Full opinion text
OPINION AND ORDER MELINDA HARMON, District Judge. Pending before the Court in the above referenced cause alleging employment discrimination based on disability and retaliation under both state and federal law and seeking to recover compensatory and punitive damages and to obtain injunctive relief, are Defendant American National Insurance Company’s (“ANICO’s”) (1) motion to dismiss and motion for more definite statement (instrument #67) and (2) motion for summary judgment (instrument #90). At this stage of the litigation, the Court chooses to address the motion for summary judgment. Allegations in Plaintiffs Amended Complaint (# 65, 74) Pro se Plaintiff Jeffrey Alan Williamson, at the time of his dismissal a Programmer Analyst, had been employed by ANICO since April 5, 1999 as a programmer in the Systems Planning and Computing (“SP & C”) department. With supporting evidence, he claims that his job performance at all times was more than satisfactory (with “full performance” ratings) and that he received an annual increase in salary until he was discharged on January 31, 2006. Williamson explains that he has suffered recurring “seizures and impairments” from approximately May 2004 up to the present. He did not have an annual review in 2004 because on May 23rd of that year he collapsed from an apparent stroke and had surgery at the University of Texas Medical Branch on the cognitive side of his brain because of an intra cranial hemorrhage, seizure, stroke, and coma. The surgery was followed by a period of rehabilitation at the Transitional Learning Center in Galveston, Texas from June 14-August 10, 2004. He returned to work on September 13, 2004. Plaintiff claims disability discrimination, from the date of his stroke, by all individual ANICO employees involved in certain specific acts that he details. First he claims intentional infliction of emotional distress as well as discrimination when ANICO “forced” him to transfer from Galveston to the new data center in League City in January 2005. He claims it put him in an environment that was more damaging, more stressful, with more responsibilities, all of which aggravated his condition. He also charges that, despite his continuing “seizures and impairments,” his direct supervisor, Alec Mendez, and Human Resources designated him to be the floor captain of the third floor of the new data center, which entailed providing first aid and evacuating employees in “dangerous circumstances.” He objected to the required training that Human Resources made him take to learn first aid to keep people alive. He charges generally that ANICO “showed a lack of care concerning what I suffered, what I went through, that I continued to suffer during employment and I continue to suffer this day.” # 90, Ex. 15, at 419:14-16. Plaintiff claims that he was “harassed” by various individual ANICO employees during his rehabilitation because of his disability before and after he was “forced to transfer from Galveston, Texas to League City, Texas.” According to the amended complaint, after Plaintiffs stroke, surgery, and period of rehabilitation, and despite continuing “seizures and impairments,” Mendez assigned Plaintiff even more responsibilities than before his injury and rehabilitation. He also inflicted emotional distress on Plaintiff by making him take vacation time instead of sick leave when he had to recover from seizures or go for treatment, tests, or doctor’s appointments. During his deposition Plaintiff identifies his request for sick leave as a request for reasonable accommodation. Mendez was also “associated with” Plaintiffs transfer to League City. Mendez allegedly harassed Williamson for errors Plaintiff made. Plaintiff claims that Don Ciaccio was his supervisor during Plaintiffs rehabilitation at the Transitional Learning Center and produces a document stating such, but there is some uncertainty about that allegation. Ciaccio drove Defendant’s corporate van pool, which transported employees who lived in Galveston back and forth to work. Plaintiff complains that he had a seizure in December 2005 during one of these trips, and that Ciaccio did not call EMS but dropped off the “healthy employees” in League City, then continued to drive with Plaintiff on the floor of the van, while Plaintiff had recurring “seizures and impairments,” and finally had him escorted out of the van because Plaintiff could not walk by himself. Plaintiff also complains about Ciaccio’s regular “negative” comments and states Plaintiff was embarrassed when he overheard Ciaccio talking about his seizure. Don Ciaccio also harassed him by telling him Defendants were about to lay off employees and that reasons were being collected to “get rid of’ Williamson. Plaintiff also complains about the Human Resources department and Jason Broussard. Claiming that Plaintiff was subjected to a hostile work environment and suffered severe emotional distress, which could cause more seizures, Williamson alleges that despite his recurring seizures and impairments, he was harassed by Mendez and Broussard to be trained as a floor captain, able to provide first aid and to evacuate employees during “dangerous circumstances.” Plaintiff names Sarah Sparks, who stated that she was “taking care of Jeffrey’s personal affairs.” Williamson also claimed that he was harassed by ANI-CO’s Medical Director, the Human Resources Department, and the management team in the Computing Division who were privy to “his medical status, doctor’s reports, doctor’s releases, etc.” He claims that ANICO, as his employer, had a duty to supervise him and other employees and to prevent unlawful conduct that could damage him, but that ANICO breached that duty. He charges that ANICO was negligent in supervising and training, and in transferring him from Galveston to League City despite his recurring “seizures and impairments,” in making him a floor captain, and in requiring him to be trained and certified in first aid for evacuation of employees at dangerous times. Plaintiff claims he was terminated by ANICO, specifically by Senior Executive Vice President and Chief Administrative Officer James Pozzi and Assistant Vice President of Human Resources Carol Ann Kratz, on January 31, 2006. Amended Complaint (# 72) seeks to Sparks, Don Ciaccio, Alec Mendez Plaintiffs Supplemental to his add as parties James Pozzi, Sarah and Carol Ann Kratz. During his deposition, Plaintiff testified that Kratz harassed him in two ways because, although she was aware of his medical condition, she (1) had him transferred to League City and (2) required