QUINONEZ v. PEREZ LLC (2024)

ORDER

On this day, the Court considered Plaintiff's Opposed Motion to Remand and for Attorney Fees (“Motion”), ECF No. 9. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part, and this matter is REMANDED to the 384th District Court of El Paso County, Texas.

I. BACKGROUND

This case involves Plaintiff Judith Quinonez's allegations that she was sexually harassed by Defendant Isaias Perez while employed by Defendant Tournesol Siteworks, LLC, and later fired for discriminatory and retaliatory reasons. See generally Pl.’s Original Pet. (“Pet.”), ECF No. 1-2.

Plaintiff alleges that she was hired by Tournesol as a materials operator in October 2018. Pet. ¶ 8. Perez was Plaintiff's supervisor. Pet. ¶ 9. During the course of her employment, Perez made jokes and comments about women, such as “tell me that pants look good on me, ask me if I like women, call me a Lesbian, and watch me go to the restroom.” Id. He made these jokes and comments around Plaintiff and other women in the workplace. Pet. ¶¶ 9, 10.

Plaintiff and some of her coworkers are Mexican American, Hispanic women. Pet. ¶ 11. In September 2021, Perez made several derogatory comments that alluded to both their sex and national origin. Id. “For example, he called them ‘Tortilleras,’ a derogatory term, and told Plaintiff and the other females that they needed to make him some tortillas. He made fun of their manner of dress.” Id.

Then in December 2021, Plaintiff and three of her Mexican American, Hispanic, female co-workers reported Perez's actions to Tournesol and were told that the company would investigate. Pet. ¶ 12. Tournesol's investigation “confirmed the discrimination [and] substantiated the opposition to discrimination.” Id. Perez was required to undergo discrimination training. Id.

In retaliation for opposing his earlier actions, Perez prohibited Plaintiff and her coworkers from using the women's restroom, instead requiring them to use the men's room. Pet. ¶ 13. In February 2022, Plaintiff reported Perez for this allegedly retaliatory conduct. Pet. ¶ 14.

At an unspecified date, Plaintiff, who suffers from breast cancer, requested and was approved to take temporary medical leave for cancer-related treatment. Pet. ¶¶ 15, 16. After providing Tournesol with evidence that her healthcare provider had released her to return to work without restrictions, Plaintiff returned to work. Pet. ¶¶ 18, 19. Sometime after returning, Perez told Plaintiff she was discharged, and on April 13, 2022, she was fired. Pet. ¶¶ 20, 21. Tournesol later fired the other women who had reported Perez's conduct to the company. Pet. ¶ 22.

On June 6, 2023, Plaintiff filed suit in the 384th District Court, a state court in El Paso County, Texas. See Pet. 1. Plaintiff brought six claims: (1) common law assault against Perez; (2) disability discrimination under section 21.051 of the Texas Labor Code against Tournesol; (3) national origin discrimination under section 21.051 of the Texas Labor Code against Tournesol; (4) sex discrimination under section 21.051 of the Texas Labor Code against Tournesol and possibly also Perez; (5) sexual harassment under section 21.142 of the Texas Labor Code against both Defendants; and (6) retaliation under section 21.055 of the Texas Labor Code against Tournesol. Pet. 3–7. Defendants removed the case on August 4. Notice Removal, ECF No. 1. On August 31, Plaintiff moved to remand. Defendants filed a Response, ECF No. 10, to which Plaintiff filed a Reply, ECF No. 11.

II. DISCUSSION

A. Standard

A defendant may remove to federal district court any state court civil action over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). A party can challenge the propriety of a removal by attempting to remand the case back to state court. Id. § 1447(c). Remand must be granted if a defect in subject matter jurisdiction is shown. Id.

