       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-19-00307-CV
                                     NO. 03-19-00352-CV



                                   Stetson Roane, Appellant

                                               v.

                                Halcy Martin Dean, Appellee


               FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
  NO. D-1-GN-18-005721, THE HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                           MEMORANDUM OPINION


              In the interlocutory appeal No. 03-19-00307-CV and permissive interlocutory

appeal No. 03-19-00352-CV, consolidated for purposes of briefing and consideration, Stetson

Roane challenges the trial court’s denial of his plea to the jurisdiction on multiple grounds. In

the permissive interlocutory appeal, Roane argues that Halcy Martin Dean’s intentional infliction

of emotional distress (IIED) claim was preempted by the Texas Commission on Human Rights

Act (TCHRA), codified at chapter 21 of the Texas Labor Code.1 We conclude that binding

precedent dictates that Dean’s IIED claim is preempted by the TCHRA.               Accordingly,

       1  “Courts have referred to Chapter 21 of the Labor Code as the Texas Commission on
Human Rights Act (TCHRA or CHRA); however, the Commission on Human Rights has been
replaced with the Texas Workforce Commission civil rights division.” Waffle House, Inc.
v. Williams, 313 S.W.3d 796, 798 n.1 (Tex. 2010) (citing Tex. Lab. Code § 21.0015).
Nevertheless, following the Texas Supreme Court, we will continue to refer to chapter 21 as the
TCHRA for ease of reference and continuity with the case law. See id. (using “TCHRA,”
“Chapter 21,” and “the Act” interchangeably).
we reverse the trial court’s order at issue in the permissive interlocutory appeal

No. 03-19-00352-CV and render judgment granting Roane’s plea and dismissing Dean’s sole

claim against him. We dismiss as moot the interlocutory appeal No. 03-19-00307-CV.


                                       BACKGROUND

              Dean is the director of special education for Seguin Independent School District

(Seguin ISD). Roane was Seguin ISD’s superintendent. His wife Nancy Graves was Dean’s

immediate supervisor at Seguin ISD and reported directly to Roane.

              In 2018, Dean sued Roane for IIED, making the following allegations in her live

petition. Dean was planning on attending a professional conference in Austin on January 17, 2017.

Roane also indicated that he would like to attend and requested that Dean reserve a hotel room

for him. Dean booked Roane a hotel room at a separate hotel from her own. Roane did not

attend any conference session, arrived after 5:00 p.m., and arranged a business dinner with Dean

and her colleagues. After the dinner, Roane insisted on accompanying Dean to her own hotel for

her safety, which Dean said was unnecessary but acquiesced because Roane “held a position of

authority and power” over her and she did not “wish to offend” him. Upon walking Dean to her

hotel, Roane insisted on entering Dean’s room and began to disrobe, discussing his need for

“release” and Dean’s attractiveness. Dean attempted to redirect by talking about her good work

relationship with Graves. Roane replied that he was “tired of her” and needed “someone young,

hot and smart” like Dean. Dean then began to boast about his sexual abilities, described

explicitly how he could pleasure Dean sexually, and stated that they were similar by being

married to “old people.” Dean responded that she would not be unfaithful to her husband, could

only be “work friends” with Roane, and could not, as an employee, engage in a sexual


                                               2
relationship with him.    Roane continued to offer to perform oral sex on Dean, and Dean

continued to say “no” repeatedly. Finally, Dean gathered Roane’s clothes and told him he would

need to get dressed and leave, which Roane did.

               Dean alleged that five days later she was hospitalized for chest pains, difficulty

breathing, and high fever, and that she continued to experience “fear and anxiety” going forward.

Dean explained that this hotel room incident created an “immediate, very uncomfortable and

disturbing work environment” for her, especially given her work relationship with both Roane

and Graves. Based on statements Dean had heard from and about Roane regarding how he

would treat employees who crossed him, she was “fearful” of how he might treat her and

“became afraid to go to her office” or “venture out of her own office, for fear she might run into”

Roane or Graves, “believ[ing] and fear[ing]” that Roane “had the ability to do whatever he

wanted with regard to her position with the district” as she was an “at will” employee. Then, on

February 28, Dean filed an administrative complaint with Seguin ISD, which placed Roane on

administrative leave.

