# Mott v. Schneider Electric Systems USA, Inc.

> District Court, S.D. Texas · May 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11062575

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** May 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Southern District of Texas
ENTERED
M 202
IN THE UNITED STATES DISTRICT COURT Nath “ye ° °
FOR THE SOUTHERN DISTRICT OF TEXAS aman Mensnen wet
HOUSTON DIVISION
PAULAA. MOTT, §
§
Plaintiff, §
V. § CIVIL ACTION NO. 4:24-cv-3084
§
SCHNEIDER ELECTRIC SYSTEMS, USA, §
INC., SCHNEIDER ELECTRIC INC., NASIR §
MUNDH, ANDREW NIX, and JAY §
ABDALLAH, §
§
Defendants. §
ORDER
Pending before the Court is Defendant Schneider Electric Systems USA, Inc.’s
(“Schneider” or “Defendant”) Motion to Dismiss. (Doc. No. 18).' Plaintiff Paula Mott (“Mott” or
“Plaintiff’), proceeding pro se, responded in opposition (Doc. No. 20), and Defendant replied.
(Doc. No. 21). Having considered the pleadings, the Motion, and the applicable law, the Court
GRANTS in part and DENIES in part Defendant’s Motion to Dismiss. (Doc. No. 18).
1. Background
This is an employment dispute brought by Plaintiff against her former employer, Schneider,
and Mott’s former supervisors and coworkers. Plaintiff worked for Schneider in a sales position
from September 2021 through October 21, 2022. (Doc. No. 17 at 4). Schneider is in the business
of designing and supplying technologies to industrial companies. (Doc. No. 18 at 7). The
allegations and causes of action are numerous. Mott brings the following claims against Schneider:
1) discrimination, harassment, and retaliation in violation of Chapter 21 of the Texas Labor Code;
2) common law defamation; 3) violations of the Harmful Access by Computer Act; 4)

1 Defendant Schneider Electric Systems USA, Inc. is the only movant in this Motion. Defendant contends that the
remaining defendants are either improperly joined in this suit, or have yet to be served.

unauthorized interception of communication in violation of Chapter 123 of the Texas Civil Practice
and Remedies Code; 5) intentional infliction of emotional distress; 6) common law invasion of
privacy; 7) violations of the Texas Penal Code; and 8) breach of contract.
Schneider moves to dismiss each and every claim against it. Since the allegations are
numerous and the pleaded facts are generally relevant only to specific causes of action, the Court
will discuss specific facts below in the appropriate section.
I. Legal Standard
A defendant may file a motion to dismiss a complaint for “failure to state a claim upon
which relief may be granted.” FED. R. Civ. P. 12(b)(6). To defeat a motion to dismiss under Rule
12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing
Twombly, 550 US. at 556). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Jd. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement
to relief.’” Jd. (quoting Twombly, 550 U.S. at 557).
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mut. Auto. Ins. Co., 509 F.3d 673, 675 (Sth Cir. 2007). The Court is not bound to accept factual
assumptions or legal conclusions as true, and only a complaint that states a plausible claim for
relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual

allegations, the court assumes their veracity and then determines whether they plausibly give rise
to an entitlement to relief. Jd.
if. Analysis
A. Jurisdiction
As in most instances, this Court must first confirm that it has jurisdiction. Schneider
contends in its notice of removal that this Court has diversity jurisdiction because Defendant
Andrew Nix was improperly joined. Schneider removed the case solely based upon diversity
jurisdiction because Plaintiff pleaded only state law causes of action. See 28 U.S.C. § 1332; §
1441(a). The parties agree that Plaintiff is a citizen of Texas, Andrew Nix (“Nix”) is a citizen of
Texas, Nasir Mundh is a citizen of a foreign country, Jay Abdallah is a citizen of a foreign country,
Schneider Electric Systems USA, Inc. is a citizen of Delaware and Massachusetts, and Schneider
Electric Canada, Inc is a citizen of a foreign country. (Doc. No. 17 at 2-3); (Doc. No. 1 at □□□□□
Although, Plaintiff and Nix have the same citizenship, a fact that would otherwise destroy
diversity, Schneider contends that Nix’s citizenship should be disregarded as he is an improperly
joined party. (Doc. No. 1 at 7). Plaintiff did not respond to Schneider’s contention that Nix is
improperly joined, nor did she seek remand.
Whether Nix is properly joined as a defendant is the key to determining whether this Court
has jurisdiction. Schnieder contends that Nix was improperly joined and should be dismissed. (/d.).
If Nix is dismissed as a party to this suit, then this Court has jurisdiction because there would be
complete diversity of citizenship between Plaintiff and the remaining defendants. If Nix was
properly joined, there would not be complete diversity between the Plaintiff and the Defendants
as required by 28 U.S.C. § 1332, and the Court would not have jurisdiction.

