United States District Court, N.D. Texas.
Norma AGUINAGA, Plaintiff,
SANMINA CORPORATION et al., Defendants.
May 4, 1998.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
URBOM, Senior District J.
*1 Currently before me is a motion for partial summary judgment, filing 44. The defendants filed this motion on January 23, 1998. However, the plaintiff did not respond, and Judge Fish granted the motion on February 18, 1998, filing 45. Subsequently, the case was reassigned to me, and the plaintiff filed a motion to alter or amend Judge Fish’s order granting partial summary judgment. The plaintiff claimed that she was never served with a copy of the defendants’ motion. I granted the plaintiff’s motion to alter or amend, filing 53, and I gave the plaintiff 10 days to file a response to the defendants’ motion for partial summary judgment. The plaintiff has filed her response, filing 55, and the defendants have filed a reply, filing 61. After having reviewed the relevant documents and having studied the law in this area, I shall grant in part and deny in part the defendants’ motion for partial summary judgment.
This case began when the plaintiff, Norma Aguinaga, filed suit against her former employer, Sanmina Corporation, and a former supervisor, Michael Landy. The plaintiff began her employment with Sanmina in or around July of 1995. Complaint, filing 1, p. 2. She claims that during her employment at Sanmina, she was constantly subjected to sexual harassment and derogatory actions and comments by defendant Landy. Id. The plaintiff claims that on numerous occasions defendant Landy forced her to engage in sexual acts with him, including sexual intercourse and oral sex. Id. She claims that the sexual acts were without her consent and often included physical assault, leaving her physically and emotionally injured. Id. She also claims that when she objected to defendant Landy’s conduct, he threatened her with termination of her employment and also threatened to report the sexual activity to her family members. Id. When she finally told defendant Landy that she would no longer endure the abuse, she claims that she was forced to resign. Id. The plaintiff also claims that Sanmina created or allowed to be created a pattern of conduct which contributed to an unpleasant, intolerable, harassing and hostile work environment. Id.
After leaving her employment at Sanmina, the plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission. Id. at 3. She received a Notice of Right to Sue, and this lawsuit was filed within 90 days of receipt of that notice. Id. The plaintiff’s complaint contains a total of six claims, including violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., violation of the Texas Commission on Human Rights Act (“TCHRA”), intentional infliction of emotional distress, negligent hiring, invasion of privacy, and assault. The defendants seek partial summary judgment as to each of the plaintiff’s claims.
STANDARD OF REVIEW
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The party moving for summary judgment bears the burden of producing evidence to establish that there is no genuine issue of material fact with regard to an essential element of the nonmovant’s case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Once the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to produce evidence establishing each of the challenged elements of its case for which it will have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To meet this burden, “the nonmovant must go beyond the pleading and designate specific facts showing that there is a genuine issue for trial.” Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir.1995). “[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Willis, 61 F.3d at 315. The Court must “resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). If the nonmovant fails to meet its burden, summary judgment in favor of the movant is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.1992).
(1) Title VII
*2 In her first claim, the plaintiff alleges that the defendants violated Title VII, including but not limited to 42 U.S.C. § 2000e et seq. The defendants argue that defendant Landy cannot be held personally liable under this claim because as a matter of law a supervisor cannot be held individually liable for violations of Title VII. Accordingly, the defendants seek judgment as a matter of law as to defendant Landy’s personal liability under this claim. The plaintiff does not dispute the defendants’ contention as to defendant Landy’s personal liability under Title VII. See Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, p. 7. Therefore, I shall grant the defendants’ motion as it relates to the first claim.
(2) Chapter 21 of the Texas Labor Code
In her second claim, the plaintiff alleges that the defendants’ acts and practices constituted unlawful discriminatory employment practices under the Texas Commission on Human Rights Act, Chapter 21 of the Texas Labor Code. The defendants argue that defendant Landy cannot be held personally liable under this claim because as a matter of law a supervisor cannot be held individually liable for violations of the Texas Commission on Human Rights Act. Accordingly, the defendants seek judgment as a matter of law as to defendant Landy’s personal liability under this claim. The plaintiff does not dispute the defendants’ contention as to defendant Landy’s personal liability under the Texas Commission on Human Rights Act. See Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, p. 7. Therefore, I shall grant the defendants’ motion as it relates to the second claim.
