United States District Court, W.D. Texas, Austin Division.

KELLI ALEXIS GIBBINS, Plaintiff

v.

HOLOGIC, INC. AND NOLAN GATEWOOD, Defendants

No. 1:25-CV-531-RP-DH

|

Filed 12/03/2025

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE

*1 TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Hologic, Inc. (“Hologic”) and Nolan Gatewood’s (together, “Defendants”) motions to dismiss, Dkt. 6; 8, and all related briefing. After reviewing these filings and the relevant case law, the undersigned recommends that the District Judge grant Hologic’s motion to dismiss, Dkt. 6, and grant in part and deny in part Gatewood’s motion to dismiss, Dkt. 8.

I. BACKGROUND

Plaintiff Kelli Alexis Gibbins initiated this case based on the sexual harassment she experienced while working at Endomagnetics, Ltd. (“Endomagnetics”), a subsidiary of Defendant Hologic, which is a medical-technology company. Dkt. 1, at 1-2. Though employed by Endomagnetics, Gibbins alleges that Gatewood—Hologic’s Director of U.S. Sales for Breast Surgery—was her “superior and supervisor.” Id. at 4. While attending a radiology conference, Gibbins alleges that Gatewood promised Gibbins “advancements in her career with insinuations of sexual advancements in a quid pro quo fashion” and “sexually groped” Gibbins “in plain view of her colleagues.” Id. at 5-6. Despite reporting the harassment to Hologic’s human resources department, Gibbins alleges Hologic “did absolutely nothing” and Gatewood began retaliating against Gibbins by denying her promotions and spreading rumors accusing Gibbins of “inappropriate sexual relations.” Id. at 6-7. Gibbins further alleges that she “spiral[ed] into a deep state of anxiety and panic disorder” and ultimately resigned from her job “due to the pain and suffering that Defendants[ ] caused” her. Id. at 7.

Gibbins now brings fifteen state-law claims¹ against Defendants. Id. at 8-17. Both Hologic and Gatewood filed motions to dismiss, arguing that Gibbins’s causes of action are preempted by Title VII or the Texas Workers’ Compensation Act or, as to certain claims, that Gibbins otherwise fails to state a claim. See Dkts. 6; 8.² Gibbins opposed Defendants’ motions, maintaining that her common-law claims are not preempted by any statutes and should be allowed to proceed. See Dkts. 11; 12.

II. LEGAL STANDARD

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ ” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

*2 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.” Id. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff’s complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’ ” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

III. DISCUSSION

A. Hologic’s Motion to Dismiss

Hologic moved to dismiss Gibbins’s claims against it for failure to investigate, negligence, negligent hiring, negligent training, negligent supervision, negligent retention, negligent implementation of policies, gross negligence (the “negligence-based claims”), intentional infliction of emotional distress (“IIED”), and tortious interference with prospective business relations, arguing that they are all either preempted by statute or fail to state a claim. Dkt. 6, at 3-8. Gibbins opposed the motion, maintaining that neither Title VII nor any other statute preempts her claims based on conduct that occurred outside the physical workplace. See Dkt. 9. In reply, Hologic insists that Gibbins’s position lacks “meaningful or reliable support.” Dkt. 11, at 1. The undersigned agrees.

Initially, the undersigned notes that while Hologic argued that Gibbins’s common-law claims are preempted by Title VII, its arguments—which rely primarily on state law and federal cases interpreting state law—are more properly analyzed vis a vis the Texas Commission on Human Rights Act (“TCHRA”). Although Hologic did not explicitly argue that Gibbins’s negligence-based claims are preempted by the TCHRA, it relies extensively on cases finding negligence claims preempted by the TCHRA and Title VII based on state law, which would not apply to Title VII since the issue of whether federal law preempts state law “is of course a federal law matter.” See Dkt. 6; Grantham v. Avondale Indus., Inc., 964 F.2d 471, 474 (5th Cir. 1992) (“The issue may properly be characterized as whether federal law preempts state law, which is of course a federal law matter.”); Lyons v. Baylor Univ., No. 6:17-CV-232-RP, 2019 WL 13253803, at *6 (W.D. Tex. Jan. 16, 2019) (“While the TCHRA may foreclose most common law negligence actions for workplace sexual harassment, Texas courts’ construction of the TCHRA does not automatically extend to federal courts’ construction of Title VII.”); see also 42 U.S.C. § 2000e-7 (“Title VII does not exempt liability, duty, penalty, or punishment provided by state law.”).

