity should begranted. Rodriguez's causes of action under these statutes can only be maintained against defendant CorVel.

V. Recommendation

Based on the foregoing, it is my recommendation that the District Court GRANT defendants' motion forpartial dismissal (Docket Entry 38) on Rodriguez's claims against defendants CorVel and Martin for violations of the Whistleblower Act, violations of the ELSA/Enterprise Rule, and for perjury or subordination of perjury; AND against defendant Martin, individually, for violations of Title VII, the ADA and the Texas Workers' Compensation Act. Rodriguez has not pleaded any facts that would support her request for relief under the law applicable to those claims.

VI. Instructions For Service And Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk, According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.