                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT

                                 _________________________

                                        No. 96-20213
                                     (Summary Calendar)
                                 _________________________

LINDA MCLANEY;
GEORGE MCLANEY,
                                                                            Plaintiffs-Appellants,
                                              versus
TEXACO INC.;
ROBERT R. ELLIOTT,
                                                               Defendants-Appellees.
                ____________________________________________________

                        Appeal from United States District Court
                           for the Southern District of Texas
                                    (CA-H-95-5132)
               __________________________________________________
                                  September 20, 1996
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

       In this sexual harassment case, Linda and George McLaney appeal the district court’s

judgment granting the defendants’ motion to dismiss their case. They claim that they did not

fraudulently join Robert Elliott to destroy diversity and that common law remedies are available to

them. For the following reasons, we affirm the judgment of the district court.



                                             FACTS

        Linda and George McLaney are husband and wife. Mrs. McLaney worked for Texaco, Inc.

   *
   Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
from December 1988 to March 1, 1995 when Texaco terminated her. Mrs. McLaney was assigned

to work under the supervision of Robert Elliott in early 1993. Elliott commented about her looks,

stared at her body, and touched her shoulders, legs, breasts, dorsal parts, face, and hair despite her

requests that he discontinue the touching. The conduct escalated to an encounter in which Elliott

brought Mrs. McLaney to his apartment and unsuccessfully attempted to have intercourse with her.

Elliott also left cards on Mrs. McLaney’s desk. When she insisted that he cease the sexual conduct

and affection, he retaliated by refusing to communicate with her, train her, or give her work. Elliott’s

sexual conduct caused McLaney to develop emotional and mental problems necessitating therapy and

leave time.

        The McLaney’s sued the defendants for the intentional infliction of emotional distress and

various negligence claims. The defendants removed the case to federal district court by asserting that

Elliott was fraudulently joined to destroy diversity. They also claimed that the McLaney’s claims

were time barred. The district court ignored the arguments of the defendants, ruling instead that the

plaintiffs could not maintain any claims against the defendants. The plaintiffs appeal the denial of their

motion to remand and the summary judgment granted in favor of the defendants.

                                            DISCUSSION

A.      STANDARD OF REVIEW.

        We review a grant of summary judgment under the parameters established by rule 56 of the

Federal Rules of Civil Procedure. Summary judgment shall be granted if the record, taken as a whole,

“together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56. We review

the district court’s summary judgment de novo. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th


                                                    2
Cir. 1994); see also Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995). Fact

questions are considered with deference to the non-moving party, while questions of law are reviewed

de novo. Herrera v. Millsap, 862 F.2d 1157, 1159 (5th Cir. 1989). We review the denial of a motion

to remand de novo because it is a question of law. Burden v. General Dynamics Corp., 60 F.3d 213,

216 (5th Cir. 1995).

B.      REMAND.

        The plaintiffs argue that they have not fraudulently joined Elliott because they have asserted

three viable claims against him: intentional infliction of emotional distress, negligence, and alienation

of affection. Though Texas no longer recognizes a cause of action for alienation of affection, an

action for tortious interference with familial relations exists. The plaintiffs contend that mislabelling

the action does not destroy it because they have pled the elements of the correct cause of action.

Further, they assert that Mrs. McLaney could maintain common law claims against Elliott

independently of claims for violations of statutory rights. We disagree.

        Joinder is fraudulent when there is no reasonable basis to conclude that the plaintiff can

recover against the defendant on the causes of actions pleaded. Burchett v. Cargill, 48 F.3d 173, 176

(5th Cir. 1995). The burden placed on the party crying “fraudulent joinder” is a heavy one. Ford v.

Elsbury, 32 F.3d 931, 935 (5th Cir. 1994). We have previously detailed the considerations of a

fraudulent joinder allegation:

        In determining the validity of a claim of fraudulent joinder, the district court “must
        evaluate all of the factual allegations in the light most favorable to the plaintiff,
        resolving all contested issues of substantive fact in favor of the plaintiff.” The court
        must also resolve all ambiguities in the controlling state law in the plaintiff’s favor.
        If the plaintiff has any possibility of recovery under state law against the party whose
        joinder is questioned, then the joinder is not fraudulent in fact or law. We do not
        determine whether the plaintiff will actually or even probably prevail on the merits of


                                                   3
        the claim, but look only for a possibility that the plaintiff might do so.

Burden, 60 F.3d at 216 (citations omitted).

        Our review of the record demonstrates that the plaintiffs do not have any possibility of

recovering damages against Elliott. First, the Texas legislature abolished the cause of action for

alienation of affection in 1987. See TEX. FAM. CODE § 4.06 (Vernon’s 1993). We find unpersuasive

the plaintiffs’ attempt to revive this action using cases predating the legislature’s 1987 action. The

district court properly rejected the alienation of affection as a possible cause of action against Elliott.

        Second, Mrs. McLaney does not present a viable action for intentional infliction of emotional

distress. This cause of action requires proof that Elliott either intentionally or recklessly engaged in

extreme or outrageous conduct that cause Mrs. McLaney to suffer severe emotional distress. See

Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Outrageous conduct involves actions which

go “beyond all possible bounds of decency, and [is] to be regarded as atrocious and utterly intolerable

in a civilized community.” Wornick Co. v. Casas, 856 S.W.2d 732, 736 (Tex. 1993).

        Assuming that Mrs. McLaney’s allegations are true and indulging all reasonable inferences

in her favor, the facts suggest the existence of a consensual relationship between Mrs. McLaney and

Elliott. Mrs. McLaney’s evidence demonstrates that Elliott took steps to foster an extramarital affair

with Mrs. McLaney, and her evidence also shows that she reciprocated his efforts to some degree.