Several district courts in his Circuit have, however, relied on state law in finding common-law negligence claims preempted by Title VII. See, e.g., McNeill v. Tyson Fresh Meats, Inc., No. 2:23-CV-041-Z, 2023 WL 8532408, at *13 (N.D. Tex. Dec. 8, 2023) (“Because the TCHRA was modeled after federal law and intended to execute Title VII policies, federal courts have likewise found negligence claims of this nature are preempted by Title VII.”); Blair v. Brookshire Bros., Inc., No. 9:18-CV-00111-RC, 2019 WL 1119373, at *9 (E.D. Tex. Feb. 7, 2019) (collecting cases dismissing negligence claims as preempted by Title VII), R. & R. adopted, No. 9:18-CV-00111-RC, 2019 WL 1114869 (E.D. Tex. Mar. 9, 2019). Yet other courts have noted that relying on state law to find preemption under Title VII “directly contradict[s] Supreme Court precedent” as well as the plain language of Title VII. Lyons, 2019 WL 13253803, at *6 (concluding that district courts cases relying on state law to find negligence claims preempted by Title VII “directly contradict Supreme Court precedent”); Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 214 n.2 (1991) (“ ‘It is well-established that Title VII does not preempt state common law remedies.’ ” (quoting Bernstein v. Aetna Life & Cas., 843 F.2d 359, 364 (9th Cir. 1988))); see also 42 U.S.C. § 2000e-7 (“Title VII does not exempt liability, duty, penalty, or punishment provided by state law.”). In keeping with Supreme Court precedent and the text of Title VII, then, the undersigned cabins this preemption analysis to whether Gibbins’s common-law claims are preempted by the TCHRA. The undersigned finds that they are.

*3 Under Texas law, common-law claims are preempted by statute when the “gravamen of a plaintiff’s complaint is of the type of wrong that the statutory remedy was meant to cover.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808-09 (Tex. 2010) (finding negligence claims against employer based on workplace sexual harassment preempted by the TCHRA). “[A] plaintiff is barred from recovery based on a common law tort where a statutory remedy is available for the same conduct that underlies the tort claim.” Id. at 802 n.8. Here, Gibbins’s negligence-based claims against Hologic are preempted by the TCHRA because they “grow out of the same facts” that would support a claim for employment discrimination the TCHRA: Hologic’s failure to prevent or adequately respond to Gatewood’s sexual harassment of Gibbins. Dkt. 1, at 6-9; Vaghtshenas v. Int’l Bus. Machs. Corp., No. 416CV00179ALMCAN, 2017 WL 9251673, at *4 (E.D. Tex. Feb. 8, 2017) (finding negligence claim preempted where it “grows out of the same facts as those that would support” a claim for discrimination under the TCHRA); Jones v. Driver Pipeline, No. 3:25-CV-0121-B, 2025 WL 1908301, at *4 (N.D. Tex. July 10, 2025) (dismissing negligent-supervision claim as preempted by the TCHRA where plaintiff alleged that employer “failed to provide a reasonably safe work environment by failing to protect [him] from discriminatory conduct and a hostile work environment”).

