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IN THE UNITED STATES DISTRICT COURT 

FOR WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

MORGAN MORALES, 

Plaintiff, 

v. 

SAMUEL ESCANDON, 

HGS HEALTHCARE, LLC, AND 

HINDUJA GLOBAL SOLUTIONS, 

INC., 

Defendants. 

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§ 

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§ 

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Cause No. 3:20-CV-00148 

NOTICE OF REMOVAL 

Defendants HGS Healthcare, LLC (“HGS”) and Hinduja Global Solutions, Inc. (“Hinduja 

Inc.”) collectively “Defendants,” file this Notice of Removal removing Cause No. 2020-DCV1348 from the 205th District Court, El Paso County, Texas to this Court pursuant to 28 U.S.C. §§ 

1332 and 1441. 

I. PROCEDURAL BACKGROUND 

1. On April 20, 2020, Plaintiff Morgan Morales (“Plaintiff”) filed her “Original 

Petition” against Defendants and Samuel Escandon (“Escandon”) in the 205th District Court, El 

Paso County, Texas styled Morgan Morales v. Samuel Escandon, HGS Healthcare, LLC, and 

Hinduja Global Solutions, Inc., 2020-DCV-1348. In her Original Petition, Plaintiff alleges that she 

was sexually harassed while at work in violation of Chapter 21 of the Texas Labor Code (“Chapter 

21”). Specifically, she claims her supervisor Escandon: 

[F]requently and regularly made sexually harassing comments like Plaintiff was a sexy, 

bad girl, but she needed to be a good girl and that she needed to put her tongue away unless 

she was going to use it because he could really use some tongue right now. 

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Orig. Pet. ¶ 11. She also claims, as part of the harassment, that Escandon “physically assaulted” 

her when he allegedly “grabbed Plaintiff, hugged Plaintiff, laid his head on her chest, and made 

Plaintiff so uncomfortable to the point where she no longer wanted to come to work and it 

interfered with her work.” Id. ¶ 12. Plaintiff claims she “opposed the sexual harassment” by 

reporting it to Human Resources. Id. ¶ 13. She then claims she was discharged in retaliation for 

her alleged complaint. Id. ¶ 15. 

2. In addition to her claims under Chapter 21, Plaintiff also asserts a claim for 

negligent hiring against HGS and Hinduja, Inc. Id. ¶ 20. She claims HGS and Hinduja, Inc. were 

negligent in hiring and retaining Escandon, the person who allegedly harassed her. See id.

3. Moreover, Plaintiff asserts a claim for assault against Escandon. ¶ 17. Plaintiff 

claims in the Petition that she was “sexually assaulted at work” based on the alleged conduct by 

Escandon. She also states in conclusory fashion that the alleged sexual assault is “separate and 

distinct from and in addition to the sexual harassment Plaintiff suffered at work.” Id.

4. Plaintiff served her Original Petition on Escandon on April 22, 2020, and HGS and 

Hinduja, Inc. on April 24, 2020. This removal is thus timely filed. True and correct copies of all 

pleadings served on Defendants are attached hereto. 

II. DIVERSITY JURISDICTION 

A. There is Complete Diversity of Citizenship Between Plaintiff and HGS and 

Hinduja Inc. 

5. The District Courts of the United States have original jurisdiction over this action 

based on complete diversity between the parties, in that HGS and Hinduja, Inc. are now, and at the 

time the action was filed, diverse in citizenship from Plaintiff. Upon information and belief, 

Plaintiff is a resident of El Paso County, Texas and a citizen of the State of Texas. See Pl.’s Orig. 

Pet. ¶ 2. HGS is single-member limited liability company whose sole member is HGS (USA) LLC, 

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USA. HGS (USA) LLC, USA is also a single-member limited liability company whose sole 

member is Hinduja Global Solutions, Inc. USA. Hindjua Global Solutions, Inc. USA is 

incorporated in Delaware and has its principal place of business in Illinois. Thus, there is complete 

diversity of citizenship between Plaintiff and Walmart.

B. Escandon is Improperly Joined 

6. Although Escandon is a non-diverse defendant, his citizenship must be disregarded 

because he has been improperly joined in this case to obstruct the Court’s diversity jurisdiction. 

1. Improper Joinder standard 

7. In order to establish improper joinder, the removing party must demonstrate either: 

(1) actual fraud in the pleading of jurisdictional facts; or (2) that the plaintiff cannot establish a 

cause of action against the non-diverse defendant in state court. Larroquette v. Cardinal Health 

200, Inc., 466 F.3d 373, 376 (5th Cir. 2006) (citing Smallwood v. Illinois Cent. R. Co., 385 F.3d 

568, 572 (5th Cir. 2004)). Under the latter method, if the court finds that there is no “reasonable 

basis for the district court to predict that the plaintiff might be able to recover against an in-state 

defendant,” then that in-state defendant is improperly joined. Id. (quoting Smallwood, 385 F.3d at 

573). 

