GTE Southwest, Incorporated, Petitioner

Rhonda Bruce, Linda Davis, and Joyce Poelstra, Respondents

Justice Owen, concurring.

I agree that there is more than a scintilla of evidence to support the jury's finding that Shields intentionally inflicted emotional distress on the plaintiffs. I cannot join the Court's opinion because most of the testimony that the Court recounts is legally insufficient to support the verdict in this case.

There was evidence that Shields physically threatened, although he did not touch, the plaintiffs. There was also evidence of sustained and threatening sexual harassment and that some of Shields's profanity was uttered at the same time that he sexually harassed or physically threatened the plaintiffs. That conduct was sufficient to permit a jury to conclude that Shields had intentionally inflicted emotional distress on the plaintiffs.

But regardless of how long and how often most of the conduct cataloged by the Court may have been committed in the workplace, it does not meet the rigorous standard for intentional infliction of emotional distress set forth in the Restatement (Second) of Torts § 46 cmt. d (1965) or in this Court's decisions applying that section. The following conduct is not a basis for sustaining a cause of action for intentional infliction of emotional distress, even when the employees who are upset by the conduct are women:

• cursing, profanity, or "yelling and screaming" when it was not simultaneously accompanied by sexual harassment or physically threatening behavior



• pounding fists on a table when requesting employees "to do things"



• going into "a rage" when employees leave an umbrella or purse on a chair or filing cabinet



• screaming at employees that if they do not "get things picked up" they will be fired



• telling an employee that she would be sent to the unemployment line

• telling an employee that she could be replaced by two Kelly girls



• a supervisor's statement to an employee that he had been sent to fire her



• typing "quit" on a computer and telling an employee that is what she can do



• requiring employees to vacuum their offices daily even though a janitorial service vacuums as well



• requiring an employee to clean a spot off the carpet while "yelling" over her



• requiring an employee to clean tobacco stains off a wall



• telling an employee that she must wear a post-it note that says "don't forget your paperwork."

Most of the foregoing conduct would be offensive and degrading in most circumstances. But it is not "'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. d (1965)). As we recently observed in Brewerton v. Dalrymple , ___ S.W.2d ___ (Tex. 1999), the fact that an action is intentional, malicious, or even criminal does not mean that it is extreme or outrageous for purposes of the tort of intentional infliction of emotional distress, as the Restatement explains:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.

Restatement (Second) of Torts § 46 cmt. d (1965).

The Court's conclusion that there is evidence of intentional infliction of emotional distress because Shields suggested to and even threatened the plaintiffs that they may be discharged or replaced is particularly inconsistent with our prior decisions. We have held that discharging an employee, even when it amounted to wrongful discharge under our laws, did not amount to intentional infliction of emotional distress. See Southwestern Bell Mobile Sys., Inc. v. Franco , 971 S.W.2d 52, 54-55 (Tex. 1998); s ee also Brewerton , __ S.W.2d at __; Wornick Co. v. Casas , 856 S.W.2d 732, 735-36 (Tex. 1993). We have said that firing an employee in front of her co-workers and then having her escorted off the premises by a security guard was not the type of conduct that could support a finding of intentional infliction of emotional distress. See Wornick Co. , 856 S.W.2d at 736. I fail to see how screaming at a plaintiff that she may be fired is conduct of a degree and character that is actionable when actually firing an employee in the presence of her co-workers and physically escorting her off the premises with uniformed security guards is not.

The Court's conclusion that cursing and profanity may constitute intentional infliction of emotional distress is also inconsistent with a specific example given by the Restatement in which highly profane language is used. See Restatement (Second) of Torts § 46 cmt. d, illus. 4 (1965). I fail to see how using a profane word ten or even a hundred times is intentional infliction of emotional distress when that cursing is not directed at the plaintiff and is not simultaneously accompanied by sexual harassment or physically threatening behavior.

Because the Court's writing is far too broad and in some respects unfaithful to our precedent, I cannot join the Court's opinion.

__________________________________________

Priscilla R. Owen

Justice

OPINION DELIVERED: July 1, 1999