Gibbins’s arguments to the contrary are unavailing. Initially, in support of her position the TCHRA has no preemptive effect on her claims, Gibbins cites only opinions released before Waffle House, in which the Supreme Court of Texas held that a plaintiff may not recover negligence damages against her employer for harassment covered by the TCHRA. Dkt. 9, at 3-6; Waffle House, 313 S.W.3d at 813 (“Where the gravamen of a plaintiff’s case is TCHRA-covered harassment, the Act forecloses common-law theories predicated on the same underlying sexual-harassment facts.”); see also McNeill, 2023 WL 8532408, at *12 (relying on Waffle House in dismissing negligence claims as preempted). Moreover, Gibbins is incorrect that her negligence claims do not implicate the TCHRA solely because Gatewood allegedly sexually harassed Gibbins at a work-related conference rather than in the workplace. Dkt. 9, at 6-11; Arredondo v. Schlumberger Ltd., 583 F. Supp. 3d 783, 810 (W.D. Tex. 2022), aff’d sub nom. Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419 (5th Cir. 2023) (noting that “several circuits have held that ‘harassment does not have to take place within the physical confines of the workplace to be actionable; it need only have consequences in the workplace.’ ” (quoting Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008))).³

Gibbins’s complaints against Hologic focus on the “consequences [of Gatewood’s harassment] in the workplace” by alleging that the “Goliath corporation” failed to adequately prevent or address Gatewood’s harassment of Gibbins such that she experienced “an atmosphere of misogyny” so “severe, pervasive, and intolerable” that it resulted in “adverse employment conditions” culminating in her resignation. See, e.g., Dkt. 1, at 7, 9. That Gatewood initiated his harassment of Gibbins at a work-related conference does not prevent Gibbins from seeking to hold Hologic liable under the TCHRA for its failure to prevent or address the consequences of Gatewood’s actions on Gibbins’s career at Hologic, and as explained above, her negligence-based claims arise from the same set of facts that would form the basis of a claim under the TCHRA. Vaghtshenas, 2017 WL 9251673, at *4 (“Federal courts considering the preemption issue have found in accord with Waffle House that the TCHRA … preempt[s] common law claims based on the same set of facts as those supporting the statutory claims (whether or not plaintiff asserts those statutory claims.”)). Gibbins’s negligence-based claims are preempted by the TCHRA.⁴

*4 Gibbins’s IIED claim is also preempted by the TCHRA. As with common-law negligence claims, the Texas Supreme Court has stated that “[i]f the gravamen of a plaintiff’s complaint is the type of wrong that the statutory remedy was meant to cover, a plaintiff cannot maintain an intentional infliction claim regardless of whether he or she succeeds on, or even makes, a statutory claim.” Zeltwanger, 144 S.W.3d at 448. Here, the factual allegations underpinning Gibbins’s IIED claim are the same as those supporting the negligence-based claims—that Hologic failed to prevent or remedy Gatewood’s sexual harassment of Gibbins as her “superior and supervisor.” Dkt. 1, at 4-8. Because the gravamen of Gibbins’s complaint is that she was the victim of sexual harassment and discrimination while employed at Hologic, her IIED claim “arises from the type of wrong that … the TCHRA seek[s] to redress” and is therefore preempted. Dkt. 1, at 5 (alleging that Gatewood “sexually groped [Gibbins] in plain view of her colleagues” at a hotel bar following a work-related conference); Jones v. Driver Pipeline, No. 3:25-CV-0121-B, 2025 WL 1908301, at *4 (N.D. Tex. July 10, 2025); Howe v. Yellowbook, USA, 840 F. Supp. 2d 970, 974, 979 (N.D. Tex. 2011) (dismissing IIED claim against employer as preempted by Title VII where plaintiff alleged that her supervisor had “taken advantage of her and used his power over her career to force himself upon her” at a hotel following a business meeting).⁵