8 “[T]he standard for evaluating a claim of improper joinder is similar to that used in 

evaluating a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6).” Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). In analyzing a 12(b)(6) 

motion, courts apply the pleading standard enunciated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) 

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 

9. In Iqbal and Twombly, the Supreme Court outlined the pleading requirements 

necessary to survive a motion to dismiss. Rule 8(a)(2) requires “only a ‘short and plain statement 

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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.” Twombly, 550 U.S. at 555 (quoting 

Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint “does not need detailed factual 

allegations,” id., “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 678. “[A] plaintiff’s obligation to provide the grounds for his 

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “Nor does a complaint suffice 

if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 

(internal quotations omitted). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. “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.

10. This pleading standard applies when the Court determines whether Plaintiff 

improperly joined Escandon to this lawsuit. See Int’l Energy Ventures Mgmt., LLC v. United 

Energy Grp. Ltd., 818 F.3d 193, 202-208 (5th Cir. 2016) (stating that courts must apply federal 

pleading standard to actions removed based on improper joinder). 

11. As discussed below, Plaintiff’s assault claim against Escandon would not survive a 

12(b)(6) motion. He is therefore improperly joined. 

C. Plaintiff cannot maintain her assault claim against Escandon 

12. Plaintiff’s assault claim fails because Chapter 21 preempts that claim. Two distinct 

features of Chapter 21 are relevant here. First, there is no individual liability under Chapter 21. 

See Anderson v. Houston Comm. Coll. Sys., 458 S.W.3d 633, 649 (Tex. App.—Houston [1st Dist.] 

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2015, no pet.) (“It is well established in Texas that an individual cannot be held personally liable 

under [Chapter 21].”). 

13. Second, under Waffle House, Inc. v. Williams, Chapter 21 preempts all negligence 

actions when the complained of negligence is “entwined with the complained of harassment.” 313 

S.W.3d 796, 799 (Tex. 2010). The Texas Supreme Court reached that result because the 

Legislature—in enacting Chapter 21—established an “elaborately crafted statutory scheme, a 

scheme that . . . incorporates a legislative attempt to balance various interests and concerns of 

employees and employers,” including requiring that employees first raise their claims with the 

Texas Workforce Commission and subjecting discrimination claims to certain damages caps and 

limitations. Id. at 804-807. 

14. Allowing common law claims that are “predicated on the same conduct that 

underlay [Chapter 21] claim[s],” id. at 803, alongside claims under Chapter 21 would circumvent 

“[t]his meticulous legislative design” because employees could avoid the administrative filings 

requirements, damages caps, and limitations simply by filing common law claims rather than under 

Chapter 21. Id. at 805 (“This meticulous legislative design is circumvented when a plaintiff brings 

a common-law cause of action for conduct that is actionable under [Chapter 21].”). 

15. For that reason, the Supreme Court held that Chapter 21 preempts all common law 

claims arising out of the same conduct used to support a claim of discrimination under Chapter 21. 

See id. at 813 (holding that Chapter 21 preempts negligent hiring and retention claim). 

16. In this case, Plaintiff makes clear that the alleged assault is part and parcel of her 

sexual harassment claim and the two are intertwined. In her Petition, she begins the description of 

her Chapter 21 harassment claim by stating that Escandon “sexually harassed” her. See Pl.’s Orig. 

Pet. ¶ 11. She then uses the next two paragraphs to describe that harassment. She describes how 

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he allegedly made sexual comments to her, and, immediately after describing those comments, 

Plaintiff states that he “also physically assaulted Plaintiff” by grabbing her, hugging her, and 

placing his head on her chest. Id. ¶ 12. She claims the physical touching was so bad, “it interfered 

with her work.” Id. After describing the alleged comments and touching, Plaintiff claims she 

“opposed the sexual harassment” by reporting it to Human Resources. Id. ¶ 13. 

17. Without question, the conduct underlying Plaintiff’s assault claim is the same 

conduct used to support her claim that she was sexually harassed. Indeed, Plaintiff claims the 

alleged assault “interfered with her work.” To establish assault, Plaintiff does not need to prove 

that the assault “interfered with her work.” See Umana v. Kroger Tex., LP, 239 S.W.3d 434, 436 

(Tex. App.—Dallas 2007, no pet.) (outlining elements for assault). By claiming the assault 

interfered with her work, Plaintiff clearly intended to show that the assault also constitutes sexual 

harassment. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 138 (Tex. 2015) (stating 

that “sexual harassment is actionable only if it . . . alter[s] the conditions of the victim’s 

employment and create[s] an abusive working environment” by “unreasonably interfer[ing] with 

an employee’s work performance”) (internal quotations omitted; emphasis added). 