(3) Intentional Infliction of Emotional Distress & Assault
The plaintiff’s third claim is against both defendants and is based on intentional infliction of emotional distress. The plaintiff claims that the defendants acted intentionally and recklessly, and that their conduct was extreme and outrageous. The plaintiff’s sixth claim is based on assault. The plaintiff claims that defendant Landy assaulted her and that defendant Sanmina is liable under the theory of respondeat superior because defendant Landy was acting within the scope and course of his employment as Sanmina’s plant manager.1
The defendants argue that under Texas law an employer cannot be held liable for the intentional torts of its managers and/or employees. Both intentional infliction of emotional distress and assault are intentional torts, and the general rule in Texas is that a corporation is not liable for the intentional torts committed by its employees unless the conduct was “in furtherance of the corporation’s business.” See Valdez v. Church’s Fried Chicken, Inc., 683 F.Supp. 596, 610 (W.D.Tex.1988); Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661, 663 (Tex.App.Corpus Christi 1984)). “Liability for intentional torts will not attach against the employer unless the act complained of arose directly out of and was done in the prosecution of the business that the servant was employed to do.” Valdez, 683 F.Supp. at 610 (citation omitted).
*3 Despite the general rule, the plaintiff maintains that defendant Sanmina may still be liable because under the doctrine of respondeat superior, a plaintiff may impose liability on an employer for the intentional tort of his employee if the employee’s act (1) falls within the scope of his general authority, (2) is in furtherance of the employer’s business, and (3) is for the accomplishment of the object for which the employee was hired. See Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.1971)). The problem here is that the plaintiff has not presented any evidence to suggest that defendant Landy was acting within the scope of his general authority or in furtherance of the employer’s business. The plaintiff merely argues that defendant Landy’s conduct took place at work and during working hours. Such evidence falls far short of showing that defendant Landy’s conduct was within the scope of his general authority. See Kelly v. Stone, 898 S.W.2d 924 (Tex.App.—Eastland 1995, writ denied) (finding that when employee began pursuing his own personal gratification, he was pursuing purely personal interests and ceased to be acting in furtherance of his employer’s interests).
The plaintiff also argues that defendant Sanmina “ratified” defendant Landy’s conduct. Ratification is another means of imposing liability on an employer for an employee’s intentional torts. In order to establish liability under this theory, the employee’s conduct must have been done in the employer’s interest, or intended to further some purpose of the employer’s. See Sheffield v. Central Freight Lines, Inc., 435 S.W.2d 954, 956 (Tex.Civ.App.—Dallas 1968, no writ). The plaintiff does not put forth any evidence to support her ratification argument. In fact, the only evidence put forth on the issue of respondeat superior was submitted by the defendants in the form of an affidavit of Sylvia L. Norris, the Employee Relations Manager for Sanmina Corporation. She stated that the Sanmina Corporation “has and continues to prohibit all forms of discrimination and sexual harassment in the workplace.” Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Exhibit C, p. 1. Ms. Norris also stated that “[n]either Michael Landy nor any Sanmina Corporation employee is or has ever been authorized to sexually harass or assault any other employee of Sanmina Corporation.” Id. Therefore, since the case law and the uncontroverted evidence both support the defendants’ claim that an employer is not liable for the intentional torts of its employees, summary judgment is appropriate for defendant Sanmina as to the plaintiff’s third and sixth claims.
(4) Negligent Hiring, Retention and Supervision
In her fourth claim, the plaintiff alleges that defendant Sanmina was negligent and/or grossly negligent in the hiring of, retention, and/or supervision of defendant Landy. The defendants argue that they are entitled to judgment as to this claim because the Texas Worker’s Compensation Act provides the exclusive remedy for injuries to an employee arising out of an employer’s negligence. In support of this argument, the defendants cite the case of 102 F.3d 199, 200 (5th Cir.1997), in which the court stated that the Texas Workers’ Compensation Act “provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” Ward, 102 F.3d at 203.
