AFFIRM; and Opinion Filed March 6, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00448-CV
MEOSHA JACKSON, Appellant V. HEAD START OF GREATER DALLAS, INC., Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-19136
MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Rosenberg1 Opinion by Justice Rosenberg Appellant Meosha Jackson appeals the trial court’s order granting summary
judgment in favor of appellee Head Start of Greater Dallas, Inc. (Head Start) on
Jackson’s intentional or reckless infliction of emotional distress claim. In two issues,
Jackson contends the trial court erred in granting Head Start’s traditional summary
judgment motion because the motion lacked supporting evidence and, as to Head
Start’s affirmative defense of preemption, lacked a factual and legal basis. In a third
issue, Jackson contends the trial court erred in granting Head Start’s no-evidence
1 The Hon. Barbara Rosenberg, Justice, Assigned. summary judgment motion because she presented evidence of the elements of her
claim, including outrageous conduct, severe emotional distress, intentionality or
recklessness in the outrageous conduct, and proximate causation. For the following
reasons, we affirm.
Background
In 2018, Head Start employed Jackson as a health assistant. In that position,
she educated parents of Head Start students on health issues and conducted
enrollments and screenings. Breana Henderson, a health specialist, had been
Jackson’s supervisor for over a year. Dorruth Boyd, a Head Start health service
manager, was Henderson’s supervisor and the director of Jackson’s department.
According to her deposition testimony, Jackson went to Henderson’s office to
deliver some notices during the workday on June 27, 2018. Jackson thought the
office was empty; the door was closed and she did not recall seeing lights. Upon
entering the office, Jackson observed Henderson and another health assistant
engaged in a consensual sexual encounter. Everyone jumped; Jackson immediately
walked out, closing the door behind her. She was “embarrassed” and “scared.”
Several days later, Henderson spoke to Jackson about the incident and Henderson’s
conduct. Jackson was offended by the lack of “decency” and “decorum” of someone
having sex in the office.
Henderson testified by deposition that neither the June 27 incident nor the
subsequent discussion occurred.
–2– According to Jackson, Henderson began to find fault with Jackson after the
June 27 incident. Nothing had changed in Jackson’s work performance, but
Henderson would “poke around” and find things Jackson had not done and text or
email Jackson. Henderson also investigated Jackson’s use of leave under the Family
and Medical Leave Act and adjusted the screening and enrollment schedules in ways
that Jackson believed were unfair. Henderson made sarcastic remarks about Jackson
being available to attend scheduled meetings.2 Jackson also believed Henderson’s
November 2018 annual review of Jackson was unfair.
Jackson testified that Boyd was not receptive to Jackson’s complaints about
Henderson and squelched any discussion of the June 27 incident. On August 14,
2018, Jackson approached Boyd to discuss some issues Jackson had with Henderson,
but Boyd cut Jackson off and said they would need to have a meeting for Jackson to
voice her concerns. Boyd, however, never scheduled the meeting.
On September 20, 2018, Jackson called Boyd to discuss a disagreement she
and Henderson had over the screening schedule. Boyd advised that they “figure it
out.” During the call, Jackson told Boyd that Henderson and the other health
assistant were “messing around.” Boyd, however, hung up.
After receiving her annual review in November 2018, Jackson complained to
Boyd that Henderson had been “abusing her supervisory role.” Jackson “screamed
2 Jackson also complained of a remark by Boyd. Specifically, Boyd commented on Jackson’s lack of questions during a meeting, despite having told Jackson before the meeting “not to ask stupid questions.”
–3– at [Boyd] and was telling her that . . . all of this stuff is going on because [Jackson]
caught” Henderson “in a sex act.” Before Jackson could explain, Boyd cut her off
and explained that they needed to have a meeting with everyone involved. Again,
no meeting was scheduled.
In April 2019, Henderson prepared an action plan for Jackson. The action
plan, which Jackson considered a “write-up,” noted issues with (1) interpersonal
relationships with Head Start families and other employees; (2) recordkeeping
procedures; (3) adhering to the enrollment schedule; and (4) attendance. Jackson
disagreed with the plan. Further, Henderson would not provide information to help
Jackson correct any deficiencies. Noting that she had never been written up before,
Jackson believed Henderson “needed [Jackson] gone,” as did Head Start. Jackson
also believed Henderson and/or Head Start had an obligation to report the June 27
incident.
In August 2019, Jackson and Henderson had a lengthy email exchange.