him to train as floor captain to provide first aid to employees and to evacuate them in dangerous situations. Ex. 15-A at 358:2-17. Broussard “works right underneath Ms. Kratz.” Id. at 359, 1.7. Williamson also charges that Sarah Sparks, Don Ciaccio, Alec Mendez, Carol Ann Kratz, James Pozzi, and other ANI-CO employees acted with malice, lack of care, lack of duty, and reckless disregard of Plaintiffs rights and welfare. He claims that in the employer-employee relationship, and as an insurance policyholder, Plaintiff was owed by ANICO a duty to prevent injury and to aid him during his recurring seizures and impairments. Plaintiff conclusorily asserts that he was “harassed to the point that he, and other employees of the Defendant were subject to a hostile work environment and that he was discharged because of his disability.” # 65, ¶ 34. Plaintiff alleges that he filed a timely Charge of Disability Discrimination with the Equal Employment Opportunity Commission. Plaintiff received a Dismissal Notice of Right to Sue letter dated August 17, 2007 stating that the EEOC was unable to conclude that his charge established violations of the relevant statutes. The Social Security Administration found that Williamson was “disabled” on the day he was terminated, January 31, 2006, and provided disability benefits retroactively to that date. ANICO’s conduct purportedly caused Williamson humiliation, emotional distress, mental and physical pain and suffering, damage to his personal reputation, need for medical services and medications in the past and in the future, damage to his earning capacity, and damage to recurring seizures and impairments that he might suffer for the rest of his life. Plaintiff claims that threats of lay offs and the hostile work environment caused him severe emotional distress. He also maintains that ANICO breached its duty as his employer to supervise him and other employees and to prevent or correct unlawful conduct by employees in the workplace and, apparently, during his seizures. Plaintiff also charges ANICO with negligence in forcing his transfer to Galveston in spite of his recurring seizures and impairments. Plaintiff also, without providing any supporting facts, alleges retaliation in violation of Title VII and violation of 42 U.S.C. § 1981. In his “Supplemental” to his Amended Complaint (# 74 at ¶¶ 5-7) Plaintiff states that six other employees were also terminated by Defendant, but names only Pete Haswell, who died of cancer shortly after his termination, and Gordon Hughes, who was re-hired in a different position. In his response to the motion for summary judgment (# 91 at 15), Plaintiff emphasizes that he and Haswell both had a “health related issue” and were both terminated. Standard of Review Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the nonmovant’s case; the movant does not have to support its motion with evidence negating the non-movant’s case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “If the movant succeeds, the non-movant must come forward with evidence such that a reasonable party could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The non-movant “must come forward with ‘specific facts showing there is a genuine issue for trial.’ ” Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A factual dispute is deemed ‘genuine’ if a reasonable juror could return a verdict for the nonmovant, and a fact is considered ‘material’ if it might affect the outcome of the litigation under the governing substantive law.” Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir.1993). Summary judgment is proper if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.” Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). Although the court draws all reasonable inferences in favor of the non-movant, the non-movant “cannot defeat summary judgment with conclusory, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5th Cir.2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir.1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). “ ‘[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief.’ ” Lawrence v. Univ. of Texas Medical Branch, 163 F.3d 309, 313 (5th Cir.1999), quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir.1983). Nor are pleadings competent summary judgment evidence. Little, 37 F.3d at 1075. A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. Chevron Phillips, 570 F.3d 606, 612 n. 3 (5th Cir.2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir.1999). Nor does the court have to sift through the record in search of evidence to support opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). Relevant Law Plaintiff’s Pro Se Status The district court is to construe liberally the briefs of pro se litigants and apply less stringent standards to them than to parties represented by counsel. Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir.2006); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). Nevertheless, a pro se party must still brief his issues. Grant v. Cuellar, 59 F.3d at 524; see also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘Although [this Court] liberally construe[s] the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.’ ”), quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988). “[L]itigants, even if pro se, cannot oppose motions for summary judgment with unsworn statements.” Wilson v. Stalder, 70 F.3d 1268 (5th Cir.1995), Statutes Inapplicable As a Matter of Law Initially the Court would point out those statutes cited by Plaintiff under which he, as a matter of law, has no claim. As evidenced by his complaint, the boxes he checked and the facts he alleged in his EEOC and TWC grievances, and his deposition (# 90, Exs. 15-A and 15-B), the sole basis of his discrimination claims is disability. Section 1981 Title 42 U.S.C. § 1981 applies only to race-based discrimination. Ingram v. Papa John’s Intern., Inc., 171 Fed.Appx. 439, 441 (5th Cir.2006) (“Race ... is the only protected class under § 1981.”), citing inter alia Burditt v. Geneva Capital, LLC, 161 Fed.Appx. 384, 385 (5th Cir.2006) (per curiam) (“Because Burditt has not alleged racial discrimination, he has not stated a claim ... under § 1981.”). Perhaps Plaintiff meant § 1981a(a), a 1991 amendment to § 1981, which provides a prevailing plaintiff in an intentional employment discrimination suit (whether brought under Title VII, the ADA or the Rehabilitation Act) with the ability to recover compensatory and punitive damages. Section 1981a does not create a new substantive right nor an independent cause of action; instead it “ ‘enhances the remedies otherwise available for intentional employment discrimination.’ ” Yowman v. Jefferson County Community Supervision & Corrections Dept., 370 F.Supp.2d 568, 585-86 (E.D.Tex.2005), citing Huckabay v. Moore, 142 F.3d 233, 241 (1998); and Perry v. Dallas Indep. Sch. Dist., No. Civ. A. 3:96ev2855D, 1998 WL 614668, *1 n. 1 (N.D.Tex. Sept. 2, 1998); and Swartzbaugh v. State Farm Ins. Cos., 924 F.Supp. 932, 934 (E.D.Mo.1995). “[I]t applies only if the plaintiff otherwise establishes intentional discrimination on the part of the employer under another substantive act”; there must be a claim under another substantive act for it to apply. Yowman, 370 F.Supp.2d at 586, citing Huckabay, 142 F.3d at 241. Title VII Plaintiffs disability discrimination claim does not fall within the purview of Title VII’s protected classes. Under section 703(a) of Title VII, it is “an unlawful employment action for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff made clear during his deposition that he is not alleging discrimination based on his Apache background. Section 501 of The Rehabilitation Act of 1973 The Rehabilitation Act, 29 U.S.C. § 794(a), prohibits discrimination against an otherwise qualified individual with a disability in programs that receive federal funding. Handy v. Brownlee, 118 Fed.Appx. 850, 854 (5th Cir.2004). Plaintiff has neither alleged nor shown that ANICO is a federal employer or that it received federal funds for Plaintiffs employment, necessary to establish a prima facie case under the statute. Id. (“To establish a claim under the Rehabilitation Act, a plaintiff must show that he: (1) is an individual with a disability; (2) is otherwise qualified to perform the job; (3) was employed in a program or activity that receives federal funding; and (4) was discriminated against solely because of his disability.”), citing Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir.1997). Nevertheless, pursuant to Section 501(g), 29 U.S.C. § 791(g), the standards for determining a violation of the Rehabilitation Act, as amended in 1992, are the same as those for a violation of the ADA, under which Plaintiff may have a cause of action. See 42 U.S.C. § 794(d) and 42 U.S.C. § 12101, et seq.; Pinkerton v. Spellings, 529 F.3d 513, 516—17 (5th Cir.2008). 2008 Amendments to the ADA Plaintiff cites to the 2008 amendments to the ADA, Pub.L. No. 110-325, 122 Stat. 3553 (2008). In September 2008, Congress enacted the Americans with Disabilities Act Amendment of 2008, effective as of January 1, 2009. Pub.L. 110-325, 122 Stat. 3553, 3554 (2008), “to restore the intent and protections of the Americans with Disabilities Act of 1990,” narrowed by the Supreme Court. It expanded the class of individuals to be protected under the definition of “disability.” It also overturned Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (holding that under subpart (A), to limit the major life activity of working a plaintiff had to show that she was regarded as having an impairment that substantially limited her life activity of working in the same “broad class of jobs”), and Toyota Motor’s narrow, exacting definition of “substantially limits,” i.e., “considerable” or “to a large degree” so as to “preclude impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” 534 U.S. at 196-97, 122 S.Ct. 681. Section 3(3)(B) of the 2008 Amendments states that it “shall not apply to impairments that are transitory and minor,” i.e., an “impairment with an actual or expected duration of 6 months or less.” Section 3(D) further states, “An impairment that is episodic or in remission is a disability if it would substantially limit a major activity when active.” Plaintiff filed his complaint in 2007. The Amendments expressly did not go into effect until January 2009. Those courts that have addressed and answered the question of the retroactive application of the Act have concluded it does not apply retroactively. See, e.g., appellate court decisions in EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009) (ADA Amendments Act of 2008’s “changes do not apply retroactively”), citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (“Even when Congress intends to supersede a rule of law embodied in one of our decisions with what it views as a better rule established in earlier decisions, its intent to reach conduct preceding the ‘corrective’ amendment must clearly appear.”); Lytes v. DC Water and Sewer Authority, 572 F.3d 936, 939-40 (D.C.Cir.2009) (“By delaying the effective date of the ADA, the Congress clearly indicated the statute would apply only from January 1, 2009.”); Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565-67 (6th Cir.2009) (The ADA Amendments Act of 2008 “does not apply to govern conduct occurring before the Act became effective”); Thornton v. UPS, Inc., 587 F.3d 27, 34-35 n. 3 (1st Cir.2009) (citing Milholland). Applicable Law ADA U.S.C. §§ 12101 et seq. Plaintiff has alleged several claims under the ADA: discriminatory termination (disparate treatment); failure to accommodate Plaintiffs disability; hostile work environment; and retaliation. An employee asserting a claim under the ADA must exhaust administrative remedies before commencing an action in federal court against his employer. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996). Failure to exhaust remedies results in dismissal of claims on the merits. Id. The ADA incorporates by reference the procedures for exhaustion applicable to claims under Title VII. Wesley v. Dallas ISD, No. 03-08-CV-2025-K, 2009 WL 193786, *2 (N.D.Tex. Jan. 27, 2009). Specifically a plaintiff must file a claim with the EEOC within 180 days of the unlawful act or, if he has filed a complaint with a state or local agency, within 300 days. Ikossi-Anastasiou v. Board of Supervisors of La. State Univ., 579 F.3d 546, 549 (5th Cir.2009); EEOC v. WC & M Enterprises, Inc., 496 F.3d 393, 398 (5th Cir.2007), citing 42 U.S.C. § 2000e-5(e)(1). After the plaintiff receives a “right-to-sue” letter from the EEOC or the state agency, he must commence an action in district court within 90 days. 42 U.S.C. § 2000e-5(f)(1); Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir.1980). An ADA action is limited in scope to the scope of the plaintiffs administrative charge and to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.2006); Wesley, 2009 WL 193786, *2. In Pacheco v. Mineta, 448 F.3d at 789, the Fifth Circuit reasoned, On the one hand, because the provisions of Title VII were not designed for the sophisticated, and because most complaints are initiated pro se, the