Riojas, Delia v. Elsa State Bank and Mike Trippel ( 1997 )

                                   NUMBER 13-96-119-CV

DELIA RIOJAS  v.  ELSA STATE BANK AND MIKE TRIPPEL

     On appeal from the 206th District Court of Hidalgo County, Texas.

                                   O P I N I O N

                     Before Justices Dorsey, Hinojosa and Chavez

                                 Opinion by Justice Hinojosa

This is an appeal from a summary judgment entered against appellant, Delia Riojas.  By four points of error, appellant contends that the trial court erred in granting the summary judgment because no special exceptions to the sufficiency of her pleadings were filed, issues of material fact remain, and the motion for summary judgment did not address one of her causes of action.  We affirm.

                                                Factual Background

In 1986, Riojas was employed by the Elsa State Bank as a clerk in the note department.  In January 1991, Riojas became Mike Trippel=s secretary.  Riojas worked as Trippel=s secretary until September 1993, when she sued the Bank and Trippel and left her employment.  The Bank and Trippel subsequently moved for summary judgment. Riojas responded^[1] and objected to the summary judgment evidence. The trial court granted the motion for summary judgment.

                                  Texas Rule of Appellate Procedure 52

By her first point of error, Riojas contends that the trial court erred in granting appellees= motion for summary judgment because defects in pleadings should be addressed by special exceptions and not by motion for summary judgment.

In their motion for summary judgment, appellees pointed out defects in Riojas= petition.  Riojas objected and argued that any insufficiency in her pleadings had to be pointed out by special exceptions and not by motion for summary judgment.

Objections must be presented to the trial court and ruled upon to preserve a complaint for appellate review.  Tex. R. App. P. 52.  This rule applies to summary judgment proceedings.  Roberts v. Friendswood, 886 S.W.2d 363, 365 (Tex. App.CHouston [1st Dist.] 1994, writ denied); Hopkins v. Highlands Ins. Co., 838 S.W.2d 819, 822 (Tex. App.CEl Paso 1992, no writ).  Even if an objection is contained in a party=s response to a motion for summary judgment, failure to obtain a written ruling on the objection from the trial court results in the waiver of the objection on appeal.  Camden Machine & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 310 (Tex. App.CFort Worth 1993, no writ).  The record contains no written ruling on Riojas= objections, nor does it reflect a request by Riojas for an opportunity to amend her petition.  As a result, Riojas waived her complaint on appeal.  Tex. R. App. P. 52 (expressly requiring both objection and ruling to avoid waiver of objection); see Kassen v. Hatley, 887 S.W.2d 4, 13-14 n.10 (Tex. 1994)(explaining applicability of Tex. R. App. P. 52 under similar circumstances); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990).  Riojas=s first point of error is overruled.

                     Riojas= Response to the Motion for Summary Judgment

Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.  Tex. R. Civ. P. 166a(c).  Issues that a nonmovant contends avoid the movant=s entitlement to summary judgment must be expressly presented by written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).  If a nonmovant fails to present any issues in his response, then on appeal he can only argue against the legal sufficiency of the grounds presented by the movant.  Id. at 343.  These summary judgment pleading rules were set out to prevent parties from asserting that grounds or issues were presented somewhere in voluminous summary judgment evidence.  Id. at 343-44.

In Marchal v. Webb, 859 S.W.2d 408 (Tex. App.CHouston [1st Dist.] 1993, writ denied), the appellant responded to a motion for summary judgment by pleading as follows:

In support of this reply, plaintiff incorporates by reference hereto the current pleading of plaintiff, extracts from the sworn oral deposition testimony of John Q. A. Webb, and extracted exhibits attached thereto; extracts from the sworn oral deposition testimony of the plaintiff, Diane M. Marchal, and extracted exhibits attached thereto.

Id. at 417 n.7. The court interpreted the attached references as evidence in support of the issues specifically raised in appellant=s response and no more.  Id. at 417.  To do otherwise would have forced the court to analyze thirty-nine pages of deposition excerpts and speculate as to what testimony should be applied to which issues and grounds the appellant could, but did not expressly, raise.  Id.