Improper joinder can be established in two ways: (1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-
diverse party in state court. Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (Sth Cir. 1999).
Schneider does not dispute that Nix is a Texas citizen. Accordingly, the Court must focus on the
second test.
Under the second prong (inability to establish a cause of action), the Court must determine
whether “there is arguably a reasonable basis for predicting that state law might impose liability.”
Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (Sth Cir. 2003). “This means that there must be a
reasonable possibility of recovery, not merely a theoretical one.” Id. (emphasis in original).
Further, the standard for evaluating a claim of improper joinder is similar to that used in evaluating
a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Jd.
The scope of the inquiry for improper joinder, however, is broader than that for Rule 12(b)(6)
because the court may “pierce the pleadings” and consider summary judgment-type evidence to
determine whether the plaintiff has a basis in fact for the claim. Jd. at 462—63 (citing Travis v. Irby,
326 F.3d 644, 648-49 (Sth Cir. 2003)). The Court must review the pleading first to see if Plaintiff
alleged sufficient facts to state a plausible claim for relief against Nix. See Cumpian v. Alcoa World
Alumina, L.L.C., 910 F.3d 216, 220 (Sth Cir. 2018).
Liberally construing Plaintiffs claims, Mott alleges that Nix, a Schneider employee and
Mott’s manager, is liable for harassment and retaliation under Chapter 21 of the Texas Labor Code,
common law defamation, and intentional infliction of emotional distress. Schneider argues that
none of these actions can result in personal liability. As such, Schneider concludes that Nix is
improperly joined because Mott cannot establish a viable cause of action against him. The Court
agrees.

As for Plaintiff's claims against Nix under Chapter 21 of the Texas Labor Code, the Fifth
Circuit has long held that “individuals who do not otherwise qualify as an employer cannot be held
liable for a breach of title VII.” Grant v. Lone Star Co., 21 F.3d 649, 653 (Sth Cir.), cert. denied,
115 S. Ct. 574 (1994). Courts apply the same standards when analyzing claims under Title VII and
Chapter 21 of the Texas Labor Code. See Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487
(Sth Cir. 2004). The TCHRA defines “employer” as 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,” or an agent of such a person. TEX.
LAB. CODE § 21.002(8)(A)HB). Though its arguable that Nix is an agent of Schneider, the Fifth
Circuit recognized that while the definition of “employer” includes “any agent” of an employer,
that reference merely incorporates the principle of respondeat superior liability into Title VII, and
does not impose individual liability on employers’ agents. Smith v. Amedisys Inc., 298 F.3d 434,
448 (Sth Cir. 2002). Thus, Nix cannot be liable under Chapter 21 of the Texas Labor Code.
Concerning Mott’s defamation and intentional infliction of emotion distress claim,
Schneider contends that Chapter 21 of the Texas Labor Code preempts those causes of action.
According to Schneider, Chapter 21 forecloses these claims because they are predicated on the
same underlying facts surrounding the retaliation allegation. The Court agrees that Plaintiff's
intentional infliction of emotional distress claim is preempted by Chapter 21. Plaintiff alleges that
Nix “maliciously and intentionally inflicted emotional distress on Mott when [Nix and others]
acted with malice and intentionally, motivated by retaliation, and/or recklessly proximately
causing severe emotional distress to Mott.” Since the gravamen of Plaintiff’s claim is employment-
related retaliation, Chapter 21 forecloses common-law theories predicated on the same underlying
retaliatory facts. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010) (“Where

