*1 prices Evidence that different refiners. INC., ROCHE HOFFMANN-LA of trade is to different classes
are available
“Roche,” Petitioner
faith under section
not evidence
bad
a/k/a
Ajir
Corp.,
Exxon
No. C 93-
2.305. See
v.
v.
(N.D.Cal.
261412,
20830,
at *4
1995 WL
1995)4 (“The
ZELTWANGER,
of different
Joan
May
existence
Joan
a/k/a
Gonzales, Respondent.
trade
not
classes of
is
prices
different
is
that [a refiner]
sufficient
demonstrate
No. 02-0120.
gasoline.”),
overcharging
plaintiffs
(table), 1999
aff'd,
purchase Shell-branded faith or an
price” is not evidence of bad meaning Com-
abnormal case within 214. Dealers are
ment 3. 102 their own
only “captive” as a result of lessee
choice to become Shell-branded
dealers, agreement their which involved price, at the DTW
buy gasoline from Shell price.
rather than at rack or some long-term fran-
That is the nature of a therefore the “captivity”
chise. Such
“normal” case. summary judgment evi-
Because the posted price that Shell’s
dence establishes commercially reasonable and
was both Dealers, we reverse
fairly applied to the appeals of the court of judgment plaintiffs that the take judgment
render
nothing. O’NEILL, Justice
Justice
SCHNEIDER, did and Justice BRISTER in the decision. participate rules, opinions. Cir. R. 36- among 9th unpub- conflict the Ninth Circuit’s
4. Under 3(b)(iii). to demonstrate opinions be cited lished *3 Nelson,
Levinger Stephanie Dooley Blumen- Carrington Coleman Sloman & thal, Gruber, L.L.P., G. Michael Brian N. Hail, Gruber, P.C., Dallas, for Re- Godwin spondent. delivered the
Chief Justice PHILLIPS
opinion of the Court in which Justice
HECHT,
OWEN,
Justice
Justice
JEFFERSON, Justice WAINWRIGHT
*4
joined.
and Justice BRISTER
plaintiff
We must decide whether a
can
on a claim
damages
recover
for intentional
infliction of emotional distress when the
Legislature
statutory right
has created a
damages
to seek emotional
for the same
actions that form the
of the
basis
inten-
tional-infliction claim. The
ap-
court of
peals
plaintiff
concluded that the
could re-
claims,
cover
electing
under both
anguish
punitive damages
mental
un-
der her intentional-infliction claim while
taking
compensatory
other
damages and
attorney’s fees under her sexual harass-
ment claim.
appeal, $50,160 infliction for intentional amount began working November Zeltwanger her sexual of emotional distress. On Roche, representative for as a sales Roche, jury against claim harassment capacity, company. pharmaceutical $835,963for front and Zeltwanger awarded home, out of her as did Zeltwanger worked $500,000 compensatory dam- pay, back Roche, representatives. Roche sales $8,000,000 puni- ages, and an additional companies, many sales pharmaceutical like the intentional infliction damages. On tive offices, instead regional not maintain did *5 Roche, against claim of emotional distress solely operations nationwide running its $1,000,000 jury for mental awarded headquar- Jersey corporate from its New $73,000 past and future medi- anguish, ters. $8,000,000 care, in punitive and another cal . 1992, Zeltwanger worked under Until Acknowledging potential double damages. manager Betty Turic- sales Dallas-based statutory cap3 recovery applicable and a Roche su- chi. Turicchi became When $500,000 respect to the considerations with Webber, a Dal- region, in another pervisor $8,000,000 pu- and the compensatory became manager, las-based division sales award, damages of the harassment nitive Zeltwanger tes- Zeltwanger’s supervisor. her harassment Zeltwanger moved to limit dirty began telling tified that Webber attor- pay to front and back and damages half of of her the last jokes front anguish taking her mental ney’s fees while Zeltwan- 1992, four months after three or damages under her intention- punitive division, on to and went ger moved into his trial court there- al-infliction claim. The objectionable conduct. in other engage Zelt- judgment awarding fore rendered behavior Zeltwanger discussed Webber’s $847,036 on her harassment wanger Turic- on several occasions. Turicchi adjusted with pay comprising front back chi, pointers on Zeltwanger says, gave Judg- interest. disability payments and ev- and “document how to handle Webber infliction of emo- on the intentional ment warned Roche, happening” but erything that was against claim tional distress which inconvenience, enjoy- anguish, loss of mental Code were provisions 2. These of the Labor losses, life, nonpecuniary on part of the Texas Commission enacted as ment 1983, 25, Rights June damages Act. See Act of punitive Human the amount of as well as C.S., ch.7, § § Leg., 46 cmt 46 cmt 1st 68th awarded. 1.01-10.07, (cur- Tex. Gen. Laws 37-58 § § 46 Lab.Code 46 cmt rent version at Tex. Code Practice and Remedies 4.Texas Civil cmt21.001-.306). 41.008; a limit provides on which section awards, applies only damage punitive certain corporations as Roche against such In suits 3. September accruing after on or to actions employees, section than 500 that have more R.S., 20, 1995, April 74th 1995. See Act caps at Code of the Texas Labor 21.2585 19, § Tex. Gen. Laws 46 cmt ch. $300,000 compensa- of the amount of the sum 113. awarded for future tory losses, pain, suffering, pecuniary emotional making her that a claim of harass- of the room heard standing sexual outside & ment within the this as I entered back into the room. company jeopardize would Zeltwanger’s chances of advancement. (under- 6. panty Told Howard Stern Subsequently, Zeltwanger Turiechi wear) advised story daughter from a concert his that she would need to contact hu- wearing pant- attended —ask me if I was man representative resources Betty DeVos my story ies. This was told in one of GI in order to make a complaint. formal up offices I set teleconference last spring.
