Court of Appeals of Texas, Dallas.

Jim COLLINS, Appellant,

v.

BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., Lonnie Owen and Phil Sposato, Appellees.

No. 05-93-00013-CV.

|

December 31, 1993.

Before LAGARDE, MALONEY and ROSENBERG, JJ.

LAGARDE, Justice.

O P I N I O N

*1 Jim Collins appeals the take-nothing summary judgment granted in favor of his employer, Boehringer Ingelheim Pharmaceuticals, Inc. (BIP), Lonnie Owen, and Phil Sposato. Collins brings five points of error contending that he adequately alleged a cause of action and that his claim of intentional infliction of emotional distress was not barred by res judicata, collateral estoppel, the statute of limitations, or the workers’ compensation act.

We hold that appellant failed to state a cause of action for intentional infliction of emotional distress and affirm the trial court’s judgment.

STANDARD OF REVIEW

The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The standards for reviewing a motion for summary judgment are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Wilcox v. St. Mary’s Univ., 531 S.W.2d 589, 592-93 (Tex. 1975). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of material fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex. Civ. App.-Amarillo 1979, no writ). Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiff’s case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. Torres v. Western Casualty Sur. Co., 457 S.W.2d 50, 52 (Tex. 1970); see also Puga v. Donna Fruit Co., 634 S.W.2d 677, 680-81 (Tex. 1982). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. Estate of Devitt, 758 S.W.2d 601, 602 (Tex. App.-Amarillo 1988, writ denied).

FACTUAL BACKGROUND

*2 Collins was a senior sales representative for BIP. In 1985, BIP hired a company to track each representative’s sales figures to determine the commission owed the representatives. In November 1987, Lonnie Owen, the Southwest Regional Director of BIP, placed several sales representatives, including Collins and his supervisor, Sposato, on probation. The representatives were told they were on probation until they sold ninety percent of the regional average of two of three promoted products. If the representative on probation had not reached that figure by July 1, 1988, he would be terminated. Sposato remained on probation until October 1988.

In January or February 1988, Collins began seeing a psychiatrist for depression, headaches, concentration difficulties, and stress due to work. On February 16, 1988, Collins filed suit in federal court against BIP alleging failure to pay him commissions earned, breach of covenant of good faith, and for fraudulently inducing him to accept a change in his commission compensation causing him to lose earned commissions. Collins states in his affidavit that, as of February 1988, his sales figures for the promoted products were among the best in the region. Although he outsold other salesmen not on probation, he was kept on probation. After the February 1988 sales figures were published in April or May, BIP changed Collins’ sales region by adding low selling territory to it and removing portions of his territory, which had the effect of lowering his sales.

On July 11, 1988, Collins met with Owen, who told him he had sold ninety percent of the regional average of only one of the three products, but because he had improved his sales of the other products, BIP agreed to continue his employment and keep him on probation. Owen told Collins that if his sales of the promoted products remained in the top half for the region, he would be taken off of probation. However, because of the change in his selling territory in April or May, Collins’ sales figures did not remain in the top half.

Sposato worked with Collins on “field contacts” on a monthly basis. Beginning sometime in 1988, Sposato began making comments on field contacts that Collins should take early retirement instead of dealing with the stress.

On October 31, 1988, Collins met with Owen to review his sales figures since July. In one of the promoted products, Collins’ sales had improved from 90.6 percent to 97.1 percent. In another promoted product, Collins’ sales had improved from 69 percent to 70.9 percent. In the third promoted product, Collins’ sales had dropped from 69.6 percent to 63.3 percent. Thus, Collins had failed to achieve the goal of at least ninety percent in two of the three promoted products. In total sales, Collins ranked thirty-first out of fifty-eight regional sales representatives. Collins had failed to stay in the top half of the sales representatives. Owen kept Collins on probation.