Jackson forwarded the email exchange to Boyd along with a request to change
supervisors. As a result of the exchange, Boyd wrote up both Henderson and
Jackson, noting a need to improve their handling of interpersonal relationships. The
three women also had a meeting. Boyd denied Jackson’s request for a supervisor
change because there was “no objective evidence of a stressful environment.”
Jackson testified that she explained the problems had arisen because she “caught”
Henderson and the other health assistant having sex. Henderson responded that “she
–4– wanted all the lies to stop.” Jackson suggested that Boyd “pull up the cameras” and
do an investigation; Boyd responded that she would have to investigate both
Henderson and Jackson.
In a note about the meeting, which Jackson wrote shortly thereafter, she made
no mention of the June 27 incident or her efforts to explain the incident to Boyd.
Both Boyd and Henderson disputed that Jackson discussed the June 27 incident
during the meeting. According to Henderson, Jackson referred to Henderson and
the other health assistant but did not elaborate when Henderson asked Jackson what
she meant. Boyd testified that she did not receive any notice of sexual activity
between Henderson and the other health assistant prior to October 2019.
Jackson left her employment with Head Start in October 2019 because she
“had had enough.” She did not recall what occurred that day to make her leave, but
testified that she “had enough of all of the intimidation, being angry, crying, upset,
[and] uncertainty.”
In December 2019, Jackson filed this suit against Head Start, alleging that she
was the victim of an intentional or reckless infliction of emotional distress arising
out of the sexual conduct she observed and the subsequent conduct of Henderson
and Boyd. Head Start filed a combination traditional and no-evidence summary
judgment motion, asserting Jackson could not establish, or had no evidence to raise
a fact issue, that (1) Head Start’s conduct was extreme and outrageous, (2) the
emotional distress Jackson suffered was severe, or (3) Jackson had no alternative
–5– cause of action that would provide her with a similar remedy. The trial court held a
telephonic hearing on the motion. Thereafter, the trial court entered an order
granting Head Start’s motion and dismissing Jackson’s claim with prejudice. This
appeal followed.
Standard of Review
“After adequate time for discovery, a party . . . may move for summary
judgment on the ground that there is no evidence of one or more essential elements
of a claim or defense on which an adverse party would have the burden of proof at
trial.” TEX. R. CIV. P. 166a(i). The nonmovant has the burden to produce summary
judgment evidence raising a genuine issue of material fact as to each challenged
element of its claim or defense. Merriman v. XTO Energy, Inc., 407 S.W.3d 244,
248 (Tex. 2013).
We review a no-evidence summary judgment under the same legal sufficiency
standards as directed verdicts. Id. We consider the evidence in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Id. We sustain a no-evidence challenge “when (a) there
is a complete absence of evidence of a vital fact, (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital
fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or
–6– (d) the evidence conclusively establishes the opposite of the vital fact.” Id. (citations
omitted).
If a defendant files a combination traditional and no-evidence motion for
summary judgment, we first review the summary judgment under the no-evidence
standard. E.g., Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If,
as in this case, the trial court does not specify its ground for granting the summary
judgment motion, we must affirm its decision if any ground presented to the court
and preserved for appellate review is meritorious. Merriman, 407 S.W.3d at 248;
see also TEX. R. APP. P. 47.1.
Intentional Infliction of Emotional Distress
In its no-evidence summary judgment motion, Head Start asserted that
Jackson had no evidence on the following elements of her claim for intentional
infliction of emotional distress: (1) extreme and outrageous conduct; (2) severe
emotional distress; and (3) no alternative cause of action. In her third issue, Jackson
contends that the trial court erred in granting summary judgment because she
provided summary judgment evidence to raise a fact issue on each of the elements.
A party claiming intentional infliction of emotional distress must prove: (1)
the defendant acted intentionally or recklessly; (2) the defendant’s conduct was
extreme and outrageous; (3) the conduct caused the claimant emotional distress; and
(4) the emotional distress was severe. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003) (per curiam); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).
–7– Intentional infliction of emotional distress is a “gap-filler” cause of action; it is
available only when no other alternative cause of action is available to a plaintiff.
Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).
Claims for intentional infliction of emotional distress rarely are meritorious
because “most human conduct, even that which causes injury to others, cannot be
fairly characterized as extreme and outrageous.” Rico v. L-3 Commc’ns Corp., 420
S.W.3d 431, 441 (Tex. App.—Dallas 2014, no pet.) (quoting Kroger Texas Ltd.