Removal deprives a state court of the opportunity to adjudicate a case properly before it, “rais[ing] significant federalism concerns.” See Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365–66 (5th Cir. 1995), abrogated on other grounds by Rivet v. Regions Bank of La., 522 U.S. 470, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)). For that reason, federal courts must strictly construe removal statutes and resolve doubts about removal in favor of remand. Id. at 281–82 (citations omitted); see also Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 339 (5th Cir. 2014) (citing Gasch, 491 F.3d at 281–82). When a party moves to remand, the burden is on the removing party to establish “that federal jurisdiction exists and that removal was proper.” Wolf v. Deutsche Bank Nat'l Tr. Co. ex rel. Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App'x 205, 207 (5th Cir. 2018) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).

B. Analysis

Plaintiff argues that because she and Perez are both citizens of Texas, the case must be remanded to state court for lack of complete diversity of citizenship. Mot. 3. Defendants argue that Plaintiff has no reasonable possibility of recovering from Perez under any of the three claims she has filed against him. Resp. 4. Consequently, Defendants ask the Court to dismiss Perez as improperly joined, which would restore complete diversity of citizenship, conferring subject matter jurisdiction on this Court and obviating the need for remand. Id.

The doctrine of improper joinder allows a removing defendant to prove that a plaintiff improperly joined a nondiverse defendant to a lawsuit, thereby justifying that defendant's dismissal. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572–74 (5th Cir. 2004). Because this doctrine is but a “narrow exception to the rule of complete diversity ․ the ‘burden of demonstrating [improper] joinder is a heavy one.’ ” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (second alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999)). That heavy burden rests on the defendant alleging improper joinder. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).

To establish improper joinder, the removing defendant must demonstrate either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the [nondiverse] party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)). The second basis of improper joinder, inability to establish a cause of action, requires courts to “conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. (citations omitted). At core, this Rule 12(b)(6)-type analysis asks whether “there is no possibility of recovery by the plaintiff against an in-state defendant.” Id. Courts use the federal pleading standard when conducting this analysis. Int'l Energy Ventures Mgmt. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016).

When conducting a Rule 12(b)(6) analysis, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain “detailed” factual allegations, a plaintiff's complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011).

If a complaint has sufficiently alleged a state-law claim against a nondiverse defendant, the district court may additionally make a “summary inquiry” into whether there are “discrete and undisputed facts that would preclude [the] plaintiff's recovery against the in-state defendant.” Smallwood, 385 F.3d at 573–74.

Defendants here do not argue that Plaintiff's joinder of Perez was actually fraudulent; only that Plaintiff cannot establish a cause of action against Perez. Resp. 4. Plaintiff asserts three of her six causes of action against Perez, individually: (1) common law assault, (2) sex discrimination under section 21.051 of the Texas Labor Code, and (3) sexual harassment under section 21.142 of the Texas Labor Code. See Pet. ¶¶ 23–56; Resp. 4.

1. Assault

Defendants argue that Plaintiff cannot establish a cause of action for common law assault against Perez for two reasons. First, because “she does not allege Perez touched her, threatened her, caused her to have physical contact with someone else, or otherwise caused her bodily injury.” Notice Removal ¶¶ 22–23. And second, because her common law assault claim is preempted by the availability of a statutory cause of action for workplace sexual harassment under section 21.142 of the Texas Labor Code. Id. ¶¶ 24–28.

As to preemption, “assault claims against individual assailants [in the workplace] do not fall within the scope of [Chapter 21]” and are not preempted by state sexual harassment statutes. B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 285 (Tex. 2017) (citing Waffle House, Inc. v. Williams, 313 S.W. 3d 796, 802–03 (Tex. 2010)). Defendants acknowledge as much, Notice Removal ¶ 24, but argue that Plaintiff's assault claim is nevertheless preempted because her allegations do not “suggest the gravamen of her claim is assault rather than workplace harassment,” id. ¶ 27 (internal quotation marks omitted). In other words, Defendants concede that if Plaintiff sufficiently pleaded an assault claim, such a claim would not be preempted. Thus, Defendants’ second argument merges with their first: Plaintiff's allegations of sexual harassment are insufficient to state a claim for common law assault.

