ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALFRED DIXON, §

§

Plaintiff, §

§

v. § Civil Action No. 3:06-CV-0064-N

§

STATE FARM MUTUAL AUTOMOBILE §

INSURANCE COS., et al., §

§

Defendants. §

ORDER

Before the Court is Plaintiff Dixon’s motion to remand. Because the Court finds that

Dixon did not improperly join Defendant Bird, the Court grants the motion to remand.

I. BACKGROUND

According to Dixon’s state court petition, Dixon was formerly an employee of

Defendant State Farm Mutual Automobile Insurance Companies (“State Farm”). Defendant

Bird’s role is unclear, though it appears he may have been a supervisor of Dixon. Dixon

alleges that “[w]hile working for Defendant State Farm, Plaintiff was discriminated against

because of his race in that he was: a. not granted access to his supervisor, which hurt his

potential job performance and promotion opportunities; b. unfairly singled out for criticism

by Defendant Bird; and c. terminated by Defendants because he is an African-American.”

Plaintiff’s Original Petition ¶ 6. Dixon further alleges:

Defendants Bird and State Farm acted intentionally and/or recklessly

by singling Plaintiff out for inappropriate disciplinary action. Defendants Bird

and State Farm harassed Plaintiff and subjected Plaintiff to demeaning

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State Farm and Bird have also moved to dismiss all claims, except the discrimination

claim against State Farm, under Rule 12(b)(6). Because those issues are the mirror image

of the issues addressed here, the Court does not separately consider the motion to dismiss.

ORDER – PAGE 2

behavior while engaging in a campaign to destroy Plaintiff’s reputation within

the company by, among other things, attributing the misconduct of other

employees to Plaintiff. Also Defendant Bird created an extremely stressful

environment for Plaintiff by singling out Plaintiff for unwarranted criticism,

and assigning Plaintiff excessive task [sic] and duties. This conduct by

Defendants Bird and State Farm was extreme and outrageous and proximately

caused the Plaintiff severe emotional distress.

Id. ¶ 11. These two paragraphs are the sole factual allegations in Dixon’s pleading.

Dixon sued State Farm and Bird on November 28, 2005, in County Court at Law

No. 1, in Dallas County, Texas. He asserted claims against both State Farm and Bird for

racial discrimination under chapter 21 of the Texas Labor Code and for intentional infliction

of emotional distress. State Farm and Bird timely removed to this Court on the basis of

diversity, arguing that Dixon improperly joined Bird, who is a Texas resident and not diverse.

Dixon has now moved the remand this action to state court.1

II. DIXON STATES A VIABLE IIED CLAIM AGAINST BIRD

This case stands at the intersection of a plaintiff’s traditional right to choose a forum

and the judicial ambivalence about the tort of intentional infliction of emotional distress

(“IIED”). See, e.g., Twyman v. Twyman, 855 S.W.2d 619, 629-34 (Tex. 1993) (Hecht, J.,

concurring and dissenting). It appears that some plaintiffs would prefer to assert their

employment claims in state court. In order to prevent removal of a claim against a diverse

employer, those plaintiffs will join a claim against a nondiverse coworker or supervisor. The

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In Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004) (en banc),

cert. denied, 125 S. Ct. 1825 (2005), the Fifth Circuit replaced the traditional but misleading

label of “fraudulent joinder” with “improper joinder.”

ORDER – PAGE 3

employer, having a reciprocal preference for a federal forum, will then remove to federal

court, claiming improper joinder2

 of the nondiverse supervisor.

In assessing the claim of improper joinder, the Court must determine “whether the

defendant has demonstrated that there is no possibility of recovery by the plaintiff against an

in-state defendant, which stated differently means 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.” Smallwood, 385 F.3d at 573. To make that determination, “[t]he court may

conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to

determine whether the complaint states a claim under state law against the in-state defendant.

Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.”

Id. (footnote omitted). In keeping with the plaintiff’s right to choose a forum, “the motive

or purpose of the joinder of in-state defendants is not relevant.” Id. at 574.

