Opinion
Civil Action 4:24-cv-871
10-10-2024
Trenton Kirksey, Plaintiff, v. National Multiple Sclerosis Society, Defendant.
MEMORANDUM AND RECOMMENDATION
Yvonne Y. Ho United States Magistrate Judge
In this employment discrimination suit, Defendant National Multiple Sclerosis Society (“the Society”) has filed a motion to strike Plaintiff Trenton Kirksey's amended complaint or, alternatively, a motion for partial dismissal under Fed.R.Civ.P. 12(b)(6) that targets Kirksey's civil conspiracy claim. Dkt. 30. Kirksey responded by filing a corrected amended complaint, Dkt. 32, and a substantive response to the motion to dismiss, Dkt. 33. The Society filed a reply in which it withdrew its motion to strike. See Dkt. 34 at 2 n.1. Thus, the only remaining issue is whether Kirksey has stated a plausible civil conspiracy claim. After carefully considering the parties' briefs, Dkt. 30, 33, 34, Kirksey's corrected pleading, Dkt. 32, and the applicable law, it is recommended that the Society's motion to dismiss the civil conspiracy claim be granted.
Background
The following facts are drawn from Kirksey's amended complaint. They are taken as true at this stage.
All page references to filings on the Court's docket are cited by the page of the CM/ECF header.
Kirksey, who is African American, served as a manager of leadership events at the Society. Dkt. 32 at 3-4. This position entailed overseeing the South Central Chapter, recruiting donors, and motivating them to contribute. See id. at 4. Throughout his employment, Kirksey allegedly endured instances of racial discrimination and retaliation, including by his original supervisor Kristin Roberts, the Director of Leadership Events, and Amanda Peterson, Associate Vice President of Leadership Events. See id. at 4-14.
The alleged incidents, which began in September 2022 and continued through December 2022, included (1) offensive and racially charged remarks by Peterson at a Society event, see id. at 4-6; (2) a dispute over records for and allocation of a donor's $4,000 contribution to the Houston fundraising total, rather than the total in Dallas, where Kirksey spearheaded a fundraising event, see id. at 7-10; (3) Peterson's demands that Kirksey provide receipts or names of potential donors only if those donors were Black, but not White, id. at 10; (4) criticism from Roberts and Peterson after Kirksey chose a Black neurologist, then the President of the Texas Neurological Society, to honor at a Society event, and Peterson's directive that Kirksey “not work with Black People, they don't have a history of giving,” see id. at 10-12. Kirksey also alleges that he complained about these acts to the Society's human resources department and other Society officials, which triggered various retaliatory acts leading up to and including his termination. See id. at 6, 9, 11-14.
Kirksey filed a charge with the Equal Employment Opportunity Commission and received a right to sue letter. See id. at 13, 19-23. Initially represented by counsel, Kirksey then sued the Society in Texas state court, asserting racial discrimination and retaliation claims under the Texas Commission on Human Rights Act (“TCHRA”), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, and negligent training, supervision, and retention. Dkt. 1-3 at 2, 6-8. After the Society removed the case to this Court, Dkt. 1, Kirksey filed a motion to remand, which he later withdrew, see Dkt. 26 at 1. Kirksey's counsel sought and was granted leave to withdraw. Dkt. 25; Dkt. 26 at 1. The Court also dismissed the religious discrimination theories underlying Kirksey's TCHRA and Title VII claims, along with his negligence claim, and directed Kirksey to file an amended complaint. See Dkt. 26 at 1-2.
Kirksey, now pro se, filed an amended complaint that lacked his signature. Dkt. 28. His new pleading replaced his negligence claim with a new claim for civil conspiracy. See id. at 17-18 (Count 10).
The Society then filed a “Partial Motion to Dismiss and to Strike Plaintiff's Amended Complaint,” seeking dismissal of the civil conspiracy claim and requesting that the amended complaint be stricken if Kirksey failed to timely submit a signed version. Dkt. 30. The next day, Kirksey filed both a corrected amended complaint that includes his signature, Dkt. 32, and a response to the motion to dismiss, Dkt. 33. The Society filed a reply. Dkt. 34. The Society's motion is therefore ripe for resolution.
Legal standard
Dismissal under Rule 12(b)(6) is warranted if a party fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Rather, “[t]he complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim.” See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (analyzing Twombly, 550 U.S. at 555-56). When resolving a Rule 12(b)(6) motion, the court “accept[s] all well-pleaded facts as true and view[s] those facts in the light most favorable to the plaintiffs.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quote omitted).
When performing this analysis, pro se pleadings are liberally construed. Butler v. S. Porter, 999 F.3d 287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). But “regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Prescott v. UTMB Galveston Tex., 73 F.4th 315, 318 (5th Cir. 2023) (quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see also Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (“[P]ro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.”).
Analysis
The Society argues that Kirksey's civil conspiracy claim fails, as a matter of law, because he “has not identified the actions of any other party for which he seeks to hold NMSS liable.” Dkt. 30 at 10. According to the Society, Kirksey based his claim on actions within the Society itself, by its own employees, which cannot support a conspiracy claim. See id. at 11; see also Dkt. 34 at 2-3. In response, Kirksey maintains that he has identified “several volunteers, society supporters and employees” of the Society and intends to add more unnamed defendants later. See Dkt. 33.
