Opinion
Action No. 4:03-CV-77-Y.
March 10, 2005
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pending before the Court is the defendants' Motion For Summary Judgment, filed June 1, 2004. Having carefully considered the motion, response, and reply, the Court concludes that the motion should be GRANTED.
I. RELEVANT BACKGROUND
In analyzing the defendants' motion for summary judgment, the Court is required to view the facts in the light most favorable to the plaintiff. See Lavespere v. Niagra Mach. Tool Works, infra.
Plaintiff Endia Harris-Childs ("Childs") was hired in 1988 by National Rx Services of Texas ("National") as a staff pharmacist. Subsequently, National changed its name to Merck-Medco Rx Services of Texas, L.L.C. and is now known as Medco Health Solutions of Texas, L.L.C ("Medco"). Medco operates a home-delivery-service pharmacy that is dedicated to prescription review and processing.
In 1995, Childs transferred to the position of customer-service research pharmacist. Beginning in July 2001, all six of Medco's customer-service research pharmacists were required to undergo training "in new, computer-based prescription completion protocols (often referred to as "OC" or QRX")." (Defs.' Br. at 5.) Childs attended this training on July 27, 2001.
Due to what Medco determined to be Childs's poor performance in timely processing prescriptions under the QRX program, she received a verbal and a written warning regarding her performance. (Childs's Dep. at 77-79; Defs.' App. at 21.) In addition, Cindy Wood, the QRX supervisor, held several meetings with Childs regarding her performance. ( See, e.g., Childs's Dep. at 170-72, 177-78, 202-03; Defs.' App. at 44, 46, 52.) From January 7 through February 6, 2002, Childs was out of the office on a leave of absence. On January 10, 2002, Childs received a written warning stating that her performance was unacceptable and must be improved. (Defs.' App. at 400.)
After returning to work on February 7, Wood told Childs that she wanted to meet to discuss Childs's performance. (Childs's Dep. at 89; Defs.' App. at 24.) At the meeting, Childs informed Wood that she had been advised by her legal team not to go into any meetings without their being present. (Childs's Dep. at 90-94; Defs.' App. at 24-25.) After Childs refused to participate in the meeting, she was placed on an unpaid leave of absence and sent home. (Childs's Dep. at 91-96; Defs.' App. at 24-25.)
At her employer's request, Childs reported to work the following Monday, on February 11, 2002. (Childs's Dep. at 98-99; Defs.' App. at 26.) She brought her husband to work with her. (Childs's Dep. at 102; Defs.' App. at 27.) Upon her arrival, two representatives from the union asked to meet with her in a conference room. (Childs's Dep. at 105-06; Defs.' App. at 28.) In the conference room, one of the representatives told her that if she did not agree to meet with management then she would be terminated. (Childs's Dep. at 108; Defs.' App. at 28.) Childs informed the union officials that she "had been instructed by [her] legal team not to go into meetings without their presence." (Childs's Dep. at 334-35; Defs.' App. at 85.) She then went back into the receptionist area and waited for some amount of time. (Childs's Dep. at 109-13; Defs.' App. at 29-30.) After no one acknowledged her presence, she and her husband went home. (Childs's Dep. at 113; Defs.' App. at 30.)
On February 11, 2002, Nicole Onder, the company's senior human resources manager, sent Childs a letter informing her that she had been discharged. (Childs Dep. at 296-7; Defs.' App. at 75-6.)
The letter stated:
Dear Endia:
This letter will confirm that your employment with Merck-Medco Rx Services of Texas, L.L.C. has terminated today, February 11, 2002, for the reasons described below.
Specifically, on Thursday, February 7, 2002, you refused to meet with your supervisor Cindy Wood to discuss your work performance, stating that you would not meet without your legal team present. Ms. Wood responded by explaining that as a bargaining unit member, PACE Local 4-211 is your legal representative as to all matters involving the terms and conditions of your employment, and in that regard, Tina Holland the Union's Chief Shop Steward was present to represent you. When you persisted with your refusal to meet, Ms. Wood sent you home.
Consequently, on Friday, February 8, 2002, Claudia Orlowski left a message on your telephone answering machine advising you to report to the pharmacy at 8 a.m. today. Subsequently, she received a voice mail message from your husband stating that he and your legal team would be accompanying you to the pharmacy on Monday and expected to meet with management. In response, Claudia left another message on your telephone answering machine reminding you that PACE Local 4-211 is your representative for matters pertaining to your employment, and stating that, for this reason, management would decline to meet with your husband or your legal team.
