Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Barber v. Nationwide Communications, Inc.
May 30, 1995
Unpublished Opinion

Barber v. Nationwide Communications, Inc.

United States District Court, N.D. Texas.

Karen BARBER, Plaintiff


NATIONWIDE COMMUNICATIONS, INC. d/b/a KDMX–FM 102.9, Chris McMurray, and Pat McMahon, Defendants

No. CIV. 3:95–CV–0656–H.


May 30, 1995.


SANDERS, District J.

*1 Before the Court are a Motion to Dismiss and Memorandum in Support, filed April 26, 1995 by Defendant Nationwide Communications, Inc.; Plaintiff’s Response, filed May 15, 1995; and Defendant’s Reply, filed May 17, 1995.

I. Background1

This case arises from disputes between Plaintiff Karen Barber and her former employer, Defendant Nationwide Communications, Inc. (“Nationwide”). From May 1991 until her termination in September 1993, Plaintiff worked as a radio personality and announcer on KDMX—FM 102.9, a radio station owned by Defendant Nationwide. Along with Bobby Mercer, she broadcast the “Karen and Bobby” morning show, which aired weekdays from 6 a.m. to 10 a.m. in the Dallas–Fort Worth area.

Plaintiff’s employment contract initially provided that she would be paid an annual salary of $40,000 and would receive performance bonuses. Plaintiff’s salary increased gradually until May 1993, when she learned that Mercer earned a substantially higher salary than her own. Plaintiff discussed the pay disparity with Defendant Chris McMurray, KDMX’s general manager, and Defendant Pat McMahon, KDMX’s program director; she also began the process of renegotiating her employment contract, which was to expire in October 1993. Plaintiff contends that although several months of salary negotiations ensued, Defendants never explained the pay disparity. Instead, at a September 17, 1993 negotiating meeting, they informed Plaintiff that she was being fired.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on May 6, 1994 and received a right-to-sue letter on March 22, 1995. She filed her Original Complaint and Jury Demand (“Complaint”) on April 4, 1995, alleging causes of action for (1) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2) violations of the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1) and 215(a)(3); (3) negligent supervision, training, and retention; (4) defamation; (5) breach of contract; and (6) breach of the implied covenant of good faith and fair dealing. Defendant subsequently filed its Motion to Dismiss, contending that certain of Plaintiff’s causes of action fail to state a claim upon which relief can be granted.

II. Nationwide’s Motion to Dismiss

A. Legal standard

In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the well-pleaded factual allegations and any reasonable inferences to be drawn from them. See Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). To avoid dismissal for failure to state a claim, however, a plaintiff “must plead specific facts, not mere conclusory allegations.” Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992) (citation omitted). Thus, the Court will not accept as true any conclusory allegations or unwarranted deductions of fact. The Court may not look beyond the pleadings. See Mahone v. Addicks Util. Dist., 836 F.2d 921, 936 (5th Cir.1988).

*2 Dismissal for failure to state a claim is not favored by the law. Mahone, 836 F.2d at 926. A Plaintiff’s 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”). However, “there are times when a court should exercise its power to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Mahone, 836 F.2d at 927 (emphasis in original).

B. Analysis

Defendant Nationwide contends that Plaintiff has failed to state a claim for breach of the implied covenant of good faith and fair dealing, for defamation, and for negligent supervision, training, and retention. The Court addresses Defendant’s arguments in turn.

1. Good faith and fair dealing

Plaintiff alleges that in terminating her employment contract, Defendants breached an implied covenant of good faith and fair dealing. Complaint ¶ 26. Defendant counters by noting that Texas courts have refused to incorporate a duty of good faith and fair dealing into the employment relationship; accordingly, it contends, Plaintiff has failed to state a claim.2 Defendant’s Motion at 3.