Under Texas law, the elements of civil and criminal assault are the same. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (citing Waffle House, 313 S.W.3d at 801 n.4). The “statutory definition of simple assault sets out three distinct criminal offenses under [section] 22.01(a)(1)–(3). These are ‘bodily injury’ assault, assault by threat, and ‘offensive contact’ assault.” Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008); see also Loaisiga, 379 S.W.3d at 256 (citing Tex. Penal Code § 22.01(a)). An assault by threat occurs when a person either “intentionally or knowingly threatens another with imminent bodily injury.” Brooks v. State, 604 S.W.3d 239, 245 (Tex. App. 2020) (internal quotation marks and citation omitted), rev'd on other grounds, 634 S.W.3d 745 (Tex. Crim. App. 2021). Hence, assault by threat requires fear of imminent bodily injury, rather than actual bodily injury. Id. (citing Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App. 2006)). This offense “is conduct-oriented, focusing upon the act of making a threat, regardless of any result that threat might cause. It is thus a ‘nature of conduct’ offense, not a ‘result of conduct’ offense.” Id. (quoting Landrian, 268 S.W.3d at 536). A defendant “may communicate a threat by action or conduct.” Id. (first citing McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); then citing Donoho v. State, 39 S.W.3d 324, 329 (Tex. App. 2001)). Assault by threat focuses on “the defendant's words and conduct, and the critical inquiry is whether a reasonable person under the circumstances would consider the words and conduct to be an objective threat of imminent bodily injury.” Jones v. Shipley, 508 S.W.3d 766, 769 (Tex. App. 2016) (citations omitted).

Under the heading, “Count I. Assault,” Plaintiff alleges:

As specifically detailed above [in the portion of the Petition presenting a factual narrative] ․ Defendant Perez intentionally, knowingly, and/or recklessly caused bodily injury to Plaintiff. Defendant Perez intentionally and/or knowingly threatened Plaintiff with imminent bodily injury. Defendant Perez intentionally and/or knowingly caused physical contact with Plaintiff when he knew and/or should reasonably believe that Plaintiff would regard the contact as offensive and/or provocative.

Pet. ¶23.

However, in the preceding factual narrative to which Plaintiff refers, there are no allegations that Perez caused her bodily injury nor that he made any physical contact with her. See Pet. ¶¶ 8–22. The Court must disregard Plaintiff's bare, conclusory recitation of the elements of an assault claim. See Gros v. Warren Props., Inc., No. 12-cv-2184, 2012 WL 5906724, at *6 (E.D. La. Nov. 26, 2012) (commenting, in the context of an improper joinder analysis, that “the Court may properly disregard all legal conclusions couched as factual allegations”). The absence of any factual allegations of bodily injury or physical contact forecloses two of the three possible bases for an assault claim, leaving only assault by threat. See Landrian, 268 S.W.3d at 540. While Plaintiff again recites in conclusory fashion that Perez “threatened Plaintiff with imminent bodily injury,” Plaintiff makes no factual allegations to substantiate this legal conclusion. See Pet. ¶ 23. Perhaps the closest she comes is by alleging that Perez told her she “needed to make him some tortillas,” or that Perez “prohibited” her from using the women's restroom. See Pet. ¶¶ 11, 13. But Plaintiff does not allege that Perez threatened her with any reprisals if she refused to obey these ultimatums. Nor does Plaintiff allege that she ever feared Perez was about to hurt her. More importantly, Plaintiff points to no case law to suggest that comments and instructions such as those made by Perez, in and of themselves, would put a reasonable person in fear of imminent bodily injury. See generally Mot.; Reply; see Jones, 508 S.W.3d at 769. Indeed, Plaintiff does not mention her assault claim in the Motion, and while she insists in her Reply brief that she has not abandoned it, she offers no argument or authority to support a finding that her allegations of sexual harassment could plausibly rise to the level of assault. Reply 2–3. In sum, Plaintiff has not adequately stated an assault claim against Perez.