In April 1989, Collins attended BIP’s national sales meeting. While there, Collins met with BIP’s director of employee relations, Bill McCall. McCall told Collins that he would be treated as being age fifty-five if he wanted to take early retirement. Collins was age fifty-four at the time. Collins told McCall that he would not take early retirement as long as he was on probation. McCall told him that he could remove the probation before Collins retired. Collins told McCall that he would think about it. Collins did not tell McCall that he wanted to retire.

*3 Collins was diagnosed as suffering from depression. During the first six months of 1990, Collins received medical treatment including daily dosages of Prozac for the depression.

In January 1990, Collins complained to Sposato about not getting a new company car. Collins’ car had 54,000 miles on it, and Collins thought BIP’s policy was for the cars to be replaced after 45,000 miles. Collins complained that the failure to replace his car was “part of a pattern of discrimination and harassment directed towards” him. Owen informed Collins that the company policy was to replace cars when they had 60,000 miles. Owen pointed out that representatives on probation were not entitled to new company cars. Owen told him that the paperwork would be prepared on getting him a new car since his had nearly 60,000 miles, but the policy of not providing new company cars to representatives on probation could not be altered for Collins. Owen also told Collins that he and Sposato were doing everything they could to respond to his complaints. Owen told Collins to report any harassment so that he could take appropriate action. Collins remained on probation in January 1990.

On February 2, 1990, Owen criticized Collins for missing thirty days’ work due to illness the previous year when the national average was 6.6 days. Owen also pointed out that Collins had taken two days of sick leave in the preceding three weeks. He told Collins that any further sick leave would require a doctor’s certification.

In May 1990, Collins suffered stress-related chest pains. The sales figures that issued in May showed great improvement for Collins. Collins mentioned to Sposato that his continued probation would look good in his pending lawsuit in light of his improved sales figures. On May 29, 1990, citing Collins’ great improvement, Owen removed Collins from probation. Owen told Collins he was removed from probation because his sales figures averaged above 90 percent on the National Index, even though his sales of the promoted products were still below 90 percent regionally. Owen also told Collins that his improved sales figures would entitle him to a merit increase in October 1990. Throughout June and July 1990, Collins received commendations for high sales.

On June 19, 1990, Collins saw Dr. Skinner at BIP’s request. Dr. Skinner told Collins that his depression was related to work-related stress and that the long probation period had caused excessive stress.

On August 8, 1990, Collins attended the deposition of a coworker in Collins’ suit against BIP. After the deposition, Collins and Sposato had a heated exchange of words, which Collins described to Schuyler Proctor, the employee relations representative, as follows:

After the close of the deposition …, I was talking with Mike Gibbs, the attorney for BIPI. I asked Mike Gibbs to please send my attorney, Steve Angel, a list of the people he wanted to depose on behalf of BIPI so I could send Phil Sposato information as to what days I wanted off for vacation time so I could attend the depositions. I said Phil has been harassing me to get that information to him. Phil then spoke up and said he had not been harassing me. I said to Phil, “yes you have, you’ve been a real asshole about that.” Then Phil raised his voice and said don’t get personal with me. That’s the fourth time your client has got personal with me to Steve Angel. Then Mike Gibbs said to Steve Angel, “we should put boxing gloves on them and let them settle their differences.” I said to Mike Gibbs “that would be fine by me.” Then I said to Phil, “you are a backstabber, if I have something to say, I will say it to your face. If you are a friend, then I don’t need an enemy in the world.” That was the extent of the incident on August 8, 1990.

*4 BIP’s management viewed Collins’ conduct as constituting a near assault on Sposato. Collins’ scheduled merit increase was revoked after this insubordinate behavior.

On August 10, 1990, Collins received a letter from Dr. Berman, BIP’s health unit’s medical director recommending that Collins continue receiving ongoing psychiatric therapy to treat his depression. Dr. Berman told Collins he was glad Collins was working full duty as a sales representative. On August 15, Collins told Sposato that he would be off work due to illness until September 5, the first day that he could get an appointment with a psychiatrist. On August 21, Proctor told Collins that his absences from work did not count as medical disability leave because Collins did not obtain a medical opinion that he was disabled. Proctor told Collins that the four days he had missed since August 15 would be counted as vacation days, and he advised Collins that if he did not return to work immediately, his absences would be unexcused and subject to disciplinary action. Collins returned to work and, sometime thereafter, suffered a “black out” while driving his car.