After reviewing the record in the instant case, we find that Riojas failed to state in her response what issues or grounds avoid the appellees= motion for summary judgment.  Riojas=s response states, in relevant part, as follows:

There are genuine issues of material fact on all grounds adduced as a basis for summary judgment as indicated by the depositions of MIKE TRIPPEL (p. 33 1.6-11), VIRGINIA GUZMAN (p. 6-18), ADELITA TORRES (p. 9-11), MARY MORENO (p. 22), ALICIA DUARTE (p. 14), ROGER HEREDIA, M.D. (p. 14) and DELIA RIOJAS (p. 115.1- p. 147 1.19) [sic] designated as discovery not otherwise on file which will be used as summary judgment proof pursuant to T.R.C.P. 166a(c) attached hereto as AExhibit A,@ AExhibit B,@ AExhibit C,@ AExhibit D,@ AExhibit E,@ AExhibit H@ and AExhibit I@ incorporated by reference the same as if set forth fully and at length. The affidavit of DELIA RIOJAS is attached hereto as AExhibit J@ and incorporated by reference.

Altogether, Riojas= exhibits total seventy-four pages of material.  Riojas= attempt to incorporate over seventy pages of deposition testimony and affidavits without any expression of grounds, issues or specific references to relevant portions of evidence is patently contrary to the provisions of Rule 166a(c) and the rules for summary judgment pleadings.  Tex. R. Civ. P. 166a(c); see McConnell, 858 S.W.2d at 341, 343; Marchal, 859 S.W.2d at 417.  We need not and will not review the voluminous summary judgment evidence Riojas attached to her response because we cannot determine its purpose.^[2]

                                                Standard of Review

In spite of Riojas=s failure to state any express issues or grounds to defeat the motion for summary judgment, appellees are not relieved of the burden to establish as a matter of law that they are entitled to summary judgment.  McConnell, 858 S.W.2d at 342; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable claims. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex. 1952).  A motion for summary judgment must stand or fall on the grounds expressed therein.  McConnell, 858 S.W.2d at 341; Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 618 (Tex. App.CCorpus Christi 1995, no writ).  If the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law.  McConnell, 858 S.W.2d at 342; Freedom Communications, 907 S.W.2d at 618. In determining whether grounds are presented, the Court cannot place reliance on briefs or summary judgment evidence.  McConnell, 858 S.W.2d at 341.

The standards for reviewing a motion for summary judgment are well established.  The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.  Nixon, 690 S.W.2d at 549; Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 814 (Tex. App.CCorpus Christi 1996, writ denied).  Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.  Nixon, 690 S.W.2d at 549; Rios, 930 S.W.2d at 814.

A defendant who moves for summary judgment may meet the burden of showing that the plaintiff has no cause of action by either (1) negating at least one essential element of each theory of recovery, or (2) conclusively proving all of the elements of an affirmative defense.  Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 877 (Tex. App.CCorpus Christi 1996, writ denied).  If there are multiple causes of action and the movant submits summary judgment evidence disproving at least one element of a cause of action, then summary judgment should be granted as to that issue.  Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex. 1983); Tirres v. El Paso Sand Prod., Inc., 808 S.W.2d 672, 674 (Tex. App.CEl Paso 1991, writ denied).  Once a movant establishes that he is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should be avoided.  Casso, 776 S.W.2d at 556; Neuhaus v. Richards, 846 S.W.2d 70, 77 (Tex. App.CCorpus Christi 1992, writ dism=d judgm=t cor.).

In the instant case, the order granting the motion for summary judgment does not state the specific grounds on which it was granted. Therefore, the summary judgment must be affirmed if the appellees sustain their burden of proof on any of their theories.  See Matlock v. Kittleman, 865 S.W.2d 543, 544 (Tex. App.CCorpus Christi 1993, no writ).

                       Constructive Discharge and Public Policy Exceptions

                                      Under Sabine Pilot and Johnston

By her second point of error, Riojas complains that the trial court erred in granting appellees= motion for summary judgment because the record contains evidence raising fact issues on all elements of her wrongful discharge cause of action that bring her within the protection of the exceptions to the employment-at-will doctrine carved out in Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985), and Johnston v. Del Mar Distrib. Co., 776 S.W.2d 768 (Tex. App.CCorpus Christi 1989, writ denied).  Riojas contends that she was wrongfully discharged by the Bank because she questioned the legality of certain acts she was instructed to perform, expressed opposition to them, and refused to participate in them.  Riojas contends that, in retaliation for her conduct, appellees drove her to resign Aunder pressure@ by subjecting her to intolerable working conditions.  She argues that public policy makes wrongful discharge for such reasons unlawful.

Appellees= motion for summary judgment showed (1) that Riojas had questioned certain deviations from internal policies, not the violation of laws, (2) that no intolerable workplace conditions existed, and (3) that Riojas resigned voluntarily.