The standard for dismissal under Rule 12(b)(6) is well known. The Court “must

accept [plaintiff’s] allegations as true. A court may dismiss a complaint only if it is clear that

no relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson,

355 U.S. 41, 45-46(1957)). See also Kaiser Aluminum & Chem. Sales v. Avondale

Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982) (A motion to dismiss under rule 12(b)(6) “is

viewed with disfavor and is rarely granted.”). Additionally, in analyzing improper joinder,

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ORDER – PAGE 4

the plaintiff also gets the benefit of the doubt on close questions of substantive law. See

McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 334 (5th Cir. 2004) (“Any contested issues

of fact and any ambiguities of state law must be resolved in the plaintiff’s favor.”) (citing

Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003));

A. Hoffman-LaRoche Does Not Eliminate IIED Claims Against Supervisors

Defendants rely on Swafford v. Bank of America Corp., 401 F. Supp. 2d 761 (S.D.

Tex. 2005), for the proposition that an IIED claim does not lie against a supervisor for the

same conduct supporting a statutory employment claim. Swafford in turn relied on HoffmanLa Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) for the proposition 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.” Id. at 448. Swafford combined that

with the proposition that the section of the Texas Commission on Human Rights Act

(“TCHRA”) providing a cause of action against employers, see TEX.LABOR CODE § 21.051,

does not create a statutory cause of action against supervisors or coworkers. See, e.g.,

Marabella v. Autonation U.S.A. Corp., 88 F. Supp. 2d 750, 752 (S.D. Tex. 2000) (“Texas

state and federal courts have uniformly held that supervisory personnel are not liable in their

individual capacity under the TCHRA.”). Swafford then concluded:

The gravamen of Swafford’s claim is age discrimination, and she invokes the

same evidence to show discrimination and a hostile work environment that she

relies on to show intentional infliction of emotional distress. She cannot

circumvent the legislative prohibition against suing an individual supervisor

by asserting a claim for intentional infliction of emotional distress.

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Interestingly, in Hoffman-La Roche, plaintiff Zeltwanger also obtained judgment

against her supervisor for IIED; the supervisor was not a party to the appeal. 144 S.W.3d at

442. It would be somewhat ironic if the holding of Hoffman-La Roche implies that judgment

against her supervisor was invalid.

ORDER – PAGE 5

401 F. Supp. 2d at 764. This Court must respectfully disagree with Swafford.

The general rule is that a “corporate officer or agent is always primarily liable for his

own torts, even though the principal is also vicariously liable.” Cass v. Stephens, 156

S.W.3d 38, 62 (Tex. App. – El Paso 2004, pet. filed) (citing Permian Petroleum Co. v.

Barrow, 484 S.W.2d 631, 634 (Tex. Civ. App. – El Paso 1972, no writ) and Portlock v.

Perry, 852 S.W.2d 578, 582 (Tex. App. – Dallas 1993, writ denied)). The contentious issue

usually is whether the employer is also liable for the employee’s tortious acts. See, e.g., GTE

Southwest, Inc. v. Bruce, 998 S.W.2d 608, 617-18 (Tex. 1999) (employer vicariously liable

for supervisor’s IIED). It is against this background that the Court must consider the impact

of Hoffman-La Roche on an IIED claim against a supervisor.3

 

Hoffman-La Roche relied on the Texas Supreme Court’s earlier decision in Standard

Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998), holding that IIED was

a “gap-filler” tort designed to reach egregious circumstances that might otherwise go

unremedied. 144 S.W.3d at 447. IIED “should not be extended to circumvent the limitations

placed on the recovery of mental anguish damages under more established tort doctrines.”

Id. (quoting Standard Fruit). The Court noted that the TCHRA has damage caps, id. at 446,

and held that permitting an IIED claim in that case would wrongly “thwart legislative

limitations on statutory claims for mental anguish and punitive damages.” Id. at 447.

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ORDER – PAGE 6

Swafford reads Hoffman-La Roche and section 21.051 of the Texas Labor Code too

broadly. Section 21.051 provides that “[a]n employer commits an unlawful employment

practice if because of race, color, disability, religion, sex, national origin, or age the

employer” takes listed prohibited actions. TEX. LABOR CODE § 21.051 (emphasis added).