the gravamen of a plaintiffs case is [Texas Labor Code Chapter 21]—covered harassment, the Act
forecloses common-law theories predicated on the same underlying sexual-harassment facts.”);
City of Waco v. Lopez, 259 §.W.3d 147, 156 (Tex. 2008) (concluding that even though plaintiff
did not invoke Chapter 21 in his pleadings, the plaintiff's suit for retaliation involving racial
discrimination should be dismissed because “his claim falls squarely within “[Chapter 21’s]
ambit”); Pruitt v. Int'l Ass’n of Fire Fighters, 366 S.W.3d 740, 750 (Tex. App.—Texarkana 2012,
no pet.) (concluding that the plaintiff's claims were preempted by Chapter 21 because the gravamen
for his intentional infliction of emotional distress, breach of fiduciary duty, and tortious
interference with employment relationship claims was racial discrimination).
With respect to Plaintiff's defamation claim, the Court disagrees with Schneider that it is
preempted by Chapter 21. Plaintiff alleges that Nix “manufactured false accusations of fraud
against the Plaintiff in an effort to get her fired.” She also claims that after her termination, Nix
told others that Mott “had been investigated by compliance, and it was determined that she had
done a very bad, bad thing.” This statement is separate from any retaliation or harassment claim
under Chapter 21. Thus, the Court finds that Chapter 21 does not preempt Plaintiff's defamation
claim against Nix.
Nevertheless, Plaintiff still fails to state a viable claim against Nix for defamation for
another reason. Mott pleaded that Nix made the aforementioned statement “on or about January
2023.” Under Texas law, defamation is subject to a one-year statute of limitations, which begins
to run from the day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE § 16.002(a)). As a
general rule, the cause of action accrues when the statement is made. Judy Chou Chiung-Yu Wang
v. Prudential Ins. Co. of Am., 439 F. App’x 359, 366 (Sth Cir. 2011). Mott filed this suit on July

5, 2024—more than one year after the statement was allegedly made. As such, Plaintiff's
defamation claim against Nix is clearly time-barred.
Plaintiff has failed to establish a cause of action against Nix, the non-diverse party. Thus,
the Court finds that Nix was improperly joined. See Griggs, 181 F.3d at 698. Nix is therefore
dismissed as a party to this suit. Consequently, this Court has jurisdiction because there is complete
diversity of citizenship between Plaintiff and the remaining defendants.
B. Violations of Chapter 21 of the Texas Labor Code
Mott alleges several causes of action under Chapter 21 of the Texas Labor Code:
discrimination based on gender, sexual harassment, and retaliation.
With respect to her discrimination claim, Mott alleges that she was informed by
Schneider’s recruiter that she was paid less than her male counterparts. (Doc. No. 17 at 4). She
claims that the recruiter informed her that previous male candidates placed with Defendants were
offered salaries that ranged from $150,000 to $165,000, whereas she was offered $125,000. (/d.).
As for her sexual harassment claim, Plaintiff alleges that on July 27, 2022, Mott received
“nappropriate text messages” and was subjected to sexual harassment from a male coworker. (/d.
at 7). This behavior allegedly included “unwanted advances, suggestive text messages, lewd
staring, inappropriate questions regarding the Plaintiffs personal life, her relationship status, and
more.” (/d.).
Finally, Mott alleges that she was retaliated against on multiple occasions, beginning when
Plaintiff inquired about her allegedly unequal pay. (/d. at 6). She also claims that Schneider
retaliated against her by rating below her actual performance level on her 2021 performance
review, where she received a rating of “Performer” rather than “High Performer.” (/d. at 7).
Additionally, Plaintiff asserts that she was retaliated against by having her sales quota was