2. Sex Discrimination

Defendants argue that Plaintiff cannot establish a cause of action for sex discrimination under section 21.051 of the Texas Labor Code against Perez because Perez is not an “employer” within the meaning of that law. Resp. 5. Section 21.051 provides employees with a cause of action against “[a]n employer” who discriminates on the basis of “race, color, disability, religion, sex, national origin, or age.” Tex. Lab. Code § 21.051. An “employer,” for the purposes of a section 21.051 claim is defined as:

(A) a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year;

(B) an agent of a person described by Paragraph (A);

(C) an individual elected to public office in this state or a political subdivision of this state; or

(D) a county, municipality, state agency, or state instrumentality, regardless of the number of individuals employed.

Tex. Lab. Code § 21.002(8).

“Supervisors and managers are not considered employers under [section 21.002] of the Texas Labor Code and, therefore, are not individually liable for [ ] discrimination.” Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001) (citing Benavides v. Moore, 848 S.W.2d 190, 198 (Tex. App. 1992)); see also Cornett v. United Airlines, Inc., No. 18-CV-698, 2019 WL 453365, at *2 & n.1 (W.D. Tex. Feb. 5, 2019) (“This is not a new development, and many many cases have so held.” (collecting cases)).

Plaintiff offers no response to Defendants’ argument that she cannot sustain a section 21.051 sex discrimination claim against Perez, individually. See generally Mot.; Reply. And she alleges Perez was her supervisor. Pet. ¶ 9. Because supervisors are not liable under section 21.051, Plaintiff has no possibility of recovering on a sex discrimination claim against Perez.

3. Sexual Harassment

Defendant next argues that Plaintiff's section 21.142 sexual harassment claim against Perez fails because he is not her employer within the meaning of that statute either. Notice Removal ¶¶ 31–36. Following 2021 amendments to the Texas Labor Code, Plaintiff's sexual harassment claim is governed by a different definition of “employer” than her sex discrimination claim. See Mot. 9. Compare Tex. Lab. Code § 21.141(1), with Tex. Lab. Code § 21.002(8). For sexual harassment claims, “ ‘Employer’ means a person who: (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” Tex. Lab. Code § 21.141(1).

a. The definition of “employer”

Defendant argues that this definition should be interpreted with the aid of case law construing the term “employer” under the federal Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”), each of which uses similar language to section 21.141(1) when defining “employer.” Resp. 6. For her part, Plaintiff argues that the Court should interpret the plain meaning of the statutory text, without regard to FLSA and FMLA standards. Mot. 10. On Plaintiff's reading, it appears that virtually any supervisor or manager, and possibly even nonmanagerial coworkers, would be considered an employer under section 21.141(1). See Mot. 7–11. Conversely, under Defendants’ interpretation, employer status would be reserved for higher-level managers, guided by a four-factor test. Notice Removal ¶ 34 (citing Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012)).

Neither party references any case law analyzing section 21.141, but after the parties completed their briefing on this Motion, an order was entered in the Northern District of Texas, which appears to be the first judicial opinion on the issue. See Brown-Steffes v. Avis Budget Grp., No. 23-cv-1747, 2023 WL 6386510, at *5 (N.D. Tex. Sept. 29, 2023) (“[N]o court has yet considered the scope of this definition's second prong.”). The Brown-Steffes court adopted a position similar to the one taken by Defendants here, finding that section 21.141(1) should be interpreted “in line with the similar language in the [FMLA and FLSA].”¹ Id.

The Court finds this conclusion persuasive for four reasons. First, the language of section 21.141(1) bears an unmistakable resemblance to the definitions of “employer” in the FLSA and FMLA. Compare Tex. Lab. Code § 21.141(1)(B) (“acts directly in the interests of an employer in relation to an employee”), with 29 U.S.C. § 2611(4)(A)(ii)(I) (“acts, directly or indirectly, in the interest of an employer to any of the employees of such employer”), and 29 U.S.C. § 203(d) (“acting directly or indirectly in the interest of an employer in relation to an employee”). The one notable difference is that section 21.141 limits employer status to those who act “directly” in the employer's interests, whereas the FMLA and FLSA confer employer status on those acting either “directly or indirectly.” Defendant fleetingly notes this distinction and asserts that it makes the section 21.141 definition narrower than its federal analogues. Notice Removal ¶ 33. But Defendant does not articulate how, if at all, the Court should modify the FMLA and FLSA standards to account for this supposed narrowing. And the inclusion of “indirectly” in the federal statutes does not feature meaningfully in the case law interpreting those definitions of employer. See Gray, 673 F.3d at 354 (mentioning “indirectly” only once in the entire opinion, when quoting the statute); Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010) (same); Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (same).