scope of an EEOC complaint should be construed liberally. On the other hand, a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in an attempt to achieve non-judicial resolution of employment discrimination claims. Indeed, a less exacting rule would also circumvent the statutory scheme since Title VII clearly contemplates that no issue will be the subject of a civil action until the EEOC has first had the opportunity to attempt to obtain voluntary compliance .... [Allowing a federal complaint to proceed despite its loose “fit” with the administrative charge and investigation is precluded if it would circumvent agency efforts to secure voluntary compliance before a civil action is instituted. Id., citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir.1970). The relevant portion of the ADA prohibits discrimination “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). In addition, Section 12112(b)(5) states that the term, “discriminate,” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operations of the business of such covered entity.” Because the ADA mandates that employers reasonably accommodate the limitations caused by the disability and not the disability itself, an employee asserting a disability discrimination claim must produce evidence that the employer not only knew of the employee’s disability, but also of the physical and mental limitations arising from it. Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999). A plaintiff may establish a claim of discrimination under the ADA by presenting direct evidence or by using the indirect method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Seaman, 179 F.3d at 300. “Direct evidence proves intentional discrimination without inference or presumption when believed by the trier of fact.” Jones v. Overnite Transportation Co., 212 Fed.Appx. 268, 272 (5th Cir.2006), citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). “In the context of Title VII [and the ADA], direct evidence includes any statement or written document showing a discriminatory motive on its face.” Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir.2001), citing Portis v. National Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir., 1994); Overnite Transportation, 212 Fed.Appx. at 272. If a plaintiff produces direct evidence of discrimination, he may “bypass the McDonnell Douglas burden-shifting framework [discussed infra ] commonly applied in discrimination cases and proceed directly to the question of liability.” Moore v. U.S. Dept. of Agric., 55 F.3d 991, 995 (5th Cir.1995); Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir.2001); Stone v. Parish of East Baton Rouge, 329 Fed.Appx. 542, 545-46 (5th Cir.2009). “In such ‘direct evidence’ cases, ‘the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor.’ ” Fierros, 274 F.3d at 192, quoting Brown v. East Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir.1993). “Workplace remarks may constitute direct evidence of discrimination if they are T) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.’ ” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996); Patel v. Midland Memorial Hospital & Medical Center, 298 F.3d 333, 343-44 (5th Cir.2002), quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-23 (5th Cir.2001). See also Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir.2000), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). If the comments fail to meet these criteria, e.g., if they are vague and remote in time, ,or the speaker has no authority or influence over the employment decisions, they are merely “stray remarks.” See, e.g., Krystek v. University of Southern Miss., 164 F.3d 251, 256 (5th Cir.1999). After the issuance of Reeves, the Fifth Circuit has continued to find that remarks may be “probative of discriminatory intent” and “are appropriately taken into account when analyzing the evidence ... even where the comment is not in the direct context of termination and even if uttered by one other than the formal decision maker, provided that the individual is in a position to influence the decision.” Palasota, 342 F.3d at 578, cited in Cervantez v. KMGP Services Co., Inc., 349 Fed.Appx. 4, 10-11 & nn. 22-27 (5th Cir.2009); see also Brauninger v. Motes, 260 Fed.Appx. 634, 640 (5th Cir.2007) (to be evidence of animus, a remark must be related to and in proximate time to a specific employment decision and the remark must be “direct and unambiguous.”). Remarks reflecting discriminatory animus may be used to demonstrate pretext or as additional evidence of discrimination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (2000). Where the remarks are the only evidence of pretext, however, they are not probative. Palasota, 342 F.3d at 577. Under the McDonnell Douglas framework applied to circumstantial evidence cases, a plaintiff must first make a prima facie case of an ADA violation by establishing that (1) he has a “disability”; (2) he is “qualified” for his position; (3) he suffered an adverse employment action because of his disability or the perception of his disability; and (4) he was replaced by or treated less favorably than non-disabled employees. Chevron Phillips, 570 F.3d at 615. “[W]here the disability, resulting limitations, and necessary reasonable accommodation are not open, obvious and apparent to the employer, the initial burden rests primarily upon the employee to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” Id. at 621, citing Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir.1996). The burden of production then shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. Chevron Phillips, 570 F.3d at 615. If the employer meets this burden, the framework falls away and the issue becomes discrimination vel non. Id. The plaintiff must then offer sufficient evidence to raise a genuine issue of material fact as to whether each articulated reason is a mere pretext for discrimination, or show that the defendant’s reason for the decision, while true, is only one reason for its conduct and another motivating factor is plaintiffs protected characteristic. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008). For a prima facie case of disparate treatment disability discrimination, the second (was qualified for his job) and third (suffered an adverse employment action) prongs are not at issue here. For the first prong, a “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” To state a claim under subsection A, a plaintiff must allege that he has a physical or mental impairment. § 12102(2)(A); 29 C.F.R. § 1630.2(g). A “physical impairment” is “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic, skin; and endocrine.” 