increased without explanation. (/d. at 7). Plaintiff alleges that Schneider also engaged in retaliatory
behavior on October 21, 2022 when it terminated Plaintiff's employment. (/d. at 12). The final
pleaded act of retaliation occurred on April 6, 2023, when Schneider allegedly illegally accessed
Mott’s home network in an attempt to access her personal data. (/d. at 16-17).
Schneider contends that Mott’s discrimination, harassment, and retaliation claims must be
dismissed because Plaintiff failed to timely exhaust her administrative remedies. (Doc. No. 18 at
12). The Texas Labor Code states that a complaint must be filed with the Texas Workforce
Commission (“TWC”) not later than the 180th day after the date the alleged unlawful employment
practice occurred. TEX. LAB. CODE § 21.202. For claims of sexual harassment, a complaint must
be filed not later than the 300th day after the date the alleged sexual harassment occurred. Jd.
Compliance with § 21.202’s deadlines is mandatory, and failure to comply with the filing deadlines
is an affirmative defense which, if proven, requires dismissal. Hinkley v. Envoy Air, Inc., 968 F.3d
544, 553 (Sth Cir. 2020).
A discrete retaliatory or discriminatory act “occurred” on the day that it “happened.” □□□□
R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).? Plaintiff filed her complaint with the
EEOC and TWC on August 16, 2023. (Doc. No. 17 at 21). Thus, under the general rule, all
allegations of discrimination and retaliation predating February 17, 2023 (180 days prior to the
date the charge was filed) and all allegation of sexual harassment predating October 20, 2022 (300
days prior to the date the charge was filed) are outside of the TCHRA’s statute of limitations.
Plaintiff asserts that, although some of her claims occurred before the 180-day and 300-
day deadline, those claims fall under an exception to the general rule. Mott contends that her claims

2 Though Plaintiff claims that Defendant violated the TCHRA, the law governing claims under the TCHRA and Title
VII is identical. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (Sth Cir. 1999); Alamo Heights
Indep. Sch. Dist. v. Clark, 544 $.W.3d 755, 771 (Tex. 2018). Thus, the Court may use federal cases interpreting Title
VII to interpret the TCHRA. See Shackelford, 190 F.3d at 404 n.2.

are not time barred because the acts are part of a “continuing violation.” (Doc. No. 20 at 4). Under
this exception to the limitations period, a court may consider all of the employer’s actions, even
those that are outside of the 180-day window, when the plaintiff shows that the employer had an
“organized scheme leading to and including a present violation, so that it is the cumulative effect
of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of
action.” Drew v. City of Houston, 679 S.W.3d 779, 785 (Tex. App.—Houston [1st Dist.] 2023, no
pet.).
Nevertheless, the United States Supreme Court’s decision in Nat’] R.R. Passenger Corp. v.
Morgan controls. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Morgan Court
clarified that the “continuing violation doctrine does not apply to discrimination and/or retaliation
claims,” but may apply to hostile work environment claims. Skaggs v. Van Alstyne Indep. Sch.
Dist., No. 4:16-CV-00227-CAN, 2017 WL 77825, at *6 (E.D. Tex. Jan. 9, 2017); Stewart v. Miss.
Transp. Comm’n, 586 F.3d 321, 328 (Sth Cir. 2009) (“Unlike in a case alleging discrete violations,
a hostile environment plaintiff is not limited to filing suit on events that fall within this statutory
time period because her claim is comprised of a series of separate acts that collectively constitute
one ‘unlawful employment practice.’”) (quoting Morgan, 536 U.S. at 117). That means that only
complaints based upon a hostile work environment claim can withstand a statute of limitations
defense under a continuing violation theory. Heath v. Bd. of Supervisors for S. Univ. & Agric. &
Mech. Coll., 850 F.3d 731, 737 (Sth Cir. 2017), as revised (Mar. 13, 2017) (“Claims alleging
discrete acts are not subject to the continuing violation doctrine; hostile workplace claims are.”);
see also Aguirre v. Valerus Field Sols., L.P., CV H-15-3722, 2019 WL 2570069, at *9 (S.D. Tex.
Jan. 23, 2019) (Stacey, M.J.) (“[O]nly complaints supporting a hostile work environment claim