Zeltwanger eventually did contact De- Despite my protest he continued as fol- Vos, 19, 1994, August and on she faxed a lows: handwritten, her, five-page statement 7. Last winter trip while field Jim following complaints
which made the about inappropriate made references to his Webber: body parts ding i.e. dong” “his & how 1. Mtgs Last fall at Div with Zore— whipped when he was in school he it out during Rocephin game. I a ques- won him I class. told did not want to my tion & he delivered between his $5 hear it. teeth stating you’ve to me & implied 8. Last winter while on field trip Jim you’ve never been to those top-less bars my having made reference to a bad hair in front 2of work groups. Betty Turri- day my & flung by touching hair it in chi witnessed this meeting. Her divi- my hospital pharmacists. front of one of group sion or was there also. Before this call I was lectured about 2. At Dir Mtg dirty jokes last fall—told *6 going “kicking & some ass” with this & talked about top-less dancers. I told telling RPH & him a liar what he is for him I jokes do not like like that & did publishing hospital. newsletter at He not want to hear them. continually disregards my credibility & 3. Talked about his car name was work involved with BID dosing college & that they used to have sex or problem hospital. at this To which “do it” in the car. attempts situation have been with in converting QID BID to dosing 4. of Roce- Last summer field trip continually — phin. dirty jokes tells & inappropriate —ver- sorority balized to me the girls “he 9. month trips pre- Last on field as on in college screwed” the couples they continually vious others he mentions & (him wife) hang & his still alludes to his sexual around & his encounters & sex (on back) goal positions screwing to “do them” all his standing while while girl trunk my apartments of car. I this who lived in these responded with pass apartments. “I as we I don’t want to hear advised this.” him at I the time don’t to hear this. want 5. Had lunch last Summer/Spring with 10. Last Dec. when Jim Webber came my Arl. Memorial Hospital Anesthesia & my samples to house to check I inwas Jim made a comment to physicians those my filling office out a form. IWhen was that I typical homely Betty was not the I him in my finished found bedroom. Turiechi thought joke hire & he it was a I him doing When ask what he was & to when I Bennigans walked into for a get my out of bedroom he said he was (the Drs.’) confirming interview. Their trying my to find stereo. reply typical Betty was—what is a Tur- icchi hire? reply they Jim’s was don’t There will be more to follow I contin- legs body have & a like that. I was ue compile a list. me Mr. Webber belittled 24, 1994, trip, the same conducted August
On Webber referring to a my hair and by flinging performance review regularly-scheduled my hospital day” hair in front of and Tur- “bad Zeltwanger Zeltwanger, of which pharmacists. that Zeltwanger richi testified attended. yelled” at her and Webber “screamed in December Mr. trip, —On a later job performance repeatedly criticized her sexual encounters described Webber that Turicchi testified during this review. preferred position when “screw- and his discussion at the review focused apart- in those ing girl who lives Zeltwanger’s job performance, particularly ments”, passed apartment com- as we skills, disa- Zeltwanger and that sales plex. assessment of her greed with Webber’s my privacy also invaded —Mr. Webber In his written evaluation performance. came entering my when he bedroom review, gave Zelt- based on the Webber samples. my inspect home to average rating, “H” a below
wanger an 1994, at several division early —In signifies employee designation spoke topless meetings, Mr. Webber “meeting most” of the standards but needs offensive, jokes. obscene bars and told after this improvements. Shortly to make review, investigation completed its if I asked —In Mr. Webber Spring Zeltwanger’s complaint and terminated This was also re- wearing panties. inappropriate be- Webber because his in one of the offices physicians peated Zeltwanger. havior with up for a teleconference. I set while 1994, Zeltwanger At the end of received 1994, I overheard spring/summer —In that Roche had fired her also. notification telling physicians Mr. Webber thereafter, complaint Shortly she filed a homely hire” and typical “was not the against Roche with for sexual harassment body like “they legs don’t have Rights. on Human the Texas Commission that!” the section entitled “Discrimination Under trip, field on a —In mid summer *7 Statement,” she stated: and told lewd continually Mr. Webber I discriminated I believe that have been the sorori- jokes. mentioned smutty He the Texas Com- against, in violation of college. He in ty girls “he screwed” Act, Rights Human as mission on “do it” goal was to also stated that his amended, of the Civil and Title VII his car. trunk of standing at the while 1964, amended, Rights Act of because Mr. rebuffed Webber repeatedly A. I (sexual harassment), sex, my of female mat- only made but this for his behavior inasmuch as: was My work environment ters worse. reflections Background: Jim Webber’s intolerable. exploits, to his sexual and references hostility and B. Due to Mr. Webber’s nature, matters of a sexual became and that a third vindictiveness, I requested always managed get non-stop and my at review party present impartial of this intol- examples personal. Some His behavior was 1994. early August in are: erable behavior unjustly my review was unbearable 1993, trip early Winter —On a field counsel- I forced to seek negative. was re- inappropriate made Mr. Webber ing. i.e., body parts, “his about his marks an internal investi- school, aware that C. am remarked that ding-dong” and found behavior of Mr. class, gation it On Webber’s “whip out”. he used