P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006)). For a defendant’s conduct to
be actionable, it must be “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 society.” Hoffman-La Roche, Inc. v. Zeltwanger,
144 S.W.3d 438, 445 (Tex. 2004); see also Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 817–18 (Tex. 2005). Conduct that is tortious or otherwise wrongful is not
necessarily extreme or outrageous. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex.
2001); Brewerton v. Dalrymple, 997 S.W.2d 212, 215–16 (Tex. 1999) (an action that
is “intentional, malicious, or even criminal does not, standing alone, mean that it is
extreme or outrageous for purposes of intentional infliction of emotional distress”).
Texas courts follow a strict approach when intentional infliction of emotional
distress claims arise in the workplace; an ordinary employment dispute will not give
rise to a claim. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999) (citations
omitted). Accordingly, employment matters such as “criticism, lack of recognition,
–8– and low evaluations” are not actionable, even if unfair or unpleasant. Hoffman-La
Roche, 144 S.W.3d at 449 (quoting Bruce, 998 S.W.2d at 613). Instead, “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 extreme and
outrageous conduct,” which “exists in only the most unusual of circumstances.”
Bruce, 998 S.W.2d at 613 (citations and footnote omitted).
The trial court determines, in the first instance, whether a defendant’s conduct
was extreme and outrageous. Id. at 616. The issue becomes a question for the jury
only when reasonable minds may differ. Id. The court considers the context, the
relationship between the parties, and the defendant’s conduct “as a whole.” Toles v.
Toles, 45 S.W.3d 252, 261–62 (Tex. App.—Dallas 2001, pet. denied); Tiller, 121
S.W.3d at 715. The court examines the defendant’s conduct throughout the parties’
relationship because intentional infliction of emotional distress is most often a
“continuing tort.” Toles, 45 S.W.3d at 262.
Viewed in the light most favorable to Jackson, the summary judgment
evidence shows that she entered Henderson’s office and, for a moment, observed a
consensual sex act. A few days later, Henderson discussed the incident and her
conduct with Jackson. Afterwards, Henderson increased Jackson’s workload and
became critical of Jackson’s work performance. Boyd cut off Jackson when Jackson
complained about Henderson and refused to assign a new supervisor to Jackson or
recognize that Jackson’s work environment became stressful as a result of the June
–9– 27 incident. Jackson believed Henderson and Boyd were using negative reviews and
disciplinary measures as a means to terminate Jackson.
To be sure, Henderson’s conduct on June 27, as alleged, was inappropriate
and unprofessional. That alone, however, does not render the conduct extreme and
outrageous for purposes of maintaining an intentional infliction of emotional distress
claim.3 Bradford, 48 S.W.3d at 758 (wrongful conduct is not, standing alone,
“extreme and outrageous” conduct). Those Texas courts that have upheld a finding,
or found a fact issue, on extreme and outrageous conduct in an employment context
have done so only when the plaintiff was the subject of unwanted harassment or
advances and usually over an extended period of time. See, e.g., Bruce, 998 S.W.2d
at 613, 616–17 (supervisor engaged in “pattern of grossly abusive, threatening, and
degrading conduct”); Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517,
531–33 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (supervisor threatened
to fire employee if she did not succumb to repeated sexual advances over three-
month period); Gonzales v. Willis, 995 S.W.2d 729, 736 (Tex. App.—San Antonio
1999, no pet.) (defendant repeatedly initiated sexually explicit conversations and
made “vile” sexual advances in spite of plaintiff’s protests and suggested he could
3 Jackson asserts that both Henderson and Boyd “admitted” the “outrageousness” of the “sex act.” Henderson, who denied the incident ever happened, testified that, if it did happen, it would be outrageous. Boyd testified that she would not have wanted to see it, it would have been shocking, and she could imagine it being outrageous for Jackson. In any event, the trial court, guided by Texas law, determines if there is evidence to raise a fact issue on whether the conduct was sufficiently extreme or outrageous to serve as a basis for an intentional infliction of emotional distress claim. See Bruce, 998 S.W.2d at 616.
–10– help plaintiff get a job in return for sexual favors), overruled in part on other grounds
by Hoffmann–La Roche, 144 S.W.3d at 447–48. Here, Jackson does not claim any
extreme and outrageous conduct initiated against her. Instead, she claims to have
happened upon Henderson engaged in sexual conduct a single time with another
employee.