Texas courts have uniformly refused to insert an implied covenant of good faith and fair dealing into employment contracts, and federal courts have acknowledged these holdings. See, e.g., McClendon v. Ingersoll–Rand Co., 757 S.W.2d 816, 819–20 (Tex.App.—Houston [14th Dist.] 1988, rev’d on other grounds, 779 S.W.2d 69 (Tex.1989), rev’d, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990); Caton v. Leach Corp., 896 F.2d 939, 948–49 (5th Cir.1990) (“Texas courts do not recognize the employment relationship as warranting the tort duty of good faith.”); Rayburn v. Equitable Life Assurance Soc., 805 F.Supp. 1401, 1409 (S.D.Tex.1992). Plaintiff offers no argument and presents no set of facts that would warrant departure from established law in this area. Accordingly, Defendant’s Motion to Dismiss Plaintiff’s claim for breach of the duty of good faith and fair dealing is GRANTED.

2. Defamation

Plaintiff contends that Defendants have defamed her by intentionally publishing to third parties a false reason for her departure from the station. Complaint ¶ 25. Plaintiff further contends that by stating that she was “terminated,” Defendants have forced her to commit self-compelled defamation. Id. Defendant argues that because Plaintiff’s Complaint fails to identify any allegedly false publication, Plaintiff has failed to state a claim for defamation.

In support of its contention, Defendant cites Texas cases that require defamation plaintiffs to set out, verbatim, each allegedly defamatory statement. See Defendant’s Motion to Dismiss at 2–3. Plaintiff does not dispute Defendant’s characterization of the law; instead she contends that she should be allowed to conduct discovery regarding the allegedly defamatory statements, after which she proposes to amend her complaint. Response at 4.

*3 Defendant correctly notes that Texas courts have long required defamation plaintiffs to set forth in their pleadings “the particular defamatory words, or at least their substance and meaning .” Murray v. Harris, 112 S.W.2d 1091, 1094 (Tex.Civ.App.—Amarillo 1938, writ dism’d). In federal court, however, the adequacy of a plaintiff’s pleadings is judged according to the Federal Rules of Civil Procedure. See Ritzmann v. Weekly World News, Inc., 614 F.Supp. 1336, 1339 (N.D.Tex.1985); see also Fed.R.Civ.P. 8(a) (requiring a short and plain statement of the claim). Federal courts have, accordingly, consistently refused to require plaintiffs to set forth allegedly defamatory statements en haec verbis. See Stabler v. New York Times Co., 569 F.Supp. 1131, 1138 (S.D.Tex.1983); Ritzmann, 614 F.Supp. at 1339.

Determining that Plaintiff need not set forth the allegedly defamatory statements verbatim does not end the Court’s inquiry, however. Under federal law, defamation allegations must afford the defendant sufficient notice of the communications complained of to enable him to defend himself. Liguori v. Alexander, 495 F.Supp. 641, 647 (S.D.N.Y.1980). Where the allegedly defamatory statements are contained in a published article, a plaintiff can satisfy Rule 8 merely by attaching a copy of the article to his complaint and alleging that the entire article is false. See Stabler, 569 F.Supp. at 1139; Ritzmann, 614 F.Supp. at 1339.

In the case at bar, however, Plaintiff’s pleadings reveal only her belief that Defendants have “intentionally published to third parties a false reason for her separation.” Complaint ¶ 25. The pleadings do not indicate what the “false reason” was or when and to whom it was published. Upon consideration, the Court finds that Plaintiff’s Complaint does not provide sufficient notice to allow Defendants to defend themselves. Treating Defendant’s motion as a motion for more definite statement, the Court directs Plaintiff to file by noon, June 28, 1995 an amended complaint setting forth her defamation allegations in sufficient detail to satisfy Rule 8.

3. Negligent supervision, training, and retention

Plaintiff contends, without elaborating, that Defendant Nationwide “breached its duty of reasonable care by failing to take corrective measures to eliminate sexually discriminatory conduct in the work place and by failing to supervise or train its supervisors, managers, and employees properly as to their obligation to comply with Title VII and the EPA.” Complaint ¶ 22. Defendant argues that Plaintiff’s negligence claims are barred by the exclusive remedy provisions of the Texas Workers’ Compensation Act and that there exists no federal or state cause of action for negligent supervision or training. Defendant’s Motion at 1–2.

