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At a Glance:
Title:
Gte Southwest, Inc. v. Bruce
Date:
July 1, 1999
Citation:
998 S.W.2d 605
Court:
Texas Supreme Court
Status:
Published Opinion

Gte Southwest, Inc. v. Bruce

Supreme Court of Texas.

GTE SOUTHWEST, INCORPORATED, Petitioner,

v.

Rhonda BRUCE, Linda Davis, and Joyce Poelstra, Respondents.

No. 98–0028.

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Argued Sept. 10, 1998.

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Decided July 1, 1999.

Attorneys & Firms

*608 John R. Mercy, Texarkana, for Petitioner.

Ned A. Stewart, Jr., Texarkana, for Respondents.

Opinion

Justice O’NEILL, and Justice GONZALES join.

In this case we determine whether three GTE Southwest, Incorporated employees may recover damages for intentional infliction of emotional distress based on the workplace conduct of their supervisor. The trial court rendered judgment for the employees on the jury verdict, and the court of appeals affirmed. 956 S.W.2d 636. We affirm the judgment of the court of appeals.

I

Facts

Three GTE employees, Rhonda Bruce, Linda Davis, and Joyce Poelstra, sued GTE for intentional infliction of emotional distress premised on the constant humiliating and abusive behavior of their supervisor, Morris Shields. Shields is a former U.S. Army supply sergeant who began working for GTE in 1971. Between 1981 and May 1991, Shields worked as a supervisor in GTE’s supply department in Jacksonville, Arkansas. During his tenure there, four of Shields’s subordinate employees (none of the employees involved in this case) filed formal grievances against Shields with GTE, alleging that Shields constantly harassed them. As a result of these complaints, GTE investigated Shields’s conduct in 1988 and 1989, but took no formal disciplinary action against him.

In May 1991, GTE transferred Shields from Jacksonville to Nash, Texas, where he became the supply operations supervisor. The supply department at Nash was small, consisting of two offices and a store room. There were approximately eight employees other than Shields. Bruce, Davis, and Poelstra (“the employees”) worked under Shields at the Nash facility. Like the GTE employees in Jacksonville, Bruce, Davis, and Poelstra complained to GTE of Shields’s conduct, alleging that Shields constantly harassed and intimidated them. The employees complained about Shields’s daily use of profanity, short temper, and his abusive and vulgar dictatorial manner. The employees complained that, among other offensive acts, *609 Shields repeatedly yelled, screamed, cursed, and even “charged” at them. In addition, he intentionally humiliated and embarrassed the employees.

GTE investigated these complaints in April 1992, after which GTE issued Shields a “letter of reprimand.” After the reprimand, Shields discontinued some of his egregious conduct, but did not end it completely.

Eventually, Bruce, Davis, and Poelstra sought medical treatment for emotional distress caused by Shields’s conduct. In March 1994, the employees filed suit, alleging that GTE intentionally inflicted emotional distress on them through Shields. The employees asserted no causes of action other than intentional infliction of emotional distress. The jury awarded $100,000.00 plus prejudgment interest to Bruce, $100,000.00 plus interest to Davis, and $75,000.00 plus interest to Poelstra.

II

The Texas Workers’ Compensation Act

GTE argues that, because it is a subscriber to the Texas Workers’ Compensation Act, the employees’ claim for intentional infliction of emotional distress is barred by the Act, which provides the exclusive remedy for an employee covered by workers’ compensation insurance against an employer for a work-related injury. See Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983). The employees respond that the Act cannot bar their intentional infliction of emotional distress claim because their injuries are not in fact compensable under the Act.

The court of appeals held that the Act did not bar the employees’ claims because GTE was alleged to have committed intentional acts by and through its supervisor, Morris Shields. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996) (Act does not bar recovery for intentional torts directly attributable to the employer). Because it held that the tort was directly attributable to GTE, the court of appeals did not consider whether the employees’ injuries were compensable under the Act in the first instance. We conclude that the employees’ injuries are not compensable under the Act.

