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At a Glance:
Alvarez v. Sutton Interests, Inc.
December 22, 2008
Unpublished Opinion

Alvarez v. Sutton Interests, Inc.

United States District Court, S.D. Texas, Houston Division.

Christopher ALVAREZ, Plaintiff,


SUTTON INTERESTS INC.; dba Stubbs Cycles Southwest, et al., Defendant.



Signed 12/22/2008

Attorneys & Firms

Randolph James Amaro, Jr., Amaro Law Firm, Houston, TX, for Plaintiff.

Isaac Brown, III, Werstein Smith et al., Dallas, TX, for Defendant.


Samuel B Kent, United States District Judge

*1 Now before the Court is Defendants’ Motion to Dismiss (Doc. 5). For the reasons outlined below, the Motion is GRANTED IN PART AND DENIED IN PART.

I. Background

Plaintiff Christopher Alvarez, a Hispanic male, was employed at Stubbs Cycles Southwest (“Stubbs”) beginning in May, 2006. Plaintiff was a salesman of motorcycles, jet-skis, all terrain vehicles, and accessories. Plaintiff alleges that he was discriminated against and harassed by employees and agents of Stubbs, including Defendant Robert Hugh Sutton. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission on April 30, 2007. Plaintiff alleges that the discrimination continued and that he was ultimately terminated on June 14, 2007. Plaintiff claims that Stubbs cited his complaint of discrimination as the reason for his termination. Plaintiff has filed claims alleging race and national origin discrimination, retaliation, and several additional state law claims.

II. Legal Standard

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering 12(b)(6) motions, courts generally must accept the factual allegations contained in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 1297, 2200, 167 L.Ed. 2d 1080 (2007) (citing Twombly, 127 S.Ct. at 1959); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court does not look beyond the face of the pleadings when determining whether a plaintiff has stated a claim under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 127 S.Ct. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) (internal citations omitted). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965. An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 1960.

III. Analysis

A. Intentional Infliction of Emotional Distress

Defendants argue that Plaintiff has failed to state a claim for intentional infliction of emotional distress, and that claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must show that (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999). “Intentional infliction of emotional distress is a ‘gap-filler’ tort never intended to supplant or duplicate existing statutory or common-law remedies.” Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005). Since Plaintiff’s other claims provide an avenue for relief based on the facts alleged, the intentional infliction of emotional distress claim asserted against Stubbs is DISMISSED.

*2 Plaintiff distinguishes the intentional infliction of emotional distress claim against Stubbs from that alleged against Sutton, an individual. In order to state a claim against Sutton, Plaintiff must show that his conduct was “so extreme in degree, and so outrageous in character, as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). “Only in the most unusual of employment cases does the conduct move out of the realm of an ordinary employment dispute and into the classification of extreme and outrageous as required for the tort of intentional infliction of emotional distress.” Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920-21 (Tex. App.—San Antonio 1997, writ denied). The facts of this case do not rise to that level. Accordingly, the intentional infliction of emotional distress claim asserted against Sutton is also DISMISSED.

B. Negligence, Assault, Conspiracy, and Aiding and Abetting Claims1

Defendants argue that Plaintiff’s negligence and assault claims are preempted by the Texas Workers’ Compensation Act (“TWCA”) and the Texas Commission on Human Rights Act (“TCHRA”). While it is true that a plaintiff “may not seek relief under both the administrative scheme of the Labor Code and other civil remedies at law,” this bar does not prevent an employee from making claims for intentional torts such as assault. O’Bryant v. City of Midland, 949 S.W.2d 406, 417 (Tex. App.—Austin 1997, pet. granted); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989). The bar against negligence claims is applicable only when the injuries alleged occur in the course and scope of an employee’s work. Cook, 908 F.Supp. at 442. Plaintiff alleges that the assault occurred at a non-work-related function and therefore, did not occur while he was working in the course and scope of his employment. While the Court makes no judgment regarding the ultimate merit of this claim, Plaintiff has alleged enough to convince the Court that the TWCA does not require dismissal at this stage.

The TCHRA provides the exclusive state-law means for redress of employment discrimination and preempts claims for discrimination brought under other state-law theories.” Cook v. Fidelity Invs.,



Conspiracy and aiding and abetting are not stand-alone claims. However, Defendants analyzed them alongside Plaintiff’s claims for negligence and assault, so the Court is following that organization. The validity of accusations of conspiracy and aiding and abetting claims are entirely dependent on the validity of the negligence and assault claims.