Second, there is a well-established basis for interpreting provisions of Texas state employment law in line with analogous and similarly worded provisions of federal employment law. See, e.g., In re United Servs. Auto Ass'n, 307 S.W.3d 299, 308 (Tex. 2010) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001)). Third, Plaintiff's exhortation to simply read the plain text of the statute does not offer a workable alternative because “act[ing] directly in the interests of an employer in relation to an employee” could mean many things. Plaintiff's suggestion that the Court interpret such language in isolation, unmoored from the expansive body of case law interpreting nearly identical language, charts a reckless course. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 323 (2012) (“[W]hen a statute uses the very same terminology as an earlier statute—especially in the very same field ․ it is reasonable to believe that the terminology bears a consistent meaning”). And finally, the parties have not referenced, and the Court has not uncovered any legislative history that would impugn the approach of reading section 21.141(1) in line with the FLSA and FMLA.² Accordingly, the Court utilizes the framework developed to understand the FMLA and FLSA definitions of “employer” as a reference point for construing “employer” under section 21.141(1).

Courts apply the “economic reality test when determining a party's status as an employer under the FLSA.” Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014) (citing Gray, 673 F.3d at 354). That test entails four considerations: “whether the alleged employer: (1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Id. (quoting Gray, 673 F.3d at 355). “[A] party need not establish each element in every case.” Id. (citing Gray, 673 F.3d at 357).

Because the two statutes use similar language, “decisions interpreting the FLSA offer the best guidance for construing the term ‘employer’ as it is used in the FMLA.” Modica v. Taylor, 465 F.3d 174, 186 (5th Cir. 2006) (quoting Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999)). But this does not mean that courts should blindly apply the FLSA's four-factor economic reality test to determine whether someone is an employer for FMLA purposes. The FLSA “test originates in the Supreme Court's holding that ‘economic reality’ should govern the determination of employer status under the FLSA.” Gray, 673 F.3d at 355 (citing Goldberg v. Whitaker House Coop., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)). And for the FLSA—a statute requiring employers to pay minimum wages and overtime to eligible employees—it makes sense to consider who holds the purse strings. See id. In this way, FLSA employers are those who “possess[ ] control over the aspect of employment alleged to have been violated.” Rudy v. Consol. Rest. Cos., No. 8-cv-904, 2010 WL 3565418, at *5 (N.D. Tex. Aug. 18, 2010) (collecting cases); see, e.g., Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984) (finding an individual liable as a FLSA employer where “[i]t was only he who could authorize compliance with the Fair Labor Standards Act.”).

Because the FMLA regulates medical leave rather than wages, courts adapt the four factors of the economic reality test to suit the FMLA context, rather than applying the FLSA factors rigidly. See, e.g., Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 422–24 (2d Cir. 2016). For FMLA purposes, “the overarching question” becomes “whether [the purported employer] controlled [the] plaintiff's rights under the FMLA.” Id. at 424 (internal quotation marks omitted); see, e.g., Burgdorf v. Union Pacific R.R., No. 16-cv-1046, 2019 WL 2464485, at *15 (W.D. Tex. Feb. 26, 2019) (finding that the individual defendant did not have “the independent authority to exercise control over whether Plaintiff could take ․ leave” and thus rejecting the plaintiff's claim that the individual defendant was her FMLA employer). So under either the FLSA or the FMLA, to be an employer, a supervisor or manager must have “both a sufficient level of control and a nexus to the protected rights at issue.” Burgdorf, 2019 WL 2464485, at *14 (citing Donovan, 747 F.2d at 972). “The ultimate question is whether the individual had supervisory authority over the complaining employee and is responsible in whole or part for the alleged violation.” Id. (cleaned up) (quoting Rudy, 2010 WL 3565418, at *6).