The employees allege that they suffered severe emotional distress, which manifested “in the form of tension, nervousness, anxiety, depression, loss of appetite, inability to sleep, crying spells, and uncontrollable emotional outbursts.” Because of these problems, the employees sought medical and psychological treatment. GTE argues that the employees’ emotional distress is a “compensable injury,” defined by the Act as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle,” because the Act provides compensation for psychological services prescribed by a doctor. 401.011(19)(C). Although the Act provides compensation for the types of medical care obtained by the employees, the definition of “injury” under the Act must still be satisfied before such compensation is allowed. Thus, we must determine whether the employees’ allegations establish an “injury” for which compensation is payable under the Act.

The Act defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm,” including an occupational disease. Id. § 401.011(36).

This Court has liberally construed the word “injury” in cases involving emotional distress and Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318–19 (1955).

We have previously considered whether an injury caused by repetitious mental traumatic activity rather than physical activity is compensable under the Act. In Maksyn, the employee suffered from “anxiety depression” attributed to long hours and stress. Olson, 477 S.W.2d at 859–60.

GTE argues that the employees’ injuries are traceable to a definite time, place, and cause—namely, Morris Shields’s behavior toward the employees at GTE from March 1, 1992 to October 1, 1993. GTE relies onpost-traumatic stress syndrome to be a compensable accidental injury because it was traceable to the particular event of seeing a supervisor’s memo criticizing his work performance.

A survey of the cases allowing recovery for accidental injuries due to mental trauma indicates that, in each case, as in Camarata, the injuries were caused by a particular exciting event. See, e.g., Jackson v. Liberty Mut. Ins. Co., 580 S.W.2d 70, 71–72 (Tex.Civ.App.—El Paso 1979, writ ref’d n.r.e.) (evidence that truck driver’s job was stressful was not an event sufficient to prove a compensable injury from a heart attack).1

*611 Here, the employees alleged that the cause of their distress was the continuing harassment and abuse inflicted by Shields from May 1991 to October 1993. GTE does not point to any particular event that caused the mental distress, and instead refers to the scope of events occurring over two-and-a-half years. These allegations establish that the employees’ injuries were caused by repetitive mental trauma rather than an ascertainable event. When there is no evidence of a particular event causing the mental injury, there can be no recovery under the Act. Shannon, 889 S.W.2d at 664). Because the injuries are not compensable under the Act, the Act does not bar the employees’ intentional infliction of emotional distress claims. Accordingly, we conclude, as the court of appeals did, that the employees’ claims are not barred by the Act, although we do so on different grounds.

III

Intentional Infliction of Emotional Distress

An employee may recover damages for intentional infliction of emotional distress in an employment context as long as the employee establishes the elements of the cause of action. See Id. at 68. Accordingly, a claim for intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant’s conduct. Id.

GTE contests its liability for intentional infliction of emotional distress on several grounds. First, GTE argues that the alleged conduct does not rise to the level necessary to constitute extreme and outrageous conduct. Second, GTE argues that the employees did not prove that GTE, as opposed to Shields, had the requisite intent. And, third, GTE contends that the employees have not shown that they suffered severe emotional distress. We consider these arguments in turn.

A. Extreme and Outrageous Conduct

GTE first argues that Shields’s conduct is not extreme and outrageous. To be extreme and outrageous, conduct must be “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.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965).

In determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship between the parties. See § 46 cmt. e (1965).

In the employment context, some courts have held that a plaintiff’s status as an employee should entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. See, e.g., Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d 303, 306 (1989).

In contrast, several courts, including Texas courts, have adopted a strict approach to intentional infliction of emotional distress claims arising in the workplace. See, e.g., § 46 cmt. g (1965). We agree with the approach taken by these courts.

Given these considerations, Texas courts have held that a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. *613 Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5 th Cir.1991).