Riojas=s cause of action for wrongful discharge actually embraces two component parts, allegations of constructive discharge due to intolerable working conditions and allegations of public policy violations leading to constructive discharge.  We will consider the public policy issue first.

All parties agree that there was no employment contract setting a definite term for Riojas= employment.  Texas has long recognized the employment-at-will doctrine under which employees hired for indefinite terms may be terminated with or without cause. East Line & R.R.R. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888).  Only a few, very narrow exceptions have been created, judicially or by statute.^[3]

In Sabine Pilot, the appellant, Hauck, was ordered to pump a ship=s bilges into the water.  687 S.W.2d at 734.  Before he carried out his assignment, Hauck read a posted notice announcing that such acts were illegal.  Id. He contacted the Coast Guard which confirmed the illegality of the conduct he was directed to perform.  Id.  Hauck refused to carry out the task and was subsequently terminated.  Id.  The Texas Supreme Court found that, for reasons of public policy, a narrow exception to the well-established doctrine of employment-at-will was justified.  Id. at 735.  Sabine Pilot requires a showing that (1) the complainant was discharged, and (2) the sole reason for the discharge was refusal to perform on behalf of the employer an illegal act carrying criminal penalties.  Id.  The court placed the burden on the complainant to show that his discharge was for no other reason than his refusal to perform an illegal act.^[4]  Id.

In Johnston, we slightly extended the exception.  Johnston, 776 S.W.2d at 769.  We held that the public policy underlying the decision in Sabine Pilot similarly forbade the discharge of an employee who, in good faith, contacted a regulatory agency to determine if her employer=s business activities were illegal.  Id.  Logically, public policy demands that employees be allowed to investigate the legality of acts required by an employer so that they can decide whether or not to perform the acts.  Id. at 771.  If an employee is terminated for attempting to learn from a regulatory agency whether the required conduct is legal, she need not prove that the requested act was, in fact, illegal.  Id. at 772.  She must, however, establish that she had a good faith belief that the requested act might be illegal and that such belief was reasonable.  Id.

Although Riojas suggests no particular or general area of law that appellees may have breached by their actions, we reviewed the record for any evidence tending to show that appellees pressed her to engage in unlawful conduct or any reasonable inferences of such pressure.  After examining the pleadings, appellees= motion for summary judgment, Riojas= response, and the summary judgment evidence, we conclude that Riojas= claim for wrongful discharge is not covered by the public policy exception articulated in Sabine Pilot and Johnston because there was no unlawful conduct.

Riojas states that she questioned the propriety of Trippel=s professional conduct for more than two and one-half years, yet she never contacted any outside authority about her concerns regarding the legality of Trippel=s acts or the acts he asked her to perform.  In her deposition, Riojas admitted that the activities she questioned were Adeficiencies@ and only against internal bank memos and policies.  Riojas did not controvert Trippel=s deposition testimony concerning the bank=s internal loan and lending policies, the circumstances permitting deviation from those policies, and the procedures by which the bank monitored such deviations.

The only activity Riojas specifically complains of is the problem she perceived with the perfection of secured interests in loan collateral.  Chapter 9 of the Uniform Commercial Code (UCC) covers the perfection of interests in secured transactions.  See generally Uniform Commercial Code ch. 9 codified as Tex. Bus. & Com. Code Ann. '9.101 et seq. (Vernon 1994).  Despite diligent research, we could find no statute or cases involving criminal charges for failure to perfect a lien.  At most, there might be civil liability, but potential exposure to civil penalties is not sufficient to come within the Sabine Pilot exception. Hancock v. Express One Int=l, 800 S.W.2d 634, 636-37 (Tex. App.CDallas 1990, writ denied).

Besides being unable to infer any unlawful conduct on the part of appellees, a review of Riojas=s duties do not indicate that any of the requested tasks could have exposed her to liability, civil or criminal.  All parties agree that, as Trippel=s secretary, Riojas= duties included typing correspondence, screening telephone calls, preparing UCC-1s^[5] for recording, collecting and depositing fees, and monitoring receipt of documentation.  Trippel testified it was his responsibility alone, as the approving loan officer, to make sure that all of the supporting documents were properly obtained, either before or after the funds were disbursed.  Riojas does not claim that she bore any share of the responsibility, beyond typing forms, and no evidence permits us to infer that she did.