At approximately 8:00 a.m. this morning you arrived at the pharmacy with your husband and spoke briefly with representatives of the Union. However, before we had an opportunity to meet you left Merck-Medco property.
Your persistent refusal to meet with management to discuss your work performance constitutes gross misconduct and your leaving work today without authorization from the Company constitutes an abandonment of your position. Accordingly, your employment as a staff pharmacist at Merck-Medco has terminated effective today, February 11, 2002.
(Defs.' App. at 425.)
Subsequently, on June 28, Childs filed a Charge of Discrimination with the Equal Opportunity Commission ("EEOC"). After receiving a letter from the EEOC informing Childs of her right to sue, Childs filed a complaint against the defendants alleging claims for: (1) racial and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"); (2) racial discrimination in violation of 42 U.S.C. § 1981 ("section 1981"); (3) racial harassment in violation of Title VII; (4) retaliation in violation of Title VII; (5) negligent hiring and retention; (6) tortious interference with a contract; and (7) intentional infliction of emotional distress.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Discrimination Based On Race and Gender Under Title VII and Section 1981
Title VII makes it unlawful for an employer to discriminate against an employee on the basis of that employee's race or gender. See 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). "When 42 U.S.C. § 1981 and Title VII are alleged as parallel bases of relief, the same elements of proof are required for both actions." Flanagan v. Aaron E. Henry Community Health Servs. Ctr., 876 F.2d 1231, 1234-35 (5th Cir. 1989); see Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999). Racial- and gender-discrimination claims based upon circumstantial evidence, such as this one, are evaluated under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. June 2003); Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). Under the McDonnell-Douglas framework, the plaintiff must first establish a prima-facie case of discrimination. See Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000). If the plaintiff establishes a prima-facie case, then a presumption of discrimination arises and the burden shifts to the defendant to articulate — but not prove — a legitimate nondiscriminatory reason for the adverse employment action. See McDonnell Douglas Corp., 411 U.S. at 802; Evans, 246 F.3d at 350. If the defendant meets its burden of production, then the presumption of intentional discrimination is rebutted and the burden shifts back to the plaintiff to show that the reason proffered by the defendant is merely a pretext for racial discrimination. See McDonnell Douglas Corp., 411 U.S. at 802; see also Evans, 246 F.3d at 350.
To state a claim under section 1981, a plaintiff must allege that: (1) the plaintiff is a member of a racial minority; (2) the defendant intended to discriminate against the plaintiff on the basis of race; and (3) the discrimination on the part of the defendant concerned an activity set forth in section 1981. See Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994).
"It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Plaintiffs may show pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256-57.
As the Supreme Court acknowledged in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false" may be sufficient to infer discrimination. Reeves, 530 U.S. at 148. The Supreme Court has also made it clear, however, that "instances [exist] where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Id.
Based on the foregoing, the first issue here is whether Childs has established a prima-facie case of racial and/or gender discrimination based on the defendants' termination of her employment. A prima-facie case of race or gender discrimination based on termination consists of four elements: (1) the employee is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was replaced by an individual of a different race or sex or otherwise discharged because of her race or gender. See, e.g., Shackelford, 190 F.3d at 404; Kirk v. Consol. Freightways Corp. of Delaware, No. 3:96-CV-1024G, 1997 WL 289056, at *3 (N.D. Tex. May 21, 1997). See also McDonnell Douglas Corp., 411 U.S. at 802; Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). After reviewing the evidence, the Court concludes that Childs has established a prima-facie case of racial and gender discrimination because there is evidence that she is an African-American female, the defendants do not dispute that she was qualified for her position, she was terminated from the position, and she was apparently replaced by Bill Presley, a white male.
The defendants argue that Childs has also alleged that several other events constituted racial or gender discrimination. The defendants then devote a portion of their motion arguing that such events are not actionable because they do not constitute adverse employment actions. ( See Defs.' Mot. at 13-16.) However, based on Childs's complaint and her response, the Court concludes that Childs is only raising a claim of discrimination based on the termination of her employment. Furthermore, even assuming that Childs had intended to raise claims of discrimination based on the other events discussed by the defendants, the Court concludes that such events did not demonstrate or consistitute adverse employment actions.
See, e.g., Evans, 246 F.3d at 350.
The plaintiff, in her response, claims that she was replaced by Bill Presley. ( See Pl.'s Resp. at 10.) The Court notes, however, that the plaintiff failed to cite any evidence supporting this assertion, and the Court could not find any such evidence. However, because the defendants did not contest this assertion and since, regardless of this evidence, the Court concludes that defendants are still entitled to summary judgment on this claim, the Court will accept the plaintiff's assertion as true.