               Dean also claimed that following Roane’s placement on administrative leave,

Graves began to remark to others that she was “having concerns about [Dean]’s work

performance” and commented on the number of employees who had left Dean’s department,

even though she had only made positive statements regarding Dean’s performance before the

incident. Graves then began refusing to attend routine meetings with Dean, and the acting

superintendent publicly removed Dean from an administrative meeting upon Graves’s request.

Dean was hospitalized two more times that spring for chest pains that were later diagnosed as

extensive stress and began seeing a therapist. Graves was then removed as Dean’s direct

supervisor.   Finally, Dean alleged that “Seguin ISD’s investigation into Roane’s conduct

                                                  3
devolved into other issues, and, prior to any conclusive findings on [Dean]’s allegations,” Roane

and Graves resigned. According to Dean, the resignations rendered Dean’s grievance moot.

               Roane responded to Dean’s live petition with a plea to the jurisdiction, claiming

that Dean’s IIED claim is preempted by the TCHRA, that Dean failed to exhaust administrative

remedies against a professional employee of a school district as required by section 22.0514 of

the Texas Education Code, and that Roane is entitled to immunity under section 101.106(f) of

the Texas Civil Practice and Remedies Code. Roane also moved to dismiss Dean’s IIED claim

under rule 91a of the Texas Rules of Civil Procedure, claiming that the IIED claim has no basis

in law or fact because the conduct alleged is not “extreme and outrageous” as a matter of law.

               Roane filed a brief in support of his plea to the jurisdiction, attaching affidavits

from him and Graves in support of his position, the school board policy, Dean’s administrative

complaint,2 and a letter from Seguin ISD’s counsel to Dean that stated that the administrative

complaint had been resolved by Roane’s resignation and that if Dean was not satisfied with the

result she could appeal the decision pursuant to the board’s policy. In his affidavit, Roane

provided an alternative account of the events. He averred that Dean requested he attend the

conference to meet vendors and prospective vendors, Dean’s suitcase was broken so he helped

Dean carry it to her room and she did not object, he removed his tie from sweating while

carrying the heavy luggage but did not remove any other articles of clothing at any time, Dean

and Roane had conversations regarding transferring Dean’s husband to a special education

position, and he did not seek a romantic relationship or make inappropriate sexual comments.

       2   Roane moved to seal the administrative complaint attached as an exhibit, which the
trial court later denied. Roane has also appealed to this Court the denial of his motion to seal.
Contemporaneously with this opinion, we also issue an opinion and judgment in that appeal. See
Roane v. Dean, No. 03-19-00308-CV, 2020 WL ________ (Tex. App.—Austin April 30, 2020,
no pet. h.) (mem. op.).
                                                4
He also testified that they had text exchanges and other interactions over the next few days

following that night that were fun, lighthearted, and exchanges of pleasantries. Dean testified

that when he found out about the complaint, he voluntarily submitted to a polygraph examination

that found no deception in his negative answer to whether he made certain inappropriate

comments to Dean. He explained that he resigned his employment with no finding of guilt on

February 28, 2017, and that Graves resigned effective June 30, 2017. Graves testified that Dean

confided to her concerns and stress regarding family, marital, health, and financial issues.

               Dean responded with supporting affidavits from herself, Roane, and Karl Hanner,

her attorney during the administrative grievance process. Dean’s affidavit tracked the account of

the events related in her petition. Dean included an affidavit filed earlier by Roane to support her

position that the events occurred outside the scope of Roane’s employment because he testified

within his affidavit that “[Dean] alleged that I made sexual advances of her in a private

conversation while we are [sic] off-duty with no one present.” Hanner’s affidavit looked at the

school board policy and concluded that because Roane resigned, there was no need for Dean to

appeal and that Dean exhausted all administrative remedies available to her.

               The trial court entered orders denying Roane’s plea to the jurisdiction, rule 91a

motion to dismiss, and motion to dismiss under section 101.106(f) of the Texas Civil Practice

and Remedies Code. Roane appealed from the order denying his motion to dismiss pursuant to

section 101.106(f). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). Roane also sought

permission from the trial court to appeal the trial court’s denial of his plea to the jurisdiction

based on preemption and failure to exhaust administrative remedies. See id. § 51.014(d); Tex. R.