445 Southwest, allegations the harassment had trivialities. GTE Inc. v. Bruce, 605, (Tex.1999); “merit.” 998 S.W.2d 612 (Second) § Restatement of Torts 46 cmt Zeltwanger’s complaints have remained (1965). 46 cmt. d It the court to largely unchanged throughout litiga- determine, instance, in the first whether a tion, although at trial she added that she defendant’s conduct was extreme and out- caught once going through Webber her Southwest, Inc., rageous. GTE 998 drawer, merely underwear he had (Second) 616; Restatement entered her bedroom without permission. § Torts 46 cmt 46 cmt. h. But when rea- Zeltwanger explained at trial that she differ, jury, it sonable minds is for the maintained a home office and that it was control, subject to court’s to determine procedure supervisor standard for her whether, case, particular in the the con- come to inventory her home to take an sufficiently duct outra- extreme and pharmaceutical samples. During one geous liability. to result GTE South- inventory, such Webber wandered into her Inc., west, 616; 998 S.W.2d at Restatement through bedroom and went her underwear (Second) § of Torts 46 cmt 46 cmt. h. Zeltwanger drawer. also offered medical testimony at trial experienced that she In addition to her common-law symptoms depression partial dis- claim for intentional infliction of emotional ability as a result alleged of the conduct. distress, Zeltwanger sought damages for Roche’s violation of the Texas Commission Ill (CHRA). Rights on Human Act This stat To recover for inten prohibits employer ute from discrimi distress, tional infliction of emotional a nating against an individual because of (1) plaintiff must establish that: the defen race, color, sex, disability, religion, national (2) dant acted intentionally recklessly; or origin age. § See Tex. Lab.Code 46 the defendant’s conduct was extreme and cmt 21.051. Sexual harassment5 is one (3) outrageous; the defendant’s actions form of prohibited employment discrimina caused plaintiff distress; emotional Bank, tion. See Meritor Sav. FSB v. Vin (4) resulting emotional distress son, 57, 64, 2399, 477 U.S. S.Ct. was severe. Standard Vegetable Fruit & (1986); L.Ed.2d 49 Ewald Wornick Johnson, (Tex. Co. v. 985 S.W.2d Foods, Family Corp., 878 S.W.2d 1998). Extreme and outrageous conduct is (Tex.App.-Corpus Christi writ de “ character, ‘so and nied). so extreme in degree, go beyond as to all
possible decency, bounds of and to be re The CHRA “is modeled after garded atrocious, utterly and intolerable federal the purpose executing law with of ” in a community.’ civilized Twyman policies v. set forth Title VII of the (Tex.1993) 619, Twyman, 855 S.W.2d 621 federal Rights Civil Act of 1964.” v. Green (Second) (quoting Contractors, Inc., Restatement of Torts Specialty Indus. 1 (1965)). § 46 cmt Liability 126, 46 cmt. d (Tex.App.-Houston does S.W.3d 131 [1st insults, 1999, not extend to indignities, mere pet.); no see also Tex. Lab. Dist.] threats, annoyances, petty 21.001; § oppressions, § 46 cmt. 42 Code U.S.C. 46 cmt 5. generally Sexual harassment claims take ei- that creates a hostile or offensive work envi- (1) quid pro quo Dean, ther of two forms: ment, harass- Syndex Corp. ronment. v. 820 S.W.2d employment in which benefits are con- 1991, denied). (Tex.App.-Austin 871 writ favors; (2) ditioned on sexual and harassment
446 1964). for mental an- (Civil million As claim and about Rights $9 Act of
2000e-2 her in- damages under guish punitive and such, may law be cited as federal case of the claim. Because Texas tentional-infliction authority relating to the cases awards, the trial court in these County duplication Sher- Act. v. Stinnett Williamson Zeltwanger to take her mental (Tex.App.- 576 allowed Deft, 858 S.W.2d iffs denied). damages under the anguish punitive and The CHRA Austin writ claim, collecting only “comprehensive ad- intentional-infliction further establishes damages under the pay front and back system,” under which her ministrative review Zeltwanger’s choice was statutory claim. remedies the “exhaustion of administrative understandable, statutory recovery as her mandatory filing a civil prerequisite is a $300,000, damages capped for these violations of the CHRA.” alleging action Works, Inc., damages were then while her common-law Iron 813 Schroeder Tex. (Tex.1991). Thus, part take 483, 485, by electing to uncapped. 