Diaz v. Cellco Partnership

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JAZER D IAZ,
Plaintiff,
v. 	No. 4:25-cv-01054-P
CELLCO P ARTNERSHIP,
Defendant.
MEMORANDUM OPINION & ORDER
Before the Court is Defendant’s Rule 12(B)(6) Motion to Dismiss.
ECF No. 10. The Court hereby ORDERS that the Motion is DENIED
IN PART and GRANTED IN PART. The Motion is denied as to the
claims for (1) sexual harassment and retaliation in violation of Title VII
and (2) retaliation and constructive discharge in violation of Chapter 21
of the Texas Labor Code and (3) any remaining claims. The Motion is
GRANTED as to the claim for negligent hiring, supervision, training,
and retention under Texas common law.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Jazer Diaz was employed by Defendant Cellco Partnership
d/b/a Verizon Wireless from June 2022 until July 10, 2024, serving in a
variety of roles over that time, including as an assistant manager in
Southlake, Texas. In April 2024, Defendant transferred Rudolfo “Rudy”
Rodriguez Martin to serve as a sales representative in Plaintiff’s store.
Rodriguez carried a documented history of sexual misconduct at a
different store while employed by Defendant.
Plaintiff asserts Rodgriguez made sexually inappropriate comments
and physical advances towards Plaintiff. Plaintiff formally reported the
conduct to Human Resources and told the General Manager and District
Manager about his employer and the situation. Plaintiff asserts that the
conduct continued and that his request to transfer stores or take a leave
of absence was denied. Plaintiff ultimately resigned on July 10, 2024,
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due to the hostile work environment and Defendant’s alleged failures to
take action.
These facts led to the current lawsuit, which Defendant removed to
this court from state court on September 29, 2025. ECF No. 1. Defendant
moved to dismiss on October 22, 2025. ECF No. 10. The Motion is now
ripe for review.
LEGAL STANDARD
Rule 12(b)(6) allows a defendant to move to dismiss an action if the
plaintiff fails to state a claim upon which relief can be granted. See FED.
R. CIV . P 12(b)(6). In evaluating a Rule 12(b)(6) motion, the court must
accept all well-pleaded facts as true and view them in the light most
favorable to the plaintiff. See Inclusive Cmtys. Project, Inc. v. Lincoln
Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) (quoting Campbell v. Wells
Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986)). “Further, all
questions of fact and any ambiguities in the controlling substantive law
must be resolved in the plaintiff’s favor.” Id. (cleaned up).
However, courts are not bound to accept legal conclusions couched as
factual allegations as true. See In re Ondova Ltd., 914 F.3d 990, 993 (5th
Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The
well-pleaded facts must permit the court to infer more than the mere
possibility of misconduct. See Hale v. King, 642 F.3d 492, 499 (5th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). That is, the
complaint must allege enough facts to move the claim across the line
from conceivable to plausible. See Turner v. Pleasant, 663 F.3d 770, 775
(5th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Determining whether the plausibility standard has been met is
a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. (quoting Iqbal, 556 U.S. at
663–64).
ANALYSIS
A. Chapter 21 of the Texas Labor Code Preempts Plaintiff’s
Negligent 	Hiring, 	Supervision, 	Training, 	and 	Retention
Claim.
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The Texas Commission on Human Rights (“TCHRA”), codified in
Chapter 21 of the Texas Labor Code, “abrogates a plaintiff-employee’s
common law claims against an employer to the extent that the claims
are based on the same course of conduct as discrimination or retaliation
claims against that employer.” See Butler v. Collins, 714 S.W.3d 562,
568 (Tex. 2025). In short, because these claims are based on the same
source of conduct, the Texas statutory code preempts the common law
claim of negligent hiring, supervision, training, and retention.
1. 	The same factual basis underlies both claims.
The second and third claims alleged in Plaintiff’s amended complaint
cover the same factual conduct allegedly committed by Defendant. In his
second 	claim 	under 	Chapter 	21, 	Plaintiff 	alleges 	that 	Defendant
retaliated against Plaintiff’s reports of sexual harassment and assault
in 	various 	ways 	including: 	denying 	a 	transfer 	request, 	keeping
Rodriguez at the same location, permitting slander against Plaintiff in
the workforce, denying adequately requested medical leave for Plaintiff,
and threatening Plaintiff with termination for failing to return to work.