b. Whether Plaintiff has adequately alleged Perez is her employer

Here, the alleged violation is not the underpayment of wages or wrongful denial of leave, but instead, sexual harassment. Accordingly, the Court considers whether Plaintiff has adequately alleged that Perez had “supervisory authority over” her, and that he “is responsible in whole or in part” for sexually harassing her. See id. To the first point, Plaintiff alleges that Perez was her “supervisor.” Pet. ¶ 9. She also alleges that he gave her instructions, including “prohibit[ing]” her from using the women's restroom at work. Pet. ¶ 13. Finally, Plaintiff alleges that Perez was the person who told her that she was fired from Tournesol. Pet. ¶ 20. These allegations make a strong showing on the second of the four traditional economic-reality-test factors, by demonstrating Perez's “supervis[ion] and control[ ]” of Plaintiff's “conditions of employment.” See Orozco, 757 F.3d at 448. They also make at least a partial showing on the first factor, by indicating that Perez may have had some “power to hire and fire” her. See Saavedra v. Lowe's Home Ctrs., Inc., 748 F. Supp. 2d 1273, 1295 (D.N.M. 2010) (“[G]iven that [the supervisor] ․ informed [the plaintiff] of her termination ․ [the supervisor] probably made at least some decisions regarding [the plaintiff's] employment.”). Even if the analysis ended here, it is likely that Plaintiff would have adequately alleged a sexual harassment claim against Perez as her employer. See, e.g., Rosales v. Indus. Sales & Servs., LLC, No. 20-cv-30, 2021 WL 5865706, at *3 (S.D. Tex. Dec. 10, 2021) (finding that, at the motion to dismiss stage, plausibly alleging just one of the four economic reality test factors is enough to establish employer status for purposes of FLSA claim).

A fuller analysis only reinforces that conclusion. The other two economic reality test factors—which concern the alleged employer's control over the employee's pay and their maintenance of employment records—are of dubious applicability in this context. See id. Considering whether a supervisor sets an employee's rate of pay and keeps her pay records is a reasonable means of determining whether that supervisor should be held liable for a wage and hour violation because these are good indicators of the supervisor's “control over the aspect of employment alleged to have been violated.” See Rudy, 2010 WL 3565418, at *5. But these considerations have little bearing on the aspect of Plaintiff's employment allegedly violated here—her right to be free from sexual harassment. On that score, she has alleged that Perez, himself, sexually harassed her. As the perpetrator, Perez was “responsible in whole or in part for the alleged violation.” Burgdorf, 2019 WL 2464485, at *14 (quoting Rudy, 2010 WL 3565418, at *6). This answers “the overarching question” of Perez's control over Plaintiff's rights under section 21.142 in the affirmative. Cf. Graziadio, 817 F.3d at 424. In sum, Plaintiff has alleged that Perez was both her supervisor and her harasser. She has thus alleged that he possessed “both a sufficient level of control and a nexus to the protected rights at issue,” and has therefore stated a plausible section 21.142 sexual harassment claim against him as her employer.³ Cf. Burgdorf, 2019 WL 2464485, at *14.

c. Piercing the pleadings

Defendants argue that the Court should not limit its analysis to the pleadings but may instead “use a summary-judgment-like procedure and consider affidavits and other evidence.” Resp. 7 (citing Hart v. Bayer Corp., 199 F.3d 239, 246–47 (5th Cir. 2000)). In that vein, Defendants have filed a sworn statement by Tournesol's Employee Success Manager. See Decl. Corina Ornelas Sansoni (“Sansoni Decl.”), ECF No. 2. Sansoni avers the following about Perez's workplace duties:

As production manager Isaias Perez is focused on production output, not personnel decisions. He is responsible for production output, product quality and on time shipping; assisting with plant operations for production, maintenance, quality and shipping and receiving; and working with the production scheduler and purchaser to ensure adequate materials are available and projects are on time. As a lead member of the production group, Perez does have the ability to train, coach, and schedule PTO for production employees and, when consulted, relays information to the Plant Manager pertinent to the performance and conduct of the production team. However, he does not have the ability to hire or fire employees; to control their work schedules or their conditions of employment; or to determine their rate and method of payment nor does he maintain employment records. All personnel decisions, including the decision to discipline or terminate employees, lie with the Plant manager.