18. Because the alleged assault is intertwined with and makes up part of Plaintiff’s 

Chapter 21 harassment claim, Chapter 21 preempts the assault claim. Plaintiff cannot repackage a 

sexual harassment claim into one for assault against an individual to bypass Chapter 21’s 

administrative requirements and to perform an end-run around Chapter 21’s proscription against 

individual liability. See Waffle House, 313 S.W.3d at 803 (finding that Chapter 21 preempts 

common law claims “predicated on the same conduct that underlay [Chapter 21] claim[s]”); Roane 

v. Dean, 2020 WL 2078252, at *5-*6 (Tex. App.—Austin 2020, no pet. h.) (holding that Chapter 

21 preempted common law intentional infliction of emotional distress claim against individual); 

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Cristan v. BayerCropScience, LP, 2010 WL 11619676, at *2 (N.D. Tex. 2010) (denying motion 

to remand and holding that Chapter 21 preempted negligence claims against individual); Pruitt v. 

Int’l Assoc. of Fire Fighters, 366 S.W.3d 740, 749-750 (Tex. App.—Texarkana 2012, no pet.) 

(finding that Chapter 21 preempted common law claims against individuals for IIED, breach of 

fiduciary duty, and tortious interference with employment relations because “Pruitt intended to use 

facts relating to racial discrimination to support his common-law causes of action”). 

19. Plaintiff attempts to avoid that conclusion by claiming that the “assault is separate 

and distinct from and in addition to the sexual harassment Plaintiff suffered at work.” See Pl.’s 

Orig. Pet. ¶ 17. Plaintiff cites B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2017) 

for support. Id.1

20. In Steak N Shake, the plaintiff asserted a single claim for assault against her 

employer after an employee sexually assaulted her on one occasion. See Steak N Shake, 512 

S.W.3d at 277-279. The employer argued that Chapter 21 preempted the claim under Waffle 

House, but the Texas Supreme Court did not agree. Instead, the court held that because the 

gravamen of the complaint was sexual assault—and not harassment—Chapter 21 did not preempt 

the claim. Id. at 277. The court reached that conclusion for three reasons. 

21. First, the court noted that, unlike Waffle House, there was a “difference in the 

severity and frequency of the assailant’s conduct.” Id. at 280 (noting that Steak N Shake involved 

a “single violent assault” and Waffle House involved “six months of boorish behavior”). Second, 

1

 The Court should not accept Plaintiff’s attempt to invoke Steak N Shake by asserting that her 

assault claim is “separate and distinct” from her harassment claim. Plaintiff cannot, in conclusory 

fashion and without factual support, designate her assault claim as separate and distinct. She needs 

to provide factual support for her claims, and she has not done that. See Twombly, 550 U.S. at 555 

(“[A] plaintiff’s obligation to provide the grounds for his entitlement to relief requires more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.”). In any event, Steak N Shake does not apply as discussed above. 

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each case involved a “difference in the nature of the claims themselves.” Id. at 281 (stating that 

“some of Williams’s harasser’s behavior was repackaged for the assaultive components to provide 

Williams the means to secure a common law recovery” whereas Steak N Shake involved only the 

assault claim). Third, the court noted the difference in the “fundamental theory of liability.” Id. at 

281-282 (holding that, in Waffle House, proving Waffle House’s negligence required the same 

factual predicate for proving a hostile work environment” whereas the assault claim in Steak N 

Shake did not). Indeed, in Steak N Shake, the only claim pled at the Supreme Court was assault—

Chapter 21 was not one of the plaintiff’s claims. Id. at 278-279. 

22. In short, the gravamen of the claim in Steak N Shake was assault whereas in Waffle 

House it was harassment. Id. at 277 (“We hold that where the gravamen of a plaintiff’s claim is 

not harassment, but rather assault, as it is here, [Chapter 21] does not preempt the plaintiff’s 

common law assault claim.”). 

23. In this case, the gravamen of Plaintiff’s claim is harassment. Unlike in Steak N 

Shake, Plaintiff did not assert a single claim for assault. She instead asserted a claim for harassment 

and retaliation under Chapter 21 along with a claim for assault that is predicated on the same

conduct that will also support her harassment claim. In other words, Plaintiff sued her employer 

for harassment under Chapter 21 and, using those same facts, she also sued Escandon. 

24. Plaintiff cannot circumvent Chapter 21’s rules preventing individual liability by 

suing an individual for the same conduct that makes up her harassment claim. See Waffle House, 

313 S.W.3d at 805 (“This meticulous legislative design [of Chapter 21] is circumvented when a 

plaintiff brings a common-law cause of action for conduct that is actionable under [Chapter 21].”). 

For that reason, Escandon is fraudulently joined. 

