Laura M. Pinson v. First Financial Capital Corp.

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00353-CV

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LAURA M. PINSON, Appellant

V.

FIRST FINANCIAL CAPITAL CORP., Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 04-21305

M E M O R A N D U M   O P I N I O N

Appellant Laura M. Pinson appeals the trial court=s summary judgment in favor of her former employer, First Financial Capital Corp. on her claim for intentional infliction of emotional distress. We affirm.

I.  Factual and Procedural Background

Appellant Laura M. Pinson brought suit against her former employer, appellee First Financial Capital Corp. (hereinafter AFirst Financial@), asserting intentional infliction of emotional distress.  Pinson alleged that, during her employment as a billing administrative processor with First Financial, she was subjected to abusive working conditions which allegedly caused her severe emotional distress and placed her in fear for her personal safety.

After taking Pinson=s deposition, First Financial filed a traditional motion for summary judgment, which the trial court granted.  Challenging that ruling, Pinson asserts that First Financial=s motion for summary judgment was premature and that, in any event, a genuine issue of material fact exists as to one or more elements of her intentional-infliction-of-emotional-distress claim.

II. Standard of Review

In reviewing a traditional motion for summary judgment, we consider whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).  A defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).  Under this traditional standard, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  Id.  When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious.  FM Props.  Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.  2000).

III. Analysis

A.      Was First Financial=s traditional motion for summary judgment prematurely filed?

We turn first to Pinson=s claim in her third issue that First Financial=s motion for summary judgment was premature and should not have been granted because the discovery period in the docket control order had not elapsed.  In support of this argument, Pinson relies on Texas Rule of Civil Procedure 166a(i) governing no-evidence motions for summary judgment.  Some of the time restrictions for filing a no-evidence motion for summary judgment are not applicable to a traditional summary-judgment motion.  See Tex. R. Civ. P. 166a (c), (i).  As the rules of procedure state, a no-evidence motion for summary judgment is proper only after Aan adequate time for discovery@ has passed.  See id. at 166a(i).  However, a traditional motion for summary judgment may be filed at any time  as long as the motion and any supporting affidavits are filed and served at least twenty-one days before the hearing date.  See id. at 166a(c).  First Financial=s traditional motion for summary judgment was not prematurely filed.  Accordingly, we overrule Pinson=s third issue.

B.      Did the trial court err in granting First Financial=s motion for summary judgment?

Turning now to the merits of Pinson=s argument that a genuine issue of material fact exists on one or more of the essential elements of her claim for intentional infliction of emotional distress, we consider whether First Financial negated at least one element of this claim.  To recover for the intentional infliction of emotional distress, a plaintiff is required to establish that (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the conduct caused the plaintiff emotional distress, and (4) the emotional distress was severe.  See Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).  In addition, A[a] claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.@ 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.;see also Durkel v. St. Joseph Hosp., 78 S.W.3d 576, 586 (Tex. App.CHouston [14th Dist.] 2002, no pet).  In its motion for summary judgment, First Financial attacked elements two and fourCthat the actions forming the basis of Pinson=s claim do not rise to the level necessary to constitute extreme and outrageous conduct, and that such actions did not cause Asevere@ emotional distress. 

To support its motion, First Financial relied upon Pinson=s deposition testimony.   In response, Pinson attached her own affidavit in an attempt to raise a genuine issue of material fact on the two challenged elements.  Because the trial court did not specify the grounds upon which it relied in granting the motion for summary judgment, we may affirm the summary judgment if we conclude that First Financial satisfied its burden in negating either element two or four.  See FM Props.  Operating Co., 22 S.W.3d at 872. 

AExtreme and Outrageous@ Conduct

In her original petition, Pinson alleged that First Financial subjected her to certain abusive working conditions during her employment.  Those alleged abusive conditions (as described in Pinson=s deposition and in her affidavit) are summarized as follows:

!       Pinson and another co-worker were told in a raised voice, Ayou guys...shut up@  on one occasion by their supervisor, and a few co-workers near Pinson=s cubicle heard it.

!       Pinson=s supervisor; responding to a perceived error by Pinson in entering client data into the company=s computer system, told Pinson in a raised voice that she was an Aembarrassment.@  The door to her supervisor=s office was apparently open so everyone could hear what was said.

!       Pinson heard that, a week after her employment terminated, her supervisor told another employee (now ex-employee) that Pinson had been given the choice to either take another position at a lower rate of pay or leave the company, that Pinson had been fired, and that Pinson=s supervisor asked another employee for her opinions in regard to Pinson=s job performance.

!       Pinson was allegedly called a Aliar@ by her supervisor, in an incident also related to Pinson=s alleged mis-entry of some client billing data into the company=s computer system.

!       Pinson=s supervisor allegedly told her that she wanted to get out of her neighborhood (where Pinson also lived and grew up) because Atoo many blacks and Mexicans were starting to take over.@

!       Pinson allegedly was told in a meeting with her supervisor and another high-level employee that she could either take another position at a lower rate of pay or not have a job, which violated the company policy.

!       Pinson allegedly was told that she would be terminated if she did not take the Ademotion@ and that she was going to be replaced by an African-American woman, who was allegedly on probation at the time.  Pinson alleges that the African-American woman was receiving better treatment because of her race.