The events of August and September made Collins even more depressed and angry. By October 27, 1990, Collins was no longer able to work due to his depression. On November 2, 1990, Collins was hospitalized for being deeply depressed and suicidal. Collins remained unable to work.

In May 1991, BIP informed Collins that if he did not return to work with a doctor’s opinion that he was mentally able to work, he would either have to take early retirement, obtain long-term disability leave, or, if he did none of these, be classified as an administrative lay-off. Collins’ doctor did not certify him as mentally able to return to work, and Collins was placed on administrative lay-off.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In his fourth point of error, Collins contends that the trial court erred in granting summary judgment on the ground that Collins failed to state a cause of action.

In Twyman v. Twyman, the Texas Supreme Court announced its recognition of the tort of intentional infliction of emotional distress. Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993); see Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). The court adopted the elements of the tort as stated in Restatement (Second) of Torts, section 46:

(1) the defendant acted intentionally or recklessly,

(2) the conduct was extreme and outrageous,

(3) the actions of the defendant caused the plaintiff emotional distress, and

(4) the emotional distress suffered by the plaintiff was

severe.

Twyman, 855 S.W.2d at 621; see Wornick Co., 856 S.W.2d at 734; RESTATEMENT (SECOND) OF TORTS § 46 (1965).

The element that conduct be extreme and outrageous “should be found ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Twyman, 855 S.W.2d at 621 (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)¹ ); see Wornick Co., 856 S.W.2d at 734. Conduct fitting this description is such that “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Cmt. d. The extreme and outrageous nature of the conduct “may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.” Cmt. f. Outrageous conduct is privileged where the actor “has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” Cmt. g.

*5 Whether conduct is outrageous is initially a question of law for the court. “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether in the peculiar circumstances of the case, the conduct has been sufficiently extreme and outrageous to result in liability.” Cmt. h; see Wornick Co., 856 S.W.2d at 734; Twyman, 855 S.W.2d at 625 n. 21.

APPLICATION TO COLLINS’ CLAIMS

In determining whether Collins’ claims state a cause of action, we must determine if reasonable men could differ as to whether the conduct of BIP, Sposato, and Owen was sufficiently extreme and outrageous to result in liability. Cmt. h; see Wornick Co., 856 S.W.2d at 734; Twyman, 855 S.W.2d at 625 n. 21.

All of the actions of BIP, Sposato, and Owen that Collins claims constituted intentional infliction of emotional distress arose out of the workplace. Courts have found outrageous conduct by employers in situations involving sexual harassment or physical assault, unnecessary public humiliation, or an otherwise lawful act carried out in an outrageous manner. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991) (vice president with thirty years’ experience demoted to janitorial duties in attempt to get him to quit); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989) (placing missing checks in employee’s cash box to make it appear she had stolen them); Pratt v. Brown Mach. Co., 855 F.2d 1225, 1240 (6th Cir. 1988) (employee fired after refusing to apologize to, work under, attend church and pray with upper-level manager who admitted making over 100 obscene and violence-threatening telephone calls over 18 months to employee’s wife); Garcia v. Williams, 704 F. Supp. 984, 1003 (N.D. Cal. 1988) (frequent demented tirades of obscenities directed toward employee; humiliating and frightening offensive touching of employee; subjecting employee to sordid details about employer’s sex life); Kirk v. Smith, 674 F. Supp. 803, 811-12 (D. Colo. 1987) (employer physically assaulted employee attempting to tape record meeting); Motsenbocker v. Potts, 863 S.W.2d 126, 133 (Tex. App.-Dallas 1993, no writ) (raising health insurance deductible of employee, who employer knew had terminal cancer, from about $300 to $50,000 without informing the employee); Havens v. Tomball Community Hosp., 793 S.W.2d 690, 692 (Tex. App.-Houston [1st Dist.] 1990, writ denied) (nurse held up to ridicule and then discharged after reporting doctor who she thought was endangering life of patient); Bushell v. Dean, 781 S.W.2d 652, 658 (Tex. App.-Austin 1989) (sexual harassment and public humiliation when employee refused employer’s sexual advances), rev’d in part on other grounds, 803 S.W.2d 711 (Tex. 1991).