GTE contends that the evidence establishes nothing more than an ordinary employment dispute. To the contrary, the employees produced evidence that, over a period of more than two years, Shields engaged in a pattern of grossly abusive, threatening, and degrading conduct. Shields began regularly using the harshest vulgarity shortly after his arrival at the Nash facility. In response, Bruce and Davis informed Shields that they were uncomfortable with obscene jokes, vulgar cursing, and sexual innuendo in the office. Despite these objections, Shields continued to use exceedingly vulgar language on a daily basis. Several witnesses testified that Shields used the word “f–––” as part of his normal pattern of conversation, and that he regularly heaped abusive profanity on the employees. Linda Davis testified that Shields used this language to get a reaction. Gene Martin, another GTE employee, testified that Shields used the words “f–––” and “motherf–––er” frequently when speaking with the employees. On one occasion when Bruce asked Shields to curb his language because it was offensive, Shields positioned himself in front of her face, and screamed, “I will do and say any damn thing I want. And I don’t give a s––– who likes it.” Another typical example is when Gene Martin asked Shields to stop his yelling and vulgarity because it upset the female employees, and Shields replied “I’m tired of walking on f–––ing eggshells, trying to make people happy around here.” There was further evidence that Shields’s harsh and vulgar language was not merely accidental, but seemed intended to abuse the employees.

More importantly, the employees testified that Shields repeatedly physically and verbally threatened and terrorized them. There was evidence that Shields was continuously in a rage, and that Shields would frequently assault each of the employees by physically charging at them. When doing so, Shields would bend his head down, put his arms straight down by his sides, ball his hands into fists, and walk quickly toward or “lunge” at the employees, stopping uncomfortably close to their faces while screaming and yelling. The *614 employees were exceedingly frightened by this behavior, afraid that Shields might hit them. Linda Davis testified that Shields charged the employees with the intent to frighten them. At least once, another employee came between Shields and Poelstra to protect her from Shields’s charge. A number of witnesses testified that Shields frequently yelled and screamed at the top of his voice, and pounded his fists when requesting the employees to do things. Bruce testified that Shields would “come up fast” and “get up over her”—causing her to lean back—and yell and scream in her face for her to get things for him. Shields included vulgar language in his yelling and screaming. Bruce stated that such conduct was not a part of any disciplinary action against her. Further, the incidents usually occurred in the open rather than in private. Bruce testified that, on one occasion, Shields began beating a banana on his desk, and when he jumped up and slammed the banana into the trash, Bruce thought he would hit her. Afterwards, Shields was shaking and said “I’m sick.”

Bruce also told of an occasion when Shields entered Bruce’s office and went into a rage because Davis had left her purse on a chair and Bruce had placed her umbrella on a filing cabinet in the office. Shields yelled and screamed for Bruce to clean up her office. Shields yelled, “If you don’t get things picked up in this office, you will not be working for me.” He later said that Bruce and Davis would be sent to the unemployment line and “could be replaced by two Kelly girls” that were twenty years old. On another occasion, Shields came up behind Bruce and said, “You’re going to be in the unemployment line.” Once he told Bruce that he had been sent to Nash to fire her. Another time, he typed “quit” on his computer and said, “That’s what you can do.” Davis testified that Shields threatened to “get them” for complaining about his behavior. And both Bruce and Martin testified that Shields had stated that “he was in a position to get even for what [the employees] had done.”

Bruce also testified that Shields called her into his office every day and would have her stand in front of him, sometimes for as long as thirty minutes, while Shields simply stared at her. Bruce was not allowed to leave Shields’s office until she was dismissed, even though Shields would periodically talk on the phone or read papers. This often occurred several times a day. Bruce testified that it made her nauseated and intimidated her. On one occasion, Shields backed Bruce into a corner, leaned over her, and said, “Rumor has it that you know how to get anything you want out here.” During an annual review, Shields said to Bruce, “You’re mean and you’re deadly, very deadly.” Davis also testified that Shields would stand over her desk and stare at her.

Shields required Bruce and Davis, both general clerks at GTE, to purchase vacuum cleaners with company funds and to vacuum their offices daily, despite the fact that the company had a cleaning service that performed janitorial services such as vacuuming. The purpose of this seemed not to clean, but to humiliate. Bruce testified that she was ridiculed by other employees. Shields also yelled and screamed when he discovered a spot on the carpet; he made Bruce get on her hands and knees and clean the spots while he stood over her yelling. Poelstra testified that Shields required her to clean tobacco stains from a wall in the warehouse. Poelstra testified that, after she forgot her paperwork for a driving test, Shields ordered her to wear a post-it note on her shirt that said, “Don’t forget your paperwork.” Other witnesses corroborated the employees’ testimony about Shields’s conduct.