Riojas also contends that she was pressured into resigning because of the unbearable workplace conditions created by appellees.  A constructive discharge occurs when an employer deliberately makes conditions so unpleasant that an employee reasonably feels compelled to resign.  Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir. 1983), cert. denied sub. nom., Whisenhunt v. Spradlin, 464 U.S. 965, 104 S. Ct. 404 (1983); Benton v. Kroger Co., 640 F. Supp. 1317, 1322 (S.D. Tex. 1986).  To find a constructive discharge, a court must determine whether or not a reasonable person in the employee=s position would have felt compelled to resign.  Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1077 (5th Cir. 1981).  It is necessary to examine the conditions imposed, not the employer=s state of mind.  Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980).  Therefore, an employee does not need to prove that an employer subjectively intended to force the employee to resign.  Pittman, 644 F.2d at 1077.

Riojas complains (1) that she was required to use an old electric typewriter that did not work properly, (2) that she was denied access to or adequate time to work on a personal computer, and (3) that she was given a negative performance evaluation which she wholly disagreed with.  Riojas contends that the equipment problem was Trippel=s way of making her life unbearable in retaliation for her questioning his work. However, Riojas admitted in her deposition that Trippel had told her to speak to Elena Perez, who had responsibility for purchasing and assigning office equipment.  Riojas= deposition also reveals that few employees had their own personal computers and that employees shared several computers by means of a sign-up sheet.  Riojas complains that she could not seem to sign up for a convenient time or enough time to complete her work, but does not suggest that the problem was unique to herself. Nevertheless, time and equipment constraints of this nature have never been held to be sufficiently aggravating so as to constitute intolerable working conditions.^[6]

Riojas also complains that she was given a negative performance evaluation which she wholly disagreed with.  However, unfavorable work evaluations do not support a constructive discharge allegation, no matter how upsetting they might be.^[7]  Junior v. Texaco, Inc., 688 F.2d 377 (5th Cir. 1982); Boze v. Branstetter, 912 F.2d 801 (5th Cir. 1990).

The appellant in Junior received a poor work evaluation and protested against it.  Junior, 688 F.2d at 378.  Junior=s supervisor refused to change it but promised him a reappraisal of his performance in three months.  Id.  No one suggested his future with the company was endangered.  Id.  Nonetheless, Junior interpreted the poor work evaluation as tantamount to a dismissal and handed in his resignation.  Id. When the company refused to rehire him, Junior filed suit for and claimed constructive  discharge.  Id. The Court held that Junior=s resignation, though compelled by his disagreement with the performance evaluation and the company=s refusal to alter it, was voluntary.  Id. at 380.  Thus, he had not been constructively discharged.  Id.

The appellant in Boze was a corporate attorney.  He was surprised to receive a negative evaluation of his job performance and complained that it was an unfair assessment of his work.  Boze, 912 F.2d at 803.  While reviewing the evaluation with Boze, Branstetter, who prepared the evaluation, told Boze that he was the Aworst-rated lawyer in the company=s legal department.@ Id. at 806.  Boze was also warned that if he did not shape up, he could be subject to discharge. Id. at 803.  Shortly thereafter, Boze handed in a resignation letter alleging Aprejudice, double standards, harassment, intimidation, and physical and emotional distress associated with working with Branstetter.@  Id. at 804.  The Court found that Boze had resigned voluntarily because a reasonable employee would have pursued internal grievance procedures, and the workplace conditions he described did not constitute constructive discharge.  Id. at 806.

The facts presented by Riojas, even though we take them as true, do not constitute a work situation so unpleasant that any reasonable person would regard them as intolerable.  Such frustrations are not serious enough to permit us to find that a fact issue exists concerning whether a reasonable person would have felt compelled to resign.

In their motion for summary judgment, appellees point out that Riojas was not discharged, she resigned.  Riojas argues that she resigned because she was pressured to do so. Riojas complains that the equipment constraints and worry over the unperfected security interests caused her to suffer severe stress requiring medical attention.  Riojas= summary judgment evidence shows that her physician recommended that she resign.  Riojas urges us to hold that in order to rebut her allegation of constructive discharge, appellees had to show that it was unreasonable for Riojas to follow her doctor=s advice.

