Jottings By An Employer's Lawyer

Friday, February 25, 2005

Texas Supreme Court: Did You Not Hear Me On Intentional Infliction of Emotional Distress?

When the opinion starts out,

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.

there's no doubt about how it is going to end. Creditwatch v. Jackson (Tx. 2/25/05)[pdf]. In forceful language, the Court seems to be getting closer to the position Justice Hecht has long urged, the total abolition of the tort in Texas jurisprudence. Justice Brister's penultimate paragraph:

This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where ?gaps? still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

(emphasis added) clearly indicates the Supreme Court is losing its patience.

In this case, there were allegations of sexual harassment which were time barred, the refusal of the employer to provide a reference letter or take reference calls during business hours, a policy that employees should not contact ex-employees, and finally that plaintiff's temporary roommate, also a former co-employee, was told to evict her at the threat of losing her own job. Even assuming the truth of all that, "callous, meddlesome, mean-spirited, officious, overbearing, and vindictive" as it would be -- it is not enough to meet the outrageous conduct standard required for intentional infliction of emotional distress . What it will take, for as long as the claim remains viable, is "circumstances bordering on serious criminal acts."

Two other important items, the Court pointedly "assumes" that the court of appeals was correct in finding that nothing in the TCHRA preempts other common-law causes of actions, inviting, it would seem, arguments that it does preempt some; and confirms what was implied in Zeltwanger, if the complaints are covered by other statutory remedies, the fact that those avenues are now barred (time barred in this case) does not allow them to be asserted as an intentional infliction of emotional distress claim.

Whatever sting was left in the tort of intentional infliction of emotional distress after Zeltwanger, is now even milder.

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