App. P. 28.3. The trial court granted permission, Roane filed a petition for permission to take

interlocutory appeal in this Court, and we concluded that the appeal is warranted and accepted

                                                 5
it. See Roane v. Dean, No. 03-19-00352-CV, 2019 WL 3404062, at *1 (Tex. App.—Austin

July 26, 2019, order) (per curiam). For purposes of briefing and consideration, this case was

consolidated with Roane’s appeal from the trial court’s order denying his motion to dismiss

pursuant to section 101.106(f). See id.


                                          DISCUSSION

               In these two consolidated appeals, Roane presents a primary issue and two

alternative issues.   As the primary issue, Roane argues that the TCHRA preempts Dean’s

common law IIED claim and therefore the IIED claim should be dismissed. Alternatively,

Roane asserts that Dean’s IIED claim should be dismissed under section 101.106(f) of the Texas

Civil Practice and Remedies Code based on governmental immunity or under section 22.0514 of

the Texas Education Code for failure to exhaust her administrative remedies. Because we

conclude that Roane’s preemption issue is dispositive to this appeal, we do not address his two

alternative issues. See Tex. R. App. P. 47.1, .4.

               We review de novo a trial court’s order denying a plea to the jurisdiction based on

preemption. See Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex.

2016) (reviewing ruling on plea to jurisdiction under de novo standard of review); City of Waco

v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008) (conducting de novo review of ruling on plea to

jurisdiction regarding whether TCHRA provided exclusive remedy and preempted retaliation

claim under Whistleblower Act). Construing the pleadings liberally in favor of the plaintiff and

looking to the pleader’s intent, we determine whether facts have been alleged that affirmatively

demonstrate jurisdiction in the trial court, but we must also consider relevant evidence submitted

by the parties tending to negate the existence of jurisdictional facts when necessary to resolve the


                                                    6
jurisdictional issues raised. Lopez, 259 S.W.3d at 150 (citing Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 225, 27 (Tex. 2004)). “We take as true all evidence favorable to

the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant’s

favor.” Suarez v. City of Texas City, 465 S.W.3d 623, 633 (Tex. 2015) (citing Miranda,

133 S.W.3d at 228). Disputed evidence of jurisdictional facts that also implicate the merits of

the case, however, may require resolution by the finder of fact, in which case the plea must be

denied pending resolution of the fact issue by the fact finder. Id. (citing Miranda, 133 S.W.3d at

227–28). “If the evidence fails to raise a question of fact, however, the plea must be granted as a

matter of law.” Id.

               “[A]brogation of common-law claims is disfavored” and “we will construe the

enactment of a statutory cause of action as abrogating a common-law claim if there exists ‘a

clear repugnance’ between the two causes of action.”           Waffle House, Inc. v. Williams,

313 S.W.3d 796, 802 (Tex. 2010) (quoting Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16

(Tex. 2000)). However, an IIED claim has a unique status as being, “first and foremost, a

‘gap-filler’ tort, judicially created for the limited purpose of allowing recovery in those rare

instances in which a defendant intentionally inflicts severe emotional distress in a manner so

unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche Inc. v.

Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (citing Standard Fruit & Vegetable Co.

v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). It is “a ‘gap-filler’ tort never intended to supplant

or duplicate existing statutory or common-law remedies.”          Creditwatch, Inc. v. Jackson,

157 S.W.3d 814, 816 (Tex. 2005) (citing Hoffmann-La Roche, 144 S.W.3d at 447). Thus, “[i]f

the gravamen of a plaintiff’s complaint is the type of wrong that the statutory remedy was meant



                                                7
to cover, a plaintiff cannot maintain an [IIED] claim regardless of whether he or she succeeds on,

or even makes, a statutory claim.” Hoffmann-La Roche, 144 S.W.3d at 448.

               In Hoffmann-La Roche, Zeltwanger sued her employer Hoffmann La-Roche for

sexual harassment and IIED and her supervisor Webber for IIED. Id. at 441–42. She obtained a

judgment against both after a jury trial, and the court of appeals affirmed. Id. at 442. Asserting

that the IIED claim was a “gap-filler” and that there was no gap here when the TCHRA provided

for a remedy, Hoffmann La-Roche appealed to the Texas Supreme Court; Webber did not

participate in that appeal. Id. at 442, 446. The Court agreed with Hoffmann La-Roche that “[b]y

combining her sexual harassment claim with the [IIED] tort, Zeltwanger has circumvented” the

TCHRA, including its procedural mechanisms and caps on damages. Id. at 447. Because the

gravamen of Zeltwanger’s claim was really another tort under the TCHRA, the Court concluded

her IIED claim should not be available. Id. at 447, 450; see Waffle House, 313 S.W.3d at 799,

813 (“Our view is that the TCHRA, the Legislature’s specific and tailored anti-harassment

remedy, is preemptive when the complained-of negligence is entwined with the complained-of

harassment. . . .     Where the gravamen of a plaintiff’s case is TCHRA-covered harassment,

the [TCHRA]         forecloses   common-law   theories   predicated   on   the   same   underlying

sexual-harassment facts.”).