29 C.F.R. § 1630.2(h)(1). A “major life activity” is “substantially limited” when the individual is “(i) [ujnable to perform a major life activity that the average person in the general population can perform; or (ii)[s]ignificantly restricted as to the condition, manner, or duration under which the average person can perform the same major life activity.” McInnis v. Alamo Community College Dist., 207 F.3d 276 (5th Cir.2000), quoting 29 C.F.R. § 1630.2. Simply having an impairment is insufficient to make one “disabled” under the statute; a plaintiff must also show that the impairment substantially limits a major life activity. Chevron Phillips, 570 F.3d at 614, citing Toyota Motor, 534 U.S. at 195, 122 S.Ct. 681. Moreover a plaintiff must have more than a diagnosis of an impairment to prove he has a disability under the statute; those “claiming the act’s protection” must “prove a disability by offering evidence that the extent of the limitation in terms of their own experience ... is substantial.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). See also Toyota Motor, 534 U.S. at 198, 122 S.Ct. 681 (“an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s lives. The impairment impact must also be permanent or long term.”). An “impairment” does not include “ ‘transitory illnesses which have no permanent effect on the person’s health.’ ” de la Torres v. Bolger, 781 F.2d 1134, 1137 (5th Cir.1986), citing Stevens v. Stubbs, 576 F.Supp. 1409, 1414 (N.D.Ga.1983). See also Evans v. City of Dallas, 861 F.2d 846, 852 (5th Cir.1988) (the Act “contemplates an impairment of a continuing nature.”); Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 542 (7th Cir.1995) (Intermittent, episodic impairments are not disabilities), citing 29 C.F.R. pt. 1630 app., § 1620.2j (“[Tjemporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.”). When the major life time activity is working, a physical or mental impairment that only affects the plaintiffs ability to engage in a narrow range of jobs or a particular job alone does not “substantially limit one or more major life activities.” Carter v. Ridge, 255 Fed.Appx. 826, 829 (5th Cir.2007), citing Hileman v. City of Dallas, 115 F.3d 352, 353-54 (5th Cir.1997) (“the impairment must substantially limit employment generally”), and Sutton v. United Air Lines, 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.”). The implementing regulations in § 1630.2(i) provide a non-exhaustive list of major life activities, which include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i); id. Moreover, “to be substantially limited means to be unable to perform a major life activity that the average person in the general population can perform or to be significantly restricted in the ability to perform it.” Id., citing 29 C.F.R. § 1630.2(j). In deciding whether a person is “substantially limited” in a major life activity, the EEOC advises that courts should consider: ‘(i) the nature and severity of the impairment, (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.’ Id. at 614-15, citing 29 C.F.R. § 1630.2(j). “[Wjhether an individual is disabled under the ADA ... remains an individualized inquiry.” Chevron Phillips, 570 F.3d at 620. Having a “record” of having a substantially limiting impairment under 42 U.S.C. § 12102(2)(B) is defined by 29 C.F.R. § 1630.2(k): “Has a record of such impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th Cir.1996). To be “regarded as” disabled under the ADA, 42 U.S.C. § 12101, a plaintiff must (1) ha[ve] an impairment which is not substantially limiting but which the employer perceives as substantially limiting ...; (2) ha[ve] an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) ha[ve] no impairment at all but is regarded by the employer as having a substantially limiting impairment. Crawford v. U.S. Dept. of Homeland Sec., 245 Fed.Appx. 369, 380 (5th Cir.2007), citing Rodriguez v. ConAgra Grocery Prods., 436 F.3d 468, 475 (5th Cir.2006). For the second prong of a prima facie case of disability discrimination, a “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To determine whether the plaintiff is “otherwise qualified” for the job, the court must first decide whether the plaintiff can perform the core functions of the job; if not, the court must determine whether a reasonable accommodation would enable the employee to do so. Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994). A covered employer must provide reasonable accommodations to an “otherwise qualified” person with a disability unless the employer can show that the accommodation “would impose an undue hardship” on the employer. 42 U.S.C. § 12112(b)(5)(A). The plaintiff bears the burden of requesting reasonable accommodations. Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir.2007). A reduction in force (“RIF”) “is itself a legitimate, nondiscriminatory reason for discharge.” EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (in Title VII action); see also Russo v. Smith Intern., 93 S.W.3d 428, 438 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (in context of Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.051). To present a prima facie case of discrimination in an RIF case, a plaintiff must demonstrate (1) that he is within a protected group; (2) that he was adversely affected by the employer’s decision; (3) that he was qualified to assume another position; and (4) he must present evidence from which the factfinder might reasonably conclude that the employer intended to discriminate on the basis of his protected status in making that decision. Lohn v. Morgan Stanley DW, Inc., 652 F.Supp.2d 812, 832 (S.D.Tex.2009), citing Thomas v. Exxon, U.S.A., 943 F.Supp. 751, 759 (S.D.Tex.1996), and Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.1996). The plaintiff has to make only a minimal showing to establish such a prima facie case. Lohn, 652 F.Supp.2d at 832, citing Nichols, 81 F.3d at 41. The modified McDonnell Douglas framework of shifting burden of proof applies to such claims based on circumstantial evidence: if plaintiff makes a prima facie case of discrimination, a presumption of discrimination arises; defendant then must articulate a legitimate nondiscriminatory reason for its employment action, which burden is met if it produces evidence that “taken as true would permit the conclusion that there was a nondiscriminatory reason for the adverse action”; if the defendant succeeds, the presumption of discrimination drops out, and the plaintiff must introduce evidence creating a jury question as to whether the defendant was motivated by discriminatory animus either by showing (1) the defendant’s articulated reason was pretextual or (2) plaintiffs protected characteristic was a motivating factor in the decision (mixed motives alternative). Lohn, 652 F.Supp.2d at 832; Nichols, 81 F.3d at 41; Rachid, 376 F.3d at 312. Retaliation claims under the ADA are analyzed similarly to those in Title VII cases. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 & n. 8 (5th Cir.1998). A claim of unlawful retaliation under the ADA, as under Title VII, requires a plaintiff to make a prima facie case by showing that (1) he or she engaged in an activity protected by the ADA, (2) he or she suffered an adverse employment action, and (3) there is a causal connection between the protected act and the adverse action. Seaman v. CSPH, 179 F.3d at 301, cited for that proposition in Tabatchnik v. Continental Airlines, 262 Fed.Appx. 674, 676 (5th Cir.2008). In Burlington N. and Santa Fe Ry. v. White (hereinafter “Burlington N”), 548 U.S. 53, 60, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court, concluding that the range of employer actions prohibited by Title VII’s anti-retaliation provisions is broader than that covered by its anti-discrimination provisions, held that for retaliation claims, instead of the “ultimate employment decision” standard, an employee suffers an adverse employment action if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” If the plaintiff succeeds, the employer must present a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the employer succeeds, the plaintiff must present sufficient evidence showing that the employer’s proffered reason is a pretext for discrimination and that but for the protected activity, the adverse action would not have occurred. Id; Seaman, 179 F.3d at 301. Unlike under Title VII, for a retaliation claim under the ADA there is no requirement that the plaintiff suffer from an actual disability; the plaintiff need only demonstrate that the plaintiff has a reasonable good faith belief that the statute has been violated. Tabatchnik, 262 Fed.Appx. at 676 & n. 1 (failure to prove a disability does not preclude the plaintiff from pursing a retaliation claim). Where an employee has a good faith belief that he is disabled or perceived as disabled, making a request for a reasonable accommodation under the ADA may constitute engaging in a protected activity. Id., citing 42 U.S.C. § 12112(b)(5)(A) (statute requires “making reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability who is ... an employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”). The Fifth Circuit has recognized a cause of action for disability-based harassment as a hostile work environment under the ADA. Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229, 232-35 (5th Cir.2001) (“It is evident, after a review of the ADA’s language, purpose, and remedial framework, that Congress’ intent in enacting the ADA was, inter alia, to eradicate disability-based harassment in the workplace.”), on subsequent appeal on other grounds, 286 F.3d 798 (5th Cir.2002). Modeled after the elements of a similar claim under Title VII, a plaintiff must show (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action. Id. at 235-36, citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir.1998). The harassment must “ ‘be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.’ ” Id. at 236, citing id. To determine if the work environment is abusive, the court should consider “the entirety of the evidence, including ‘the frequency of the discriminatory conducts, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance and whether it unreasonably interferes with an employee’s work performance.’ ” Id., citing TCHRA, Texas Labor Code, § 21.051 et seq. Texas courts have followed the Fifth Circuit precedent with respect to hostile work environment claims under the TCHRA, LeBlanc v. Lamar State College, 232 S.W.3d 294, 303 (Tex.App.-Beaumont 2007). TCHRA Section 21.051 of the Texas Labor Code prohibits employers from discrimination against employees with regard to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin or age. Based on the fact that “one purpose of chapter 21 of the labor code is to effect the policies of the ADA, the courts look to analogous federal law in reviewing a claim for disability discrimination under Texas law.” Petrillose v. Christus Spohn Health System Corp., No. 13-07-00573-CV, 2009 WL 2542510, *6 (Tex.App.-Corpus Christi Aug. 20, 2009), citing Thomann v. Lakes Regional MHMR Center, 162 S.W.3d 788, 795-96 (Tex.App.-Dallas 2005), citing Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex.2004). Thus “Texas courts follow federal precedent for guidance when interpreting chapter 21.” Petrillose, 2009 WL 2542510, at *6, citing Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex.App.Fort Worth 2006, pet. denied). Federal courts guide Texas courts in interpreting Chapter 21’s definition of disability. Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374, 382 (Tex.2004). To prevail on a disability discrimination claim under § 21.051, a plaintiff must demonstrate that he (1) has a disability, (2) is qualified for the job, and (3) suffered an adverse employment decision solely because of his disability. Davis, 188 S.W.3d at 757. Under § 21.105, an employer can only be held liable for “discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job.” Plaintiff has the burden to show that he can reasonably perform, or was otherwise qualified for, his job by demonstrating that he could (1) perform all the essential functions without accommodations or (2) with some reasonable accommodation by his employer. Petrillose, 2009 WL 2542510 at *6, citing Ketcher v. Wal-Mart Stores, Inc., 122 F.Supp.2d 747, 755 (S.D.Tex.2000), and Davis, 188 S.W.3d at 758. Under § 21.055 of the Texas Labor Code, An employer ... commits an unlawful employment practice if the employer ... retaliates or discriminates against a person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists or participates in any manner in an investigation, proceeding, or hearing. Again analogous federal statutes and cases determining them guide Texas courts in interpreting § 21.055 because the purpose of the Texas Commission on Human Rights Act is to provide for the execution of the policies of Title VII. Tex. Labor Code § 21.001(1). Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001). For a prima facie case of retaliation under § 21.055, the plaintiff must show that (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a causal connection between participation in the protected activity and the adverse employment decisions. Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 739 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The burden then shifts to the employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment decision. Id. Once, the burden of proof returns to the plaintiff to demonstrate that the employer’s proffered reason was a pretext for discrimination and the engaging in the protected activity was the but-for cause of the adverse employment action. Pineda v. UPS, 360 F.3d 483, 485 (5th Cir.2004); Quantum, 47 S.W.3d at 479. Judicial Estoppel and Social Security Disability Benefits The common law equitable doctrine of judicial estoppel may be applied by a court when a party attempts to assert, in a judicial or quasi-judicial proceeding, a position contrary to a position taken by that party in a prior judicial or quasi-judicial proceeding. New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808,149 L.Ed.2d 968 (2001). It is applied to protect the integrity of the judicial process by precluding a party who prevails on one ground in one judicial proceeding from changing that position in a subsequent proceeding, in other words intentionally to “play fast and loose” with the courts to obtain an unfair advantage. Id. at 750, 121 S.Ct. 1808; Superior Crewboats, Inc. v. Primary P & I Undenvriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 334 (5th Cir.2004); In re Ark-La-Tex Timber Co., 482 F.3d 319, 332 (5th Cir.2007); Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 385 (5th Cir.2008). There are three requirements for the doctrine to apply: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent. Kane, 535 F.3d at 385-86, citing Superior Crewboats, 374 F.3d at 335. In Cleveland v. Policy Management Systems Corp., because there was disagreement among the lower courts, the United States Supreme Court examined the question whether claims for Social Security Disability Insurance Benefits inherently conflict with claims for ADA damages and whether a plaintiff who has applied for and received Social Security benefits should be judicially estopped from suing his or her employer under the ADA. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 797, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (whether § 223(a) of the Social Security Act, 42 U.S.C. § 423(d)(2)(A), “erects a special presumption that would significantly inhibit [a Social Security Disability Insurance (“SSDI”) ] recipient from simultaneously pursuing an action for disability discrimination under the [ADA], claiming that “with ... reasonable accommodation” she could perform the essential functions of her job.”). It concluded that there should not be a per se ban because they do not “inherently conflict to the point where courts should apply a negative presumption”; “there are many situation in which an SSDI claim and an ADA claim can comfortably exist side by side.” Id. at 803, 119 S.Ct. 1597. The high court noted that in light of the differences in the definition of “disability” under the Social Security Act and the definition of “qualified” under the ADA, an individual might be disabled for the purpose of SSDI benefits and still be able to establish that he is “qualified” under the ADA. As a significant example, the Supreme Court noted that, unlike the ADA, the Social Security Administration (“SSA”) does not take into account the possibility of “reasonable accommodation” in determining SSDI eligibility. Or the plaintiffs condition might have changed over time, so that a statement about her disability made at the time of her application for SSDI benefits does not reflect her capacities at the time of the relevant employment decision. Cleveland, 526 U.S. at 802-03, 805-06, 119 S.Ct. 1597. Nevertheless, “in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim.” Id. at 805, 119 S.Ct. 1597. Summary judgment in favor of the defendant is appropriate when the plaintiff, who bears the burden of demonstrating that she is a “qualified individual with a disability,” fails to make a sufficient showing on that essential element. Id. at 805-06, 119 S.Ct. 1597. Thus when an ADA plaintiffs sworn assertion in an application for disability benefits that she is unable to work appears to negate the essential element of her ADA claim that she can perform the essential functions of her job, the “ADA plaintiff cannot simply ignore the apparent contradiction .... Rather, she must proffer a sufficient explanation.” Id. at 806, 119 S.Ct. 1597. To preclude summary judgment, that explanation “must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions of her job,’ with or without ‘reasonable accommodation.’ ” Id. at 807, 119 S.Ct. 1597. See also Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875, 880-82 (Tex.App.-Corpus Christi 2004, no pet.) (although plaintiff represented in her application for privately insured long-term disability benefits that she was “totally disabled and unable to work,” she was not estopped from asserting that she could work with reasonable accommodation but was discriminated against on the basis of disability because her employer refused her request for accommodation). See also Giles v. General Electric Co., 245 F.3d 474, 483-84 (5th Cir.2001) ; McClaren v. Morrison Management Specialists, Inc., 420 F.3d 457 (5th Cir.2005). Negligence To prevail on a negligence claim, a plaintiff must prove (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages that were proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006). In Gonzales v. Fidelity Distributors Corp., No. Civ. A. 3:00ev1197, 2003 WL 21266707, *4 (N.D.Tex. May 30, 2003), the court wrote, Generally, the employer-employee relationship creates a duty on the part of the employer to control the employee’s conduct. See Otis Eng’rg Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). An employer also has a duty to adequately hire, train and supervise employees and the negligent performance of those duties may impose liability on an employer if the complainant’s injuries are the result of the employer’s failure to take reasonable precautions to protect the complainant from misconduct of its employees. An employer, however, cannot be held liable for negligently hiring or retaining an employee unless the employee committed an actionable tort. See Gonzales v. Willis, 995 S.W.2d 729, 738 (Tex.App.