can withstand a statute of limitations defense under a continuing violation theory.”), report and
recommendation adopted, 4:15-CV-03722, 2019 WL 989413 (S.D. Tex. Mar. 1, 2019) (Hanen, J.).
In this case, all pleaded instances of discrimination and retaliation that predate February
17, 2023 (180 days prior to the date the charge was filed) are barred by the statute of limitations.
As for Plaintiff’s sexual harassment claim, the only pleaded instance of sexual harassment
allegedly occurred on July 27, 2022. (/d. at 7). There are two general types of sexual harassment:
quid pro quo and hostile work environment. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804
(Tex. 2010).
Though not explicitly pleaded as a cause of action in her complaint, it is possible that
Plaintiff intended to plead a hostile work environment claim. Plaintiff's response to Schneider’s
Motion suggests as much. See (Doc. No. 20 at 7) (“[W]hen a plaintiff alleges a hostile work
environment claim, such as Plaintiff’s harassment complaint ....”).? Unlike the other pleaded
causes of action, hostile work environment claims can withstand a statute of limitations defense
under a continuing violation theory. Heath, 850 F.3d at 737. Here, however, Plaintiff’s claim is
still time barred.
As noted above, the continuing violation doctrine applies when “all acts which constitute
the claim are part of the same unlawful employment practice and at least one act falls within the
time period.” Morgan, 536 U.S. at 122. Even utilizing the extended limitations period, no pleaded
act of sexual harassment occurred within the 300-day deadline. Plaintiff pleaded one instance of
sexual harassment, which she alleges occurred on July 27, 2022. This is a single, discrete event.
Notably, a single incident of harassment, if sufficiently severe, could give rise to a viable hostile

> The Court recognizes, of course, that a plaintiff cannot fix a faulty complaint with argument in a response to a motion
to dismiss. The Court addresses the potential hostile work environment claim for the sake of completeness because a
“plaintiff who brings a claim pro se is entitled to a liberal reading of that complaint.” Payton v. United States, 550 F.
194, 195 (5th Cir. 2013) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
10

work environment claim. See F.E.0.C. v. WC&M Enters., Inc., 496 F.3d 393, 400 (Sth Cir. 2007).
Nevertheless, there are no alleged instances within the proscribed time period. Thus, for Plaintiff
to have complied with § 21.202’s deadlines, she was required to file a complaint by May 22, 2023
for her sexual harassment claims—300 days after the pleaded instance of sexual harassment.
Plaintiff alleges other instances of harassment that are not sexual in nature. For these
allegations, the Court must use the 180-day limitations period. It defies logic that a hostile work
environment claim can be based on acts that occurred after the Plaintiff no longer works for the
Defendant. As such, the last viable allegation that can support a hostile work environment claim
occurred on October 21, 2022—the day of Plaintiff’s termination. Therefore, because all instances
of harassment that could potentially support a hostile work environment claim predate February
17, 2023 (180 days prior to the date the charge was filed), Plaintiff’s hostile work environment
claim is barred by the statute of limitations.
Consequently, the majority of Mott’s claims brought under Chapter 21 of the Texas Labor
Code against Schneider must be dismissed. The only remaining Chapter 21 claim is one for
retaliation predicated on alleged instances that occurred on or after February 17, 2023.
C. Common Law Defamation
As previously noted, Plaintiff alleges that Nix “manufactured false accusations of fraud
against the Plaintiff in an effort to get her fired.” (Doc. No. 17 at 10). She also claims that after her
termination, Nix told others that Mott “had been investigated by compliance, and it was determined
that she had done a very bad, bad thing.” (/d. at 14).
Schneider contends, as it did in asserting that Nix was improperly joined, that Plaintiff's
defamation claim is preempted by Chapter 21 of the Texas Labor Code. The Court disagrees for
the reasons discussed above. Nevertheless, Schneider also urges that Plaintiffs claim is barred