First, the Court must confine its analysis to Kirksey's live amended complaint. His stated intent to sue yet other unnamed persons or entities for unspecified conduct has no bearing on whether his current allegations “state a claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 570.
Second, the Society is correct that Kirksey cannot base his conspiracy claim on alleged discriminatory or retaliatory acts by the Society's employees. In Texas, civil conspiracy depends on proof that a defendant participated in an underlying tort. See Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013). “The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). “In civil conspiracy, the plaintiff seeks to hold the defendant liable for an injury caused by a third party who has acted in combination with the defendant for a common purpose.” Agar Corp. v. Electro Circuits Int'l LLC, 580 S.W.3d 136, 140 (Tex. 2019) (emphasis added). Its purpose is to permit “recovery against co-conspirators who did not commit the underlying unlawful act.” See id. at 141.
Here, the only state-law tort underpinning Kirksey's conspiracy claim is a violation of the TCHRA. See Dkt. 32 at 15-16. Kirksey's factual allegations reinforce that conclusion, by asserting that various Society personnel discriminated and retaliated against him because of his race. See id. at 3-14.
But as Kirksey's former employer, the Society would already be liable under the TCHRA if its employees wrongly discriminated or retaliated against him. This means Kirksey's civil conspiracy claim does not meet the requirement of seeking relief against the Society for a tort committed by someone other than the Society itself. See Univ. of Tex. Rio Grande Valley v. Castillo, 2023 WL 7395872, at *5-6 (Tex. App.-Corpus Christi Nov. 9, 2023, no pet.) (holding that a similar civil conspiracy claim “cannot be saved” because the defendant “is already vicariously liable under the TCHRA for the discriminatory and retaliatory conduct of these employees”); see also Agar Corp., 580 S.W.3d at 140.
Moreover, the Society further maintains-correctly-that Texas's intracorporate conspiracy doctrine bars Kirksey's civil conspiracy claim. See Dkt. 34 at 2-3. Under that doctrine, an entity and its employees generally cannot conspire with one another when carrying out the entity's business. See Nieto v. State Farm, 2024 WL 964720, at *3 (S.D. Tex. Mar. 6, 2024) (rejecting claim that an insurer conspired with its own employees); Silva v. Wells Fargo Bank, N.A., 2013 WL 12129969, at *8 (S.D. Tex. June 13, 2013) (rejecting conspiracy claim against a bank that allegedly conspired with its employees) (citing Red Wing Shoe Co. v. Shearer's, Inc., 769 S.W.2d 339, 345 (Tex. App.-Houston [1st Dist.] 1989, no writ)). This is because the law treats the acts of an entity's agents as acts of the entity, and an entity cannot conspire with itself. See LED Sign Co. v. Hwee, 2008 WL 5114957, at *8 (S.D. Tex. Dec. 3, 2008) (citing Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994)). To sustain such a conspiracy claim, it must be shown that the employees either “act[ed] outside the scope of their employment,” did so “for their own personal purposes,” or both. See id. (citing ASARCO LLC v. Americas Min. Corp., 382 B.R. 49, 80-81 (S.D. Tex. 2007)); see also, e.g., Fojtik v. First Nat'l Bank of Beeville, 752 S.W.2d 669, 673 (Tex. App.-Corpus Christi 1988), writ denied, 775 S.W.2d 632 (Tex. 1989)).
Kirksey's allegations are not exempt from the prohibition against intracorporate conspiracy claims. Rather, Kirksey challenges alleged acts of the Society's personnel when conducting the Society's business, whether regarding the conduct of events, the allocation of donations, the parameters of Kirksey's work, or the decision to terminate his employment. See Dkt. 32 at 4-14. Because those claimed acts fall squarely within the scope of those individuals' employment and were performed on the Society's behalf, they cannot provide a basis for a civil conspiracy claim.
Finally, Kirksey argues that his pleading mentions various individuals who are not Society employees. See Dkt. 33. But the Society aptly observes that the pleading fails to allege that the Society had a “meeting of minds” with any of those persons to commit an underlying tort. See Massey, 652 S.W.2d at 934; Dkt. 34 at 4-5. Nor could those individuals be liable under the TCHRA, which applies only to an “employer.” See Tex. Labor Code Ann. § 21.051; see also id. § 21.055 (retaliation claim is limited to an “employer, labor union, or employment agency”); see also Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 580 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (“It is well established in Texas that an individual cannot be held personally liable under the TCHRA.”). Accordingly, the civil conspiracy claim should be dismissed.
Order and Recommendation
For the foregoing reasons, it is ORDERED that Defendant National Multiple Sclerosis Society's request to strike the amended complaint (Dkt. 30 at 12-13) is terminated as WITHDRAWN.
It is further RECOMMENDED that the Society's partial motion to dismiss (Dkt. 30 at 9-12) be GRANTED, and that Plaintiff Trenton Kirksey's civil conspiracy claim (Count 10, Dkt. 32 at 17-18) be DISMISSED WITH PREJUDICE. This disposition does not affect Kirksey's other pending claims.
The parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Failure to file timely objections will preclude appellate review of factual findings and legal conclusions, except for plain error. Ortiz v. City of San Antonio Fire Dep't , 806 F.3d 822, 825 (5th Cir. 2015).