The TCHRA nowhere expressly exempts supervisors from its scope; rather, it extends a

statutory remedy only against employers. Swafford incorrectly reads this negative “failure

to reach” supervisors and coworkers as an affirmative legislative grant of immunity from

common law torts. See 401 F. Supp. 2d at 764 (referring to “legislative prohibition against

suing an individual supervisor”). It is only through this inversion that Swafford can construe

section 21.051 as a “legislative limitation on statutory claims” against a supervisor that

would be thwarted by permitting an IIED claim on the same facts supporting a TCHRA

claim. 

There are at least four problems with Swafford’s analysis. First, and most striking,

it is not textual. There simply is no language in the TCHRA giving supervisors or coworkers

immunity for common law torts, nor is there any language indicating the TCHRA was

intended to displace all common law employment-related claims. Second, there is nothing

about the logic of Swafford’s argument that limits the supposed legislative immunization to

IIED. Under that logic a supervisor who physically assaulted a subordinate due to race or

gender until the subordinate quit would be immune from a claim of common law assault.

That surely is not what the TCHRA was intended to achieve. Third, Swafford’s reading of

section 21.051 conflicts with the common law premise that a corporate employee or agent

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To the extent this is a close question, “any uncertainties in controlling substantive law

must be resolved in favor of the plaintiff.” Laughlin v. Prudential Ins. Co., 882 F.2d 187,

190 (5th Cir. 1989).

ORDER – PAGE 7

is primarily liable for his or her own torts. Finally, Swafford’s analysis results in a disfavored

abrogation of a common law tort by implication from a statute. See Cash American Int’l Inc.

v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000) (“Abrogating common-law claims ‘is disfavored

and requires a clear repugnance between the common law and statutory causes of action.’”)

(quoting Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex. App. – Fort

Worth 1995, writ denied)); Coppedge v. Colonial Savings & Loan Ass’n, 721 S.W.2d 933,

938 (Tex. App. – Dallas 1986, writ ref’d n.r.e.) (“repeal of a common-law action and remedy

by implication is disfavored”).

A better reading of section 21.051, and one consistent with Hoffman-La Roche, is that

by extending a statutory remedy only against employers, the TCHRA leaves in place a “gap”

with respect to supervisors and coworkers that can properly be filled by IIED.4

 This reading

of Hoffman-La Roche makes it immaterial whether “the gravamen of a plaintiff’s complaint”

against a coworker or supervisor “is the type of wrong that the statutory remedy was meant

to cover.” 144 S.W.3d at 448. The statutory remedy displaced common law IIED claims

against an employer for the type of wrong that the TCHRA was meant to cover. Because the

TCHRA does not cover claims against a coworker or supervisor, IIED claims against a

coworker or supervisor have no such limitation. There appears to be nothing in either section

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This is harmonious with the general principle of respondeat superior that “employers

are generally jointly and severally liable along with the tortfeasor employee for the torts of

employees committed within the scope of employment.” DAN B.DOBBS,THE LAW OF TORTS

§ 333, at 905 (2001) (emphasis added, footnote omitted).

ORDER – PAGE 8

21.051 or Hoffman-La Roche that would preclude a TCHRA claim against an employer and

an IIED claim against a supervisor for the same conduct.5

B. Dixon Sufficiently Alleges an IIED Claim Against Bird

The Court must now determine whether Dixon sufficiently alleges an IIED claim

against Bird.

To recover damages for intentional infliction of emotional distress, a

plaintiff must establish that: (1) the defendant acted intentionally or recklessly;

(2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s

actions caused the plaintiff emotional distress; and (4) the resulting emotional

distress was severe.

Hoffman-La Roche, 144 S.W.3d at 445 (citing Standard Fruit, 965 S.W.2d at 65).

Texas courts have held that a claim for intentional infliction of emotional

distress does not lie for ordinary employment disputes. The range of behavior

encompassed in “employment disputes” is broad, and includes at a minimum

such things as criticism, lack of recognition, and low evaluations, which,

although unpleasant and sometimes unfair, are ordinarily expected in the work

environment. Thus, to establish a cause of action for intentional infliction of

emotional distress in the workplace, an employee must prove the existence of

some conduct that brings the dispute outside the scope of an ordinary

employment dispute and into the realm of extreme and outrageous conduct.