11

under the appliable statute of limitations. Again, Mott pleaded that Nix made the aforementioned
statement “on or about January 2023.” Under Texas law, defamation is subject to a one-year statute
of limitations, which begins to run from the day the cause of action accrues. Tex. Civ. Prac. &
Rem. Code § 16.002(a)). Mott filed this suit on July 5, 2024—more than one year after the
statement was allegedly made. As such, Plaintiffs defamation claim is time-barred.
D. Violations of the Harmful Access by Computer Act
Section 33.02 of the Texas Penal Code states that “[a] person commits an offense if the
person knowingly accesses a computer, computer network, or computer system without the
effective consent of the owner.” Plaintiff may bring a civil cause of action under Chapter 33 of the
Texas Penal Code “if the conduct constituting the violation was committed knowingly or
intentionally.” TEx. CIv. PRAC. & REM. CODE § 143.001.
Plaintiff alleges that she received a “work iPhone” that “illegally connect to (without
Mott’s explicit authorized consent), and synced with Mott’s private iCloud, private contacts,
private calendar, and private emails without her permission.” (Doc. No. 17 at 15). Mott contends
that she “immediately deactivated the device, removed all of her personal information and PII,
reset the iPhone, discontinued use of the device, turned off the device, and placed the device back
into its box, where it has been (in an unpowered state) since that time.” (/d. at 15-16). Additionally,
Plaintiff alleges that Schneider illegally accessed her home network on numerous occasions. □□□□
at 15).
Schneider contends that Plaintiff's claim under the Harmful Access by Computer Act
(“HACA”) fails for three reasons. First, Schneider claims that the statute requires that a defendant
knowingly accessed the computer, and Plaintiff failed to plead any facts to support that allegation.
Yet, Plaintiff pleaded that Schneider intentionally accessed the private network. (Doc. No. 17 at

12

19). She also pleaded that, on at least four occasions, Schneider illegally accessed Mott’s home
network by utilizing Mott’s credentials. (/d. at 16-17).
Second, Schneider asserts there can be no improper “access” when Plaintiff deactivated
and powered down the device. Mott pleaded that she only deactivated the device and discontinued
its use after she discovered that it connected to her network and synced with her private accounts.
(Id. at 15). Moreover, she asserts multiple other instances where her home network was allegedly
illegally accessed. (/d. at 16-17).
Finally, Schneider claims that Mott has failed to plead any damages, which is an essential
element to the claim. See (Doc. No. 18). Mott alleges that she was injured by the alleged access
because Defendant used the information obtained “in order to pursue the recommendations to
terminate her employment.” The Court finds that this is sufficient to plead injury. Taking the
pleadings as true and affording sufficient leeway in favor of the non-movants, Plaintiff adequately
states a claim for relief under the HACA. As such, the Court denies Schneider’s request to dismiss
Mott’s HACA claim against it.
E. Violations of § 123.002 of the Texas Civil Practice and Remedies Code
Plaintiff alleges that Schneider violated § 123.002 of the Texas Civil Practice and
Remedies Code.‘ The statute provides that a party to a communication may sue a person who:
(1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt
to intercept the communication;
(2) uses or divulges information that he knows or reasonably should know was obtained
by interception of the communication; or

* Plaintiff labels this section of her Amended Complaint “Stored Communications Act of 1986 & Interception of
Communication.” (Doc. No. 17 at 24). Nevertheless, Plaintiff goes on to cite only § 123.002 of the Texas Civil Practice
and Remedies Code. Schneider’s Motion, on the other hand, focuses solely on the Stored Communications Act. (Doc.
No. 18 at 20-22). In its Reply, Schneider claims that Mott is “pivoting” to the § 123.002 claim. The Court finds that
Plaintiff pleaded a cause of action under § 123.002 when she explicitly cited the statute in her Amended Complaint.
13