Accepting as true that the stress Riojas experienced was due to her job, we find that Texas law does not recognize work-related illness leading to resignation as amounting to a constructive discharge.  Employees are not guaranteed a stress-free work environment. Aikens v. Banana Republic, Inc., 877 F. Supp. 1031, 1039 (S.D. Tex. 1995).  Nor do the facts of this case merit creation of an exception. Riojas complains that she was subjected to the conditions causing her stress in retaliation for questioning Trippel about his work product and refusing to perform tasks she thought were improper throughout the two years eight months she worked as his secretary. However, Riojas admitted that she never felt Apressured@ until September 2, 1993, two weeks before she resigned on September 17, 1993.  On that day, Riojas saw her performance review and became very upset because she felt that it was not an accurate reflection of her abilities and accomplishments.  The next day, Trippel went on a two-week vacation.  Riojas only saw him again once, briefly, on September 13, 1993, when Trippel interrupted his vacation for a Bank board meeting.  On that day, Riojas again told Trippel how upset she was with the evaluation, and that she felt he was pressuring her to quit.  Trippel assured her that he was not trying Ato run her out of the bank;@ that the only purpose of the evaluation and placement on probation was to give her a chance to Atake her level of performance up one notch.@  Undoubtedly, Trippel expected Riojas to remain on the job.  Riojas also admitted in her deposition that the primary source of her stress was the malfunctioning typewriter, and not the unperfected interests on loans approved by Trippel.

After reviewing the summary judgment evidence we conclude that there are no material fact issues remaining on Riojas= wrongful discharge claim.  We hold that the trial court did not err in granting appellees= motion for summary judgment on the wrongful discharge claim. Appellant=s second point of error is overruled.

                                                      Defamation

By her fourth point of error, Riojas contends that appellees failed to conclusively negate any element of her cause of action for defamation.

Riojas claimed that statements in the performance evaluation were defamatory. Appellees argue that the statements are expressions of opinion and not defamatory in any sense.  In the alternative, appellees assert the affirmative defense of qualified privilege.

Although Riojas uses the terms defamation and slander, her complaint is clearly based on a written document.  As the evidence does not allow us to reasonably infer any oral communications by the appellees concerning the performance evaluation with anyone but Riojas, we presume Riojas is urging a cause of action for libel.  A written expression that publishes a person=s natural defects or injures or impeaches a person=s reputation, honesty, integrity, or virtue, thereby exposing him or her to public hatred, ridicule, contempt, or financial injury constitutes libel.  Tex. Civ. Prac. & Rem. Code Ann. ' 73.001 (Vernon 1986).  APublication@ means that the statements were received, read, and understood by a third person, other than the person allegedly defamed.  Simmons v. Ware, 920 S.W.2d 438, 444 (Tex. App.CAmarillo 1996, n.w.h.).

Apparently, one person besides Trippel and Riojas saw the evaluation. Don Kelly, the Bank=s President, was Trippel=s immediate superior and asked Trippel to prepare the evaluation. At some point before Riojas= resignation, Kelly reviewed the report. Therefore, we must examine the language of the evaluation to determine if it is defamatory. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987).

In determining if a publication is defamatory, a court must examine the entire communication, not isolated sentences or passages.  Musser, 723 S.W.2d at 655; Schauer, 856 S.W.2d at 446.  Statements cannot be taken out of context to demonstrate they are defamatory.  Raymer v. Doubleday & Co., 615 F.2d 241, 245 (5th Cir. 1980).  We give words their ordinary meanings and construe them as would persons of ordinary intelligence.  Schauer, 856 S.W.2d at 446.  An issue of fact arises only if the court determines that the statement is ambiguous and could be understood in a defamatory sense.  Musser, 723 S.W.2d at 654-55; Rios, 930 S.W.2d at 817.

Performance assessments are inherently subjective. An employee may find the statements therein to be false, unpleasant, and objectionable, yet they may not be defamatory as a matter of law.  Schauer, 856 S.W.2d at 446; Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex. App.CTexarkana 1959, writ ref=d n.r.e.).  Whether the statement is one of fact or opinion is for the court to decide.  Carr v. Brasher, 776 S.W.2d 567, 569-70 (Tex. 1989); Yiamouyiannis v. Thompson, 764 S.W.2d 338, 340 (Tex. App.CSan Antonio 1988, writ denied).  Ratings such as Aexcellent@ or Afair@ are mere statements of opinion.  Schauer, 856 S.W.2d at 447; Musser, 723 S.W.2d at 655. Comments regarding problems affecting workflow are likewise mere statements of opinion.  Schauer, 856 S.W.2d at 447; Musser, 723 S.W.2d at 655.  An expression of opinion is protected free speech.  Gertz v. Welch, 418 U.S. 323, 339-40 (1974); Schauer, 856 S.W.2d at 447; Yiamouyiannis, 764 S.W.2d at 340.