GTE Southwest, 998 S.W.2d at 612-13 (citations omitted). See also id. at 617 (“We

recognize that, even when an employer or supervisor abuses a position of power over an

employee, the employer will not be liable for mere insults, indignities, or annoyances that are

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ORDER – PAGE 9

not extreme and outrageous.”) (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. e

(1965)).

As discussed above, Dixon complains of certain specified acts by Bird, and also

makes a more generalized complaint. The specific allegations against Bird are that: (1) he

unfairly singled Dixon out for criticism; (2) he terminated Dixon because he is an AfricanAmerican; (3) he singled Dixon out for inappropriate disciplinary action; (4) he attributed

the misconduct of other employees to Dixon; and (5) he assigned Dixon excessive tasks and

duties. Whether these allegations are sufficiently extreme and outrageous to constitute IIED

is, in the first instance, a question of law for the Court. See GTE Southwest, 998 S.W.2d at

616 (quoting Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993)). The Court is

confidant that allegations (1) and (3)-(5) fall comfortably within the range of “employment

disputes” that are not extreme and outrageous under Texas law. The Court finds the second

specific allegation – termination because of race – to be more difficult due to the lack of

Texas precedent. In view of Dixon’s general allegation, however, the Court is spared the

need to make an Erie guess.

The general allegation is that Bird harassed Dixon and subjected Dixon to demeaning

behavior while engaging in a campaign to destroy Dixon’s reputation within the company.

“When such repeated or ongoing harassment is alleged, the offensive conduct is evaluated

as a whole.” GTE Southwest, 998 S.W.2d at 615. In evaluating Bird’s alleged conduct as

a whole, the question is whether “it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” Hishon, supra, 467 U.S. at 73.

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The Court is certainly not holding that such facts actually exist. It may well be that

following discovery, Dixon’s IIED claim is ripe for summary judgment, i.e., that the actual

facts underlying the general allegation are insufficiently extreme and outrageous as a matter

of law. That is not a question before the Court today.

ORDER – PAGE 10

The Court acknowledges some tension between the liberal statements of notice pleading, see,

e.g., FED. R. CIV. P. 8(a)(2) (requiring “a short and plain statement of the claim”), and

decisions discounting “conclusory allegations” in rule 12(b)(6) motions. E.g., Elliott v.

Foufas, 867 F.2d 877, 881 (5th Cir. 1989) (pleader must allege specific facts, not conclusory

allegations); Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (conclusory

allegations not taken as admitted true in rule 12(b)(6) motion). Some guidance on the line

between a short and plain statement and a conclusory allegation can be found in the Forms

accompanying the Federal Rules of Civil Procedure. See, e.g., FED. R. CIV. P. Forms 4

(account), 5 (goods sold and delivered), 9 (negligence) 11 (conversion), and 12 (specific

performance). Dixon’s general allegation contains at least the factual specificity of those

forms. Accordingly, the Court holds that Dixon’s general allegation is a factual allegation

that will “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Conley v. Gibson, 355 U.S. at 47. It appears to the Court that Dixon could

prove a set of facts consistent with that general allegation that would meet all the elements

of IIED.6

 Accordingly, the Court holds the Dixon did not improperly join Bird.

CONCLUSION

The Court’s decision here does not reflect any preference by the Court for either a

federal or state forum. Nor does it reflect affection or distaste for IIED. It does not reflect

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The Court finds that no award of costs or expenses, including attorneys’ fees, is

merited under 28 U.S.C. § 1447(c).

ORDER – PAGE 11

any policy choices at all. Rather, it reflects this Court’s diligent attempt to follow the Texas

Supreme Court’s articulation of Texas law on IIED, regardless of the forum consequences.

Having said that, the Court is not blind to the potential for forum selection mischief its ruling

might entail if a litigant were willing to plead recklessly without regard to the actual facts.

That is a risk best addressed through sanctions under Rule 13 of the Texas Rules of Civil

Procedure.

Because Dixon did not improperly join Bird, there is not complete diversity and this

Court does not have subject matter jurisdiction. Accordingly, the Court grants Dixon’s

motion to remand, and orders that this action be remanded to the County Court at Law No.

1 of Dallas County, Texas.7

Signed June 5, 2006.

_________________________________

David C. Godbey

United States District Judge

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