Finally, Gibbins’s claim for tortious interference with business relations is preempted by the TCHRA and, in any event, fails to state a claim for relief. Gibbins alleges that Hologic “tortiously interfered [with her] prospective business relations” by allowing Gatewood to spread sexually explicit rumors about Gibbins to colleagues such that she was “forever harmed in her respective industry.” Dkt. 1, at 12. Gibbins does not include any other factual allegations in support of her claim for tortious interference with prospective business relations that do not also support potential claims for employment discrimination under the TCHRA. See id.; Renfro v. Ryder Integrated Logistics of Tex., LLC, No. 1:23-CV-01387-DII, 2024 WL 3498624, at *2 (W.D. Tex. July 19, 2024), R. & R. adopted, 2024 WL 3682239 (W.D. Tex. Aug. 5, 2024) (“[T]o the extent that [plaintiff] bases his tortious-interference claim on his allegation of racial discrimination, that claim is preempted by [plaintiff]’s statutory claim under the Texas Labor Code (‘TCHRA’)”). Moreover, Gibbins has not sufficiently alleged that “there was a reasonable probability that [she] would have entered into a business relationship with a third party,” as required to state a claim for tortious interference with prospective business relations under Texas law. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 923 (Tex. 2013) (listing elements of claim for tortious interference with prospective business relations). Gibbins has failed to state a claim for tortious interference against Hologic.

*5 Based on the above, the undersigned recommends that the District Judge grant Hologic’s motion to dismiss and dismiss Gibbins’s claims against Hologic without prejudice.

B. Gatewood’s Motion to Dismiss

Gatewood similarly moved to dismiss Gibbins’s claims against him for negligence, gross negligence, assault, defamation, intentional infliction of emotional distress, and tortious interference with prospective business relations, arguing that they are preempted by Title VII or fail to state a claim. Dkt. 8, at 3-11. In response, Gibbins similarly maintains that her claims against Gatewood are not preempted, especially since the alleged assault took place outside of the physical workplace. See Dkt. 10. As with Hologic’s motion, Gatewood only explicitly argues for preemption under Title VII yet cites cases in support of that argument addressing preemption under the TCHRA. See Dkt. 8, at 3-9. Given that Title VII claims may not be brought against individuals, the undersigned finds that preemption under that statute is inapplicable to Gibbins’s claims against Gatewood; the undersigned will instead assess preemption under the TCHRA since Gatewood so heavily relies on state law in making his preemption arguments. See id.; Cohen v. Prometric, Inc., No. 3:10-CV-0I334-P, 2010 WL 11561932, at *4 (N.D. Tex. Nov. 4, 2010) (noting that “there is no individual liability for employees under Title VII”); Willy v. Coastal Corp., 855 F.2d 1160, 1165 (5th Cir. 1988) (explaining that “a federal action cannot be found to so completely displace state claims … unless there would have been a federal cause of action under the preempting federal law”).⁶

Gatewood first argues that Gibbins’s negligence and gross-negligence claims against him are preempted. Dkt. 8, at 3-5. Yet in support of this argument, Gatewood relies almost entirely on cases finding negligence-based claims against an employer— as opposed to an individual supervisor—to be preempted by the TCHRA. See id. In the one case Gatewood cites addressing preemption as to a claim against an individual, the court found an IIED claim to be preempted by the TCHRA and did not address negligence claims at all. Id. at 5 (citing Mercer, 2012 WL 1425133, at *10). Gatewood cites no cases, and the undersigned is unaware of any, directly addressing the issue of whether negligence claims against a supervisor—as opposed to an employer—are preempted by the TCHRA. The undersigned notes, however, that the 2021 amendments to the Texas Labor Code appear to allow plaintiffs to bring sexual harassment claims under the TCHRA against a supervisor. Tex. Lab. Code § 21.141(1) (redefining “employer” to include “a person who … acts directly in the interests of an employer in relation to an employee”); see also Quinonez v. Perez, 712 F. Supp. 3d 879, 893 (W.D. Tex. 2024) (finding that plaintiff had stated claim for sexual harassment under TCHRA against supervisor). Given that Gibbins’s negligence claims against Gatewood arise from the same facts that would support a sexual-harassment claim against Gatewood under the TCHRA, the undersigned finds that her negligence claims against Gatewood are preempted. Waffle House, 313 S.W.3d at 802 n.8 (“[A] plaintiff is barred from recovery based on a common law tort where a statutory remedy is available for the same conduct that underlies the tort claim.”). Gibbins’s negligence claims against Gatewood should be dismissed.⁷