488 her common law damages of her under creating of action discrimi- causes effect Zeltwanger avoided the tort harassment, nation, both including sexual statutory cap. of the have Congress Legislature and the Texas and amounts of dam- specified types IV may 42 U.S.C. ages that be awarded. See Zeltwanger has complains that 1981a(b)(3); § § Tex. Lab.Code 46 cmt the intentional-infliction improperly used provides that a cmt 21.2585. The CHRA limitations on legal tort to circumvent compensatory damages may court award anguish punitive the amount of mental has en- finding employer that an upon harass- in a sexual damages recoverable employ- intentional gaged an unlawful inten- submits ment suit. Roche pu- further award practice ment “gap-filler” tort is a tional-infliction discriminatory damages nitive when circumstances special under only applies malice or reckless indiffer- practice is with permit torts do not when more established 21.2585(a), § cmt Tex. Lab.Code ence. provided recovery. Because the CHRA (b). caps Act further The Texas essentially the same statutory remedy for compensatory dam- punitive award of conduct, gap there was no Roche submits sliding scale commensurate with ages on a law and hence filled the common to be § cmt employer. Id. the size of the further right to an award of 21.2585(d). no largest employers, like The Alternatively, Roche contends it. against Roche, subject cap to a maximum are ap- intentional infliction 21.2585(d)(4). that if the tort of $300,000. § 46 cmt The Id. here, legally insuffi- the evidence is plies capped are compensatory damages which of its elements. satisfy one or more cient to include, among things, specifically inconvenience, pain, suffering, “emotional that her intention- Zeltwanger responds life, enjoyment anguish, loss mental claims harassment al infliction and sexual § Id. losses.” nonpecuniary and other same entirely upon the not were based 21.2585(d). cap apply cmt The does *9 the ac- the same facts. While conduct or equita- and pay, pay, interest on back back did include through Webber tions of Roche 21.2585(c). §Id. 46 cmt ble relief. harass- and sexual extreme ment, they also Zeltwanger submits out, jury awarded previously As set humiliation, intimidating public in included million Zeltwanger approximately $8.5 in- abuse, threatening gestures, verbal anguish punitive damages for mental in her own privacy Zeltwanger’s of harassment vasions under her sexual damages
447 Furthermore, Zeltwanger existing home. common law remedies. supplant contends cabined, Properly simply the tort has no “gap-filler” argument that Roche’s is an to in application when the “actor ‘intends appellate afterthought that was neither interest,’ legally protected some vade raised nor in the trial court. preserved even if emotional distress results.” Id. at Finally, Zeltwanger concludes that the evi- (Second) (quoting 67 Restatement of Torts fully supports jury’s finding dence (1965)); § 46 cmt 47 cmt. a accord Mes- intentionally recklessly caused Inc., Toyota Mfg., Ky., sick v. Motor 45 through her severe emotional distress ex- (no 578, (E.D.Ky.1999) F.Supp.2d 582 treme and outrageous conduct. claim for intentional infliction emotional plaintiff existing distress because had an A recovery form of for emotional distress gap-filler argument Roche’s is based on R.T.R., statute); rights under civil v. K.G. Vege- our decision in Standard Fruit and (Mo.1996)(intentional 795, 918 S.W.2d 799 Johnson, 62, table Co. v. 985 S.W.2d 68 infliction of emotional distress claims “will (Tex.1998). recognized There we that the alleged not lie intend where the conduct is intentional infliction of emotional distress legally protected ed to invade other inter was, foremost, tort, first and a “gap-filler” plaintiff”); McIntyre ests of the v. Man judicially created for purpose the limited Ford, Lincoln-Mercury, hattan Inc. 256 of allowing recovery in those rare instanc- 269, 167, A.D.2d 682 N.Y.S.2d 169 ines which a defendant in- intentionally (no (N.Y.App.Div.1998) apply reason to flicts severe emotional distress a man- tort of intentional infliction of emotional ner so unusual that the victim has no other applicable distress where an statute ex recognized theory of redress. Id. The pressly provides for emotional distress purpose,” noted, tort’s “clear we was “to Snow, damages); Haubry v. 106 Wash. supplement existing recovery by forms of (2001) (“em 666, 1186, App. 31 P.3d 1193 providing a cause egregious of action for ployee may recover of emotional might conduct” that go otherwise unreme- only distress ... but if factual basis cautioned, however, died. Id. We that the for the claim is distinct from the factual tort “a ‘gap-filler’ tort that should not claim”). basis discrimination extended circumvent the limitations gravamen plaintiffs Where the of a com placed on recovery anguish mental tort, plaint really another intentional damages under more established tort doc- infliction of emotional should not distress trines.” Id. See, e.g., v. be available. Provencher CVS Likewise, case, in this the tort (1st Cir.1998) 5, Pharmacy, 145 F.3d 12 should not be legisla extended to thwart Sweet, (defamation); v. Thompson 194 tive statutory limitations on claims for (mali (N.D.N.Y.2002) 97, F.Supp.2d 103 anguish punitive By mental damages. prosecution, imprisonment); cious false combining her sexual harassment claim Co., Bangor Publ’g F.Supp.2d Norris 53 v. tort, with the intentional-infliction Zelt- (D.Me.1999) 495, (defamation); 508-09 circumvented, wanger has more than Huang, Barker v. 610 A.2d thirty-fold, legislative (Del.1992) Fritsch, determination of (defamation); Banks v. (false the maximum amount that a defendant (Ky.Ct.App.2001) pay type should for this battery); conduct. imprisonment and assault and tort, Coll, creating the new we intended Valley never Nazeri v. Mo. 860 S.W.2d (Mo.1993) (defamation); Quaker that it be used to legislatively-im evade Pe posed statutory Waldrop, limitations on claims or to troleum 75 S.W.3d *10 Chems. Co.
