McCleod v. Crane

Full title: ELLIOTT R. "REGGIE" McCLEOD, Plaintiff, v. EILEEN CRANE and UNITED PARCEL…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: May 2, 2006

Civil No. SA-06-CA-0117-RF (W.D. Tex. May. 2, 2006)

Opinion

Civil No. SA-06-CA-0117-RF.

May 2, 2006

MEMORANDUM AND RECOMMENDATION

JOHN PRIMOMO, Magistrate Judge

Elliott R. "Reggie" McCleod filed this lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., against United Parcel Service, Inc. ("UPS"), his former employer, and Eileen Crane, his former supervisor. McCleod alleges that he was sexually harassed by Crane and later terminated due to his refusal of her sexual advances. Crane has filed a motion to dismiss, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, alleging that, as an individual, she does not meet the statutory definition of "employer" and, thus, is not susceptible to suit under Title VII. (Docket no. 12). McCleod has filed a motion opposing the motion to dismiss. (Docket no. 16). Having considered the pleadings and the applicable law, the Court is of the opinion the claim against Crane should be dismissed.

Rule 12(b) (6), Fed.R.Civ.P., authorizes the filing of a motion to dismiss a case for failure to state a claim upon which relief can be granted. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). The Court must accept plaintiff's allegations as true, and all reasonable inferences are to be drawn in favor of plaintiff's claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Woodard, 419 F.3d at 351.

Under Title VII, it is unlawful for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex. 42 U.S.C. Section 2000e-2(a) (1). The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. See 42 U.S.C. Section 2000e(b). Notwithstanding the reference to "agent," courts have held that relief under Title VII is available only against an employer, not an individual supervisor or fellow employee. Foley v. University of Houston System, 355 F.3d 333, 340 n. 8 (5^th Cir. 2003); Thomas v. Choctaw Management/Services Enterprise, 313 F.3d 910, 911 (5^th Cir. 2002). Congress's purpose in including agents within the definition of employer was to incorporate respondeat superior liability into the statute. Shabazz v. Texas Youth Commission, 300 F.Supp.2d 467, 471 (N.D.Tex. 2003). As a result, an individual may sue his employer for respondeat superior liability, but may not sue the agent under Title VII. Id.

In response, McCleod contends that Crane is a senior manager and "major stockholder" of UPS. That contention does not alter Crane's non-status as a Title VII employer. Sole owners and individual shareholders are not liable as employers under Title VII. Matheson v. Virgin Islands Community Bank Corp., 297 F.Supp.2d 819, 832 (D.C.V.I. 2003). McCleod also suggests that his complaint includes state law claims for invasion of privacy, assault, battery, and intentional infliction of emotional distress. Because the Court possesses original jurisdiction over the Title VII claim, it can exercise supplemental jurisdiction over other related claims. See 28 U.S.C. Section 1367(a). However, his complaint does not include those causes of action, and McCleod has not sought leave to amend his complaint to include such claims. In any event, even a liberal construction of his pleadings fails to support those claims.

McCleod offers few facts in either his complaint or in his answers to the Court's questionnaire which support his claims. Attachments to the complaint, including his EEOC charge of discrimination, reference an affair 20 years ago with Crane and an incident in March or April 2004 when an unidentified "female breast" brushed up against his elbow. McCleod contends that Crane directed others in management to harass him and set him up for failure and discharge because she feared he would disclose their previous relationship. While he has asserted a factual basis for a Title VII claim against UPS, his allegations fail to state a claim for invasion of privacy, assault, battery, and intentional infliction of emotional distress. The only proper defendant in this case is UPS.

Recommendation

It is, therefore, the recommendation of the Magistrate Judge that Crane's motion to dismiss be GRANTED.

Instructions for Service and Notice of Right to Appeal/Object

The United States District Clerk shall serve a copy of this Memorandum and Recommendation on all parties either by (1) certified mail, return receipt requested, or (2) facsimile if authorization to do so is on file with the Clerk. Pursuant to Title 28 U.S.C. Section 636(b) (1) and Rule 72(b), Fed.R.Civ.P., 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 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. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendation 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. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5^th Cir. 1996).