Negligent investigation, not a cause of action in Texas
by Michael Fox
Although the Texas Supreme Court has been a reliable haven for employers, the intermediate courts of appeal are not always so. In Texas Farm Bureau Mutual Insurance v. Sears, decided on August 30th, the Court reversed a lower court's decision that could have proved enormously troublesome to employers. The fired employee had won because the lower appeals court held that an employer, even in the context of an at will employee, has a duty of ordinary care in conducting an investigation as to the employee's misconduct. Finding that such a duty would prove to be the total undoing of the long established and treasured 'employment at will' doctrine, the Supreme Court rejected it, finding that no such duty exists.
Arguably, the Court found that any negligence type claim tied to a termination will not be valid. ("Engrafting a negligence exception on our at-will employment jurisprudence would inevitably swallow the rule.")
The Court was also once again forced to substitute its opinion of what is outrageous conduct in denying the employee's intentional infliction of emotional distress claim. This time, a unaminous Supreme Court had to overturn a decision that certain conduct was outrageous. That decision was made by a jury, the trial judge and the court of appeals. That such decisions have to be made, quite often, argues strongly for the abolition of the intentional infliction of emotional distress, at least in the employment context. It too runs the risk of being the exception that swallows the at will rule. The Court will perhaps have its chance, or at least a chance to limit its reach in sexual harassment cases, in Roche v. Zeltwanger, currently pending before the Court.