448 of privacy, power, 555 Antonio no abuse and mistreat- (Tex.App.-San
pet.) (negligence, negligence); employee Rice ment to have been gross of an known Janovich, P.2d susceptible 109 Wash.2d to emotional rendered distress. (1987) (assault). Thus, 1230, 1238 we need responds throughout that this Roche whether, not decide in the absence of a Zeltwanger consistently case has treated harassment, legislative remedy for sexual as set Webber’s behavior a cohesive be the evidence here would sufficient to support actions that both her sexual a claim for intentional infliction of intentional-infliction harassment emotional distress. anguish of her claims. None mental evi- concurring In her opinion, Justice separated dence at trial was into one claim expresses that gap- O’Neill concern our other, that any and Roche submits analysis may filler lead to con unintended such would have been designation artificial sequences larger monetary such a re harassment, any event. Sexual Roche in tort covery plaintiffs for who cannot out, points often devolves into other forms sustain their for sexual burden harass bullying. of abuse and ment. the fact She asks: “Does that the differ- appeals the court of did not While plaintiff evidentiary did not its sustain bur sexual and non-sexual con- entiate between gap den on an claim alternative create duct, following acts by it did find intentional-infliction that was to designed Roche, to consti- together, taken sufficient fill?” analy She further worries that our (1) tute extreme and conduct: may lead trials sis to skewed in which development of a cor- Roche “allowed” advantageous find defendants it to confess vulgar joke- porate permitted culture that liability for sexual harassment to avoid (2) initially to telling; Turicehi re- failed more onerous under the awards intention Zeltwanger’s port management upper al-infliction In answer to tort. these con con- with her about Webber’s discussions cerns, we note plaintiffs that a failure to duct; (3) subjected Zeltwanger to Roche his claim establish or her for sexual with in-person review August plain harassment not mean that the does complained formally Webber after she had tiff has a claim intentional infliction of Turicehi about conduct and sent gravamen If the Webber’s emotional distress. of a authority only without complaint as an observer plaintiffs type wrong is the verbally abused remedy intervene when Webber statutory meant to (4) cover, session; during this Roche plaintiff Zeltwanger cannot maintain an inten Zeltwanger regardless tional infliction claim terminated and caused of wheth was, on, makes, in part, er he or she or even believe this termination based succeeds statutory claim. unfavorable evaluation of her Webber’s (5) review; August
B
managers like
to function
allowed
Webber
unsupervised
(including
the field
cars
however,
contends,
Zeltwanger
that she
homes)
responsibility
with direct
recovery
can elect the higher
here because
Zeltwanger.
employees
female
like
grounds,
independent
apart from sexual
harassment,
assuming
at 646-47.
Even
argues
for the tort. She
exist
con-
might
some or all of this
conduct
egre-
that there
evidence of additional
Zeltwanger’s
non-sexual,
independent of
but
in sidered to be
gious,
wholly
humiliation,
assertion of
case
sexual harassment
involving public
ver-
threats,
skeptical
which
need
de-
oppression,
bal
invasion
we are
but
physical
*11
cide,
any way
in
extreme or
supervisor
it
not rise to the level of ex-
to a
does
outrageous.
is the location of the
outrageous
or
conduct.
Nor
treme
Roche
given
circumstance that
review
First, Zeltwanger’s proof
that
in
physical
not have
offices
Texas.
did
of in
corporate
Roche allowed a
culture
that she felt
Zeltwanger does not assert
jokes
mi
relating
sensitive
to women and
by
prospect
physically imperiled
constituting
norities falls short of
extreme
home, especially with
going to Webber’s
outrageous
Zeltwanger’s
conduct.
ev
present.
Turrichi
only
idence showed
a handful of instances
Fourth, Zeltwanger’s charge that
jokes being
among
of off-color
told
Roche
to
that
Roche led her
believe
Webber’s
employees
a
period
years
over
of several
of her after this
performance evaluation
1,000
company
people.
with
sales
Such
review session was a factor
her termi
legally
evidence is
that
insufficient to show
outrageous.
nation is not extreme or
We
encouraged
Roche fostered
culture that
workplace
employment
have held that
outrageous
extreme and
conduct.