In his supplemental brief, “Collins agrees that employer[s] have the right to supervise, review, criticize, demote, transfer and discipline employees.” He also does not dispute that the tort of intentional infliction of emotional distress does not apply to mere business disputes.

*6 Collins’ allegations of intentional infliction of emotional distress involve the following actions by BIP, Sposato, and Owen:

placing Collins on probation;

leaving him on probation for over two years;

Sposato criticizing him unreasonably in field contact situations;

Sposato telling him he should resign instead of dealing with stress;

not replacing his company car when it reached 45,000 or 54,000 miles;

lifting the probation after Collins told Sposato that leaving him on probation would look good in court;

reporting the shouting incident between Sposato and Collins as a near assault by Collins;

refusing to give Collins a raise because of his insubordinate behavior; refusing to give Collins time off from work for mental illness unless he provided a doctor’s opinion that he was unfit to work; and

placing Collins on administrative layoff when he could not obtain medical authorization to return to work.

We will examine each of these claims in turn.

When Collins was placed on probation, he was told that he would be terminated if his sales of two of three particular products did not reach ninety percent of the regional average in eight months. BIP’s decision to place Collins on probation is part of the employer’s right to supervise, review, criticize, and demote employees and therefore cannot constitute outrageous conduct.

When Collins failed to reach the required level of sales within eight months, BIP did not terminate Collins but kept him employed on probation. Clearly, the decision not to terminate Collins was not outrageous conduct. Keeping him on probation was part of BIP’s right to supervise, review, criticize, and discipline Collins, which cannot constitute outrageous conduct.

Collins also asserted that he was told he would be removed from probation when his sales stayed in the top half for the region. Collins claims he was unjustifiably kept on probation in October 1988, but BIP’s uncontroverted summary judgment evidence shows that Collins’ sales had not reached ninety percent for two of the promoted products and that Collins’ sales were not in the top half for the region. Thus, keeping Collins on probation could not have been outrageous.

Collins asserts that Sposato acted outrageously in “unreasonably criticizing [Collins] unjustifiably whenever they worked in a field contact situation.” Collins presented no summary judgment evidence showing what criticism he was subjected to. Nor does he explain how it was either unreasonable or unjustifiable. As Collins notes, the employer has the right to criticize and discipline employees. Collins has failed to raise a fact issue that Sposato’s criticism, even if unjustifiable and unreasonable, was outrageous.

Collins also asserts that Sposato acted outrageously in telling Collins “he should resign instead of dealing with the stress.” (Emphasis added.) In his affidavit attached to his response to appellees’ motion for summary judgment, Collins stated, “Sposato began making comments on field contacts that I should just take early retirement instead of dealing with the stress.” (Emphasis added.) Collins does not explain why Sposato’s statements were outrageous. On the face of the record, the statement appears to be no more than an expression of the concern of a supervisor for the mental well-being of an employee. However, even if the statement was made with malevolent intent or implications, there is no fact question whether the statement is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman, 855 S.W.2d at 621 (quoting cmt. d).

*7 Collins claimed that under company policy, he was entitled to a new car when his reached 45,000 miles. At 54,000 miles, the company still had not replaced the car. When

Collins complained, he was told that cars were replaced at 60,000 miles and that he was not entitled to a new car because he was still on probation. This claim appears to be no more than a mere business dispute. However, even if it does constitute more than a mere business dispute, no reasonable juror could conclude that the failure to replace Collins’ company car constitutes conduct such that “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Cmt. d.