The Texas Workers’ Compensation Act provides a statutory alternative to common law damages claims and defenses arising from personal injuries in employer-employee relationships. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex.1980). Several courts have held that the Act bars suits based on emotional as well as physical injuries. See, e.g., McAlister v. Medina Elec. Co-op., Inc., 830 S.W.2d 659, 663 (Tex.App.—San Antonio 1992, no writ) (holding that the Act barred an employee’s suit for negligent infliction of emotional distress). No court, however, appears to have considered whether the Act’s exclusivity provision bars claims based on negligent supervision, training, and retention. Nonetheless, the Court need not reach Defendant’s exclusivity argument. As Plaintiff points out, the Texas workers’ compensation system is optional, and employers may elect to forego coverage. See Tex. Labor Code Ann. § 406.002(a). Only employers that elect coverage are subject to the exclusivity provisions of the system. Id. § 406.002(b). Because Defendant Nationwide has not demonstrated that it is a workers’ compensation subscriber, the Court cannot at this stage determine whether Plaintiff’s negligence claims against it are barred by the exclusivity of the workers’ compensation system.

*4 Defendant also argues that there exists no federal or state cause of action for negligent supervision or training. In response, Plaintiff cites Texas cases holding that an employer can be liable for its negligence in hiring an employee it knows, or should have known, was incompetent or unfit. See Plaintiff’s Response at 3; see also Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.—Corpus Christi 1987, writ denied). The Court acknowledges that Texas courts have recognized an employer’s duty to make inquiry as to the competence and qualifications of applicants for employment, “especially where engaged in an occupation which could be hazardous to life and limb and [which] requires skilled or experienced servants.” See Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r.e.). The existence of a cause of action for negligent hiring does not, however, mandate the existence of a similar cause of action for negligent supervision or training. Plaintiff has not cited, and the Court has been unable to locate, any Texas cases recognizing a cause of action for negligent failure to supervise or train supervisors regarding their obligation to treat employees in a non-discriminatory manner. Accordingly, Plaintiff’s claims for negligent supervision and training must be DISMISSED.

Plaintiff’s claim for negligent retention fares little better. The cases on negligent hiring indicate that suit also may be maintained for an employer’s negligent retention of an employee. See Estate of Arrington, 578 S.W.2d at 178. To recover on a negligence claim, Plaintiff must prove (1) a duty, (2) a breach of that duty, (3) an injury to Plaintiff, and (4) that the breach of the duty was the proximate cause of the injury. Johnson v. Sawyer, 4 F.3d 369, 376 (5th Cir.1993). In a negligent hiring or retention case, breach of duty is shown by demonstrating that the employee is incompetent or unfit and that the employer knew or should have known of such incompetence or unfitness. Estate of Arrington, 578 S.W.2d at 178; Deerings West Nursing Center v. Scott, 787 S.W.2d 494, 496 (Tex.App.—El Paso 1990, writ denied) (analogizing to elements of negligent entrustment). Plaintiff’s Complaint fails to allege that any of Defendant’s employees was incompetent or unfit; similarly, there is no allegation that Defendant knew or should have known of such incompetence or unfitness. Accordingly, the Court finds that Plaintiff’s Complaint fails to state a claim for negligent retention.

III. Conclusion

For the reasons set forth above, Plaintiff’s claims for negligent supervision, negligent training, negligent retention, and breach of the duty of good faith and fair dealing are DISMISSED with prejudice. Plaintiff has until noon, June 28, 1995 to amend her complaint to provide a more definite statement of her defamation claim.




Background information is taken from Plaintiff’s Original Complaint and Jury Demand.


Plaintiff’s Response does not address Defendant’s argument regarding her good faith claim.

End of Document