-San Antonio 1999, no pet.). Furthermore, there is an emerging trend in Texas federal courts to dismiss claims of negligent hiring, retention, supervision, and training in connection with alleged employment discrimination claims because the latter are not a common law tort. Staples v. Caremark, LLC, No. Civ. A. SA-08-CV-831-XR, 2009 WL 3634079, *5-6 (W.D.Tex. Oct. 29, 2009) (“This Court adopts the emerging trend in federal courts in Texas that hold that negligent hiring, retention, supervision and training claims based on a discrimination allegation cannot survive because statutory discrimination claims are not a common law tort.”), citing inter alia Udoewa v. Plus4 Credit Union, No. H-08-3054, 2009 WL 1856055 (S.D.Tex. June 29, 2009) (“To prevail on negligent retention claim, Udoewa must ultimately establish that Stark committed a common-law tort against him.”); Havens v. Victoria of Texas Ltd. Partnership, No. V-06-119, 2008 WL 1858924 (S.D.Tex. Apr. 24, 2008) (“As noted elsewhere in the Fifth Circuit, several Texas and appellate courts and federal district courts have begun to adopt the rule that employers are not liable for the allegedly negligent hiring, training, supervision and retention of an employee unless the employee committed some independent actionable tort.”); Cunningham v. Daybreak Therapy, L.P., No. 2:06-cv-289, 2007 WL 2694438 (N.D.Tex. Sept. 17, 2007) (a claim for negligent supervision requires that an employee have committed an actionable tort against the Plaintiff. Sexual harassment cannot be the basis of a negligent supervision claim because it is not a common law tort.); Johnson v. Blue Cross/Blue Shield of Texas, 375 F.Supp.2d 545 (N.D.Tex.2005) (“[s]everal Texas appellate courts and federal district courts have recently adopted the rule that an employer cannot be held liable for negligently hiring an employee unless the employee committed an actionable tort.”). Intentional Infliction of Emotional Distress (“IIED”) The essential elements of a claim for IIED are that (1) the defendant acted intentionally or recklessly,; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 383 (Tex.App.-Houston [1st Dist.] 2007), citing City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000); see also Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993) (recognizing independent tort of IIED and adopting elements of Restatement (Second) of Torts § 46 (1965)). To be extreme and outrageous, the conduct must be so extreme in degree and so outrageous in character as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly intolerable in a civilized community. Miller, id., citing O’Bryant, id. at 217. It is for the court initially to decide whether a defendant’s conduct was extreme and outrageous; if it decides that reasonable minds could differ, a jury must decide if the defendant’s conduct was sufficiently extreme and outrageous to impose liability. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 616 (Tex.1999); Womick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct.” Id. at 612. “ ‘[A] claim for intentional infliction of emotional distress does not lie for ordinary employment disputes,’ ” which might include “criticism, lack of recognition, and low evaluations, which, although unpleasant and sometimes unfair, are ordinarily expected in the work environment.” Miller, 229 S.W.3d at 383; GTE Southwest, 998 S.W.2d at 612-13. A termination of employment, even if wrongful, is not legally sufficient evidence that the employer’s conduct was extreme and outrageous. Miller, 229 S.W.3d at 383, citing S.W. Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998). Over the last decade or so, the Texas Supreme Court has narrowed the application of IIED under Texas law. In Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex.1998), the Texas high court held “that intentional infliction of emotional distress is not available as an independent cause of action unless the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor’s reckless conduct.” Determining that “[t]here is no liability ... if the actor ‘intends to invade some other legally protected interest,’ even if emotional distress results,” the Texas Supreme Court further opined that “the tort’s clear purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct ‘that its more established neighbors intentional infliction of emotional distress is a ‘gap-filler’ tort that should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines.” Id. at 67, 68 (in light of the development of the tort, holding that “a claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.”). Nevertheless, the Texas Supreme Court left room for an IIED claim in the employment context “only in the most unusual circumstances,” where the “conduct brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct.” GTE Southwest, 998 S.W.2d at 613, citing Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir.1992) (employee must show conduct “elevating [the employer’s] actions above those involved in an ‘ordinary employment dispute’ ”), and Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920-21 (Tex.App.-San Antonio 1997) (“Only in the most unusual of employment cases does the conduct move out of the ‘realm of an ordinary employment dispute’ and into the classification of extreme and outrageous .... ”). Subsequently in Hoffmann-La Roche v. Zeltwanger, 144 S.W.3d 438 (Tex.2004), the plaintiff brought a sexual harassment claim under the TCHRA, along with a claim for IIED. The Texas Supreme Court opined that “the tort should not be extended to thwart legislative limitations on statutory claims for mental anguish and punitive damages.” Id. at 447. Finding that by combining her sexual harassment claim with one for IIED, which the Texas Supreme Court determined was not independent of the sexual harassment claim, the plaintiff improperly circumvented the legislature’s determination of the maximum amount a defendant should pay for such conduct in the TCHRA. Id. at 447 and 450. “Where the gravamen of a plaintiffs complaint is really another tort, intentional infliction of emotional distress should not be available.” Id. In Zeltwanger’s case, because “[t]he gravamen of [her] complaint is the type of wrong that the statutory remedy was meant to cover,” the Texas Supreme Court concluded that she could “not maintain an succeeds on, or even makes, a statutory claim.” Id. at 448. In Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex.2005), the Texas Supreme Court reiterated that “the intentional infliction of emotional distress is a ‘gap filler’ tort never intended to supplant or duplicate existing statutory or common-law remedies. Even if other remedies do not explicitly preemp