The next issue is whether the defendants articulated a nondiscriminatory reason for terminating Childs. To meet their burden the defendants must provide both "clear and reasonably specific" reasons for their actions. Burdine, 450 U.S. at 258. The defendants, referring to the letter that Onder sent to Childs on February 11, 2002, claim that Childs was terminated because of her persistent refusal to meet with management to discuss her work performance and her act of leaving work without authorization.
However, Childs argues that such reasons are pretextual because: (1) another white male customer-service research pharmacist was not terminated after he allegedly "abandoned" his position, (2) she had not persistently refused to meet with management to discuss her work performance as she had meet with Wood on September 6, 2001; October 8, 2001; October 23, 2001; November 13, 2001; November 26, 2001; December 3, 2001; December 12, 2001; December 24, 2001; January 10, 2002, and February 7, 2002; and (3) she was the only customer-service research pharmacist that had to rotate to the QRX department under the pretext that she was not performing satisfactorily.
One way for Childs to show pretext is to demonstrate that the defendants treated employees outside her protected class preferentially under "nearly identical" circumstances. Little v. Rep. Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991); see also Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990). In this case, Childs claims that Don Hutson, a white male customer service research pharmacist, had abandoned his position but was not fired. She claims that according to the defendants' official policy the failure of an employee to notify the company via the call-in line on three consecutive days of being absent will be considered to be a voluntary abandonment of his position. ( See Pl.'s App. at 599.) She argues that Don Hutson was absent on numerous occasions without calling in and was never suspended or terminated.
"[T]he conduct at issue is not `nearly identical' when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
After reviewing the evidence, the Court concludes that Don Hutson's situation is not evidence of pretext because it is not "nearly identical" to Childs's situation. Childs was not terminated because she violated the "official" absence/abandonment policy. See Smith, 891 F.2d at 1190 (stating that employees who engaged in different violations of company policy were not nearly identical). Instead, Childs was terminated because she refused to meet with management on February 7 and February 11 to discuss her work-performance situation. Although Childs claims that she did not "persistently refuse" to meet with management because she had repeatedly met with them to discuss her performance, the evidence clearly shows that Childs refused to discuss her work-performance situation with Wood on February 7 and voluntarily chose to leave work before discussing the matter on February 11. See, e.g., Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001) ("The failure of a subordinate to follow a direct order of a supervisor is a legitimate nondiscriminatory reason for taking adverse employment action"); Colbert v. Lone Star Park at Grand Prairie, No. 3:01-CV-2321-P, 2003 WL 21517820, at *4 (N.D. Tex. Apr. 15, 2003) (holding that a plaintiff who, among other things, failed to attend a mandatory meeting, was properly terminated).
As to her claim that she was the only customer-service research pharmacist that was required to rotate to the QRX department, there is no evidence that this requirement or any performance issues played any role in her termination. Because the plaintiff has failed to present evidence of pretext, the defendants are entitled to summary judgment on Childs's claims for racial and gender discrimination under Title VII and section 1981.
B. Racial Harassment
To establish a prima-facie case of racial harassment by a supervisor with immediate or successively higher authority over the employee, the plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on race; and (4) the harassment affected a term, condition, or privilege of employment. See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). "For harassment to affect a `term, condition or privilege of employment,' it must be `sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.'" Celestine, 266 F.3d at 353 (quoting Watts, 170 F.3d at 509)). Such a determination can be made only after reviewing all of the relevant circumstances, such as "the frequency of the conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with plaintiff's work performance." Nash v. Electrospace Sys. Inc., 9 F.3d 401, 404 (5th Cir. 1993) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)).
Childs claims, in her complaint, that she "was continually exposed to a hostile work environment because of her race (Black) that unreasonably interfered with Plaintiff's work performance." (Pl.'s Compl. at 11.) Specifically, Childs alleges that: (1) she was subject to unjustified disciplinary actions in the form of repeated counseling sessions, and verbal and written warnings from a management official who was not her supervisor; (2) she was disciplined for calling doctors to clarify information on the prescriptions; (3) she was targeted for termination after she complained of harassment and discrimination; (4) she was changed to a later shift even though she had the most seniority; (5) she was the first customer-service research pharmacist to be sent to QRX training; (6) she was told that she should process 50 prescriptions per hour when other employees were not given the same requirement; (7) she was required to continually meet with the QRX supervisor to discuss her performance while other customer-service pharmacists were not required to do the same; (8) she was required to come in and discuss her work performance while she was out on a leave of absence; (9) she was the only customer-service research pharmacist required to rotate to the QRX department for two shifts per day; (10) she was disciplined for her performance immediately after she complained to management about the way she was being treated differently; (11) she was terminated under the pretext that she had refused to meet with management; and (12) her job title was unilaterally changed from customer-service research pharmacist to staff pharmacist and her department was changed from customer-service research department to QRX department.
