Jones v. Halliburton Co. D/B/A Kbr Kellogg Brown & Root (kbr)

• Decision Date: 24 May 2011
• Docket Number: Civil Action No. 4:07–cv–2719.
• Parties: Jamie Leigh JONES, Plaintiff,v.HALLIBURTON COMPANY d/b/a KBR Kellogg Brown & Root (KBR), et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

791 F.Supp.2d 567

112 Fair Empl.Prac.Cas. (BNA) 720

32 IER Cases 549

Jamie Leigh JONES, Plaintiff,

v.HALLIBURTON COMPANY d/b/a KBR Kellogg Brown & Root (KBR), et al., Defendants.

Civil Action No. 4:07–cv–2719.

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

May 24, 2011.

Lannie Todd Kelly, The Kelly Law Firm PC, Richmond, TX, Paul F. Waldner, III, Vickery & Waldner, Heidi Olsen Vicknair, Kelly Law Firm, Houston, TX, Stephanie Morris, The Law Office of Stephanie M. Morris, PLLC, John Vail, Washington, DC, Susan E. Hutchison, Foreman Lewis & Hutchison PC, Grapevine, TX, for Plaintiff.Daniel K. Hedges, Porter & Hedges, Vanetta Loraine Christ, Vinson & Elkins LLP, Joanne Meyer Vorpahl, Porter & Hedges, Andrew T. McKinney, IV, McKinney Cooper LLP, Houston, TX, M.C. Carrington, Mehaffy Weber, Beaumont, TX, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court are the KBR Defendants' Motion for Partial Summary Judgment (Doc. No. 150), the KBR Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Partial Summary Judgment (Doc. No. 173), and the KBR Defendants' Motion for Leave of Court to File Reply Brief in Excess of 10–Page Limit (Doc. No. 188).¹ Upon considering the Motions, all responses thereto, and the applicable law, the Court finds that the KBR Defendants' Motion for Partial Summary Judgment (Doc. No. 150) must be granted in part and denied in part, the KBR Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Partial Summary Judgment (Doc. No. 173) must be granted in part and denied in part, and the KBR Defendants' Motion for Leave of Court to File Reply Brief in Excess of 10– Page Limit (Doc. No. 188) must be granted.²

I. BACKGROUND

This lawsuit arises from events that occurred while Plaintiff Jamie Leigh Jones (“Plaintiff” or “Jones”) was employed by Defendants Halliburton Company d/b/a KBR Kellogg Brown & Root (KBR), Kellogg Brown & Root, Services, Inc., Kellogg Brown & Root International, Inc., Kellogg Brown & Root, LLC, Kellogg Brown & Root, Inc., Kellogg Brown & Root (KBR), Inc., KBR Technical Services, Inc., and Overseas Administrative Services, Ltd. (collectively, the “KBR Defendants” or “KBR”).³ We set forth the following undisputed facts that are relevant to disposition of the pending motions.

Prior to July, 2005, Jones worked for the KBR Defendants in Houston, Texas as an administrative assistant. On July 15, 2005, Jones signed an employment agreement with Defendant Overseas Administration Services, Ltd. (“OAS”), in which she agreed to provide support services to the United States military and to be stationed in Iraq (the “Employment Agreement”). (Doc. No. 150 Ex. E.) OAS hired Jones as part of the LOGCAP III contract, under which some of the KBR Defendants provided support services to the United States military in Iraq. (Curfman Aff. ¶ 4; Doc. No. 173, Ex. B.) Paragraph 4 of the Employment Agreement contained the following provision: “Your sole recourse for any injury, illness, or death arising out of or in the course of your employment under this Agreement shall be as determined under the provisions of the Defense Base Act.” (Doc. No. 173, Ex. C at 1.)

Not long after signing the Employment Agreement, Jones flew to Baghdad, Iraq to begin her assignment with the KBR Defendants. On July 25, 2005, Jones reported for duty at the KBR Defendants' headquarters, which was located in the “Green Zone” of Baghdad. Camp Hope, the housing quarters for KBR employees, was also located in the Green Zone. (Tumbarella Dep. 10:9–10, 11:3–5; Andino Dep. 28:1–2, 49:2–5.) Jones arrived at the KBR headquarters to replace an IT specialist named Sara Tumbarella (also known as Sara Simco). (Tumbarella Dep. 10:22–11:8, 83:13–18.) On July 27, 2005, Jones was transferred from the KBR Defendants' headquarters to the United States Mission Iraq (“USMI”) facility to work. (Tumbarella Dep. 23:22–24:1; Adams Dep. 7:3–5, 10:2–4.) Sometime during the evening of July 27, 2005 and the early morning of July 28, 2005, Jones and Defendant Charles Bortz (“Bortz”) engaged in sexual intercourse at her room in the Camp Hope barracks. (Bortz Dep. 67:9–15, 93:10–19; Tumbarella Dep. 23:9–16.)

On the morning of July 28, 2005, Jones arrived at the USMI facility to begin work for the day. (Adams Dep. 16:10–12.) After her arrival, Jones contacted a fellow KBR employee, Pete Arroyo (“Arroyo”), and told him that she had been raped by Bortz. (Doc. No. 159, Ex. 12 at 2.) William Goodgine, KBR's security manager, was notified of the rape and he, in turn, notified Ron Boutwell, KBR's human resources manager, and Gabriel Andino (“Andino”), KBR's project manager for the USMI. (Andino Dep. 25:7–16, 116:19–23; Doc No. 159, Ex. 12 at 2.)