*6 Gatewood next argues that Gibbins’s IIED claim against him is preempted by Title VII, which, as explained above, the undersigned construes as to the TCHRA. Dkt. 8, at 6-7. While Gatewood is correct that Gibbins’s IIED claim should be dismissed, he once again bases his argument on a misunderstanding of the relevant case law. See id.⁸ In Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815-16 (Tex. 2005), which Gatewood cites in support of his argument that Title VII preempts Gibbins’s IIED claim, the Texas Supreme Court did not find an IIED claim preempted by the TCHRA but dismissed the claim “for failing to meet the exacting requirements of that tort” because IIED “nevertheless has its own boundaries” regardless of preemption. In particular, the Texas Supreme Court found that there was “no gap to fill” where “[plaintiff]’s complaints all stemmed from [her supervisor]’s lewd advances, including the subsequent retaliation that often follows when offensive advances are refused” in the workplace. Id. at 816; see also Butler v. Collins, 714 S.W.3d 562, 570 n.13 (Tex. 2025) (recognizing that in Creditwatch “we held that a plaintiff may not recover against either an employer or another employee on a claim for intentional infliction of emotional distress when the gravamen of the complaint is conduct covered by Chapter 21” but that “[t]hat holding, however, was based not on abrogation principles but on the nature of the IIED tort itself.” (cleaned up)).

Because Gibbins’s IIED claim against Gatewood arises from his sexual advances and the retaliation that ensued when Gibbins did not tolerate his inappropriate behavior, the undersigned finds that her IIED claim is not independent of the other common-law or statutory claims Gibbins asserts against Gatewood. See Zeltwanger, 144 S.W.3d at 450 (“In sum, we do not believe that Zeltwanger’s intentional-infliction claim is independent of her sexual harassment claim. Because the TCHRA provides a remedy for the same emotional damages caused by essentially the same actions, there is no remedial gap in this case and thus no support for the award of damages under the intentional-infliction claim.”). Gibbins’s IIED claim should be dismissed.

As to Gibbins’s defamation claim, Gatewood similarly argues that such a claim is preempted because it is “duplicative of Plaintiff’s rights and remedies under Title VII[.]” Dkt. 8, at 7. Gatewood is incorrect. Earlier this year, the Texas Supreme Court held that the TCHRA does not abrogate claims for defamation because “no ‘clear repugnance’ exists between common law defamation and fraud claims against an employee and Chapter 21 claims against an employer, even when they are “based on the same course of conduct.” Butler v. Collins, 714 S.W.3d 562, 572 (Tex. 2025) (citation omitted). Gatewood’s cases finding the contrary either involved defamation claims against an employer or predated the Texas Supreme Court’s decision in Butler. See Dkt. 8, at 7 (citing McReynolds v. Bell Textron, Inc., No. 4:22-CV-00194-O-BP, 2023 WL 2432916, at *4-5 (N.D. Tex. Feb. 2, 2023), R. & R. adopted, 2023 WL 2432028 (N.D. Tex. Mar. 9, 2023); Howe, 840 F. Supp. 2d at 979; Hassell v. Axium Healthcare Pharmacy, Inc., No. 4:13-CV-746-O, 2014 WL 1757207, at *8 (N.D. Tex. May 2, 2014)). Given that Gibbins’s defamation claim is not preempted by statute, and Gatewood has not offered any other bases for dismissal of this claim, the undesigned recommends that the District Judge deny Gatewood’s motion to dismiss as to Gibbins’s defamation claim.