*4 The plaintiff responds by claiming that there is no evidence to suggest that Sanmina was a subscribing member to the Texas Workers’ Compensation Act, and therefore this act cannot be said to be the plaintiff’s sole remedy for an employer’s negligence. However, the defendant has put forth evidence in the form of an affidavit of Susan Sheperd, a Human Resources Administrator for Sanmina Corporation. See Exhibit B attached to Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment. In her affidavit, Ms. Sheperd states that Sanmina Corporation “was a participating employer under the Texas Workers’ Compensation Act throughout the duration of Ms. Aguinaga’s employment” and that Ms. Aguinaga received notice that she was covered and did not decline workers’ compensation coverage. Id.
In light of the law and the uncontradicted evidence stating that Sanmina was a participating employer under the Texas Workers’ Compensation Act, I shall grant the defendants’ motion as to the plaintiff’s fourth claim.
(5) Invasion of Privacy
The plaintiff’s fifth claim is based on an alleged invasion of privacy. While the plaintiff has named both defendant Landy and defendant Sanmina as defendants to this claim, she has failed to allege any conduct by defendant Sanmina which would subject it to liability under this theory. Moreover, invasion of privacy is an intentional tort. See Childers v. A.S., a Minor Child, 909 S.W.2d 282, 291 (Tex.App.—Fort Worth 1995) (declining to adopt a negligent invasion of privacy cause of action). As such, the plaintiff may not proceed with this claim under a theory of vicarious liability. See Section (3) of this Order. Therefore, summary judgment is appropriate for defendant Sanmina as to the plaintiff’s fifth claim. The question remains, however, whether the plaintiff may proceed against defendant Landy under the theory of invasion of privacy.
“Texas law now recognizes three distinct torts, any of which constitutes an invasion of privacy.” Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 85 (5th Cir.1997). The plaintiff in this case did not allege that defendant Landy appropriated her likeness. See Plaintiff’s Original Complaint, p. 4–5. However, reading the pleadings and the subsequent filings in a light most favorable to the plaintiff, I shall assume that the plaintiff has alleged the other two types of invasion of privacy, including (a) public disclosure of embarrassing private facts about her, and (b) intentional intrusion into her private affairs or seclusion in a highly offensive manner.
(a) Public Disclosure
One means of proceeding with an invasion of privacy claim is to claim the public disclosure of highly intimate private facts. In order to establish a claim for public disclosure of embarrassing private facts, the plaintiff must prove: “(1) that the publicized information ‘contains highly intimate or embarrassing facts about a person’s private affairs, such that its publication would be highly objectionable to a person of ordinary sensibilities,’ (2) that such information was ‘communicated to the public at large,’ not simply to ‘a small group of persons,’ and (3) ‘that the information publicized not be of legitimate concern to the public.’ ” Johnson v. Sawyer, 47 F.3d 716, 731 (5th Cir.1995) (quoting Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683–85 (Tex.1976) (citations omitted)). The defendants argue that there is no evidence that they ever publicized any embarrassing facts about the plaintiff.
*5 The plaintiff claims that there is a fact issue because “Landy said he would post the pictures [of Ms. Aguinaga performing oral sex on Mr. Landy] on the bulletin board in Sanmina’s lunchroom.” See Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, p. 6. The plaintiff also states that defendant Landy told her “that he would tell her children that she was having sex with him.” Id. The problem with the plaintiff’s argument is that there is no evidence to suggest that defendant Landy ever showed the photographs to anyone other than her. There is also nothing to suggest that defendant Landy actually told the plaintiff’s children about their sexual acts. The evidence only suggests that defendant Landy allegedly threatened to put the pictures on the bulletin board and threatened to tell the plaintiff’s children about her conduct. Mere threats do not satisfy the publicity element of this claim.
The plaintiff also argues that defendant Landy made derogatory remarks about her waistline, accent, clothing, pronunciation and breath in front of other employees. The problem here is that there is no evidence that he made these remarks to the public at large. The Supreme Court of Texas has stated that “ ‘[p]ublicity’ requires communication to more than a small group of persons; the matter must be communicated to the public at large, such that the matter becomes one of public knowledge.” Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683–84 (Tex.1976). At best, the plaintiff has produced evidence that defendant Landy made these derogatory remarks in the presence of other Sanmina employees. This only constitutes a small group, and does not fall within the realm of “public knowledge.” Under the standard set forth by the Supreme Court of Texas, defendant Landy’s alleged conduct in this case does not amount to an invasion of privacy based on the public disclosure of a person’s private affairs. Therefore, the plaintiff shall not be allowed to proceed under the theory of public disclosure of private facts.