In considering whether the evidence establishes more than an ordinary employment dispute, we will also address GTE’s argument that because none of Shields’s acts standing alone rises to the level of outrageous conduct, the court of appeals erred in holding that, considered cumulatively, *615 the conduct was extreme and outrageous. 956 S.W.2d at 644, 647.

As already noted, the employees demonstrated at trial that Shields engaged in a course of harassing conduct directed at each of them, the totality of which caused severe emotional distress. It is well recognized outside of the employment context that a course of harassing conduct may support liability for intentional infliction of emotional distress. See, e.g., Duty v. General Fin. Co., 154 Tex. 16, 273 S.W.2d 64, 65–66 (1954) (debt collection). In such cases, courts consider the totality of the conduct in determining whether it is extreme and outrageous. See id. (analyzing creditor’s entire course of conduct, including repetitive threatening phone calls and letters).

Similarly, in the employment context, courts and commentators have almost unanimously recognized that liability may arise when one in a position of authority engages in repeated or ongoing harassment of an employee, if the cumulative quality and quantity of the harassment is extreme and outrageous. See Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053, 1056 (1979) ( “Repeated harassment ... may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability....”).

When such repeated or ongoing harassment is alleged, the offensive conduct is evaluated as a whole. See, e.g., Jones v. Flagship Int’l, 793 F.2d 714, 720 (5 th Cir.1986)).

In addition to the court of appeals in this case, at least two other Texas courts of appeals have followed this approach. See Denton v. Chittenden Bank, 163 Vt. 62, 655 A.2d 703, 706 (1994) (“Absent at least one incident of behavior that transcends the ignoble and vast realm of unpleasant and often stressful conduct in the workplace, incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct is outrageous.”).3

We agree with the overwhelming weight of authority in this state and around the country that when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a whole in determining whether it is extreme and outrageous. Accordingly, we hold that the court of appeals did not err in doing so.

We now consider whether Shields’s conduct, taken as a whole, amounts to extreme and outrageous conduct. “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery....” Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex.1999).

GTE argues that the conduct complained of is an ordinary employment dispute because the employees’ complaints are really that Shields was a poor supervisor with an objectionable management style. See Ulrich, 824 F.Supp. at 687 (“[P]ersonality conflicts with a supervisor certainly are not uncommon occurrences, nor do they give rise to an actionable legal wrong.”). GTE also contends that the actions *617 are employment disputes because Shields committed the acts in the course of disciplining his employees.

We recognize that, even when an employer or supervisor abuses a position of power over an employee, the employer will not be liable for mere insults, indignities, or annoyances that are not extreme and outrageous. RESTATEMENT (SECOND) OF TORTS § 46 illus.2 (1965) (defendant who threatens and extorts plaintiff liable when plaintiff suffers severe emotional distress).

Occasional malicious and abusive incidents should not be condoned, but must often be tolerated in our society. But once conduct such as that shown here becomes a regular pattern of behavior and continues despite the victim’s objection and attempts to remedy the situation, it can no longer be tolerated. It is the severity and regularity of Shields’s abusive and threatening conduct that brings his behavior into the realm of extreme and outrageous conduct. Conduct such as being regularly assaulted, intimidated, and threatened is not typically encountered nor expected in the course of one’s employment, nor should it be accepted in a civilized society. An employer certainly has much leeway in its chosen methods of supervising and disciplining employees, but terrorizing them is simply not acceptable. If GTE or Shields was dissatisfied with the employees’ performance, GTE could have terminated them, disciplined them, or taken some other more appropriate approach to the problem instead of fostering the abuse, humiliation, and intimidation that was heaped on the employees. Accordingly, the trial court properly submitted the issue to the jury, and there was some evidence to support the jury’s conclusion that Shields’s conduct was extreme and outrageous.

B. Intent

GTE argues that the employees failed to establish that GTE, as opposed to Shields, possessed the requisite intent to support GTE’s liability. The jury found that Shields intentionally inflicted emotional distress on the employees. The jury further found that Shields was acting in the scope of his employment. GTE contends that these findings are insufficient to support GTE’s liability because the jury never found that GTE acted with the requisite intent. GTE relies on the fact that the jury failed to find that GTE ratified Shield’s intentional infliction of emotional distress and failed to find that GTE acted “with malice.” GTE further contends that the jury’s finding that Shields was acting in the scope of his employment is insufficient for liability because, GTE argues, an employer is never liable for an employee’s intentional or malicious acts that are unforeseeable considering the employee’s duties, and there was no finding that Shields’s intentional acts were foreseeable by GTE.

Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. Travis, 504 S.E.2d at 431–32.

Moreover, regardless of whether Shields acted within the scope of his employment, his status as a vice-principal of the corporation is sufficient to impute liability to GTE with regard to his actions taken in the workplace. Cf. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex.1998). The jury found that Shields was a vice-principal of GTE. It is undisputed that Shields was the highest ranking management person stationed at the Nash facility, and that Shields had authority to employ, direct, and discharge employees. This evidence is sufficient to support the jury’s finding. Accordingly, the court of appeals correctly concluded that Shields’s acts were the acts of GTE.

C. Severe Emotional Distress

GTE next contends that any distress the employees suffered was not severe. GTE argues that the employees’ complaints of embarrassment, fear, stomach aches, loss of sleep, and headaches “are problems that are normally dealt with by each of us in every day life.”

Emotional distress includes all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry. See post-traumatic stress disorder. This evidence is legally sufficient to support the jury’s finding that the employees suffered severe emotional distress.

IV

Limitations

GTE contends that not all of Shields’s conduct should have been considered by the jury. Specifically, GTE argues that the court of appeals erred in considering evidence of Shields’s conduct before March 1, 1992 because it occurred outside the two-year period of limitations for intentional infliction of emotional distress.4 Much of the employees’ evidence concerned Shields’s conduct before March 1, 1992; some of the evidence focused on his conduct after that date. Significantly, GTE did not object to the admission of evidence concerning Shields’s conduct before March 1, 1992, even though it had filed a motion in limine asking the court to prohibit “[a]ny mention of any words, acts, or deeds of Morris Shields, any other employee or representative of GTE or GTE which occurred prior to March 1, 1992.”

GTE relies on Id. The cause of action necessarily accrued more than two years before Stroud filed suit. Accordingly, Stroud does not support GTE’s position.

A more analogous case is Id. Assuming without deciding that this is correct, the court of appeals properly held that GTE waived its complaint to the admission of the evidence for all purposes because it did not object to the admission of the evidence as a basis for legal redress and did not ask the court to instruct the jury accordingly.

V

Expert Testimony

Last, GTE complains about the trial court’s admission of expert testimony that Shields’s conduct was extreme and outrageous. The employees obtained opinion evidence from three different expert witnesses that Shields’s conduct was extreme and outrageous. GTE objected to this testimony at trial, and complained of the trial court’s admission of the testimony of two of the witnesses on appeal.

The court of appeals held that the trial court’s admission of expert testimony on the issue of whether Shields’s conduct was extreme and outrageous was error. Warner v. Hurt, 834 S.W.2d 404, 406 (Tex.App.—Houston [14 th Dist.] 1992, no writ) (“Admissibility of the expert’s opinion hinges on whether or not the expert has special knowledge concerning [the] matter on which his opinion is sought.”). Except in highly unusual circumstances, expert testimony concerning extreme and outrageous conduct would not meet this standard. Where, as here, the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide, and admission of expert testimony on the issue is error.

Nevertheless, the court of appeals correctly concluded that the error was harmless. The court applied our reasoning in Louder v. De Leon, 754 S.W.2d 148, 149 (Tex.1988), that “[j]urors realize that they are the final triers to decide the issues. They may accept or reject an expert’s view. Thus there is little danger in an expert’s answer to an all-embracing question on a mixed question of law and fact.”

Southwestern Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 474 (Tex.1998). This nonexpert testimony is sufficient to support the jury’s verdict.

* * * * *

In sum, we hold that the employees’ claims are not barred by the Workers’ Compensation Act because their injuries are not compensable under the Act. We conclude that there is legally sufficient evidence to support the jury’s verdict against GTE on each of the employees’ claims for intentional infliction of emotional distress. We further conclude that GTE waived any complaint about evidence of Shields’s conduct before March 1, 1992 because GTE did not object to the evidence at trial. And, although the trial court erred in admitting expert testimony about whether Shields’s conduct was extreme and outrageous, such error was harmless. Accordingly, we affirm the court of appeals’ judgment.