Gatewood also moved to dismiss Gibbins’s sexual-assault claim, arguing that because her allegations are insufficient to assert a claim for common-law assault, such a claim is also preempted by Title VII. Dkt. 8, a 9-11. While conceding that Gibbins’s assault claim against Gatewood would not fall under the purview of Title VII or the TCHRA, Gatewood nonetheless argues that this claim is preempted because “the gravamen of her claim is workplace harassment rather than assault.” Dkt. 8, at 9 (citing Quinonez, 712 F. Supp. 3d at 879⁹). Under Texas law, an assault occurs if a person “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Penal Code § 22.01(a)(3); Waffle House, 313 S.W.3d 801 n.4 (“[T]he elements of civil and criminal assault under Texas law are the same.”). Gatewood latches on to the reference to “harassment” in the heading of Gibbins’s assault claim to suggest that the “true nature” of her claim is “harassment and not assault,” yet fails to engage with case law holding that the TCHRA does not “bar a tort claim against the harasser/assailant individually.” Dkt. 8, at 10; Waffle House, 313 S. W.3d at 799. Here, Gibbins alleged that she was subjected to “attempted touching and actual touching that was offensive” when Gatewood “sexually groped” her at the “conference on numerous occasions in plain view of others.” Dkt. 1, at 5-6 (alleging that Gatewood “sexually groped” Gibbins on two occasions at the conference), 8.¹⁰

*7 Gatewood further complains that Gibbins has failed to allege “how Gatewood assaulted her or what injuries she actually suffered,” yet cites no authority in support of such a basis for dismissal. Dkt. 8, at 11. The undersigned declines Gatewood’s invitation to hold Gibbins to a higher pleading standard than that mandated by Rule 8 by requiring Gibbins to, at the pleading stage, specifically name the part of her body Gatewood groped or explain the injury caused by that assault in greater detail than that already provided in her complaint. Dkt. 1, at 6-7 (alleging that Gibbins “imminently began experiencing severe psychological and psychiatric ramifications” resulting from the instances of assault such that she filed for short-term disability); Prim v. Stein, 6 F.4th 584, 591 (5th Cir. 2021) (“Texas law does not require [plaintiff] to prove physical or personal injury to sustain an assault claim.”). The District Judge should deny Gatewood’s motion to dismiss as to Gibbins’s assault claim.

Finally, for the reasons explained above, Gibbins has failed to state a claim for tortious interference with prospective business relations since she has failed to plead an essential element of that claim: that “there was a reasonable probability that [she] would have entered into a business relationship with a third party.” Coinmach, 417 S.W.3d at 923 (listing elements of claim for tortious interference with prospective business relations).

IV. RECOMMENDATION

In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Judge GRANT Hologic’s motions to dismiss, Dkt. 6, and dismiss Gibbins’s claims against Hologic without prejudice. The undersigned FURTHER RECOMMENDS that the District Judge GRANT IN PART AND DENY IN PART Gatewood’s motion to dismiss, Dkt. 8. Specifically, the District Judge should grant Gatewood’s motion as to Gibbins’s claims for negligence, gross negligence, IIED, and tortious interference, but deny the motion as to Gibbins’ claims for assault and defamation.

The referral of this case to the Magistrate Judge should now be canceled.

V. WARNINGS

The parties may file objections to this report and recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Judge need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days after the party is served with a copy of the report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED December 3, 2025.