(b) Intrusion into Private Affairs or Seclusion
Another means of proceeding with an invasion of privacy claim is to claim an intrusion into one’s private affairs or seclusion. The plaintiff’s complaint alleges that the defendants “intruded into [her] private affairs or seclusion in a highly offensive manner.” Plaintiff’s Complaint, filing 1, p. 4. The defendants argue that even if the facts as alleged by the plaintiff are true, they do not establish the legal elements of a claim for invasion of privacy. Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, p. 3.
In support of their argument, the defendants claim that the court in Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80 (5th Cir.1997), held as a matter of law that allegations of sexual harassment, very similar to those alleged in this case, do not establish a valid claim for invasion of privacy. See Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, p. 3. The plaintiff in Cornhill alleged that one defendant “made sexual remarks to her, touched her in an inappropriate and offensive manner, exposed himself, made threatening and obscene gestures, and eventually attempted to force himself on her in a supply room.” Cornhill, 106 F.3d at 83. She further alleged that when she complained to another defendant, he “failed to address ... [the] conduct, tried to kiss her, asked her out repeatedly, and arranged to meet her alone under pretenses of work.” Id. In analyzing the plaintiff’s claim for invasion of privacy, the Cornhill court cited a Texas case which stated that “[t]his type of invasion of privacy ... is generally associated with either a physical invasion of a person’s property or eavesdropping on another’s conversation with the aid of wiretaps, microphones or spying.” Cornhill, 106 F.3d at 85 (citation omitted). The court then concluded that the plaintiff’s “offensive comments and inappropriate advances ... [were not] ... cognizable as a cause of action for invasion of privacy under Texas law.” Cornhill, 106 F.3d at 85.
*6 I appreciate the defendants’ argument, but there are several reasons why summary judgment is not appropriate as to defendant Landy. First of all, it does not appear that the tort of invasion of privacy by intrusion is limited to situations involving a physical invasion of another’s property or some form of eavesdropping. In Donnel v. Lara, 703 S.W.2d 257, 259 (Tex.App.—San Antonio 1985) (superseded on other grounds), the plaintiffs sued the defendant for conduct which essentially amounted to “telephone harassment.”2 The plaintiffs alleged “that on several occasions [the defendant] had willfully ... made repeated intrusions into their ... privacy by placing repeated phone calls to their residence at unreasonable hours and in such manner as would highly offend a reasonable person of ordinary sensibilities.” Donnel, 703 S.W.2d at 258. The defendant argued that the plaintiffs could not succeed on such a claim because her conduct did not amount to a physical invasion of their property and she did not eavesdrop on them with the aid of wiretaps, microphones or spying. Thus, the defendant argued that her conduct was not the type generally associated with a claim of invasion of privacy by intrusion.
The Texas Court of Appeals stated that just because the plaintiffs’ allegations “do not fall within the confines of the more familiar fact situations involving the tort of intrusion” does not mean that the plaintiffs have failed to allege a cause of action. Donnel, 703 S.W.2d at 259–60. The court found that wiretaps, microphones, and spying may be the more common situations in which a person intrudes on one’s privacy, but such means are not “all inclusive.” Donnel, 703 S.W.2d at 259. Therefore, the Donnel court recognized that claims for intrusion on one’s privacy are not limited to any particular type of conduct.
Another reason why the Cornhill case does not convince me that summary judgment is appropriate as to defendant Landy is that the alleged conduct in the case at hand includes more than the “offensive comments and inappropriate advances” that existed in Cornhill. In this case, the plaintiff claims that defendant Landy forced her to perform oral sex, took pictures of her performing the act, and then failed to return the pictures to her. Aguinaga Deposition, Vol. I, p. 99. The plaintiff also claims that she objected to defendant Landy taking the pictures, and that she stopped performing the oral sex after she became aware that he was taking pictures. Aguinaga Deposition, Vol. III, pp. 92–93. Additionally, on one occasion in defendant Landy’s office, the plaintiff claims that he forced her legs open and inserted a banana into her vagina. Aguinaga Deposition, Vol. I, p. 157. Then, immediately after the banana episode, defendant Landy kept the plaintiff’s panties and bra in his drawer and made her go back to work without them. Aguinaga Deposition, Vol. I, pp. 158–59. Such conduct goes far beyond the conduct alleged in Cornhill.