Jones was taken to the 86th Combat Support Hospital, also in the Green Zone and sometimes referred to as “86 CASH.” (Schulz Dep. 8:21–23, 10:1–3; Doc. No. 159, Ex. 20 at 1.) Jones was accompanied by Kristen Rumba (“Rumba”), a USMI physician's assistant. (Doc. No. 159, Ex. 20 at 1.) Dr. Jodi Schulz (“Schulz”), a staff gynecologist working for the U.S. Army, examined Jones. (Schulz Dep. 13:23–25, 74:10–12.) Schulz performed a sexual assault examination (“SAE”) kit and took handwritten notes of her exam of Jones. (Schulz Dep. 14:12–19:7, 26:9–10.) The SAE or “rape” kit was taken by KBR personnel from the hospital to a KBR facility, where it was placed in a safe. (Goodgine Dep. 141:11–142:14.)

Two KBR security personnel accompanied Jones from the hospital to a KBR trailer in Camp Hope, away from her barracks. (Goodgine Dep. 19:13–20:22; Andino Dep. 118:9–16.) Guards were placed outside of the KBR trailer while Jones remained inside. (Goodgine Dep. 21:15–21, 24:2.) A KBR HR employee named Jamie Armstrong (“Armstrong”) asked Jones to provide a statement, which both Jones and Armstrong wrote while Jones was in the KBR trailer. (Armstrong Dep. 19:17–22; Goodgine Dep. 27:5–6.) Goodgine and Boutwell joined Armstrong in the trailer with Jones. (Goodgine Dep. 34:5–11.) Goodgine describes Jones as looking “frightened and perplexed” when he met with her in the trailer. ( Id. 38:13, 161:12–14.)

Heidi McMichael (“McMichael”) and Matthew McCormack (“McCormack”), two U.S. Department of State (“DOS”) employees that had been notified of Jones's reported rape, arrived at the KBR trailer to interview Jones and take custody of her from the KBR trailer. (Goodgine Dep. 27:7–14; Doc. No. 159, Ex. 12 at 2.) From this point forward, the investigation of Jones's alleged rape was under the control of the DOS. (Doc. No. 159, Ex. 20 at 2.) Goodgine and Andino met with Jones, McMichael, and other DOS employees on July 29, 2005. (Goodgine Dep. 38:22–39:9.) During the meeting, which lasted a few hours, Jones asked whether she would continue receiving her salary, since Goodgine had told her previously that she would no longer be paid.⁴ ( Id. 40:9–18.) Employees of the KBR Defendants told Jones that she had essentially two choices: (1) to “stay and get over it”; or (2) to go home with “no guarantee of a job” either in Iraq or back in Houston. (Doc. No. 159, Ex. 1 at 3.) Jones left Iraq and returned to the United States.⁵

Jones filed a Charge of Discrimination (“EEOC Charge”) with the Equal Employment Opportunity Commission (“EEOC”) in October 2005. (Doc. No. 150 Ex. B.) In the Charge, Jones stated that the discrimination was based on “sex” and had occurred between July 25, 2005 and July 28, 2005. ( Id.) Jones described the particulars of the discrimination as being housed in an all-male barracks, which created a hostile work environment, and being drugged and sexually assaulted in her barracks room. She also stated that the KBR Defendants had not responded to her emails regarding her housing in the all male barracks. ( Id.) Jones's Amended Charge of Discrimination filed in January 2006 was substantially similar to her original EEOC Charge. (Doc. No. 150 Ex. C.) The EEOC conducted an investigation based on the EEOC Charge and issued a Letter of Determination finding cause that the KBR Defendants had violated Title VII of the Civil Rights Act of 1964. (Doc. No. 150 Ex. D at 2.)

Jones filed suit against the KBR Defendants, Bortz, Iler, and several John Doe rapists. In her Fourth Amended Complaint, Jones asserts claims of: (1) negligence by the some of the KBR Defendants; (2) negligent undertaking by the KBR Defendants; (3) sexual harassment and hostile work environment created by the KBR Defendants; (4) retaliation by the KBR Defendants; (5) breach of contract by the KBR Defendants; (6) fraud in the inducement to enter the employment contract by the KBR Defendants; (7) fraud in the inducement to agree to arbitration by the KBR Defendants; (8) assault and battery by Bortz and the John Doe rapists; and (9) intentional infliction of emotional distress by the KBR Defendants.⁶ (Doc. No. 53.)

In a prior memorandum and order (the “May 2008 Order”), we addressed the KBR Defendants' motion to compel arbitration of Jones's claims. (Doc. No. 65.) After holding that a valid agreement to arbitrate existed between Jones and the KBR Defendants, we held that four of Jones's claims fell beyond the reach of the broad arbitration provision. ( Id. at 15–16.) Specifically, we held that Jones was not compelled to arbitrate her claims of: (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.⁷ ( Id. at 24.) We compelled Jones's remaining claims to arbitration and stayed the litigation of the non-arbitrable claims until the parties completed arbitration of the arbitrable claims. ( Id.)

The KBR Defendants appealed the holdings of the May 2008 Order to the Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed the May 2008 Order and remanded (the “Fifth Circuit Order...