Footnotes
1	Gibbins invoked this Court’s diversity jurisdiction. Dkt. 1, at 2-3.
2	Defendants also point out that Gibbins’ requests for injunctive relief as well as the application of respondeat superior and res ipsa loquitor are not standalone claims. Dkts. 6, at 9; 8, at 11. The undersigned agrees and thus does not analyze these requests for relief or theories of liability as claims that could exist independently of her causes of action.
3	“[F]ederal case law may be cited as authority in [TCHRA] cases.” Hoffmann–La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) (citing Stinnett v. Williamson Cnty. Sheriff’s Dep’t, 858 S.W.2d 573, 576 (Tex. App.—Austin 1993, writ denied)).
4	To the extent Gibbins casts her negligence claims as arising from work-related injuries, they are preempted by the Texas Workers’ Compensation Act. Moyer v. Jos. A. Bank Clothiers, Inc., No. 3:11-CV-3076-L, 2013 WL 4434901, at *17 (N.D. Tex. Aug. 19, 2013) (“The TWCA ‘provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.’ ” (quoting Ward v. Bechtel Corp., 102 F.3d 199, 203 (5th Cir. 1997))).
5	Gibbins cites Gay v. Aramark Unif. & Career Apparel, Inc., No. H-07-1161, 2007 WL 4190781, at *14 (S.D. Tex. 2007), for the proposition that her IIED claim is not preempted because the alleged harassment occurred at a conference instead of in the workplace. Dkt. 9, at 8-9. While the court in Gay did find that allegations of sexual assault at an after-hours boat party “support[ed] an independent basis for [plaintiff]’s claim for [IIED]” such that it was not preempted, the court nonetheless granted summary judgment to the employer on plaintiff’s IIED claim because plaintiff “failed to show that fact issues exist[ed] as to whether [the employer] should have foreseen [the supervisor]’s actions at the boat party, whether [the supervisor] was acting in the scope of his employment, or whether [the employer] can be vicariously liable for [the supervisor]’s actions.” 2007 WL 4190781, at *12-14. Here, similarly, Gibbins did not allege any non-conclusory facts suggesting that Hologic should be vicariously liable for Gatewood’s harassing behavior at the conference, and in any event, she relies on the same facts to support her IIED claim against Hologic as would support a claim against Hologic under the TCHRA. See Dkt. 1; Howe, 840 F. Supp. 2d at 979 (distinguishing Gay as inapplicable where plaintiff’s “IIED claims rely on the same set of facts that support her” statutory claims).
6	Gatewood cited only two cases in his motion regarding Title VII’s preemptive effect on claims against an individual supervisor (rather than an employer). Dkt. 8, at 4-5 (citing Howe, 840 F. Supp. 2d at 980; Mercer v. Arbor E & T, No. 4:11-CV-3600, 2012 WL 1425133, at *10 (S.D. Tex. Apr. 21, 2012)). In Howe, the court found that the individual defendant could not “properly rely on Title VII preemption to argue for the dismissal.” 840 F. Supp. 2d at 982. In Mercer, the court found an IIED claim preempted by plaintiff’s “statutory workplace claims” yet relied entirely on state law (or federal district courts that relied on state law) in making this determination. 2012 WL 1425133, at *10.
7	The undersigned also notes that Gibbins’s negligence claims against Gatewood also rest almost entirely on Hologic’s failure to prevent or sufficiently address the sexual harassment, rather than Gatewood’s breach of any duty he owed to Gibbins. Dkt. 1, at 16-17.
8	For example, Gatewood cites GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612-13 (Tex. 1999) for the proposition that Gibbins’s IIED claim is preempted by Title VII because “a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes.” Dkt. 8, at 6. Yet in GTE, the Texas Supreme Court did not address preemption under Title VII or the TCHRA, and in fact affirmed the trial court’s entry of judgment in plaintiffs’ favor on their IIED claims against an employer based on the “constant humiliating and abusive behavior of their supervisor” and found such claims to not be barred by the TWCA. 998 S.W.2d at 608, 609-19.
9	In Quinonez, the court dismissed an assault claim where plaintiff did not allege “any factual allegations of bodily injury or physical contact” or “that she ever feared Perez was about to hurt her” such that plaintiff had failed to state a claim for assault under Texas law. Quinonez, 712 F. Supp. 3d at 887. Here, in contrast, Gibbins alleges that Gatewood “sexually groped” her. Dkt. 1, at 5.
10	Gatewood also distinguishes the claims here from those in B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 285 (Tex. 2017), in which the court found the “gravamen” of B.C.’s complaint was assault, rather than harassment, because she did “not allege that her supervisor offered her a promotion or tied sexual favors to job performance.” Dkt. 8, at 11 n.4. Gatewood contends that the retaliation alleged here occurred in the workplace and, therefore, amounts to harassment, not assault. Id. But Gatewood again fails to recognize the difference between claims brought against an employer as opposed to claims, such as the assault claim at issue here, brought against a supervisor in their individual capacity.