               Dean argues that Hoffmann-La Roche is distinguishable because it does not apply

to bar tort claims against individual supervisors, citing Dixon v. State Farm Mutual Automobile

Insurance, 433 F. Supp. 2d 785, 788–89 (N.D. Tex. 2006), and we agree. In his well-reasoned

order in Dixon, Judge Godbey noted the general rule that corporate officers or agents are always

primarily liable for their own torts even though principals may also be vicariously liable, and

distinguished Hoffmann-La Roche as follows:

                                                 8
       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. . . . [To
       read otherwise] conflicts with the common law premise that a corporate employee
       or agent is primarily liable for his or her own torts [and] . . . results in a disfavored
       abrogation of a common law tort by implication from a statute. A better reading
       of section 21.051 [of the TCHRA], and one consistent with Hoffmann-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. This reading of Hoffmann-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.”
       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 21.051 or Hoffmann-La Roche that would preclude a TCHRA claim
       against an employer and an IIED claim against a supervisor for the same conduct.


Id. (citations and footnotes omitted).

               Nevertheless, between Hoffmann-La Roche and Dixon, the Texas Supreme Court

decided Creditwatch—a decision that was not mentioned in Dixon. In Creditwatch, Jackson

sued Creditwatch and its CEO Harold Quant, initially alleging numerous acts of sexual

harassment in violation of the TCHRA but withdrawing those claims to allege only an IIED

claim against both defendants based on Quant’s sexual advances.                 157 S.W.3d at 816.

Creditwatch and Quant moved for summary judgment on the ground that the IIED claim was

barred by preemption, which the trial court granted. Id. The court of appeals reversed and

remanded, and Creditwatch and Quant appealed to the Texas Supreme Court.                   Id. Citing

Hoffmann-La Roche, the Creditwatch Court noted that “Jackson’s complaints all stemmed from

Quant’s lewd advances” and held that Jackson’s complaints are covered by “other statutory

remedies”—namely, the TCHRA. Id. Thus, “she cannot assert them as [IIED] claims just

because those avenues may now be barred,” and the Creditwatch Court reversed the court of

                                                  9
appeals’ judgment and rendered judgment that Jackson take nothing from Creditwatch and

Quant. Id. at 816, 818.

                The Creditwatch Court did not distinguish in its analysis between Jackson’s

claims against the employer and its CEO Quant and resolved the case by applying its holding

indiscriminately as to both defendants. See id.; see also Martinez v. Computer Scis. Corp.,

No. A-05-CA-187-SS, 2005 WL 3414828, at *3 (W.D. Tex. May 16, 2005) (noting that although

“the Creditwatch court did not articulate any reason for extending the Hoffman-LaRoche bar to

supervisors or even explicitly acknowledge the fact that it was doing so,” “there is no room to

dispute the obvious impact of that decision: a plaintiff may no longer bring an IIED claim

against a supervisor for workplace harassment under Texas law”).           And we can find no

principled rationale to distinguish why Creditwatch’s holding should apply to the CEO in that

case but not to Roane, as the superintendent, in this case. See Tex. Educ. Code § 11.201(a)

(“The superintendent is the educational leader and the chief executive officer of the