Justice OWEN filed a concurring opinion.

Justice OWEN, concurring.

I agree that there is more than a scintilla of evidence to support the jury’s finding that Shields intentionally inflicted emotional distress on the plaintiffs. I cannot join the Court’s opinion because most of the testimony that the Court recounts is legally *621 insufficient to support the verdict in this case.

There was evidence that Shields physically threatened, although he did not touch, the plaintiffs. There was also evidence of sustained and threatening sexual harassment and that some of Shields’s profanity was uttered at the same time that he sexually harassed or physically threatened the plaintiffs. That conduct was sufficient to permit a jury to conclude that Shields had intentionally inflicted emotional distress on the plaintiffs.

But regardless of how long and how often most of the conduct cataloged by the Court may have been committed in the workplace, it does not meet the rigorous standard for intentional infliction of emotional distress set forth in the RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) or in this Court’s decisions applying that section. The following conduct is not a basis for sustaining a cause of action for intentional infliction of emotional distress, even when the employees who are upset by the conduct are women:

· cursing, profanity, or “yelling and screaming” when it was not simultaneously accompanied by sexual harassment or physically threatening behavior

· pounding fists on a table when requesting employees “to do things”

· going into “a rage” when employees leave an umbrella or purse on a chair or filing cabinet

· screaming at employees that if they do not “get things picked up” they will be fired

· telling an employee that she would be sent to the unemployment line

· telling an employee that she could be replaced by two Kelly girls

· a supervisor’s statement to an employee that he had been sent to fire her

· typing “quit” on a computer and telling an employee that is what she can do

· requiring employees to vacuum their offices daily even though a janitorial service vacuums as well

· requiring an employee to clean a spot off the carpet while “yelling” over her

· requiring an employee to clean tobacco stains off a wall

· telling an employee that she must wear a post-it note that says “don’t forget your paperwork.”

Most of the foregoing conduct would be offensive and degrading in most circumstances. But it is not “ ‘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.’ ”Brewerton v. Dalrymple, 997 S.W.2d 212 (Tex.1999), the fact that an action is intentional, malicious, or even criminal does not mean that it is extreme or outrageous for purposes of the tort of intentional infliction of emotional distress, as the Restatement explains:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965).

The Court’s conclusion that there is evidence of intentional infliction of emotional distress because Shields suggested to and even threatened the plaintiffs that they may be discharged or replaced is particularly inconsistent with our prior decisions. We have held that discharging an employee, even when it amounted to wrongful discharge under our laws, did not amount to intentional infliction of emotional distress. See Wornick Co., 856 S.W.2d at 736. I fail to see how screaming at a plaintiff that she may be fired is conduct of a degree and character that is actionable when actually firing an employee in the presence of her co-workers and physically escorting her off the premises with uniformed security guards is not.

The Court’s conclusion that cursing and profanity may constitute intentional infliction of emotional distress is also inconsistent with a specific example given by the Restatement in which highly profane language is used. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d, illus. 4 (1965). I fail to see how using a profane word ten or even a hundred times is intentional infliction of emotional distress when that cursing is not directed at the plaintiff and is not simultaneously accompanied by sexual harassment or physically threatening behavior.

Because the Court’s writing is far too broad and in some respects unfaithful to our precedent, I cannot join the Court’s opinion.

Footnotes

1

In enacting the 1989 Workers’ Compensation Act, the Legislature included a policy statement regarding mental trauma injuries. Section 408.006(a) states, “It is the express intent of the legislature that nothing in this subtitle shall be construed to limit or expand recovery in cases of mental trauma injuries.” TEX. section 408.006(b), it is questionable whether Camarata correctly states the law. We, however, express no opinion on that issue.

2

For example, in Wilson ).

3

Notably, two of the five justices sitting in that case dissented, stating that “[t]he law is clear ... that a series of incidents may be considered together to determine if the conduct alleged is extreme and outrageous.” Id. at 711 (Gibson, J., dissenting).

4

The employees filed suit on March 1, 1994.

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