*7 Finally, it appears to me that a reasonable jury could find that the plaintiff has satisfied each of the elements of this claim.3 In Texas, in order to establish a claim for unreasonable intrusion upon seclusion, a plaintiff must establish: “(1) an intentional intrusion; (2) upon the seclusion, solitude, or private affairs of another; (3) which would be highly offensive to a reasonable person.” Farrington v. Sysco Food Serv., Inc., 865 S.W.2d 247, 253 (Tex.App.—Houston 1993) (citing Gill v. Snow, 644 S.W.2d 222, 223–24 (Tex.App.Fort Worth 1982, no writ)). There are at least two means by which the plaintiff might satisfy the elements of this claim.
The plaintiff has alleged that defendant Landy forced her to perform oral sex. She claims that she objected to him taking pictures of her performing oral sex on him, and that he failed to return the pictures to her. It is entirely possible that a reasonable jury could find that this was an intentional intrusion upon the seclusion, solitude, or private affairs of the plaintiff. It is also possible that a reasonable jury could find that such conduct would be highly offensive to a reasonable person. The fact that defendant Landy may not have shown the pictures to anyone is irrelevant. Comment (a) of the Restatement (Second) of Torts § 652B states that “[t]he form of invasion of privacy covered by this section does not depend upon any publicity given to the person whose interest is invaded or to his affairs.” RESTATEMENT (SECOND) OF TORTS § 652B cmt. a (1977). Finally, a reasonable jury could find that mental distress foreseeably resulted from defendant Landy’s alleged conduct.
Also, Prosser and Keeton maintain that “highly personal questions or demands by a person in authority may be regarded as an intrusion on psychological solitude or integrity and hence an invasion of privacy.” W. PROSSER & J. KEETON, PROSSER AND KEETON ON TORTS § 117 (Supp.1988). The plaintiff in this case claims that defendant Landy asked her intrusive questions such as whether she gives her husband blow jobs (Aguinaga Deposition, Vol. I, p. 197), whether she and her husband “fuck[ed]” all weekend (Aguinaga Deposition, Vol. I, p. 197), and whether she masturbated while talking on the phone to him (Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, Exhibit 4, Aguinaga’s EEOC Affidavit, p. 4). She also claims that defendant Landy made her parade around his office naked and then asked her to bend over so that he could look at her rectum (Plaintiff’s Response to Defendants’ Motion for Partial Summary Judgment, Exhibit 4, Aguinaga’s EEOC Affidavit, p. 5). A reasonable jury could find that these are highly personal questions and demands that would be highly offensive to a reasonable person.
In conclusion, I shall note that “[a] number of courts ... appear to support the proposition that a mere oral declaration can, in a proper case at least, provide the basis for a cause of action in invasion of privacy.” I.J. Schiffres, Annotation, Invasion of Right of Privacy by Merely Oral Declarations, 19 ALR3d 1318, 1319–20 (1968). In Moffett v. Gene B. Glick Co., Inc., 621 F.Supp. 244 (N.D.Ind.1985) (overruled on other grounds), the court recognized that under Indiana law, “the shouting of racial comments, threats of physical harm to the plaintiff and her husband, as well as threats of damage to Mr. Moffett’s automobile and other property could certainly constitute intentional interference with plaintiff’s personal and private affairs.” Moffett, 621 F.Supp. at 283. Also, another federal district court in Indiana analyzed a claim for intrusion on one’s privacy. See Garus v. Rose Acre Farms, Inc., 839 F.Supp. 563 (N.D.Ind.1993). The defendants in Garus argued that “ ‘the type of conduct alleged, i.e., sexual discrimination and sexual harassment in the workplace’ cannot constitute ‘intrusion’ for purposes of this tort.” Garus, 839 F.Supp. at 570. The court disagreed. In support of its conclusion, the Garus court cited to an Alabama case, the Restatement of Torts, and Prosser and Keeton on Torts, stating:
*8 The Alabama Supreme Court, on certification from the Eleventh Circuit, relied on the RESTATEMENT (SECOND) OF TORTS § 652B to conclude that a male employer’s “intrusive and coercive sexual demands” on a female employee were an “ ‘examination’ into her ‘private concerns,’ ” i.e., her sexual proclivities, that was actionable as an invasion of privacy. Phillips v. Smalley Maintenance Services, 435 So.2d 705, 711 (Ala.1983). The court reasoned that “[o]ne’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” Id. Phillips is cited approvingly in W. Prosser & J. Keeton, Prosser and Keeton on Torts § 117 (Supp.1988), which states that “highly personal questions or demands by a person in authority may be regarded as an intrusion on psychological solitude or integrity and hence an invasion of privacy.” Prosser and Keeton on Torts, in turn, is cited by [the Supreme Court of Indiana] as it defines Indiana invasion-of-privacy law.