For example, when Elliott requested that they go to his apartment after leaving a restaurant where

they had eaten lunch, she exhibited no resistance to the idea (reasoning that she had no other means

of transportation to return to work) and no objection to his overt advances, which included

undressing, kissing, and fondling her. Further, Mrs. McLaney does not present evidence denying that

she sent Elliott a card saturated with sexual innuendos. We are hard pressed to find that Elliott


                                                    4
engaged in outrageous conduct as defined by the Texas Supreme Court. See Garcia v. Andrews, 867

S.W.2d 409, 412 (Tex. App. 1993).1

       Finally, Mrs. McLaney cannot recover for negligent sexual harassment because this claim is

preempted by the Texas Commission on Human Rights Act. 2 “Generally, when a statute gives a

remedy, it is cumulative of the common law remedy and not exclusive unless the statute either

expressly or impliedly negates the right to the common law remedy.” Navistar Int’l Transp. Corp.

v. Crim Truck & Tractor Co., 791 S.W.2d 241, 245 (Tex. App. 1990); see also Holmans v.

Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex. App. 1995). The Texas Supreme Court has

interpreted the provisions of the Texas Commission on Human Rights Act as being “mandatory and

exclusive.” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). Consequently,

Texas courts refuse to allow plaintiffs to litigate employment discrimination causes of actions which

fall within the scope of the Texas Commission on Human Rights Act because the Act preempts such

cause of actions. See Vincent v. West Texas State Univ., 895 S.W.2d 469, 473-74 (Tex. App. 1995);



  1
   Our conclusion that Mrs. McLaney could not satisfy an essential element of the emotional distress
claim obviates the need to discuss the defendants’ statute of limitations arguments.
  2
     Even if the negligence claims were not preempted, Mrs. McLaney could not successfully recover
under this theory. Mrs. McLaney cannot recover under a theory of common law negligence or
negligence under the Texas Commission on Human Rights. The district court concluded: “they must
first establish a duty owed by Elliott. Beyond human decency, that Elliott breached.” The Texas
Supreme Court has identified duty as an element of a common law negligence claim. See Otis Eng’g
Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Mrs. McLaney has failed to establish a duty
owed by and breached by Elliott, and therefore, Elliot t cannot be liable. Further, Mrs. McLaney
cannot recover against Elliott under a statutory negligence claim because the statutes impose liability
on an employer, which Elliott is not. The record demonstrates that Elliott is Mrs. McLaney’s co-
worker, not her supervisor. He was not empowered with authority to hire, fire, promoted, demote,
discipline, or transfer employees. As a co-worker, Elliott cannot be personally liable to her for sexual
harassment. See Grant v. Lone Star Co., 21 F.3d 649, 651-52 (5th Cir.), cert. denied, 115 S. Ct. 574
(1994); and City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. App. 1992).

                                                  5
and Stinnett v. Williamson County Sheriff’s Dept., 858 S.W.2d 573, 576 (Tex. App. 1995).

         Further, we find unpersuasive the cases cited by the plaintiffs in an effort to demonstrate the

availability of common law claims. Those cases predate Schroeder and the cases applying it.

Therefore, Mrs. McLaney is relegated to pursuing relief via the provisions of the Commission on

Human Rights Act. Mrs. McLaney’s failure to demonstrate her compliance with the Act warranted

dismissal of her claims. Accordingly, no recovery may lie on a claim of negligent sexual harassment.3

         The plaintiffs have failed to allege any viable claims against Elliott. Therefore, the district

court’s finding of fraudulent joinder must be upheld.

C.       CLAIMS AGAINST TEXACO.

         The plaintiffs argue that the district court erroneously ruled that Mrs. McLaney could not

maintain any common law claims against Elliott or Texaco because her remedies were limited to

claims under Texas statutes. The plaintiffs maintain that Johnson v. Merrel Dow Pharmaceuticals,

Inc., 965 F.2d 31 (5th Cir. 1992), which the district court cites in support of its conclusion does not

stand for this proposition. Finally, the plaintiffs cite cases wherein plaintiffs recovered damages under

both statutory and common law causes or recovered on only the common law grounds. We cannot

agree.

         Mrs. McLaney’s inability to recover from Elliott has been discussed above. Her claims against

Texaco must suffer a similar fate. As discussed in detail above, the Texas Commission on Human




     3
     Even if the Commission on Human Rights Act did not preempt the common law claims, Mrs.
McLaney would not have a cause of action against Elliott under a theory of sexual harassment. Texas
courts do not recognize this cause of action. See Vincent, 895 S.W.2d at 473-74. She had no choice
but to sue under the Act.

                                                   6
Right Act preempts all of her common law employment discrimination claims against Texaco.4

Thus, summary judgment in favor of Texaco was proper.5

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the finding of fraudulent joinder, the denial of the

plaintiffs’ motion to remand, and the grant of the defendants’ motion for summary judgment.




   4
    Apart from the district court’s finding that statutory claims preempted Mrs. McLaney’s actions
against Texaco, the court summarily concluded that “these common law causes of action cannot be
sustained against Texaco because its duty to an employee is restricted to the terms and conditions of
employment and the employee’s safety.” As the plaintiffs did not challenge in their appellate brief the
summary judgment rendered in favor of Texaco regarding the merits of the plaintiffs’ claims, this
issue is waived. Zuccarello v. Exxon Corp., 756 F.2d 402. 407-08 (5th Cir. 1985).
  5
   Because we conclude that the Commission on Human Rights Act preempts the plaintiffs’ claims,
we need not address the parties’ workers’ compensation concerns.

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