“criticism,
recogni
matters such as
lack of
Second, we conclude that Turic-
tion, and low evaluations” are not action
report Zeltwanger’s
chi’s failure to
con
able,
if they
unpleasant
even
are
or unfair.
cerns about Webber
to others within
Southwest, Inc.,
GTE
Webber’s home. Her is not that C present, Turicchi was but that had Webber days prepare Zeltwanger finally argues several for the review knowing argu that Zeltwanger “gap-filler” would not be Roche failed to raise its alone. do not in the trial court and thus has We believe such notice ment waived
450 damages by caused the same emotional under the intention- damages
the award of actions, there is no essentially that the same submits Roche al-infliction claim. She in case and thus no exception gap plead by special did not or assert remedial any in under per that this tort was se unavailable for the award Moreover, statutorily-aetionable sexual claim. involving case the intentional-infliction that object jury only to the consider conduct harassment nor did it even were we to independent com- charge might arguably on this But Roche did that form basis. indulge every a claim and plain judgment in motion for non ob- for such its basis in infliction and intendment fa- stante veredicto that intentional reasonable inference that not be it would still not be gap-filler a tort could vor of such According- limitations a fact issue. to circumvent sufficient to raise extended affirming in recovery anguish appeals of mental erred placed ly, the court motion, specifical- judgment trial court’s damages. part In this that of the theory. the tort awarding damages limitations set out Stan- ly urged the under judgment v. Johnson: that and remand the Vegetable dard Fruit and Co. reverse We it to render to the trial court for cause opinion John- Supreme Court’s [T]he damages un- appropriate for the judgment pur- the tort’s clear explains son claim. Zeltwanger’s sexual harassment der existing forms of pose supplement is to action recovery by providing a cause of concurring HECHT filed Justice particularly egregious opinion. neighbors in tort
its more established In technically fence out. doctrine would concurring filed a Justice O’NEILL short, infliction of emotional intentional joined. SMITH opinion which Justice that cannot “gap-filler” is a tort distress circumvent the limita- be extended to not did Justice SCHNEIDER recovery of mental placed tions on the in the decision. participate damages under more estab- anguish HECHT, concurring. Justice lished tort doctrine. I join opinion because I the Court’s (citations omitted). pre- Because the issue intentional infliction that the tort of agree not question which did pure legal sented in cir does not lie of emotional distress finder, the jury’s role as fact affect liability is determined cumstances where pre- motion was sufficient to post-verdict statute since “the torts or by other Holland v. Wal-Mart serve error. See supplement is to exist purpose tort’s clear (Tex.1999) Inc., Stores, by providing a cause recovery ing forms (“no post-verdict treat a logical reason to egregious conduct ‘that its of action for challenge differently than legal availability neighbors tort doc more established sufficiency challenge”). post-verdict legal ”1 technically This fence out.’ trine would with, departure not a consistent is from, position that my more fundamental sum, that Zeltwan- In do not believe we infliction of emotion the tort of intentional claim is ger’s indepen- intentional-infliction at all for the not exist Be- al distress should harassment claim. dent of her sexual ago years eleven remedy explained reasons provides a cause the CHRA Johnson, ted). Vegetable Co. v. 1. Standard. Fruit (citation (Tex.1998) omit- 985 S.W.2d O’NEILL, joined by Twyman.2 Experience since concurring,
Twyman v. Justice prove much to those reasons Justice SMITH. then has done correct, yet but since Court clearly has attempting to cabin what *13 towel, in I ready accept to throw the a tort, and overused amorphous become an that to have been latent restriction seems a cure that is has fashioned the Court tort, in thinking the that created the “gap-filler” The worse than the disease. I to understand it. best have been able adopts the to deter- approach that Court viability of a claim for intentional mine the agree
I also O’Neillthat the with Justice unwork- infliction of emotional distress is case do not rise to the level facts of this juris- and ill-advised. The sounder defining in tort. Jim able set this Court the again prudential course would be to once Zeltwanger’s Webber’s conduct as Joan su- stringent threshold an em- certainly objectionable, emphasize the pervisor rep- rehensible, to assert an intentional- ployee must meet disgusting, times even but (hence occurring infliction claim based on conduct regrettably not that unusual the presented in statutory remedy workplace. a the The enactment of for sexu- case, although certainly repugnant in in this workplace), al harassment the and not reprehensible, did not rise to the ex- “utterly intolerable in a civilized communi- tremely high level we have set for this ty”.3 judge The fact that the trial and at I in justices Accordingly, tort. concur the Court’s appeals least three on the court of view, judgment, reasoning. but not its disagreed sup- with this which is law,4 posed to be a matter of and that their
position way is in no flawed simply but is I different from mine and at least two other that the approach Under the Court Court, Justices on this makes me as un- today, availability remedy of a adopts the Twyman I comfortable as was in that the an for sexual harassment would foreclose liability core standard of for the tort claim to the extent intentional-infliction very subjective. given way But the the upon are the the two claims based tort, has Court defined the the discomfort Though beguilingly straight- same facts. is unavoidable. theory, “gap-filler” ap- in the forward
Today’s
proach
myriad problems
appli-
rule is not based on the exclu-
presents
will, believe,
preemptive
ultimately prove
sive or
nature of another reme-
I
cation that
dy
example,
but on the nature of the IIED tort
to
For
it is often
be unworkable.
itself.