After complaining that appellees’ leaving him on probation for over two years was outrageous conduct, Collins asserts that appellees’ removing him from probation was outrageous conduct after he told them that his remaining on probation would look good in his lawsuit pending against the company. The uncontroverted evidence of appellees showed that Collins was removed from probation because his sales figures were in the top half nationally even though they were in the bottom half regionally. Removal from probation was a benefit to Collins. Whether his removal from probation was because of his improved sales or because of his pending lawsuit, it does not meet the standard for outrageous conduct.

Collins also asserts that Sposato’s reporting the shouting incident between them as a near assault was outrageous. In Collins’ letter describing the incident, he stated that he called Sposato an “asshole” and a “backstabber.” When BIP’s attorney suggested that Collins and Sposato put on boxing gloves and settle their differences, Collins stated, “that would be fine by me.” No reasonable juror could find that Sposato’s interpretation of this incident as a near assault and his reporting it to BIP as such constituted sufficiently extreme and outrageous conduct to result in liability.

Collins asserts that BIP’s failure to give him a merit raise due to his insubordinate behavior was outrageous conduct because it was unjustified. This conduct falls under the employer’s right to criticize, discipline, and demote employees. Considering Collins’ language to his supervisor, no reasonable juror could find that classifying Collins’ behavior as insubordinate constitutes sufficiently extreme and outrageous conduct to result in liability.

Collins also argues that appellees’ failure to give him time off from work for mental illness unless he provided a doctor’s opinion that he was unfit to work was outrageous. Collins was informed in February 1990 of the policy of requiring a doctor’s opinion for sick leave. In August, BIP enforced the policy and counted Collins’ missed days due to illness without a doctor’s opinion as vacation days. Collins does not explain how the policy or its enforcement was in any way outrageous conduct. This policy was part of BIP’s right as an employer to oversee the work of its employee, Collins. The policy and its enforcement do not raise a fact question of outrageous conduct by appellees.

*8 Collins also asserts that appellees acted outrageously in placing him on administrative layoff when Collins was unable to obtain a doctor’s opinion that he was mentally able to resume work. Collins had been off work due to mental illness for more than six months when BIP told him he would either have to return to work with a doctor’s certification that he was mentally competent to resume work, qualify for long-term disability payments, or elect early retirement. If he did none of those, he would be placed on administrative layoff. Collins sent in his election form stating that he wanted to return to work, but that his doctor said he was not mentally competent to resume working. In the end, Collins was placed on administrative layoff. Collins does not explain how this action was outrageous. No reasonable juror could find that it was unreasonable to deny Collins’ request to return to work when he could not find a doctor that would certify his mental competency to return to work. Collins produced no evidence raising a fact issue that he had a right to remain on sick leave indefinitely. No reasonable juror could find that BIP acted outrageously in requiring Collins, who was not shown to be mentally competent to return to work after more than six months on sick leave, to choose between long-term disability payments if qualified, early retirement, or administrative layoff. Nor could a reasonable juror find that BIP acted outrageously in placing Collins on administrative layoff when he did not elect early retirement or qualify for long-term disability.

None of the acts alleged by Collins to have constituted intentional infliction of emotional distress raised a fact question as to the existence of the requisite element that the conduct be extreme and outrageous. Most of the alleged acts were made in the course of supervising, criticizing, and disciplining Collins and were not performed in an outrageous manner. The other alleged acts raised no fact question as to outrageousness. Appellees established as a matter of law that their acts were not outrageous. Accordingly, the trial court did not err in granting the summary judgment because Collins’ petition fails to state a cause of action. See Wornick Co, 856 S.W.2d at 736. We overrule Collins’ fourth point of error.

We affirm the trial court’s judgment.

	Footnotes
1		Except where otherwise noted, all cites to a “cmt.” are to comments under RESTATEMENT (SECOND) OF TORTS § 46 (1965).