Even if untrue, as Riojas asserts, Trippel=s comments in Riojas= performance evaluation do not impugn her honesty, integrity, or personal or professional reputation.  Trippel=s words did not expose her to public hatred, ridicule, or contempt. No evidence leads us to infer the ratings or comments might have led to financial injury as Riojas was in no danger of discharge or demotion.  Furthermore, under their ordinary meanings, none of the words or phrases Trippel used are abusive, much less defamatory.  Finally, although Riojas insists the ratings and comments are false, she admitted in her deposition that they are opinions rather than facts.

Even if a defamatory meaning could be inferred from the statements in Riojas= performance evaluation, we find that appellees have also proved the affirmative defense of qualified privilege.  A qualified privilege surrounds comments about an employee by her employer made to a person having a legitimate interest in the matter to which the communication relates.  Boze, 912 F.2d at 806; Schauer, 856 S.W.2d at 449; Hardwick v. Houston Lighting & Power Co., 881 S.W.2d 195, 198 (Tex. App.CCorpus Christi 1994, dism=d w.o.j.); Maewal v. Adventist Health Sys./Sunbelt, Inc., 868 S.W.2d 886, 893 (Tex. App.CFort Worth 1993, writ denied).  Public policy recognizes that the protection of business interests requires free communication of information.  Boze, 912 F.2d at 806.  Whether a communication is covered by a qualified privilege is a matter of law for the court to decide.  Houston v. Grocers Supply, 625 S.W.2d 798, 800 (Tex. App.CHouston [14th Dist.] 1981, no writ); Goree v. Carnes, 380, 384 (Tex. App.CSan Antonio 1981, no writ).  So long as the communicant believes in the truth of the communication, the privilege remains.  Maewal, 868 S.W.2d at 893; Mayfield v. Gleichert, 484 S.W.2d 619, 627 (Tex. Civ. App.CTyler 1972, no writ). 

The privilege is lost if a communication was made with malice or a lack of good faith.  Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App.CHouston [1st Dist.] 1984, writ ref=d n.r.e.); Stearns v. McManis, 543 S.W.2d 659, 664 (Tex. Civ. App.CHouston [14th Dist.] 1976, writ dism=d).  Where a libel is alleged, actual malice Ameans publication of a statement with knowledge that it is false or with reckless disregard for whether it was false.@ Carr, 776 S.W.2d at 571; Marathon Oil, 682 S.W.2d at 631.  If there is no evidence of malice or want of good faith, then no matter how objectionable the statements in an employee evaluation are, they are not defamatory. Boze, 912 F.2d at 806. Good faith and lack of malice are presumed where statements are shown to be covered by a qualified privilege.  Marathon Oil, 682 S.W.2d at 630; Goree, 625 S.W.2d at 385.

Mere surmise or suspicion of malice does not carry the probative force to form the basis of a legal inference of malice.  Schauer, 856 S.W.2d at 450; International & G.N.R. Co. v. Edmundson, 222 S.W. 181, 185 (Tex. Comm=n App. 1920, holding approved).  Trippel=s deposition and affidavit and Riojas= deposition all support Trippel=s assertion that his evaluation of Riojas= performance was based on personal observation and opinion and do not support an inference of malice to defeat the affirmative defense. Therefore, we overrule Riojas= fourth point of error.

                               Intentional Infliction of Emotional Distress

By her third point of error, Riojas complains that the trial court erred in granting the motion for summary judgment because it did not address her cause of action for intentional infliction of emotional distress.

Appellees contend that Riojas= petition failed to apprise them and the trial court of any claim for intentional infliction of emotional distress.  Appellees argue that a fair reading of Riojas= pleadings does not indicate that a cause of action for intentional infliction of emotional distress has been pleaded.  Appellees further argue that the language of Riojas= petition merely serves to emphasize her claims for damages on her causes of action for wrongful discharge and defamation.

Rather than a fair reading standard, on appeal from summary judgment, we read the nonmovants pleadings liberally to ascertain if a cause of action has been asserted.  We construe the pleadings as favorably as possible to the pleader.  Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.CCorpus Christi 1991, writ denied).  We look to the pleader=s intent and uphold the pleading, even if the pleader has not specifically alleged some element of a cause of action, so long as necessary facts can be inferred from what is specifically stated.  Id. (quoting Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963)); see also Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995).  Nonetheless, pleadings must give reasonable notice of the claims asserted.  Smithkline Beecham Corp., 903 S.W.2d at 354.  A defendant need not show that the plaintiff cannot succeed on any theory conceivable in order to obtain summary judgment; he is only "required to meet the plaintiff's case as pleaded."  Id. at 355; Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976).

