Summary
holding that Sabine Pilot claim was not available to plaintiff because she alleged that she was fired for continuing to act legally rather than refusing to do something illegal
Summary of this case from Prieto v. Bell Aerospace Servs., Inc.Opinion
No. 01-03-00566-CV
Opinion issued October 21, 2004.
On Appeal from the 295th District Court Harris County, Texas, Trial Court Cause No. 2002-08083.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
MEMORANDUM OPINION
In this employment case, Brenda F. Roberson appeals a final summary judgment granted to the Corporation for Economic Development of Harris County, Inc. ("CEDHC"), for wrongful termination, defamation, and intentional infliction of emotional distress. We agree with the trial court that the case raises no genuine issue of material fact. We therefore affirm.
The Facts
The CEDHC hired Roberson in February 2001, as manager of the Micro Loan Department. At that time, she contemporaneously signed an at-will employment agreement, acknowledging that she would be "subject to termination at any time, for any reason, with or without notice, and with or without cause." The CEDHC also provided her with their employee handbook, which discusses the CEDHC's at-will employment policy.
In August 2001, Roberson received a loan application from an individual with a prior bankruptcy and a poor credit history. Roberson submitted a loan package relating to the application to the CEDHC's loan committee, an outside group responsible for reviewing and either approving or denying the application. Roberson made no staff recommendation on the package as to whether the committee should approve the loan. A month later, the loan committee approved the loan. According to the corporate minutes, the CEDHC's board of directions concluded that "the loan did not go through the normal process of review by the established in-house committee." The minutes further state that "[t]he Board discussed the loan and concluded that the loan should not have been presented to the Steering Committee for review." The board then voted to terminate Roberson's employment. On November 14, 2001, the CEDHC's president, Amos Brown, informed Roberson that she was fired.
The Procedural History
In February 2002, Roberson sued the CEDHC for wrongful termination, defamation, and intentional infliction of emotional distress. A year later, after the conclusion of discovery, the CEDHC moved for summary judgment. At that time, the trial court granted Roberson extension of time, ordering that the CEDHC's motion for summary judgment be reset for April 7, 2003. Roberson did not file a response. On April 8, 2003, the court rendered a final summary judgment for the CEDHC. Roberson then moved for reconsideration and for leave to file a late response to the summary judgment motion. On May 14, 2003, the court denied Roberson's motions, but noted that, in doing so, it had reviewed Roberson's late-filed response.
Standard of Review
The CEDHC moved for a traditional summary judgment; therefore, it has the burden to establish that no genuine issue of material fact exists. Tex. R. Civ. P. 166a(c); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (all evidence favorable to nonmovant taken as true and reasonable inferences indulged in nonmovant's favor); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985) (defendant-movant bears burden to show no genuine issue of material fact and entitlement to judgment as matter of law).
The Late Response to the Summary Judgment Motion
Roberson contends that the trial court abused its discretion in denying her motion for leave to file a late response to the summary judgment motion, filed after the trial court already had granted the motion. Roberson asserts that she missed the deadline because her counsel had moved his office location and lost his weekly calendar. Counsel asserts on appeal that it thought the response was due on April 18, 2003. For support, counsel cites to Exhibit A of the appendix to the appellate brief, as an order that "was left out of the record." The order to which Roberson refers is not an order; instead, it is a notice from the trial court indicating that it had signed an order granting a trial continuance and an extension of time. The correspondence does not refer to any deadlines.
The record contains the actual order granting the continuance of the summary judgment hearing. The order states, "Summary Judgment set for submission today is reset for April 7, 2003, on submission." Roberson's contention that the submission date was anything other than the April 7 date specified in the order is without merit. Though the trial court denied Roberson's motion for leave to file a late response, it nonetheless considered the late response. On May 14, 2003, the trial court signed an order stating that it reviewed and considered the response:
On this date, the Court orders as follows: Plaintiff's Motion for Leave to Late [sic] Summary Judgment Response is denied. Alternatively, the court has reviewed the Plaintiff's Response to the Motion for Summary Judgment and finds in favor of the Defendant on its Motion for Summary Judgment.
The order thus shows that the trial court considered Roberson's late response; therefore, we will also consider the merit of the motion and response.