school district.”).3


        3 Because the TCHRA “‘is modeled after federal laws with the purpose of executing the
policies set for the in Title VII of the federal Civil Rights Act of 1964,’” “federal case law may
be cited as authority in cases relating to the Texas Act.” Hoffmann-La Roche Inc. v. Zeltwanger,
144 S.W.3d 438, 447 (Tex. 2004) (quoting Green v. Industrial Specialty Contractors, Inc.,
1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no pet.); and citing Stinnett
v. Williamson Cty. Sheriff’s Dep’t, 858 S.W.2d 573, 576 (Tex. App.—Austin 1993, writ
denied)). Federal authorities have consistently interpreted and applied Creditwatch to preclude
IIED claims against an individual supervisor. See Fisher v. Dallas County, 299 F.R.D. 527,
537–38 (N.D. Tex. 2014) (collecting cases and dismissing IIED claim against
individual defendant as preempted by TCHRA); Calvert v. Brachfeld Law Grp., P.C.,
No. CIV.A. H-12_3683, 2013 WL 1289394, at *2 (S.D. Tex. Mar. 26, 2013) (“[T]he Texas
Supreme Court has held that intentional infliction of emotional distress claims cannot be brought
against an employer or a supervisor for workplace harassment.”); Mercer v. Arbor E&T,
No. 4:11-CV-3600, 2012 WL 1425133, at *10 (S.D. Tex. Apr. 21, 2012) (collecting cases and
noting “court have found that employees’ IIED claims against supervisors are precluded when
there are other statutory remedies available against the employer”); Muniz v. El Paso Marriott,
                                               10
               Dean attempts to distinguish Creditwatch by claiming that the Creditwatch

plaintiff had a TCHRA remedy while Dean did not. 157 S.W.3d at 816 (“As her complaints are

covered by other statutory remedies, she cannot assert them as intentional infliction claims just

because those avenues may now be barred.”). But Dean does not explain how the Creditwatch

plaintiff could have a claim against the CEO Quant while Dean would not have a claim against

her superintendent Roane. Moreover, Hoffmann-La Roche provides that “a plaintiff’s failure to

establish his or her claim for sexual harassment does not mean that the plaintiff has a[n] [IIED]

claim”; rather, “[i]f the gravamen of a plaintiff’s complaint is the type of wrong that the statutory



No. EP-09-CV-274-KC, 2009 WL 4878619, at *3 (W.D. Tex. Dec. 8, 2009) (“Under Texas law,
a claim for IIED is not available against an employee’s supervisor if the same alleged conduct
supports a claim for relief against the employer under other legal theories, such as anti-
discrimination statutes.”); Rawlings v. Travelers Prop. Cas. Ins., No. 3:07-CV-1608-O,
2008 WL 2115606, at *4 (N.D. Tex. May 20, 2008) (“[U]nder Creditwatch and numerous
federal court decisions, a plaintiff cannot bring a claim for [IIED] against a defendant supervisor
where the plaintiff could bring a state statutory claim or other tort claim against plaintif[f]’s
employer based on the same conduct alleged.”); Hickman v. Amarillo Gear Co.,
No. A-06-CA-966-SS, 2007 WL 9701431, at *8 (W.D. Tex. Oct. 9, 2007) (noting Creditwatch is
“controlling” and holding: “Plaintiff’s state law IIED claim is barred because it rests on the
same facts as his Title VII claims. The fact that his Title VII claims do not extend to the
individual defendants creates no ‘gap’ to be filled by a state law IIED claim.”); Sublet v. Tyler
Staffing Servs., Inc., No. 4:07-CV-025-A, 2007 WL 1467261, at *1 (N.D. Tex. May 14, 2007)
(noting that “the Dixon court failed to discuss, or even mention, a 2005 opinion of the Texas
Supreme Court expressly holding that a plaintiff’s IIED claim against a supervisor was barred in
this context”); Pacheco v. Zanios Foods, Inc., 502 F. Supp. 2d 508, 512 (W.D. Tex. 2006) (“[A]n
IIED claim based on underlying facts alleging sexual harassment is unavailable to plaintiffs
under Texas law; the Texas Supreme Court has held that IIED claims premised on sexual
harassment may not be brought against either an employer or a supervisor.”); Martinez
v. Computer Scis. Corp., No. A-05-CA-187-SS, 2005 WL 3414828, at *3 (W.D. Tex.
May 16, 2005) (“The ambiguity in the scope of Hoffman-LaRoche disappeared, however, when
the Texas Supreme Court issued its decision in Creditwatch. There, the Court applied the
Hoffman-LaRoche rule to a plaintiff’s IIED claims against a former supervisor and held such
claims were barred by the existence of statutory remedies for workplace harassment under the
TCHRA.”); but see Howe v. Yellowbook, USA, 840 F. Supp. 2d 970, 982 (N.D. Tex. 2011)
(neither citing nor discussing Creditwatch but noting: “Howe states that Andrews cannot rely on
Title VII preemption, because he is not an employer. The Court agrees that Andrews cannot
properly rely on Title VII preemption to argue for the dismissal of the IIED claim.”).
                                                 11
remedy was meant to cover, a plaintiff cannot maintain an [IIED] claim regardless of whether he

or she succeeds on, or even makes, a statutory claim.” 144 S.W.3d at 448.