These alleged instances fall within the realm of insensitive or rude behavior; they do not rise to the level of Aextreme and outrageous@ conduct, as defined by the Texas Supreme Court.  To be Aextreme and outrageous,@ conduct must be Aso 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.@  Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).  Texas courts have adopted a strict approach to intentional-infliction-of-emotional-distress claims arising in the workplace. See Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 900‑01 (Tex. App.CAmarillo 1995, no writ); Amador v. Tan, 855 S.W.2d 131, 135 (Tex. App.CEl Paso 1993, writ denied); Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App.CSan Antonio 1992, writ denied) (holding that Aincidents in which a Texas court has determined the conduct to be extreme and outrageous in the employer/employee setting are few@).  Underlying these decisions is the sensible notion that, to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees.  See, e.g., GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612B13 (Tex.1999) (concluding that an employer must have latitude to exercise its rights to supervise and criticize, in a permissible way, even though emotional distress may result);  Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 809 S.W.2d 514, 522 (Tex. App.CSan Antonio 1991) (holding that an employer=s public characterization of the plaintiff as a Athief@ to plaintiff=s co-workers and members of the community, also was not Aextreme and outrageous@), aff'd in part and rev'd in part on other grounds, 844 S.W.2d 198 (Tex. 1992). Given these considerations, Texas courts have held that a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes.  Miller, 911 S.W.2d at 900‑01.  The range of behavior encompassed in Aemployment disputes@ is broad and includes, at a minimum, such things as criticism, lack of recognition, and low evaluations, which, although unpleasant and sometimes unfair, are ordinarily expected in the work environment.  Johnson v. Merrell Dow Pharms., 965 F.2d 31, 33‑34 (5th Cir. 1992) (applying Texas law).

Generally, insensitive or even rude behavior does not constitute Aextreme and outrageous@ conduct.  Natividad, 875 S.W.2d at 699.^[1] Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of Aextreme and outrageous@ conduct.  See  Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 124 (Tex. App.CSan Antonio 1998, pet. denied) (holding that supervisor swearing at employee, calling him obscene names, insulting and threatening to fire employee, and blaming employee for supervisor=s mistakes did not rise to the level of Aextreme and outrageous@); Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex. App.CSan Antonio 1997, writ denied) (holding verbal abuse, refusal to allow plaintiff lunch breaks, and hostile demonstrations when plaintiff left work sick was not Aextreme and outrageous@ conduct).  Thus, to establish a claim for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of Aextreme and outrageous@ behavior.  See Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir. 1992) (requiring employee to show conduct Aelevating [the employer=s] actions above those involved in an >ordinary employment dispute= @).  Accordingly, in order to prove her claim, Pinson had to raise a genuine issue of material fact as to the existence of some conduct by First Financial that would bring an ordinary employment dispute into the realm of Aextreme and outrageous@ behavior. She failed to do so. 

None of the statements allegedly made by Pinson=s supervisor rise to a level beyond that of an ordinary workplace dispute.  None of the matters recited in Pinson=s affidavit create a genuine issue of material fact on the issue of whether First Financial=s alleged conduct constitutes Aextreme and outrageous@ behavior.  Pinson failed to present any other evidence raising a genuine issue of material fact as to whether the alleged conduct was Aextreme and outrageous.@  Thus,  we conclude that First Financial negated element two of Pinson=s claim for intentional infliction of emotional distress.

Based on this determination, we need not decide whether a genuine issue of material fact exists on element four of Pinson=s claimCwhether the alleged conduct caused Asevere@ emotional distress.  Nevertheless, evaluation of this ground for summary judgment yields the same result. 

ASevere@ Emotional Distress

ASevere emotional distress@  means distress so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering.  See Williams v. First Tenn. Nat=l. Corp., 97 S.W.3d 798, 804B05 (Tex. App.CDallas 2003, no pet.).  There is no evidence that Pinson=s emotional stress was Asevere.@  Indeed, her own testimony (in both her deposition and her affidavit) conclusively establishes that her emotional distress was not severe.  She has never been diagnosed with depression or any other psychiatric problem.  She never experienced nightmares, and she acknowledged that part of reason she began to see a psychiatrist (even before the first alleged incident) was related to the Anormal@ stress of work.  Pinson was required to show more than mere worry, anxiety, vexation, embarrassment, or anger.  Id. The summary-judgment evidence does not demonstrate Asevere@ emotional distress because there is no evidence of emotional distress rising to a level that no reasonable person could be expected to endure it without undergoing unreasonable suffering.  See Regan v. Lee, 879 S.W.2d 133, 136‑37 (Tex. App.CHouston [14th Dist.] 1994, no writ).  First Financial, therefore, also negated the fourth element of Pinson=s claim.

IV.  Conclusion

Because we conclude that First Financial negated both the second and fourth elements of Pinson=s claim for intentional infliction of emotional distress, summary judgment on this claim was proper on either basis.  See Sci.  Spectrum, 941 S.W.2d at 911. Accordingly, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

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^[1]  See also Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 722 (Tex. App.CHouston [1st Dist.] 1995, writ denied) (stating termination in violation of a whistleblower statute was not in itself Aextreme and outrageous@ conduct); Garcia v. Andrews, 867 S.W.2d 409 (Tex. App.CCorpus Christi 1993, no writ) (holding conduct of manager who made sexually suggestive and embarrassing remarks to plaintiff and Amentally undressed her@, was not Aextreme and outrageous@); Horton, 827 S.W.2d at 361 (holding conduct of co‑worker who cursed at plaintiff, committed assault and battery, hit her with a wad of paper, placed rattlesnake rattlers in her desk, and defaced her pictures was not Aextreme and outrageous@).