I think
facts
right
Justice O’Neill is
difficult to discern whether
same
action,
applying
certainly
the rule will almost
will
different causes of
highly problematic,
virtually
prove
pros-
forcing
but that
the fact-finder “to draw a
pect strikes me as one more
between recoverable
impossible
reason
distinction
injuries.” Twyman
v.
tort
altogether.
abandon the
Until
and disallowed
(Tex.1993)
619,
Twyman,
conclusion,
Court reaches the same
855 S.W.2d
tort,
C.J.,
dissenting).
problems
including
(Phillips,
concurring
of the
those creat-
one,
necessary
employer
like this
would
today,
ed
are
evil.
cases
Bruce,
Southwest,
(Tex.1993)
998 S.W.2d
2. 855
629-634
4.GTE
Inc.
J.,
(Hecht,
concurring
dissenting).
(Tex.1999).
(Tex.1993)
Twyman,
3.
essentially required present designed evidence tion was be sons, adopt categorical complained to show that of were would decline the acts case, motivated, sexually supporting gap-filler approach in fact without thus might foreclosing possibility that it sexual harassment order to other. summary disposition appropriate obtain of a claim for some intentional infliction of emotional distress. II
Moreover, supervisor’s some of a while alternatively chal- Hoffman-La allegedly workplace abusive actions sufficiency of the evidence motivations, lenges legal may have sexual others *14 claim for inten- Thus, support Zeltwanger’s to not. support conduct that would distress, of emotional tional infliction might sup- intentional-infliction claim not acts, only on Roche’s claim, whether we focus port a sexual harassment and vice- did-,or on Webber’s as case, appeals the court of Zeltwanger alleges versa. this claims there is Specifically, well. Roche sepa- certain actions that she claims are outrageous extreme and no of apart constituting rate and from those evidence sex- purposes it for harassment, conduct as we have defined “public ual humilia- such as that, as a matter of tion, threats, agree of this tort. oppression, physical verbal law, support a the record here will of of an power, abuse and mistreatment emotional infliction of for intentional employee suscepti- to peculiarly known be distress. simply to emotional can- ble distress.” We jury not know until a returns its verdict in- for intentional To recover alleged behavior particular
whether or not distress, plaintiff a fliction of emotional motivated, sexually and even then it (1) act- that: the defendant must establish prove impossible will if not for difficult (2) recklessly; the de- intentionally ed potentially reviewing parse courts to the outra- and fendant’s conduct was extreme overlapping might support evidence that (3) actions caused geous; the defendant’s jury’s findings. the (4) distress; the plaintiff emotional was severe. Adopting categorical “gap-filler” ap- resulting emotional distress Co. v. John- proach presents prob- Vegetable all cases Standard Fruit & (Tex.1998). lems, son, To instance, plaintiffs may as well. For 985 S.W.2d 65 purposes of forego pleading outrageous choose to other available extreme and “ ‘so outra- obtaining tort, the conduct must be hopes potential- remedies character, in de- geous in and so extreme ly more lucrative intentional-infliction re- beyond possible all bounds covery. gree, go This would have the untenable as to as atro- regarded forcing decency, defendants to assume the and to be effect cious, in a civilized utterly intolerable proving burden of alternative means of ” Twyman Twyman, recovery community.’ to avoid in- against themselves (Tex.1993) (quoting Re- if exposure. tentional-infliction And the S.W.2d (Second) § cmt 46 of Torts plead multiple lia- statement plaintiff does decide (1965)). facts, It is for the court bility based on the same cmt. d theories instance, determine, whether jury if find in the first happens what fails to liabil- stan- high in- has met this ity any particular other claim but intentional conduct Bruce, Southwest, Inc. v. fliction of emotional distress? Does the dard. See GTE (Tex.1999); 605, 616 Restate- fact that did not sustain his or 998 S.W.2d plaintiff (Second) h § 46 cmt 46 cmt. evidentiary on an alternative ment of Torts burden (1965). intentional inflic- gap claim create a long employee as the context as that, involving ployment in cases
Roche contends
the cause of
elements of
courts
establishes the
workplace,
in the
sexual misconduct
cautioned, howev-
611.
in at-
Id. at
We
reached irreconcilable results
action.”
have
claim “does
er,
outrageous
that an intentional-infliction
to define extreme and
tempting
disputes,”
ordinary employment
conduct,
providing
guidance
no clear
not lie
612-18,
“only in most unusu-
but
urges us to articulate
id. at
employers. Roche
In that
Id. at 613.
sexual
of circumstances.”
delineating
criteria
when
al
specific
case,
sued GTE
employees
so
workplace
in the
becomes
three female
harassment
abusive con-
upon
supervisor’s
claim for
their
that it will
based
egregious
that, like Web-
was evidence
intentional infliction of emotional distress.
duct. There
ber,
continually told offen-
supervisor
in this
Extreme and
context,
contends,
engaged in sexual innuendo
jokes
be defined
sive
should
objections.