               Here, we cannot conclude that the gravamen of Dean’s complaint is not the type

of wrong that the TCHRA was meant to cover—and our decision is supported by the fact that

Dean filed a sexual harassment claim with Seguin ISD. See id. at 445, 447 (holding that

“[s]exual harassment is one form of prohibited employment discrimination” under TCHRA).

Dean argues that there are three reasons why the TCHRA does not cover this “type of wrong”:

(1) Roane’s conduct did not materially alter the terms, conditions, or privileges of her

employment, (2) the conduct was not severe or pervasive, and (3) the employer took prompt

remedial action. We disagree, especially given federal case law on these issues. See id. at 445–

46 (noting that “federal case law may be cited as authority in cases relating to the [TCHRA]”

because TCHRA “‘is modeled after federal law with the purpose of executing the policies set

forth in Title VII of the federal Civil Rights Act of 1964”). Dean’s first two reasons concern the

same requirement:


       Sexual harassment is said to affect a term, condition, or privilege of employment
       when “the workplace is permeated with discriminatory intimidation, ridicule, and
       insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
       employment and create an abusive working environment.”


Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App.—Austin 2010, no pet.)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).         “The Supreme Court has

described the ‘abusiveness’ standard as requiring ‘extreme’ conduct.” Id. (citing Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998)). As to the third reason, Dean asserts that

Seguin ISD “took prompt remedial action” to claim that Seguin ISD would be excused from

vicarious liability. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (holding
                                                 12
employer may avoid vicarious liability by showing employer exercised reasonable care to

prevent and correct promptly any sexually harassing behavior).

               However, Dean already must prove that Roane’s conduct “was extreme” to

establish her IIED claim, see Hoffmann-La Roche, 144 S.W.3d at 445 (describing elements of

IIED claim to include “defendant’s conduct was extreme and outrageous”), and federal case law

indicates that Roane’s alleged conduct may be actionable as sexual workplace harassment, even

though it occurred after hours at a hotel during a professional conference, cf., e.g., Burlington

Indus., 524 U.S. at 748 (addressing allegations that included supervisor inviting employee to

hotel lounge and telling her to “loosen up” when he remarked “about her breasts”); Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986) (addressing allegations that included supervisor

invited employee to dinner and during dinner suggesting they go to motel to have sex and

making other sexual advances “both during and after business hours”); Moring v. Arkansas Dep’t

of Correction, 243 F.3d 452, 456–57 (8th Cir. 2001) (holding evidence supported jury finding of

conduct “severe enough to alter the terms and conditions” when “on an overnight business trip”

supervisor knocked on hotel room “clothed only in boxer shorts,” “repeatedly insisted that

[employee] ‘owed’ him for her job,” and “touched her thigh and leaned in as if to kiss her” even

though he was repeatedly asked to leave). Additionally, “it is well established that ‘[u]nder the

totality of the circumstances test, a single incident of harassment, if sufficiently severe, could

give rise to a viable Title VII claim.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607,

611–12 (5th Cir. 2015) (quoting EEOC v. WC&M Enters., 496 F.3d 393, 400 (5th Cir. 2007)),

cert. denied, 136 S. Ct. 104 (2015). And vicarious liability automatically applies when the

alleged harassing supervisor is “indisputably within that class of an employer organization’s

officials who may be treated as the organization’s proxy.” Faragher, 524 U.S. at 789 (noting

                                               13
that president of corporate employer was indisputably within that class); see Ackel v. National

Commc’ns, Inc., 339 F.3d 376, 383–84 (5th Cir. 2003). Thus, whether Seguin ISD “took prompt

remedial action” as to the alleged sexual harassment would not impact its vicarious liability

when the alleged harasser is its superintendent.        See Tex. Educ. Code § 11.201(a) (“The

superintendent is the educational leader and the chief executive officer of the school district.”).

                Finally, Dean asserts that “Times change” and “Courts must change with them.”