(3) as a landlord, building operator, or communication common carrier, either personally
or through an agent or employee, aids or knowingly permits interception or attempted
interception of the communication.
‘Communication’ means “speech uttered by a person or information including speech that is
transmitted in whole or in part with the aid of a wire or cable.” § 123.001(1). ‘Interception’ means
“the aural acquisition of the contents of a communication through the use of an electronic,
mechanical, or other device that is made without the consent of a party to the communication... .”
§ 123.001(2).
To state a claim for a violation of this statute, a plaintiff must plausibly allege: “(1) that
defendants intercepted or attempted to intercept, (2) by using an electronic, mechanical, or other
device, (3) the contents of [a communication] uttered by plaintiff, (4) without the consent of at
least one party to the communication. Est. of Alex through Coker v. T-Mobile US, Inc., 313 F.
Supp. 3d 723, 731 (N.D. Tex. 2018).
Plaintiff has sufficiently pleaded a cause of action under § 123.002. Plaintiff alleges that
Defendants accessed her personal emails or otherwise heard “conversations between the Plaintiff
and the EEOC.” (Doc. No. 17 at 24). She claims that the affected devices include her home
monitory system, such as her Ring doorbell, as well as her Alexa devices. Plaintiff, therefore,
pleaded “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570.
F. Intentional Infliction of Emotional Distress
Though not brought under its own heading, Mott appears to allege that Schneider is liable
for the tort of intentional infliction of emotional distress. See (Doc. No. 17 at 30). As it did when
it claimed that Nix was improperly joined, Schneider argues that this claim is preempted by Mott’s
claims brough under Chapter 21 of the Texas Labor Code. With respect to Nix above, the Court
agreed with Schneider that that the claim is preempted. The same is true here.
14

Plaintiff alleges that Schneider is vicariously liable for its employees’ actions. She claims
that Nix, Fox, and Mundh “maliciously and intentionally inflicted emotional distress on Mott when
Mundh, Nix, Fox, and others acted with malice and intentionally, motivated by retaliation, and/or
recklessly proximately causing severe emotional distress to Mott.” Since the gravamen of
Plaintiffs claim is retaliation, Chapter 21 forecloses common-law theories predicated on the same
underlying retaliatory facts. See Waffle House, 313 S.W.3d at 802 (“Where the gravamen of a
plaintiff's case is [Texas Labor Code Chapter 21]—covered harassment, the Act forecloses
common-law theories predicated on the same underlying sexual-harassment facts.”). Thus, to the
extent that Plaintiff alleged an intentional infliction of emotional distress claim, it is dismissed.
G. Invasion of Privacy
Plaintiff next brings a claim for invasion of privacy. She asserts that the Defendants “have
intentionally, and illegally, intruded on [her] right to solitude and seclusion.” (Doc. No. 17 at 27).
There “are two elements to this cause of action: (1) an intentional intrusion, physically or
otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2) would be
highly offensive to a reasonable person.” Amin v. United Parcel Serv., Inc., 66 F.4th 568, 576 (5th
Cir. 2023) (citing Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993)).
Schneider asserts that Mott failed to plead any facts to support her claim. Yet, Mott
incorporates each preceding paragraph into the section she titles “Invasion of Privacy/Right to
Privacy.” In a preceding paragraph, Plaintiff alleges that Schneider “intentionally obtained illegal
access to the Plaintiff's private network, private emails, private pictures, private contacts, private
Ring alarm cameras, and used the information that they unlawfully obtained in order to pursue the
recommendations to terminate her employment.” (Doc. No. 17 at 19). She later states that the
actions were highly offensive to her. (/d. at 27). These facts are not such that the Court can