Garus, 839 F.Supp. at 570 (citing Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991)).4
Consistent therewith, a district court in Alabama found that “[u]nder Alabama law, an invasion of privacy could consist of ‘intrusive demands and threats, including an inquiry as to the nature of sex between’ the plaintiff and her sexual partners (citation omitted) if the inquiries were made sufficiently frequently.” Sphere Drake Insurance, P.L.C. v. Shoney’s, Inc., 923 F.Supp. 1481, 1490 (M.D.Ala.1996) (citation omitted). In sum, the defendants in this case have failed to convince me that under the laws of Texas defendant Landy’s conduct cannot, as a matter of law, amount to an intrusion on the plaintiff’s privacy. Therefore, summary judgment is not appropriate for defendant Landy as to this claim.
IT IS THEREFORE ORDERED that the defendants’ motion for partial summary judgment, filing 44, is granted in part and denied in part, consistent with this order.
With regard to the plaintiff’s claim for intentional infliction of emotional distress, it appears that she wishes to proceed directly against defendant Sanmina based on the allegation that it intentionally inflicted emotional distress upon her. However, there is nothing before me which suggests that defendant Sanmina engaged in any extreme or outrageous conduct. All of the plaintiff’s evidence relates to the conduct of defendant Landy, and the plaintiff’s brief focuses only on defendant Landy’s conduct, not on any conduct of defendant Sanmina. Therefore, to the extent the plaintiff seeks to hold defendant Sanmina directly liable for intentional infliction of emotional distress, I shall grant summary judgment in favor of defendant Sanmina because the plaintiff has failed to put forth any evidence that might form a basis for such a claim. Nonetheless, it is possible that the plaintiff seeks to hold defendant Sanmina vicariously liable for defendant Landy’s conduct. Since the plaintiff has chosen to proceed against defendant Sanmina under the theory of respondeat superior as to the assault claim, I shall assume that she also wishes to proceed against defendant Sanmina under the theory of respondeat superior as to the intentional infliction of emotional distress claim.
The Donnel case was superseded by statute on grounds which are not relevant to the issue at hand. See Harkins v. Crews, 907 S.W.2d 51, 61 (Tex.App.—San Antonio 1995).
Although the Texas courts have not clearly defined the parameters of the tort of intrusion into one’s private affairs, they do not seem to exclude situations of sexual misconduct from falling within the scope of this claim. See Boyles v. Kerr, 806 S.W.2d 255 (Tex.App.—Texarkana 1991) (affirming a verdict against a boyfriend who secretly videotaped a sexual encounter with his girlfriend and showed the tape to others, and recognizing that “[s]exual relations are recognized generally as entirely private matters”) (reversed and remanded on other grounds by Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993)).
In support of my reliance on the Second Restatement of Torts and Prosser and Keeton on Torts, I note that the Texas courts have also relied on these or similar resources in defining this particular cause of action. In the first case in Texas to recognize the tort of invasion of a person’s right to privacy, the court relied partly on the writings of Professor William L. Prosser and on the Restatement of Torts. See Billings v. Atkinson, 489 S.W.2d 858, 859–60 (Tex.1973). Then, in recognizing the tort of intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs, the Supreme Court of Texas again relied on Professor William L. Prosser and on the Restatement of Torts as authority. See Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682–84 (Tex.1976). Furthermore, in Dickson v. American Red Cross Nat. Headquarters, 1997 WL 118415 (N.D.Tex.1997), a federal district court in Texas analyzed the claim of invasion of privacy by intrusion and found that “[t]he precise contours of this cause of action have been further delineated in the explanatory comments appended to § 652B of the Second Restatement of Torts.” Dickson, 1997 WL at 11.