In her deposition and response, Childs refers to one incident that she claims was evidence of sexual harassment. Because Childs did not allege such a claim in her complaint, the Court will not address it.
Even assuming that the plaintiff's allegations are true, the plaintiff has failed to provide any evidence that any of the alleged harassing events were based on her race or had a racial character or purpose. In fact, during her deposition, the plaintiff admits that she could not recall hearing a racist remark while employed with the defendants. (Childs Dep. at 322-23; Defs.' App. at 82.) To establish a prima-facie case of racial harassment, the plaintiff must provide evidence that the complained-of conduct had a racial character or purpose. See, e.g., Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999); Padilla v. Carrier Air Conditioning, 67 F. Supp. 2d 650, 661 (E.D. Tex. 1999). Because there is no connection between the allegedly harassing incidents and Childs's protected status, the defendants are entitled to summary judgment on this claim.
C. Retaliation
Title VII makes it unlawful for any employer to retaliate against an employee for bringing a charge under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 1994). "The burden-shifting structure applicable to Title VII disparate treatment cases . . . is applicable to Title VII unlawful retaliation cases." Haynes, 207 F.3d at 299. To establish a prima-facie case for retaliation under Title VII, a plaintiff must show: (1) the plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See Haynes, 207 F.3d at 299; Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The causal connection can be inferred from circumstantial evidence, such as showing the employer had knowledge that the plaintiff engaged in a protected activity and showing the temporal proximity of that activity to the alleged retaliatory action. See Evans, 246 F.3d at 354; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
The first issue is whether Childs has shown a prima-facie case of retaliation. An "employee has engaged in activity protected by Title VII if she has either (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing' under Title VII." See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). Childs, in her response, claims that she engaged in activity protected by Title VII when she complained to management of discrimination and harassment. However, there is no evidence that Childs, when she made her complaints to management, ever mentioned that she felt she was being treated unfairly due to her race or sex. In fact, in her deposition, Childs admits that she never mentioned her race or sex when she made her complaints. (Childs Dep. at 301-05; Defs.' App. at 77-78.) Because Childs has failed to demonstrate that she engaged in an activity protected under Title VII, the defendants are entitled to summary judgment on this claim. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (stating that general complaints about unfair treatment was not protected conduct under the ADEA); Price v. City of Terrell, No. Civ. A. 3:99-CV-0296-D, 2001 WL 1012697, at *4 (N.D. Tex. Aug. 15, 2001) (Fitzwater, J.) (stating that plaintiffs who complain "solely about general employment conditions and adverse treatment generally and not about disability discrimination are not engaged in protected activity under ADA).
D. Negligent Hiring and Retention
Childs claims that the defendants were negligent in hiring and retaining Pat Lepak as a customer-service research manager because she was not a licensed pharmacist. The elements of negligence are (1) a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach of duty. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). An employer has a duty to adequately hire, train, retain, and supervise employees. "The negligent performance of those duties may impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the misconduct of its employees." Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).
The defendants state that the plaintiff is also claiming that the defendants negligently retained Stephanie Roberts, Child's customer-service research manager. Because the plaintiff does not address this claim in her response, it appears that she had abandoned it. Consequently, the Court will not address it.
However, according to Texas law, negligent retention, hiring, and supervision claims "are only viable if the employer's employee commits an underlying actionable tort." Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex.App.-San Antonio 1999, no pet.); see Verhelst v. Michael D's Restaurant San Antonio, Inc., 154 F. Supp. 2d 959, 968 (W.D. Tex. 2001). The theory behind this rule is that under the fundamental principles of torts "a person is not liable for negligence, no matter how egregious, unless the negligence causes a legally compensable injury." Id. In other words, the defendants cannot be liable for negligently hiring or retaining its employees unless one of its employees committed an actionable tort against Childs.
In this case, the only torts that have been alleged by Childs are tortious interference with a contract and intentional infliction of emotional distress ("IIED"). As discussed below, the Court concludes that the conduct alleged by Childs would not support either tort claim. Because there is no underlying actionable tort to support Childs's negligence claims, the defendants are entitled to summary judgment.