In two recent cases, the Texas Supreme Court has implied that Creditwatch’s holding may no

longer be applicable to a supervisor. See B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276,

282 (Tex. 2017) (noting that “the TCHRA is a statutory scheme created to provide a claim for

individuals against their employers for tolerating or fostering a workplace that subjects their

employees to discrimination in the form of harassment” and that “the public policy [the TCHRA]

advances is wholly inapposite to claims against individual assailants” (citing Waffle House,

313 S.W.3d at 803)); Waffle House, 313 S.W.3d at 803 (examining whether TCHRA preempts

common law assault claim against employer and noting that “[t]he issue before us, however, is

not whether [the plaintiff] has a viable tort claim against a coworker”). But both cases concerned

suits against employers, not supervisors, and therefore did not abrogate or modify—or even

mention—Creditwatch’s holding, which collapsed the distinction between employer and

supervisor at least as to an IIED claim against a supervising CEO when the gravamen of the

complaint is a sexual harassment claim that could be brought under the TCHRA. Although there

may be persuasive reasons to conclude that Creditwatch’s holding should not apply to

supervisors—as indicated by recent Texas Supreme Court precedent and federal case law4—that


       4   For example, Judge Cardone of the Western District of Texas has noted:


                                                 14
decision lies beyond our province. See Robinson v. Home Owners Mgmt. Enters., 590 S.W.3d 518,

528 n.45 (Tex. 2019) (“It is not the function of a court of appeals to abrogate or

modify established precedent.” (quoting Lubbock County v. Trammel’s Lubbock Bail Bonds,

80 S.W.3d 580, 585 (Tex. 2002))). We therefore cannot accept Dean’s invitation to “change”

with the “Times” and instead leave that to the purview of our high court, should it be so inclined.

See Lubbock County, 80 S.W.3d at 585 (“Generally, the doctrine of stare decisis dictates that




       While the holding in Creditwatch is clear, as the IIED claims against both the
       corporate defendant and individual supervisor were dismissed, it must be
       observed that this holding represents a significant development in Texas law that
       the Texas Supreme Court undertook without much discussion or justification.
       The previous leading case on the subject [Hoffmann-La Roche] only held that the
       IIED claim was unavailable against the corporate defendant when the underlying
       facts supported a statutory claim against that same defendant as well. In that case,
       the court even left a $50,160 IIED judgment against the supervisor untouched,
       though in part because it was not raised on appeal. Overall, it is unclear how the
       logic of [Hoffmann-La Roche] necessarily extends to cover the facts in
       Creditwatch. The no-gap-to-fill argument explains why the availability of a
       statutory remedy against a certain defendant precludes using IIED to sue the same
       defendant for the same conduct. But why the availability of a statutory remedy
       against one defendant (the corporate employer) should shield a separate defendant
       (the individual supervisor) from liability—on the only claim available against that
       individual—remains unclear. While it is true that only a single recovery should
       be had for a single factual harm, even when multiple theories and multiple
       defendants are involved, that principle is generally applied only to regulate the
       judgment and collection stages of a case, not the pleading stage.

Muniz, 2009 WL 4878619, at *3 n.3 (citations omitted); see Martinez, 2005 WL 3414828, at *3
(noting court was sympathetic to criticisms raised by plaintiff that “the Texas Supreme Court
must not have held as it did in Creditwatch, because: (1) the policy behind Hoffman-LaRoche—
namely, the policy of guarding against the circumvention of the TCHRA’s damages caps and
limitations periods—does not support barring IIED claims against supervisors, who, as already
noted, cannot be sued under the TCHRA; and (2) the Creditwatch court did not articulate any
reason for extending the Hoffman-LaRoche bar to supervisors or even explicitly acknowledge the
fact that it was doing so”); see also Dixon v. State Farm Mut. Auto. Ins., 433 F. Supp. 2d 785,
788–89 (N.D. Tex. 2006) (explaining why Hoffman-LaRoche’s holding does not extend
to supervisors).
                                                15
once the Supreme Court announces a proposition of law, the decision is considered

binding precedent.”).


                                       CONCLUSION

              For these reasons, we reverse the trial court’s order at issue in Roane’s permissive

interlocutory appeal No. 03-19-00352-CV and render judgment granting Roane’s plea to the

jurisdiction and dismissing Dean’s claim. We dismiss as moot Roane’s interlocutory appeal

No. 03-19-00307-CV.



                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith
 Dissenting Opinion by Justice Kelly

NO. 03-19-00307-CV           Dismissed as Moot

NO. 03-19-00352-CV           Reversed and Rendered

Filed: April 30, 2020




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