Sansoni Decl. ¶ 7.

As stated previously, after determining that the plaintiff's pleadings state a claim for relief against an in-state defendant, courts conducting an improper joinder analysis may sometimes make a “summary inquiry” into whether there are “discrete and undisputed facts that would preclude [the] plaintiff's recovery against the in-state defendant.” Smallwood, 385 F.3d at 573–74. But courts should only pierce the pleadings to examine facts “that easily can be disproved if not true,” such as whether “the in-state doctor defendant did not treat the plaintiff patient, the in-state pharmacist defendant did not fill a prescription for the plaintiff patient, [or] a party's residence was not as alleged.” Id. at 574 n.12. This summary inquiry is appropriate only “in rare cases” where some such discrete issue disposes of the claim against the nondiverse defendant. Wells v. Medtronic, Inc., 171 F. Supp. 3d 493, 506 (E.D. La. 2016) (citing Smallwood, 385 F.3d at 573).

Here, Perez's status as Plaintiff's employer for purposes of the section 21.142 sexual harassment claim turns on factual considerations that are far from the “narrow and easily discernible ․ disputes” for which the summary inquiry is reserved. See Ward v. VRP Transp., Inc., No. 23-cv-262, 2023 WL 7095851, at *4 (W.D. Tex. Oct. 26, 2023). Courts considering similar questions have reached the same conclusion. See, e.g., Bayou Acquisitions, LLC v. Badger Daylighting Corp., No. 22-cv-4541, 2023 WL 2367440, at *5 (E.D. La. Mar. 6, 2023). In Bayou Acquisitions, the plaintiff's ability to state a negligence claim against the nondiverse defendant turned on whether that defendant was an independent contractor or, instead, an employee of the other defendants, under Louisiana state law. Id. There, the applicable test considered “whether the alleged employer has the right or duty, relative to the [purported] employee, of: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control.” Id. (quoting Bolden v. Tisdale, 347 So. 3d 697, 708 (La. 2022)). The court found that “summary inquiry into [the nondiverse defendant's] status relative to the [other defendants] would necessarily be fact-intensive and hotly contested, rather than a straightforward identification of discrete and undisputed facts.” Id. So too here. The factors that the Court must consider to determine whether Perez was Plaintiff's employer for purposes of her sexual harassment claim tread much of the same ground as the factors considered by the Bayou Acquisitions court. Compare id., with Orozco, 757 F.3d at 448. Here, as in Bayou Acquisitions, the question of whether Perez exercised control over Plaintiff in the workplace would require the weighing of evidence and assessment of credibility—tasks that far exceed those contemplated by Smallwood's summary inquiry. See Bayou Acquisitions, 2023 WL 2367440, at *5.

Moreover, even if the Court were to pierce the pleadings and consider the Sansoni Declaration, it would not render the issue of Perez's status as Plaintiff's employer undisputed. Sansoni describes company policies regarding the scope of Perez's authority in the workplace, including his lack of “ability to hire or fire employees; to control their work schedules or their conditions of employment; or to determine their rate and method of payment.” Sansoni Decl. ¶ 7. But “[s]uch prohibitions at this point in the case ․ simply indicate the standard rules of the workplace. Policies, guidelines, or any number of restrictions might be ignored.” Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 221 (5th Cir. 2018). Sansoni's sworn statement about company policies cannot, at this stage, vitiate Plaintiff's allegations that Perez in fact was her supervisor, that he gave her instructions, and that he told her she was fired. See id.; Bayou Acquisitions, 2023 WL 2367440, at *5.

