Howe v. Yellowbook, USA

• Decision Date: 21 December 2011
• Docket Number: No. 3:10–cv–1983–M.,3:10–cv–1983–M.
• Citation: 840 F.Supp.2d 970
• Parties: Rachael HOWE, Plaintiff, v. YELLOWBOOK, USA and Max Andrews, Defendants.
• Court: U.S. District Court — Northern District of Texas

840 F.Supp.2d 970

Rachael HOWE, Plaintiff,

v.YELLOWBOOK, USA and Max Andrews, Defendants.

No. 3:10–cv–1983–M.

United States District Court,

N.D. Texas,

Dallas Division.

Dec. 21, 2011.

David Bell, Law Offices of David Bell, Dallas, TX, for Plaintiff.

A. John Harper, II, Morgan Lewis & Bockius L.L.P., Houston, TX, Rachel Morgan, Morgan Lewis & Bockius L.L.P., Dallas, TX, for Defendant Yellowbrook.

Richard M. Kobdish, Jr., Richard M. Kobdish Attorney at Law, Addison, TX, for Defendant Max Andrews.

MEMORANDUM OPINION AND ORDER

BARBARA M.G. LYNN, District Judge.

Before the Court are Motions to Dismiss and/or for Summary Judgment filed by Defendants Yellowbook, Inc., successor in interest to Yellow Book USA (“Yellowbook”) [Docket Entry # 10] and Max Andrews (“Andrews”) [Docket Entry # 17]. For the reasons stated below, the Motion to Dismiss and/or for Summary Judgment filed by Yellowbook is GRANTED in part and DENIED in part, and the Motion to Dismiss and/or for Summary Judgment filed by Andrews is GRANTED in part and DENIED in part.

I. BACKGROUND

Rachael Howe (“Howe”) worked for Yellowbook and its predecessor companies in Louisville, Kentucky for approximately fifteen years. In November 2009, Howe agreed with Yellowbook that she would move from Kentucky to Waco, Texas for a promotion to Area Manager. Effective January 4, 2010, Howe transferred to Waco as a District Sales Manager. Howe alleges she accepted the transfer with the understanding, based on promises and representations made by Andrews, a Yellowbook General Sales Manager, that she would be promoted to Area Manager. Despite transferring to Waco, Howe continued to reside in Kentucky with her family, commuting to Waco and residing in a hotel.

On March 1, 2010, Howe gave a presentation at a business meeting, which Andrews attended. After the meeting, Andrews and Howe went to a restaurant together for dinner, followed by drinks at a nearby bar. Howe alleges that Andrews advised her that it was part of the culture of the company for managers to have dinner meetings, followed by drinks. At approximately 2:00 a.m. on March 2, 2010, Andrews drove Howe back to her hotel, where Howe alleges Andrews attempted to force her to have sex with him. Howe promptly reported what occurred to her immediate supervisor, Don White, explaining that Andrews had taken advantage of her and used his power over her career to force himself upon her. Howe also reported the incident to Yellowbook's Human Resources department, advising that she was mentally, emotionally, and physically damaged and distraught. According to Yellowbook, the Human Resources department investigated Howe's allegations and concluded that inappropriate and unprofessional, albeit consensual, conduct occurred between Howe and Andrews due to the influence of alcohol.

Howe returned to Kentucky. She claims that she was constructively discharged because Andrews remained her superior, and thus she could not return to Waco, and Yellowbook would not allow her to return to work in Louisville. Yellowbook presents evidence that it issued a warning to Andrews and removed Howe and the Waco office from any supervision by Andrews. (Yellowbook App. Ex. A–1.) Yellowbook further asserts that it permitted Howe to return to Kentucky and placed Howe on a leave of absence, during which time she started to work for another company.