Despite a liberal reading, we find Riojas= petition does not implicitly raise a claim for intentional infliction of emotional distress.  The elements of intentional infliction of emotional distress are as follows:

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.

Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 942 (Tex. App.CBeaumont 1985, writ ref=d n.r.e.).

Paragraph II of plaintiff=s petition expressly sets forth her causes of action for wrongful discharge and defamation in the manner prescribed.  See Tex. R. App. P. 50. Although the first sentence of paragraph III reads, ADefendants= conduct has been intentional, extreme and outrageous[,]@ the remainder of the paragraph focuses on allegations of past and future injuries arising from wrongful discharge and defamation. Riojas does not plead facts permitting us to infer what alleged conduct by appellees could underlie a claim for intentional infliction of emotional distress.

Even if Riojas= petition could be read to implicitly include an intentional infliction of emotional distress claim, it was still not error for the trial court to grant appellees= motion for summary judgment.  Smithkline Beecham Corp., 903 S.W.2d at 355. Whether conduct is sufficiently outrageous for purposes of recovery for the intentional infliction of emotional distress is a question of law.  Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 899 (Tex. App.CAmarillo 1995, no writ); Washington v. Naylor Indus. Serv., Inc., 893 S.W.2d 309, 312‑13 (Tex. App.CHouston [1st Dist.] 1995, no writ); see Wornick Co., 856 S.W.2d at 734 (stating that the court determines, "in the first instance," whether the conduct may reasonably be regarded as so extreme and outrageous as to permit recovery).

The fact of discharge, constructive or otherwise, is not itself outrageous behavior.  Wornick Co. v. Casas, 856 S.W.2d 732, 734-35 (Tex. 1993).  The manner of discharge may constitute outrageous behavior, Wornick Co., 856 S.W.2d at 735, Shaheen v. Motion Industries, Inc., 880 S.W.2d 88, 92 (Tex. App.CCorpus Christi 1994, writ denied), but the standard to be met is high.  To be considered outrageous, conduct must "exceed all possible bounds of decency" and be "utterly intolerable in a civilized community."  Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also Twyman v. Twyman, 855 S.W.2d 619, at 621 (Tex.1993).  Additionally, complaints of activity arising in the employment setting must consist of more than mere employment disputes to surpass this threshold.  MacArthur v. University of Tex. Health Center at Tyler, 45 F.3d 890, 898 (5th Cir.1995) (applying Texas law); Miller, 911 S.W.2d at 899.  The activities Riojas asserted in her petition as underlying her perceived constructive discharge (queries about and refusal to participate in unlawful activities) do not support an inference of outrageous behavior.  See MacArthur, 45 F.3d at 898-99 (employer made unfounded accusations against the employee, threatened to charge her with scientific misconduct, and exercised substantial control over the committee which eventually suspended her work medical privileges all without incurring liability); Wornick Co., 856 S.W.2d at 735 (even if true that employee was fired because she possessed incriminating information about improper activities, no exception to employment-at-will doctrine presented and therefore humiliation of being fired did not result from outrageous conduct connected with termination); Sebesta v. Kent Electronics Corp., 886 S.W.2d 459, 463-64 (Tex. App.CHouston [1st Dist.] 1994, writ denied)(employer=s yelling at and illegally discharging employee for performing jury duty, mischaracterizing firing as a simple resignation, violating own internal policies, and arranging for ex‑employee to leave via an "exit parade" during busiest time of the day held to fall short of extreme and outrageous standard); Horton v. Montgomery Ward & Co., Inc., 827 S.W.2d 361, 367‑70 (Tex. App.‑‑San Antonio 1992, writ denied)(placing rattlesnake rattlers in employee's desk, subjecting her to derogatory name calling and ostracism, defacing her pictures, and refusing to discipline her tormentors insufficient to constitute extreme and outrageous conduct).