Wrongful Termination
Roberson contends that the trial court erred in granting the CEDHC's motion for summary judgment because genuine issues of material fact exist regarding her wrongful termination claim. Although Roberson's petition does not allege a specific cause of action, it does assert that federal regulations prohibited her from discouraging an applicant from pursuing a loan:
Defendant falsely accused Plaintiff of submitting a loan application for approval that should not have been submitted, when in fact, by federal regulation and as a professional in the banking/financial industry, she was prohibited by federal regulations from making oral or written statements that would discourage a reasonable person from making or pursing [sic] a loan. Further, Plaintiff made no recommendations for approval of Smith's loan the submission of which the President used as a reason for her termination. The President knew or should have known that Plaintiff had not engaged in and could not have legally engaged in such conduct; nonetheless, the President of the corporation either with actual malice or negligently accused her of engaging in conduct that would be damaging to her in her occupation as a Banker, all to her damages for which she now sues in an amount within the jurisdictional limits of this Honorable Court.
Construing Roberson's pleadings liberally, we address her claim for wrongful termination as one brought under Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Under the Sabine Pilot exception to the employment-at-will doctrine, an employee may maintain a common law claim for wrongful termination if the sole reason for the employee's termination is a refusal to perform an illegal act. Id. An employee who was "unacceptably forced to choose between risking criminal liability or being discharged" may seek a recovery. Winters v. Houston Chronicle Publ'g Co., 795 S.W.2d 723, 724 (Tex. 1990).
We note that both the CEDHC's summary judgment motion and Roberson's late-filed response to the motion characterize her wrongful termination claim as one brought under Sabine Pilot. See Sabine Pilot, 687 S.W.2d at 735. In her motion for continuance, Roberson asserted that her wrongful termination claim could be one brought under section 21.051 of the Texas Labor Code. For the first time on appeal, the CEDHC additionally responds that the trial court lacked jurisdiction over Roberson's wrongful termination claim because she did not exhaust her administrative remedies under the Texas Labor Code by first filing a complaint with the Texas Commission on Human Rights within 180 days of the alleged discriminatory act. Tex. Lab. Code Ann. § 21.202(a) (Vernon Supp. 2004-2005). Roberson's petition, however, does not allege a claim under Labor Code section 21.051, nor does she assert that her claim is anything other than a Sabine Pilot claim in her late-filed response to the CEDHC's summary judgment motion. We therefore do not address CEDHC's exhaustion of remedies issue.
The CEDHC's motion for summary judgment asserts that Roberson does not have a cause of action under Sabine Pilot because Roberson failed to raise a fact issue as to whether the CEDHC discharged her for the sole reason that she refused to perform an illegal act that would subject her to a criminal penalty. See Sabine Pilot, 687 S.W.2d at 735. We agree. In her petition, Roberson does not allege that the CEDHC asked her to commit an unlawful act. Instead, she testified in her deposition that the CEDHC unlawfully fired her because she "brought the loan forward." She claims that she would have violated Regulation B of the federal Equal Credit Opportunity Act if she had "dissuaded" the loan applicant. Thus, Roberson did not refuse to perform an illegal act; rather, she claims she was fired because she acted legally. Roberson testified, moreover, that no one at the CEDHC had told her to reject a loan application on the basis of race, color, religion, national origin, sex, marital status, or age. Based on Roberson's own testimony, she raises no genuine issue of material fact regarding whether the CEDHC asked her to commit an illegal act.
Regulation B of the Equal Credit Opportunity Act prohibits creditor practices that discriminate on the basis of race, color, religion, national origin, sex, marital status, or age. 12 C.F.R. § 202.1.
In addition, to prevail under Sabine Pilot, performance of the illegal act must subject the employee to criminal penalties. See id. Regulation B does not carry any criminal penalties. See 12 C.F.R. § 202.17 (b)(1) (providing that "any creditor that fails to comply with a requirement imposed by the Act or this regulation is subject to civil liability for actual and punitive damages in individual or class actions"). Even if the CEDHC had asked Roberson to violate Regulation B, she would not have been subject to criminal penalties; thus, as a matter of law, Roberson's claim does not fit within the Sabine Pilot exception to the employment-at-will doctrine. See Fite v. Cherokee Water Co., 6 S.W.3d 337, 342 (Tex.App.-Texarkana 1999, no pet.) (holding that Sabine Pilot was inapplicable because statute requiring private citizens to respond to peace officer's request for assistance did not carry criminal penalties). We hold that Roberson raises no genuine issue of material fact as to her wrongful termination claim; therefore, the trial court properly granted summary judgment for the CEDHC.