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25. Moreover, even if Plaintiff’s assault claim against Escandon were truly separate 

and distinct from her sexual harassment claim such that they did not overlap factually, Escandon 

would still be improperly joined because the claims would then not arise out of the same 

transaction or occurrence. See Fed. R. Civ. P. 20(a)(2)(A) (permitting joinder when “there is 

asserted against [the defendants] jointly, severally, or in the alternative, any right to relief in respect 

of or arising out of the same transaction, occurrence, or series of transactions or occurrences”); 

Crockett v. RJ Reynolds Tobacco Co., 436 F.3d 529, 533 (5th Cir. 2006) (“Texas has adopted the 

same requirements for proper joinder.”) (citing Tex. R. Civ. P. 40(a)). Therefore, Escandon would 

still be improperly joined. 

26. Further demonstrating that Escandon is improperly joined is the fact that Plaintiff 

cannot hold Defendants vicariously liable for Escandon’s assault. See Wren v. GATX Logistics, 

Inc., 73 S.W.3d 489, 493-495 (Tex. App.—Fort Worth 2002, no pet.) (holding that employer could 

not be held liable for employee’s assault and noting “[a]s a general rule in Texas, an employer 

cannot be vicariously liable for the intentional torts of assault or battery perpetrated by its 

employee because such acts are not ordinarily within the course and scope of an employee's 

authority or employment”). Because Plaintiff cannot (and has not sought to) hold Defendants liable 

for Escandon’s alleged assault, Plaintiff’s assault claim does not arise out of the same transaction 

or occurrence as her claims against Defendant. Therefore, Plaintiff cannot join unrelated claims in 

an effort to avoid removal. Escandon is not a proper party to this lawsuit. 

B. The Amount In Controversy Requirement Is Met 

27. Where it is “facially apparent” that the claims more likely than not exceed $75,000, 

exclusive of interest and costs, the amount in controversy requirement of $75,000 for diversity 

jurisdiction is met. Felton v. Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir. 2003) (quoting 

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DeAguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). In her Original Petition, Plaintiff pleads 

that she is seeking “monetary relief over $1,000,000.00 . . . .” Pl.’s Orig. Pet. ¶ 22. Thus, it is 

apparent from the face of Plaintiff’s Original Petition that the amount-in-controversy in this case 

exceeds $75,000. 

28. Accordingly, because this civil action is wholly between citizens of different states 

and because the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest 

and costs, this Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1), 

and this action is removable pursuant to 28 U.S.C. § 1441. 

III. PROPER VENUE AND COMPLIANCE WITH REMOVAL PROCEDURE 

29. Under 28 U.S.C. § 1441(a), venue of the removed action is proper in this Court as 

the district and division embracing the place where the state action is pending. 

30. Defendants will promptly give Plaintiff written notice of the filing of this Notice of 

Removal as required by 28 U.S.C. § 1446(d). Defendants will also promptly file a copy of this 

Notice of Removal with the Clerk of the 205th District Court, El Paso County, Texas, where the 

action is currently pending, also pursuant to 28 U.S.C. § 1446(d). 

31. True and correct copies of all process, pleadings, and the orders served upon 

Defendants in the state court action are being filed with this notice as required by 28 U.S.C. 

§ 1446(a) and attached hereto. 

32. Pursuant to 28 U.S.C. § 1446(b), this Notice Removal is filed within thirty (30) 

days after service of the initial pleading setting forth a removable claim. 

Accordingly, Defendants hereby remove Cause No. 2020-DCV-1348 from the 205th 

District Court, El Paso County, Texas on this 22nd day of May, 2020. 

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Respectfully submitted, 

KEMP SMITH LLP 

P.O. Box 2800 

El Paso, Texas 79999-2800 

(915) 533-4424 

(915) 546-5360 (Fax) 

By: /s/ Clara B. Burns 

CLARA B. BURNS 

State Bar No. 03443600. 

Clara.Burns@kempsmith.com

JOSE A. GONZALEZ 

State Bar No. 24067670 

Abe.Gonzalez@kempsmith.com

Attorneys for Defendants HGS Healthcare, LLC and 

Hinduja Global Solutions, Inc. 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document was served on the 

attorney for Plaintiff, Brett Duke, Brett Duke, P.C., 6350 Escondido Dr., Ste. A-14, El Paso, Texas 

79912 and Daniela Labinoti, Law Firm of Daniela Labinoti, P.C., 707 Myrtle, El Paso, Texas 

79901 on the 22nd day of May, 2020. 

 Regular Mail, Postage Prepaid 

 Hand Delivery 

X Certified Mail, Return Receipt Requested 

 Electronic Transmission: brettduke@brettduke.com 

 daniela@labinotilaw.com 

 Facsimile Transmission: 

/s/ Jose A. Gonzalez 

JOSE A. GONZALEZ 

Case 3:20-cv-00148-PRM Document 1 Filed 05/22/20 Page 11 of 11