On May 7, 2010, Howe filed a charge with the Equal Employment Opportunity Commission (“EEOC”). On August 27, 2010, Howe filed her Original Petition in Dallas County Court (“Petition”). Defendants removed the suit on October 1, 2010. In her Petition, Howe asserts claims under Title 42 U.S.C. Section 2000e et seq. (“Title VII”) and the Texas Commission on Human Rights Act (“TCHRA”) for sexual harassment/discrimination and retaliation as to Yellowbook and Andrews.¹ Howe further asserts state common law tort claims for intentional infliction of emotional distress (“IIED”) and fraudulent representations as to both Defendants, negligent supervision and retention as to Yellowbook, and assault and battery as to Andrews. Yellowbook and Andrews now move to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or for summary judgment pursuant to Federal Rule of Civil Procedure 56.²

II. LEGAL STANDARD

The Court has reviewed the parties' evidence under Federal Rules of Civil Procedure 12 and 56; therefore, the Court provides a description of both the standard for Rule 12 dismissal for failure to state a legal claim and Rule 56 summary judgment.

A. Rule 12(b)(6) Standard

To survive a Rule 12(b)(6) motion to dismiss, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard Rule 8 announces does not require “detailed factual allegations,” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While a court must accept all of the plaintiff's allegations as true, it is not bound to accept as true “a legal conclusion couched as a factual allegation.” Id. at 1949–50 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 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. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Where the facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has stopped short of showing that the pleader is plausibly entitled to relief. Fed. Rule Civ. P. 8(a)(2); Iqbal, 129 S.Ct. at 1950.

B. Rule 56 Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If a reasonable jury could return a verdict for the non-moving party, then there is a genuine dispute of material fact. Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir.1998). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate, by designating specific facts beyond the pleadings that prove the existence of a genuine dispute of material fact. SeeFed.R.Civ.P. 56(a); Anderson, 477 U.S. at 250, 106 S.Ct. 2505;Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir.1991). In determining whether a genuine dispute of material fact exists, “factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists.” Lynch Props., 140 F.3d at 625 (citation omitted).

III. MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT FILED BY YELLOWBOOK

A. Title VII Claims

Yellowbook contends that Howe failed to exhaust her administrative remedies as required before one can pursue a Title VII claim in federal court. Yellowbook argues that even though Howe filed a charge with the EEOC, that charge was pending before the EEOC, and no right-to-sue letter was issued to Plaintiff before she initiated this action. Yellowbook further argues that post-suit issuance of a right-to-sue letter by the EEOC does not cure Plaintiff's failure to exhaust administrative remedies, and dismissal is still required.³Howe argues that because she has now received a right-to-sue letter, her claims should not be dismissed.

Title VII of the Civil Rights Act prohibits discrimination against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2. Before an individual can pursue a Title VII claim in federal court, she must first exhaust her available administrative remedies. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir.2002). Title VII requires that a complainant must first file a charge with the EEOC within 180 days (or 300 days when complainant has initially instituted proceedings with a state or local agency) after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e–5(e)(1). The timely filing of a charge with the EEOC is a prerequisite to maintaining a Title VII action. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 598 (5th Cir.2006). If the EEOC dismisses a claim, it then issues a right-to-sue letter. 42 U.S.C. § 2000e–5(f)(1). Once the EEOC has issued a right-to-sue letter, the complainant has 90 days in which to file a Title VII action in federal court. Id.

The Fifth Circuit has held that “receipt of a right-to-sue letter subsequent to the commencement of a Title VII action, but while the action remains pending, satisfies the precondition that a plaintiff obtain statutory notice of the right to sue before filing a civil action under Title VII.” Pinkard, 678 F.2d at 1219. In so ruling, the Fifth Circuit found the remedial purpose of the Act was satisfied, and that barring a Title VII plaintiff who received a right-to-sue letter after filing suit “would be an extreme sanction.” Id. at 1218. Relying on Tolbert v. United States, 916 F.2d 245, 249 (5th Cir.1990), Yellowbook argues that a failure to exhaust administrative remedies cannot be cured by post-suit issuance of a right-to-sue letter. In Tolbert, plaintiff filed an EEOC charge with her former employer, the United States Postal...