Defamation
In her petition, Roberson alleges that she suffered "damages in her profession and occupation and that her reputation as a Banker has been injuriously slandered and defamed for which she now sues." To prevail on her cause of action for defamation, Roberson must prove: (1) the CEDHC published a statement; (2) the statement was defamatory concerning Roberson; and (3) the CEDHC was negligent regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). To prevail on its motion for summary judgment, the CEDHC must disprove at least one essential element of Roberson's defamation claim. See id.
During her deposition, Roberson could not refer to any specific defamatory statements made about her. She "did not know" what statements had been made, but thought "something is probably out there":
Q. Okay. And tell me what the statement or statements were that damaged your reputation.
A. That's the whole point of this exercise. I don't know what they are. I am never going to know what they are. . . . Now, I can't specifically say what is out there about me; but because of my previous experience in having been in this business for 25 years, I know something is probably out there. I can't see any reason why my situation would be any different than anybody elses.
Q. Okay. So, I understand that you don't have any specific statements that you can —
A. No — nobody — no.
Roberson further testified that she could not prove any future employers had refused to hire her because the CEDHC had terminated her employment. Finally, Roberson admitted that she had neither documentary evidence nor witnesses to support her allegation. By her own testimony, Roberson fails to establish a cause of action for defamation. See Abbott v. Pollock, 946 S.W.2d 513, 519-20 (Tex.App.-Austin 1997, writ denied) (affirming summary judgment on basis that sheriff's office "proved the absence of a defamatory statement" because employees admitted they did not know of any defamatory statements made). The trial court thus properly granted summary judgment for the CEDHC on the defamation claim.
Intentional Infliction of Emotional Distress
Roberson further contends that the facts support a claim for intentional infliction of emotional distress. To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). Extreme and outrageous conduct is conduct "`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 v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting Restatement (Second) of Torts § 46 cmt 46 cmt. d (1965)). Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999); Restatement (Second) of Torts § 46 cmt 46 cmt. d (1965). It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous. GTE Southwest, Inc., 998 S.W.2d at 616; Restatement (Second) of Torts § 46 cmt 46 cmt. h.
A claim for intentional infliction of emotional distress does not exist for "ordinary employment disputes." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 741 (Tex. 2003) (citations omitted). "Only in the most unusual of circumstances is conduct so extreme and outrageous that it is removed from the realm of ordinary employment disputes." Id. (citations omitted). Wrongful termination does not, standing alone, constitute intentional infliction of emotional distress. Id. As the Texas Supreme Court has explained, "[t]ermination of an employee is never pleasant, especially for the employee. But if we accept [the employee's] arguments in this case, employers would be subjected to a potential jury trial in connection with virtually every discharge, and `there would be little left of the employment-at-will doctrine.'" Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex. 1993) (citing Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992)).
During her deposition, Roberson testified that no one yelled at her or acted "in a rude or abusive manner" to her when she was fired. She also testified that although she experienced "extreme anger," "humiliation," and "extreme stress," she suffered no physical injuries as a result of the termination and did not seek medical or psychiatric care. The record establishes as a matter of law that the CEDHC's conduct fell short of the requisite level of outrageousness. See Wornick, 856 S.W.2d at 735 (holding that employer's conduct in having security guard escort terminated employee from premises was not sufficiently outrageous, as matter of law, to state claim for intentional infliction of emotional distress). Although we recognize that Roberson's termination was "understandably unpleasant," the circumstances were part of an "ordinary employment dispute." See Canchola, 121 S.W.3d at 742 (holding that Wal-Mart's conduct was "understandably unpleasant," but was an "ordinary employment dispute"). We therefore hold that the trial court properly granted summary judgment for the CEDHC on the intentional infliction of emotional distress claim.
Conclusion
We hold that Roberson raises no genuine issue of material fact as to her wrongful termination, defamation, and intentional infliction of emotional distress claims. We therefore affirm the trial court's summary judgment.