       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



                              DISSENTING OPINION


               I cannot join the majority’s opinion because I do not believe that Creditwatch,

Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005), compels us to dismiss an intentional infliction of

emotional distress (IIED) claim solely against a supervisor–harasser because it is preempted by

the Texas Commission on Human Rights Act (TCHRA). I respectfully dissent.

               In Creditwatch, neither side presented to the Texas Supreme Court the issue

of whether an IIED claim against a supervisor–harasser should be treated differently from

one against an employer when the employee sues both the employer and supervisor.               See

generally Petition for Review, Response to Petition for Review, Petitioner’s Reply to

Response to Petition for Review, Petitioner’s Brief on the Merits, Respondent’s Brief, Petitioner’s

Reply to Respondent’s Brief in Response to Petitioner’s Brief on the Merits, Creditwatch,

157 S.W.3d 814 (No. 02-1076); Oral Argument, Creditwatch, 157 S.W.3d 814 (No. 02-1076),
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0fe7e8ba-812d-4b11-86b0-

08ec40950493&coa=cossup&DT=ORAL ARGUMENT&MediaID=4cd6dabf-b243-4ff7-82b5-

a803df1d9983. Instead, Jackson argued simply that the supervisor’s actions make the employer

liable. See generally id. The Supreme Court thus was not presented with the issue before this

Court, whether an IIED claim against a supervisor–harasser is preempted by the TCHRA in the

same way that an IIED claim against an employer is, nor did the Supreme Court discuss that

issue in its opinion.

                Additionally, as noted by the trial court in this case, reading a holding on this

issue into Creditwatch leads to an unintended result: when an IIED claim is brought against a

supervisor–harasser, the TCHRA, enacted to protect workers, can be used as a shield by the

alleged harasser. See Tex. Lab. Code § 21.001(4) (listing among TCHRA’s purposes “secur[ing]

for persons in this state . . . freedom from discrimination in certain employment transactions, in

order to protect their personal dignity”); B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276,

280 (Tex. 2017) (stating that legislature enacted TCHRA “for the purpose of balancing the needs

of the citizens of our state to have a cognizable claim for sexual harassment with the interests of

employers who are required to provide a workplace free from gender-based discrimination” and

that that “balance affords an aggrieved party a claim and remedy, but it also limits potential

claimants [and] provides defenses to employers otherwise liable for the actions of their employees”

(citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802–07 (Tex. 2010))); Lueck v. State,

325 S.W.3d 752, 760 (Tex. App.—Austin 2010, pet. denied) (stating that, when applying TCHRA,

“[t]he statute’s purpose must also be considered, along with the consequences that result from

each interpretation” (citing In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308–09 (Tex. 2010)

(orig. proceeding)); see also Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 581–82 (Tex.

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2014) (Hecht, C.J., dissenting) (confirming that, when statute’s text states statute’s purpose, courts

should favor “textually permissible interpretation” of statute “that furthers rather than obstructs”

statute’s purpose). This cannot be what the Texas Supreme Court or the legislature intended.

               Indeed, the legislature twice mentions supervisors in the TCHRA, demonstrating

that the omission of supervisors from the TCHRA provisions at issue here was no mere

oversight. See Tex. Lab. Code §§ 21.1065(b) (“An employer commits an unlawful employment

practice if sexual harassment of an unpaid intern occurs and the employer or the employer’s

agents or supervisors” meet two conditions (emphases added)), 21.556 (requiring state agencies

that receive three or more meritorious complaints of employment discrimination in a fiscal year

to provide relevant training “to appropriate supervisory and managerial employees” (emphasis

added)). Had the legislature wanted to preempt claims for supervisor liability, it plainly knew

how to do so. It chose not to.

               I would affirm the trial court’s order denying Roane’s plea to the jurisdiction and

remand to the trial court for further proceedings.



                                               __________________________________________
                                               Chari L. Kelly, Justice

Before Justices Goodwin, Kelly, and Smith

Filed: April 30, 2020




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