Opinion
Civil Action No: SA-02-CA-0663-XR
August 29, 2003
ORDER
On July 31, 2003, Defendant Ken Smith ("Smith") filed a Motion for Partial Summary Judgment. Plaintiff Danielle Hansen ("Hansen") responded August 14, 2003. Smith argues that the statute of limitations bars Hansen's assault claim and intentional infliction of emotional distress claim. He also argues that he was at no time an employer as that term is defined under Title VII. After careful consideration of the motion and response, the Court GRANTS partial summary judgment on Smith's first two grounds for events that occurred before March 7, 2001. The Court also GRANTS summary judgment and DISMISSES Hansen's Title VII claim against Smith.
STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). The moving party has the burden of showing that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the record, viewed in that light, could not lead a rational trier of fact to find for the party opposing the motion, summary judgment is proper. Kelley v. Price Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993), cert. denied, 510 U.S. 1043 (1994) (citing Matsushita, 475 U.S. at 577-78).
FACTUAL BACKGROUND
Hansen alleges she was discriminated against in her workplace. On September 20, 2002, she filed an Original Complaint alleging sexual harassment and retaliation against her employer, ASAP Consultants, Inc ("ASAP"). The allegations consisted of conduct that began with her employment in late November 2000 and continued until her dismissal in March 2001. In March 2003, Hansen amended her complaint, adding her co-worker Smith, to her suit. Her First Amended Complaint also added the assault and intentional infliction of emotional distress ("TIED") claims at issue here.
ANALYSIS
1. Are Hansen's assault and IIED claims barred by the statute of limitations?
Smith contends that the assault and IIED claims are barred by Texas's two-year statute of limitations for tort claims. TEX. Civ. PRAC. REM. CODE § 16.003(a). Smith argues that because the amended complaint was filed on March 7, 2003, only incidents that occurred after March 7, 2001, may be asserted. "It is settled that a amendment can add new causes of action and new theories of recovery, even if the original complaint did not state a valid cause of action." Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1286 (5th Cir. 1981). It is also settled that an amendment can add new parties to the lawsuit. Id. In this case, Hansen's claims for assault and IIED are based on conduct that allegedly occurred in November 2000 until her dismissal on March 27, 2001. Hansen did not add those claims until March 7, 2003. Thus, the new claims, to the extent they rely on conduct that occurred before March 7, 2001, are barred unless the amendment relates back to the filing of her Original Complaint on September 20, 2002.
The two incidents Hansen seems to rely upon for her assault claim are the "Box Incident" in December 2000, and the "Copy Room Incident" in March 2001. Hansen appears to allege that various incidents from November 28, 2000, through March 27, 2001, were outrageous and are the basis for her IIED claim.
An amendment adding a new party will only relate back to the original date of filing if it meets the requirements set forth in Rule 15 of the Federal Rules of Civil Procedure. Under Rule 15, an amendment to add a new party must meet three requirements in order to relate back to the original date of filing. First, the claim must arise out of the same conduct, transaction, or occurrence set forth in the original pleading. Second, the party to be brought in by amendment must have received notice of the original action so that he will not be prejudiced in his defense. Third, the party to be brought in must have known, or should have known that but for a mistake concerning his identity, the original action would have been brought against him. FED. R. Civ. P. 15(c).
Here, Hansen's claims in the Amended Complaint arose out of the same conduct, transaction, or occurrence set out in her original complaint. Thus, the Defendant has been put on notice that his alleged conduct, beginning in November 2000 and continuing through Hansen's dismissal in March 2001, was the basis for the complaint. For example, in both complaints Hansen relies on an incident that occurred in December 2000, called the "Box Incident." In both complaints, Hansen also relies on the "Copy Room Incident" as well as various comments that Smith made throughout Hansen's four-month employment. Because these incidents are set out in detail in Hansen's Original Complaint, the assault and IIED claims added by Hansen's Amended Complaint arise from the same conduct and occurrences.
Because there is an identity of interest between ASAP, the original defendant, and Smith, he received timely notice of the complaint. "Identity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Kirk v. Cronvich, 629 F.2d 404, 408 (5th Cir. 1980) citing 6 C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1499, (1972). During the E.E.O.C. investigation, both Smith and ASAP were contacted and had an opportunity to challenge the accusations. Smith was not only referred to in the body of the charge, but his actions were the basis for Hansen's complaint. In addition, Smith is the Vice President of Operations and a member of upper management in ASAP's business. Thus, Smith received adequate notice of this suit and will not be prejudiced in maintaining his defense.
However, Hansen cannot show that failing to name Smith in her Original Complaint was a mistake. A failure to identify individual defendants will not be characterized as a mistake for purposes of Rule 15. Jacobsen v. Osborne, et al., 133 F.3d 315, 321 (5th Cir. 1998). Thus, an amendment that identifies formerly unidentified defendants will not relate back because there is no mistake to correct. Id. at 321. Because Hansen's Original Complaint does not name Smith as a defendant, her Amended Complaint will not relate back to the date of the original filing. Thus, Smith's Motion for Partial Summary Judgment based on any allegations before March 7, 2001, is GRANTED. 2. Can Smith be personally liable under Title VII?
Summary judgment was not sought, and this order does not address, Hansen's claim that she was assaulted during the "Copy Room Incident" occurring in March 2001. Further, summary judgment was not sought, and this order does not address, the portion of Hansen's complaint regarding her EBB claim for events occurring after March 7, 2001.
Smith next argues that he cannot be held liable for Hansen's claim under Title VII because he is not an employer. An employer for Title VII liability is defined as "a person engaged in an industry affecting commerce . . . and any agent of such a person . . ." 42 U.S.C § 2000e(b). However, a private individual will not be held personally liable under Title VII. Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994).
Hansen's complaint names Smith individually and as an employee of ASAP. Between November 2000 and February 2001, Hansen and Smith occupied similar positions as Regional Managers in AS AP's San Antonio office. Thus, Smith was not Hansen's immediate supervisor. In February 2001, Smith was promoted to Vice President of Operations. However, even in this role, Smith cannot be held personally liable under Title VII. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("[A] party may not maintain a suit against both an employer and its agent under Title VII"). Thus, the claims brought against Smith in his individual capacity under Title VII cannot be sustained.
In addition, because Hansen's Amended Complaint does not relate back to the date of her Original Complaint, the Title VII claim against Smith would also be barred by the limitations period for Title VII actions. See St. Cyr v. Merrill Lynch, Pierce, Fenner Smith, Inc., 540 F. Supp. 889, 892 (S.D. Tex. 1982).
CONCLUSION
Accordingly, the Court GRANTS Smith's motion for Partial Summary Judgment in that the assault and IIED claims are barred by limitations for any events occurring before March 7, 2001. The Court also GRANTS Smith's motion and DISMISSES Hansen's Title VII claim against Smith, docket entry #34).