Finally, it bears repeating that no Texas appellate court has yet offered guidance on the scope and meaning of an “employer” under the State's relatively new sexual harassment law. This uncertainty counsels in favor of remand, because the Court “must resolve all ambiguities in the controlling state law in the plaintiff's favor.” Guillory, 434 F.3d at 308 (citations omitted). When conducting an improper joinder analysis, “[the Court does] not determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but look[s] only for a possibility that the plaintiff might do so.” Id. at 308–09 (citations omitted). Because there is a possibility that Plaintiff will prevail on the merits of a sexual harassment claim against Perez, he was properly joined, the parties are not completely diverse, and the Court lacks subject matter jurisdiction under the only asserted basis, 28 U.S.C. § 1332(a)(2).

C. Attorneys’ Fees

Plaintiff seeks an award of attorneys’ fees and expenses incurred in seeking remand. Mot. 12. “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Such awards are within the Court's broad discretion. Martin v. Franklin Cap. Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005); Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000). Cabining such discretion, however, is the principle that “[a] fee award is inappropriate if the removing party could ‘conclude from [existing] case law that its position was not an unreasonable one.’ ” Probasco v. Wal-Mart Stores Tex., L.L.C., 766 Fed. App'x 34, 37 (5th Cir. 2019) (second alteration in original) (quoting Valdes, 199 F.3d at 293). And “unsettled law can provide an objectively reasonable basis for removal.” Renegade Swish, L.L.C. v. Wright, 857 F.3d 692, 699 (5th Cir. 2017).

At the time of removal, it appears that no court had yet considered how to interpret the definition of employer for the purposes of Plaintiff's sexual harassment claim, following the 2021 amendments to the Texas Labor Code. Brown-Steffes, 2023 WL 6386510, at *5 (commenting, nearly two months after this case was removed, that “no court has yet considered the scope of this definition's second prong”). And prior to those amendments, Perez would not have been considered Plaintiff's employer, and removal would have been appropriate. Id.; cf. Cornett, 2019 WL 453365, at *2 & n.1. While Defendants should not have removed this case, the unsettled nature of the controlling law gave them an objectively reasonable basis for doing so. Accordingly, in its broad discretion, the Court declines to grant Plaintiff an award of attorneys’ fees and expenses incurred in contesting removal.

III. CONCLUSION

For the foregoing reasons, the Motion is GRANTED in part and DENIED in part. The Motion is GRANTED as to the request for remand, and the case is IMMEDIATELY REMANDED to the 384th District Court of El Paso County, Texas. The Motion is DENIED as to the request for attorneys’ fees and expenses.

SO ORDERED.

FOOTNOTES

1.   The Brown-Steffes court's discussion of the issue was limited because it assumed, without finding, that the individual defendant qualified as the plaintiff's employer under section 21.141 but concluded that the amended definition did not apply to the plaintiff's claims, which had accrued prior to the new definition's September 1, 2021, effective date. Id.

2.   To the extent their views are relevant, commentators broadly agree that some individuals may now be held liable for workplace sexual harassment under section 21.141 but appear uncertain over the intended scope of individual liability. See, e.g., Jonathan E. Clark et al., New Texas Law Expands Employee Rights and Employer Liability for Sexual Harassment Claims, Lab. & Empl. L. 4047131 (C.C.H.) (Sept. 3, 2021), 2021 WL 4047131 (“The upshot of this revision is that individual persons acting as supervisors, managers, owners, agents, contractors, or (potentially) non-supervisory employees could find themselves personally liable under the new state statute.”); Joanne Bush et al., New Texas Law Expands Potential Liability for Sexual Harassment, HR Compl. P 46124 (C.C.H.) (Sept. 27, 2021), 2021 WL 4442642 (“The new statute does not define in the interests of the employer, but Texas courts may interpret the phrase consistent with jurisprudence under the FLSA and FMLA, two federal statutes that use the same phrase in their definitions of employer.”).

3.   Defendant does not otherwise argue that Plaintiff fails to state a claim for sexual harassment against Perez. See Resp. 9 (arguing only that “[Plaintiff] simply has not and cannot show Perez qualifies as an employer under section 21.141”).

Cardone, Judge