A claim for intentional infliction of emotional distress cannot be predicated on Riojas= performance evaluations.  Comment d to section 46 of the Restatement (Second) of Torts, from which the tort of intentional infliction of emotional distress is derived under Texas law, excludes from the scope of the tort acts such as the utterance of unflattering opinions and insults.  Restatement (Second) of Torts ' 46 cmt. d (1965).  Even conduct motivated by malice, or resulting in a degree of aggravation which would entitle the plaintiff to punitive damages for another tort does not automatically attain the standard of "extreme", "beyond all possible bounds of decency", "atrocious", and "utterly intolerable in a civilized community."  Id.  We have already determined that the statements contained in the performance evaluations were mere opinions and not malicious.  As such they do not come within the scope of an action for intentional infliction of emotional distress.  Id.; see Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 94 (Tex. App.CDallas 1996, n.w.h.)(falsely depicting plaintiff to community as a thief insufficiently outrageous to raise a fact issue on outrageous conduct); Free v. American Home Assur. Co., 902 S.W.2d 51, 56 (Tex. App.CHouston [1st Dist.] 1995, no writ)(ex-employer=s statements describing ex-employee to employment "headhunter" as a "lightweight" who "allowed things to languish" could not be considered so utterly intolerable or atrocious as to sustain an action); Schauer, 856 S.W.2d at 451(objectionable statements in performance appraisal shown only to employee=s immediate supervisor and neither shared nor discussed with anyone else does not amount to outrageous conduct); see also Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex.1992).  Cf. Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 776 (Tex. App.CTexarkana 1995, writ denied)(supervisors= statements characterizing employee as Asatanist@ held beyond all bounds of decency); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 681 (Tex. App.CEl Paso 1997, n.w.h.)(atrocious and outrageous ridicule of complainant=s cancer surgery and remarks on appearance as "lopsided" and having a "plastic boob" had no purpose but to cause emotional distress).

Because she did not plead any facts supporting an inference of outrageous conduct, we hold that Riojas did not plead a cause of action for intentional infliction of emotional distress.  Appellant=s third point of error is overruled.

            We affirm the trial court=s order granting appellees= motion for summary judgment.

FEDERICO G. HINOJOSA

Justice

Opinion ordered not published. Tex. R. App. P. 90.

Opinion delivered and filed this

the 7^th day of August, 1997.

---

^[1] On appeal, Riojas claims that she stated three causes of action in her petition: wrongful discharge, defamation, and intentional infliction of emotional distress.  Appellees discerned only twoCwrongul discharge and defamation.  Riojas did not assert the existence of the third cause of action in her response to appellees= motion for summary judgment, but has presented it as a point of error on appeal.

^[2]Although Riojas makes several specific references in her appellate brief to the locations of summary judgment evidence in the record, we cannot rely on appellate briefs to make up for deficiencies in the response presented to the trial court.  McConnell, 858 S.W.2d at 341.

^[3] AAt will@ employees in Texas are statutorily protected against discharge for unacceptable reasons such as filing workers= compensation claims (Tex. Lab. Code Ann. ' 451.001 (Vernon 1996)), performing jury duty (Tex. Civ. Prac & Rem. Code Ann. ' 122.001 (Vernon 1986)), discrimination on the basis of gender, race, color, age, religion, handicap or national origin (Tex. Lab. Code Ann. ' 21.051 (Vernon 1996)), union membership or nonmembership (Tex. Lab. Code Ann. ' 101.051 (Vernon 1996)), and serving on active duty in the State military forces (Tex. Govt. Code Ann. ' 431.006 (Vernon 1990)).

^[4]If the employer can show any legitimate reason for the discharge, then an action for wrongful discharge must fail.  Texas Dept. of Human Serv. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995).

^[5] Financing statement form used to perfect a secured interest.  See Tex. Code Forms Ann. - UCC Forms ' 9.402-Form 1 (Vernon 1986 & Supp. 1997); see also Tex. Bus. & Com. Code Ann. ' 9.402 (Vernon 1991 & Supp. 1997).

^[6] Cases involving allegations of far more serious workplace deficiencies have been held insufficient to support an assertion of constructive discharge.  See, e.g., Dornhecker v. Malibu Grand Prix Corp, 828 F.2d 307, 308 (5th Cir. 1987)(sexual harassment); Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755 (5th Cir. 1986)(racial discrimination; emotional distress stemming from demotion within district); Shawgo v. Spradlin, 701 F.2d 470, 481-82 (5th Cir. 1983)(derogatory comments from co-workers following disciplinary proceedings); Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177-78 (Tex. App.CHouston [14th Dist.] 1991, no writ)(general harassment, public reprimands).

^[7]A noteworthy exception to this general rule is Brown v. Montgomery County Hosp., 929 S.W.2d 577, 581-82 (Tex. App.CBeaumont 1996, writ granted) (following negative work evaluation, employee expressly given choice between resigning or being fired).