15

conclude, as a matter of law, that a reasonable person would not find the alleged intrusion highly
offensive. As such, Plaintiff pleaded sufficient facts to satisfy her burden at this stage.
H. Violations of the Texas Penal Code
Schneider contends that Plaintiff alleges a “plethora” of allegations rooted in criminal
statutes, and that she does not have standing to bring an action against Schneider that is based on
alleged violations of the Penal Code. Plaintiff's Amended Complaint does cite multiple sections
of the Texas Penal Code. For example, Plaintiff cites § 42.07 and § 42.072 of the Penal Code in
her section involving claims of harassment and cyberstalking. (Doc. No. 17 at 27-29). Though the
Texas Civil Practice and Remedies Code does provide for a private cause of action under some
chapters of the Penal Code (e.g. § 143.001 of the Texas Civil Practice and Remedies Code provides
a private cause of action under Chapter 33 of the Texas Penal Code), it does not do so for Chapter
42. To the extent that Plaintiff attempts to hold Schneider liable under the Penal Code where there
is no statute that provides for a private cause of action, those claims are dismissed.
Plaintiff acknowledges that she cannot pursue claims under the Penal Code. (Doc. No. 17
at 17). Rather, she cites Chapter 85 of the Texas Civil Practice and Remedies Code, which creates
a private cause of action for harassment and stalking separate from the Penal Code. (/d. at 30).
Schneider does not contend that Plaintiff has failed to state a claim brought under that chapter.
Thus, the Court need not address this claim. As for Plaintiffs claim for identity theft, Plaintiff may
re-plead this section to clarify under which statute she asserts this cause of action.
I. Breach of Contract
Lastly, Plaintiff brings claims for breach of contract, promissory estoppel, and unjust
enrichment. Plaintiff alleges that Schneider failed to pay “commissions, bonuses, or other
compensation” that she earned pursuant to the terms of a “contractually-binding agreement.” (Doc.

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No. 17 at 32). Specifically, she alleges that Schneider failed to pay her a bonus of $50,000, a sales
commissions she earned, which she claims exceeds $770,000, and other promised benefits such as
a home internet stipend. (/d.).
A breach of contract claim requires pleading and proof that: (1) a valid contract exists; (2)
the plaintiff performed or tendered performance as contractually required; (3) the defendant
breached the contract by failing to perform or tender performance as contractually required; and
(4) the plaintiff sustained damages due to the breach. Pathfinder Oil & Gas, Inc. v. Great W.
Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019). Defendant contends that Mott does not identify
a valid contract or the specific provisions that Schneider allegedly breached. (Doc. No. 18 at 25).
Schneider apparently argues that Plaintiffs offer letter, which it attached to its Motion, may be
what Mott considers the contract. Schneider, however, argues that there is no valid contract
between the parties because Mott was an “at-will” employee. /d. at 10). It further claims that
Mott will not be able to produce a valid contract, and that the job offer disclaims the benefits she
seeks. (/d.).
Nevertheless, these arguments are more appropriate at the summary judgment stage.
Plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570 (2007). Whether Plaintiff will be able to proffer sufficient evidence after discovery
is not a proper inquiry at this stage. The same must be said for Defendants arguments regarding
Plaintiff’s promissory estoppel and unjust enrichment.
IV. Conclusion
For the foregoing reasons, the Court GRANTS in part and DENIES in part Schneider’s
Motion to Dismiss. (Doc. No. 18). The Court finds that Nix was improperly joined. As such, Nix
is dismissed from this action. Plaintiff’s claims against Schneider for discrimination, harassment,

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and retaliation in violation of Chapter 21 of the Texas Labor Code (except for alleged instances of
retaliation that occurred on or after February 17, 2023), common law defamation, and intentional
infliction of emotional distress are dismissed.
Plaintiff's claims for violations of Chapters 85 and 123 of the Texas Civil Practice and
Remedies Code, violations of the HACA, common law invasion of privacy, breach of contract,
and retaliation occurring on or after February 17, 2023 remain. Plaintiff may file a second amended
complaint within twenty-one days of this Order to address the Court’s concerns regarding her
identity theft claim (as discussed on page 16 of this Order); otherwise, it too will be dismissed.
The second amended complaint should not include claims dismissed by this Order but may include
the non-dismissed claims as Plaintiff sees fit. Schneider has leave to respond to the second
amended complaint, if it is filed, if it does so within fourteen days of the filing of such complaint.

Signed at Houston, Texas, on this the 30s y, 2025
KE
Andrew S. Hanen
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11062575. Public record. Not legal advice.