Nor does the subsequent conduct of Henderson and Boyd show an extreme
and outrageous course of conduct. To the contrary, the sarcastic remarks and
negative comments, excessive workload, negative review, and discipline, even if
done in a retaliatory manner, are the very workplace insults, indignities, threats, and
annoyances that Texas courts have determined do not give rise to a claim for
intentional infliction of emotional distress. See Bruce, 998 S.W.2d at 613;
Brewerton, 997 S.W.2d at 216 (negative comments in employee’s file, assigning
excessive case load, and repeatedly recommending that plaintiff not be allowed to
continue on tenure track, as a matter of law, was not extreme and outrageous); Tex.
Farm Bureau Mut. Ins. Co. v. Sears, 84 S.W.3d 604, 611–12 (Tex. 2002) (failure to
use reasonable care in investigating agent for alleged insurance fraud was not
extreme and outrageous); Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 921
(Tex. App.—San Antonio 1997, writ denied) (supervisor’s conduct, which
amounted to poor communication and was discourteous and demanding, was not
extreme and outrageous); Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 124 (Tex.
App.—San Antonio 1998, pet. denied) (swearing at, insulting, and threatening
–11– employee and blaming him for supervisor’s mistakes was not extreme and
outrageous); Garcia v. Andrews, 867 S.W.2d 409, 412 (Tex. App.—Corpus Christi
1993, no writ) (making sexually suggestive and embarrassing remarks and
“mentally” undressing employee was not extreme and outrageous).
The Texas Supreme Court decision in Bruce is instructive. 998 S.W.2d 605.
Several employees sued GTE based upon their supervisor’s behavior, which
included sexual innuendo, vulgar obscenities, repeated physical and verbal threats,
and demeaning conduct. Id. at 613–14. Recognizing that liability may arise when
a person with authority engages in repeated or ongoing harassment, the supreme
court determined the supervisor’s conduct supported the jury finding of intentional
infliction of emotional distress. Id. at 616–17. The severity and regularity of the
supervisor’s abusive and threatening conduct, which made the workplace “a den of
terror for the employees,” brought his behavior into the realm of extreme and
outrageous conduct. Id. at 617.
The supreme court, however, distinguished those situations in which a
supervisor’s conduct, even conduct that was an abuse of the supervisor’s position of
power, amounted to mere insults, indignities, or annoyance. Id. at 612–13. The
court cautioned that an employer must have latitude to “supervise, review, criticize,
demote, transfer, and discipline” its employees in a permissible way and, as a result,
extreme and outrageous conduct in the employment context “exists only in the most
unusual of circumstances.” Id.
–12– The bar an employee must meet to assert a claim for intentional infliction of
emotional distress in the workplace is exceptionally high. See id. at 617. Clearly,
the conduct at issue in this case does not compare to the conduct at issue in Bruce.
Having considered the evidence in the light most favorable to Jackson, we conclude
that she had not produced summary judgment evidence to raise a genuine issue of
material fact on the extreme and outrageous conduct element of her claim against
Head Start. The evidence shows, at most, an unfortunate employment dispute; there
is no evidence of a regular pattern of severely abusive behavior “‘so outrageous in
character, and so extreme in degree’” as to support a claim for intentional infliction
of emotional distress. See id. at 611 (quoting Twyman, 855 S.W.2d at 621).
Accordingly, because Head Start negated the second element of Jackson’s
claim for intentional infliction of emotional distress, the trial court did not err in
granting summary judgment in Head Start’s favor. We overrule Jackson’s third
issue.
Conclusion
We conclude that the trial court properly granted Jackson’s no-evidence
motion for summary judgment. Having resolved this issue, we need not reach her
remaining issues or Head Start’s other grounds for summary judgment. See
Merriman, 407 S.W.3d at 248; TEX. R. APP. P. 47.1.
–13– We affirm the trial court’s order.
/Barbara Rosenberg/ BARBARA ROSENBERG JUSTICE
220448F.P05
–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MEOSHA JACKSON, Appellant On Appeal from the 298th Judicial District Court, Dallas County, Texas No. 05-22-00448-CV V. Trial Court Cause No. DC-19-19136. Opinion delivered by Justice Rosenberg. HEAD START OF GREATER DALLAS, Justices Pedersen, III and Goldstein INC., Appellee participating.
In accordance with this Court’s opinion of this date, the trial court’s Order Granting Defendant’s Motion for Summary Judgment is AFFIRMED.
It is ORDERED that appellee HEAD START OF GREATER DALLAS, INC. recover its costs of this appeal from appellant MEOSHA JACKSON.
Judgment entered this 6th day of March 2023.
–15–