E. Tortious Interference With A Contract
To prevail on a claim of tortious interference with a contract, Childs must show: (1) there is an existing contract subject to interference; (2) an intentional and willful (3) interference that proximately caused damage; and (4) actual damage or loss. See Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998). "When the defendant is both a corporate agent and the third party who allegedly induces the corporation's breach, the second element is particularly important." Powell Indus., 985 S.W.2d at 456-57. "Because a corporate officer's acts on the corporation's behalf usually are deemed corporate acts, a plaintiff must show that the agent acted solely in his own interests." Id. "The plaintiff must prove that the agent acted willfully and intentionally to serve the agent's personal interests at the corporation's expense." Id.
In Texas, employment at will is sufficient to create an existing contract subject to interference. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688 (Tex. 1989).
In this case Childs claims that Wood, the QXR supervisor, "conspired to terminate [Childs's] employment with Defendants by documenting her performance in a department for which she did not apply for a job, by changing [Childs's] department to the QRX department, by changing [Childs's] title to staff pharmacist from customer-service research pharmacist and by terminating [Childs] from the position of a staff pharmacist, a position she did not apply for nor request." (Childs's Resp. at 19.) After reviewing the evidence and the case law, the Court concludes that Childs's claim fails for at least two reasons. To begin with, although Childs alleges that Wood is the third-party that interfered with her employment contract with the defendants, Childs failed to bring a claim against Wood in her complaint. Furthermore, even assuming that Childs had brought a proper claim against Wood, Childs has failed to provide any evidence showing that Woods acted solely in her own interest in her treatment of Childs. Consequently, the defendants are entitled to summary judgment on this claim.
F. Intentional Infliction of Emotional Distress ("IIED")
To prove IIED, the plaintiff must show: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff's emotional distress; and (4) the emotional distress was severe. See Hughes Training Inc. v. Cook, 254 F.3d 588, 594 (5th Cir. 2001); Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001); City of Midland v. O'Bryant, 18 S.W.3d 209, 216 (Tex. 2000). Whether a defendant's conduct is "extreme and outrageous" is a question of law. Bradford, 48 S.W.3d at 758; Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). The mere fact that a defendant's conduct is tortious or otherwise wrongful does not, standing alone, necessarily render it "extreme and outrageous." Brewerton, 997 S.W.2d at 216. For conduct to be considered extreme and outrageous, 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 community." City of Midland, 18 S.W.3d at 217 (internal quotations omitted). Liability does not arise from "mere insults, indignities, threats, annoyances, or petty oppressions." Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993).
Childs claims that the following conduct by the defendants was extreme and outrageous: (1) she was subjected to unjustified disciplinary actions in the form of repeated counseling sessions and verbal and written warnings from Wood, who was not her official supervisor; (2) she was disciplined for calling doctors to clarify the instructions on the prescription forms; (3) she was targeted for termination by the management after she complained of harassment and discrimination; (4) she was terminated from a position for which she did not apply; (5) her job title and department were unilaterally changed by the defendants; (6) her seniority date was changed after she complained to management of harassment; (7) she was the only pharmacist required to work half days in the QRX department and half days in the customer-service department; (8) she was the only customer-service research pharmacist who was told her performance was unacceptable although it was similar to at least one other customer-service research pharmacist; and (9) the defendants applied their abandonment policy differently to Childs. (Pl.'s Resp. at 18.)
After reviewing the evidence, the Court concludes that Childs's allegations simply do not set forth conduct that is extreme and outrageous. The standard for finding extreme and outrageous conduct is rigorous and Childs has not met it. See, e.g., MacArthur v. Univ. of Texas Health Ctr. at Tyler, 45 F.3d 890, 898-99 (5th Cir. 1995) (mere employment dispute not IIED); Stewart v. Houston Lighting Power Co., 998 F. Supp. 746, 748-49, 757 (S.D. Tex. 1998) (noting that "mere employment disputes," such as unfair evaluations, being "chewed out" by a supervisor, "snide comments," and not being promoted do not rise to the level of extreme and outrageous conduct); Gearhart v. Eye Care Centers of Am., Inc., 888 F. Supp. 814, 819-23 (S.D. Tex. 1995) (supervisor's comments about an article on breasts and comments about another woman's breasts, his allegedly putting his arm around plaintiff and touching the right side of her breast on one occasion, his playing with her hair, and his kicking her in the buttocks, not extreme and outrageous as a matter of law); Diamond Shamrock Ref. Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (falsely accusing employee of being a thief insufficient to constitute outrageous behavior). Consequently, the defendants are entitled to summary judgment on this claim.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that the defendants' Motion for Summary Judgment [doc. # 28-1] is GRANTED.