Opinion
SA-06-CA-0117-RF.
June 30, 2006
ORDER ADOPTING IN PART AND REVERSING IN PART MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Primomo's Memorandum and Recommendation (Docket No. 19), filed on May 2, 2006. There being no objections to this ruling, this Court reviews it for findings and conclusions that are either clearly erroneous or contrary to law. This Court ADOPTS IN PART AND REVERSES IN PART this Memorandum and Recommendation.
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
INTRODUCTION
Plaintiff Elliott R. "Reggie" McCleod filed this lawsuit under Title VII of the Civil Rights Act of 1964, 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.
Memorandum and Recommendation at 1.
Id.
Defendant Eileen Crane filed a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Magistrate Judge recommended that this Court grant the motion to dismiss on all claims against Defendant Crane. This Court holds that while the Magistrate was correct in finding that Plaintiff has failed to state a Title VII claim for sex discrimination against Crane, the Magistrate wrongly concluded that Plaintiff has failed to state a claim for assault.
Id.
Id. at 4.
STANDARDS OF REVIEW
I. Standards for Reviewing the Memorandum and Recommendation
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Plaintiff did not file specific objections to the Magistrate Judge's Memorandum and Recommendation, thus warranting clearly erroneous review by the Court.
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
II. Standards for Reviewing a Motion to Dismiss
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. For purposes of a Rule 12(b)(6) Motion to Dismiss for failure to state a claim, the complaint must be liberally construed in favor of the plaintiff, and all the facts pled in the complaint must be taken as true. Dismissal on this basis is a disfavored means of disposing of a case, and district courts should avoid such dismissals "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." "The question therefore is whether, in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief."
Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986).
Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 365 (5th Cir. 2000).
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.99, 102 (1957).
Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999) (citing 5 CHARLES ALAN WRIGHT ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969)).
DISCUSSION
The Magistrate was correct in concluding that Plaintiff failed to state a claim for sex discrimination under Title VII, but incorrect in concluding that he failed to state a claim for assault.Title VII creates a right of action against employers who discriminate against employees because of their sex. Title VII defines "employer" to be 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. The Magistrate correctly stated that the statutory definition of "employer" excludes individual supervisors like Ms. Crane. Because Ms. Crane is not an employer under Title VII, Plaintiff has failed to state a claim against her for sex discrimination.
See Foley v. University of Houston System, 355 F.3d 333, 340 n. 8 (5th Cir. 2003); see also Thomas v. Choctaw Management/Services Enterprise, 313 F.3d 910, 911 (5th Cir. 2002).
However, contrary to the Magistrate's assertion, Plaintiff's allegations do state a claim for assault under Texas common law. In an EEOC affidavit attached to his complaint, Plaintiff alleges that Ms. Crane brushed her breast against his elbow while he was loading packages onto a truck. Also, in a separate letter to the EEOC, Plaintiff alleges that this sort of intentional contact occurred multiple times: "While returning to the center and doing my turn-in several times Eileen [Crane] would help me count my money and would always push her breast up against my elbow, again asking me for sexual favors." Plaintiff alleges these incidents occurred after he had expressly rejected her sexual advances.
EEOC Affidavit (Docket No. 6).
Letter RE: SEXUAL HARASSMENT (Docket No. 6).
See EEOC Affidavit (Docket No. 6).
If Plaintiff's allegations are assumed true, Plaintiff has sufficiently stated a claim for assault under Texas common law. Assault is defined as, "[I]ntentionally or knowingly causing physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative." If Defendant did in fact intentionally push her breast against Plaintiff's elbow, such physical contact could reasonably be found to satisfy the elements of assault. Pushing one's private area onto another's body without the other's implied or express consent is probably as offensive as other sorts of conduct that Texas courts have recognized to be assault.
Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 521 (Tex.App.-San Antonio 1996).
See, e.g., Foye v. Montes, 9 S.W.3d 436, 441 (Tex.App. — Houston 1999) (holding that plaintiff's allegation that defendant nonconsensually touched her buttocks is legally sufficient to state a claim for assault).
Magistrate Judge Primomo denied that Plaintiff stated a claim for assault because his complaint did not explicitly include this cause of action, and because Plaintiff did not seek leave to amend his complaint to include the assault theory. The Magistrate correctly observed that Plaintiff did not advance the particular legal theory of assault in his complaint. However, the Supreme Court has held that a plaintiff's complaint may not be dismissed if the plaintiff's allegations provide support for relief on any possible theory, even a theory not advanced by the plaintiff in his complaint. Even though Plaintiff does not advance the particular theory of assault in his complaint, his allegations do provide support for relief on a theory of assault, as discussed earlier. Therefore, Plaintiff's assault theory should not be dismissed for failure to state a claim.
See Memorandum and Recommendation at 3.
See Complaint (Docket No. 6).
Bowers v. Hardwick, 478 U.S. 186, 201 (1986) ("It is a well-settled principle of law that `a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.'") (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).