employees’ repeated
continuing
of a
nature which
over
as behavior
additionally
of im-
But
there was
threatening
or so
Id. at 613.
physically abusive
that,
sex-
conjunction
physical
substantial
abuse
evidence
with
mediate and
*15
behavior,
harassing
supervisor
the
person
ually
would feel afraid.
that a reasonable
verbally
and
threat-
repeatedly physically
legal
Roche that
stan-
agree
with
the
employees. There
and terrorized the
ened
con-
outrageous
dard for “extreme and
evidence,
super-
example,
that the
was
an
support
duct” sufficient to
intentional-
visor
to be amor-
proved
infliction claim has
that
continuously
rage,
[he]
in a
and
Since we
phous and often inconsistent.
em-
assault each of the
frequently
would
tort,
the
it has been criticized
adopted
first
by physically charging
ployees
overly subjective
heavily
and
value-lad-
as
head
would bend his
See,
[He]
them....
e.g., Twyman,
en.
at 629
S.W.2d
down,
by
down
his
put
straight
his arms
(Hecht, J.,
In
concurring
dissenting).
and
fists,
sides,
hands into
and walk
ball his
context,
we
employment
particularly,
employ-
at the
“lunge”
quickly toward
exceptionally high
pre-
have set an
bar to
ees,
uncomfortably close to
stopping
liability
employers
facing
vent
from
yelling.
and
screaming
their faces while
“ordinary employment disputes.” GTE
exceedingly fright-
employees were
Southwest,
The
at 612-18. We
behavior, afraid that
[he]
ened
recognized
employers, improper-
have
that
testified
might
[A witness]
hit them.
businesses, must be af-
ly managing their
the em-
supervisor] charged
review,
that [the
supervise,
“to
forded wide latitude
them.
frighten
intent to
ployees with the
criticize, demote, transfer,
discipline
and
once,
employee came
another
At least
though
even
emotional dis-
employees,”
employee]
[another
and
fact,
[him]
between
In
likely
Id. at 612.
tress will
result.
charge.
her from
protect
[his]
employer’s
conduct to be
we have held
sufficiently extreme and
oth-
There were numerous
Id. at 613-14.
infliction
recovery for intentional
supervisor engaged
occasions
er
when
only
one occasion.
of emotional distress
employees to feel
that caused
behavior
that
reading
A close
id. at 617.
See
He
immediately physically threatened.
very
a test
applied
reveals that we
decision
daily require
employee
one
would at least
here.
to the one Roche advocates
close
office and stand before
to come into his
silently
at her for as
GTE,
he
stared
employ- him while
recognized
we
that an
minutes, on one occasion
thirty
long
for intentional
“may
recover
ee
leaning over
and
backing her into
corner
in an em-
infliction of emotional distress
liability
for intentional inflic-
engaged
supporting
her while he
verbal abuse.
Id.
at 614.
tion of emotional distress. And while tell-
jokes, discussing body
ing dirty
parts,
In sustaining
employees’ judgment
prowess,
boasting
flipping
of sexual
hair
for intentional infliction of emotional dis-
referencing
day,”
while
a “bad hair
and
tress,
emphasized
severity
we
“the
delivering
prize through
a cash
clenched
regularity of
supervisor’s]
[the
abusive
in a
though
topless
certainly
teeth as
bar
threatening
Id. at
conduct.”
617. We em-
unacceptable workplace
constitute
behav-
phasized
employers must have sub-
supportive
ior
of a sexual-harassment
leeway
stantial
in supervising and disci-
not,
law,
it does
as a matter of
plining
employees, and
“[occasional
amount to intentional infliction of emotion-
malicious and abusive incidents should not
al distress.
condoned,
but must often be tolerated
society.”
our
Id. But we concluded that
Undoubtedly, most conduct that would
supervisor
exceeded that lee-
GTE
support a sexual-harassment claim is out-
way by “regularly assaulting],
intimi-
intolerable,
rageous
presumably
dating], and threatening]” workers such very
Legislature
reason the
made such
workplace
that the
“a den of terror
became
statutorily
only
actionable. But
Thus,
employees.”
for the
Id.
we made it
repeatedly
when such behavior
becomes so
employee
clear that the bar an
must meet
intimidating that a
forceful and
reasonable
claim
assert a
for intentional infliction of person
immediately
would feel
threatened
emotional
workplace
distress
is ex- or afraid can a court conclude with suffi-
*16
ceptionally high.
certainty that
cient
the actor intended to
cause severe emotional distress or that
in
Zeltwanger alleges
The conduct
primary
severe emotional distress was the
case,
certainly vulgar
reprehen-
while
actor’s conduct.
risk of the
See Standard
sible,
not comparable
pattern
to the
Co.,
Vegetable
Fruit &
practices requiring Zeltwanger to un- dergo performance review Webber’s I concur in the Court’s Accordingly, home, structure, given the or in company’s reasoning. not its judgment, but advising that Turicchi would ob- Webber relying per-
serve the review. While compiled by supervisor
formance review expected objective could not be to be
who poor judgment, reflect business it is purposes
not extreme and