ECF No. 	6 at 4. Plaintiff claims 	this led 	to 	“intolerable working
conditions.” ECF No. 6 at 4. In his third claim under common law,
Plaintiff alleges that Defendant breached its duties to “provide a safe
workplace, 	and 	to 	hire, 	supervise, 	train, 	and 	retain 	competent
employees” but breached that duty by “allowing Mr. Rodriguez to
[continue] 	to 	work 	at 	the 	store” 	following 	the 	reports 	of 	sexual
harassment. ECF No. 6 at 5. So the same conduct is at issue: alleged
sexual harassment, retaliation and maintaining Rodriguez at Plaintiff’s
store—all leading to constructive discharge.
Because both claims concern Defendant’s decision to keep Rodriguez
at the store following the sexual harassment claims in violation of
Plaintiff’s rights, Chapter 21 preempts the common law claims. See, e.g.,
Howe v. Yellowbrook USA, 840 F. Supp. 2d 970, 980 (N.D. Tex. 2011)
(“[Plaintiff’s] negligent supervision and retention claims rely on the
same allegations … and are thus barred [by the TCHRA].”); see also Utts
v. Bristol-Myers Squibb Co., 251 F. Supp. 3d 644, 672 (S.D.N.Y. 2017),
aff’d sub nom. Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d
Cir. 2019) (It is “well-established that preemption may be analyzed and
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decided at the motion to dismiss stage.”); accord Reddick v. Medtronic,
Inc., 2022 WL 715494 (5th Cir. 2022). Indeed, the Texas Supreme Court
dismissed 	the 	same 	common 	law 	claim 	against 	an 	employer 	for
“unwanted sexual touching by a coworker … [because liability] is limited
to a tailored TCHRA scheme that specifically covers employer liability
for sexual harassment.” Waffle House, Inc. v. Williams, 313 S.W.3d 796,
803 (Tex. 2010). The Texas Supreme Court said “[w]e do not believe the
Legislature’s 	comprehensive 	remedial 	scheme 	allows 	aggrieved
employees to proceed on dual tracks—one statutory and one common-
law, with inconsistent procedures, standards, elements, defenses, and
remedies.” Id. at 799. Indeed, “an employer’s supervision and retention
duties are embedded in the broader TCHRA inquiry, which hinges
liability in part on whether the employer takes prompt remedial action
….” Id.
Plaintiff argues that Waffle House preemption applies only when the
“complained-of 	negligence 	is 	entwined 	with 	the 	complained-of
harassment.” Id. at 799 (emphasis added). So the facts underlying
employer 	negligence 	must 	be 	inseparable 	from 	the 	underlying
harassment. 	In 	short, 	Plaintiff 	argues 	preemption 	does 	not 	apply
because the employer’s negligence in hiring, supervising, and retaining
Rodriguez 	relevant 	to 	the 	common 	law 	claim 	is 	independent 	of
Rodriguez’s harassment against Plaintiff. Plaintiff goes on to say that
the second claim concerns the Defendant’s discriminatory response to
the 	Plaintiff’s 	reporting 	of 	the 	harassment 	as 	opposed 	to 	the
“independent reassigning of a known sexual harasser” based on previous
harassing conduct that makes the common law claim not entwined with
the harassment committed against Plaintiff. ECF No. 13 at 12. But the
amended complaint belies Plaintiff’s argument because the third claim
is grounded in Defendant’s decision to keep Rodriguez at the store after
sexually harassing Plaintiff—which also serves as grounds for the
Chapter 21 claim. The difference is that this same action allegedly
violates Chapter 21 as a form of retaliation and simultaneously allegedly
constitutes negligence. Both claims are entwined with the harassment
because the harassment is also what makes it problematic to keep
Rodriguez at Plaintiff’s store—a relevant fact for both claims. The
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reassignment of Rodriguez cannot be separated from the harassment
alleged. So the common law claim is preempted by the Chapter 21 claim
alleged.
CONCLUSION
Thus, Defendant’s Motion to Dismiss is DENIED IN PART AND
GRANTED IN PART. ECF No. 10.
SO ORDERED on this 9th day of January 2026.
REGIONS BANK ET AL .,
Defendants.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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