Brenda F. Roberson v. Corporation for Economic Development of Harris Co., Inc.

Opinion issued October 21, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00566-CV

BRENDA F. ROBERSON, Appellant

V.

CORPORATION FOR ECONOMIC DEVELOPMENT OF HARRIS

COUNTY, INC., Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2002-08083

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 an 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).

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.

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.

Jane Bland

Justice

Panel consists of Justices Taft, Jennings, and Bland.