Affirmed and Memorandum Opinion filed July 17, 2014.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-13-00309-CV

                      ANGELA WILLIAMS, Appellant
                                      V.
 SHELL EXPLORATION AND PRODUCTION COMPANY - AMERICAS,
      BRICE PETERSON, AND CARMIE CHATTERS, Appellees

                  On Appeal from the 334th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2011-61948


                 MEMORANDUM OPINION

      Appellant, Angela Williams, sued appellees, Shell Exploration and
Production Company – Americas (“Shell”), Brice Peterson, and Carmie Chatters,
for intentional infliction of emotional distress, tortious interference with
prospective business relations, and conspiracy. Williams’s claims were based on
appellees’ alleged conduct towards Williams while she was employed by Shell and
supervised by Chatters and Peterson. Williams appeals the trial court’s summary
judgment in favor of appellees on all claims. We affirm.

                                I. BACKGROUND

      Williams began working for Shell in 2006.        In 2008, she successfully
applied for a different position, reserves analyst, within the company. In that
position, Chatters was appellant’s reporting manager, Peterson was the department
head, and Williams trained under Leigh Adams. According to Williams, Adams
harassed and berated her, and Chatters failed to remedy the situation. Williams
also contends that Chatters eventually began treating Williams with “disregard and
condescension” because Williams reported errors she discovered during a “Reserve
Review.”

      In late 2009, Shell began a process of reorganization, which included
redistribution and reduction of personnel. The process required certain employees,
including Williams, to re-apply for positions within the company. During the first
round of the process, Williams learned she would not be retained in her current
position and would be severed from Shell if she did not obtain a new position.
During the second round of the process (in early 2010), Williams applied for three
additional positions.

      Williams had two interviews with Ebere Chimezie, the hiring manager for
one such position. Williams asserts that during the second interview, Chimezie
said he had narrowed his choice to “a couple of” candidates and Williams was a
“strong possibility” to get that position. It is unclear from Williams’s deposition
testimony whether she claims Chimezie made this latter representation or Williams
gleaned she was a “strong possibility” based on the interview. In any event,
Chimeze said he needed to review Williams’s 2009 Individual Performance Factor


                                        2
(“IPF”), which is a numerical representation of an employee’s performance review.
The interviews occurred before Williams received her 2009 review.

      Shortly thereafter, Williams received her 2009 review. Chatters included
some positive information about Williams’s performance; but Chatters also
reported that Williams was challenged in her relationships with key staff members
which limited her ability to deliver results in some respects. Williams learned her
IPF had been downgraded as a result of the review.

      Subsequently, Chimezie emailed Williams,
      You are receiving this mail (copied in bcc) because you have applied
      for the above position . . . . To help us with the evaluation process,
      kindly email me, the last 3 years of your Individual Performance
      Ranking (IPF).
      Please treat as very urgent.

Williams responded by listing her IPFs for 2006-2008 and stating the 2009 IPF
was “currently being reviewed.” Although Williams had already received the 2009
IPF, she was challenging the performance review and associated IPF through
Shell’s internal procedures.

      After Williams received her 2009 IPF, she applied for the other two
positions. The only communications from that hiring manager, Alan Davies, were
emails thanking Williams for the applications and stating, “We will be in touch in
due course.”

      Williams was severed from Shell on March 31, 2010 because she failed to
secure another position. On October 14, 2011, she sued appellees for intentional
infliction of emotional distress, tortious interference with prospective business
relations, and conspiracy to tortiously interfere. Williams requested actual and
exemplary damages.


                                        3
      In her petition, Williams’s factual complaints fell into four categories:

       Chatters failed to remediate Adams’s harassment of Williams;
       Chatters treated Williams with “disregard and condescension” because
        Williams reported the errors discovered during the Reserve Review;
       Chatters and Peterson ignored requests for information regarding
        Williams’s work performance from the hiring managers for the three
        prospective positions; and
       Chatters included, with Peterson’s approval, unsubstantiated negative
        information on Williams’s 2009 performance review, causing a reduction
        in her IPF.

      Williams contends the latter two actions precluded her from obtaining one of
the prospective positions and remaining employed by Shell. Williams further
claims Chatters intended that result because she harbored “personal animosity”
based on Williams reporting Adams’s harassment and errors in the Reserve
Review. Williams included Shell as a defendant on the ground the individuals
were acting within the scope of their employment.

      Appellees filed a motion for summary judgment on all claims, to which
Williams responded. The trial court signed a summary judgment, dismissing all of
the claims with prejudice.

                                   II. ANALYSIS

      In her first three issues, Williams challenges the trial court’s grant of
summary judgment on all of her claims. Williams’s fourth and final issue is a
contention that she is entitled to exemplary damages because she asserts a valid
claim for actual damages.

A.    Claim for Intentional Infliction of Emotional Distress

      In her first issue, Williams contends the trial court erred by granting
summary judgment on her claim for intentional infliction of emotional distress.
                                          4
      Intentional infliction of emotional distress is a “gap-filler” tort applicable
only when “a defendant intentionally inflicts severe emotional distress in a manner
so unusual that the victim has no other recognized theory of redress.” Hoffmann–
La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). The elements of
the tort are (1) the defendant acted intentionally or recklessly, (2) the defendant’s
conduct was extreme and outrageous, (3) the conduct caused the plaintiff
emotional distress, and (4) the emotional distress was severe. Id.

      Appellees moved for summary judgment on the following grounds: (1)
Williams cannot maintain the claim because recovery for mental anguish is
available under her tortious-interference cause of action; (2) the alleged conduct
was not “extreme and outrageous;” and (3) the emotional distress allegedly
suffered by Williams was not severe. We agree the alleged conduct was not
“extreme and outrageous” as a matter of law; thus, we need not consider the other
grounds.

      1.     Standard of Review

      The contention that appellees’ conduct was not extreme and outrageous is a
traditional summary-judgment ground. A party moving for traditional summary
judgment must establish there is no genuine issue of material fact and it is entitled
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A defendant
moving for traditional summary judgment must negate at least one element of each
of the plaintiff’s theories of recovery or plead and conclusively establish each
element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997). If the defendant establishes his right to summary judgment
as a matter of law, the burden shifts to the plaintiff to present evidence raising a
genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197

                                          5
(Tex. 1995). We review a summary judgment de novo. Knott, 128 S.W.3d at 215.
We take all evidence favorable to the nonmovant as true and indulge every
reasonable inference and resolve any doubts in her favor. Id.1

       2.      Applicable Law

           “Extreme and outrageous” in the context of this tort means conduct “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.” Hoffmann–La Roche, 144 S.W.3d at 445; GTE Sw., Inc. v.
Bruce, 998 S.W.2d 605, 611 (Tex. 1999). Generally, “insensitive or even rude”
behavior does not constitute extreme and outrageous conduct. GTE, 998 S.W.2d at
612. Similarly, liability does not extend to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Id. Further, it is not enough
that the defendant acted with an intent that is tortious, malicious, or even criminal,
or that he intended to inflict emotional distress.                Id. at 616.       Although the
defendant’s intent is relevant, the conduct itself must be extreme and outrageous to
support liability. Id. It is for the court to determine, in the first instance, whether a
defendant’s conduct was extreme and outrageous. Id. However, when reasonable
minds may differ, it is for the jury, subject to the court’s control, to determine



       1
          At the outset of the motion, appellees asserted they were moving for summary judgment
under Rule 166a(c), which governs traditional motions. See Tex. R. Civ. P. 166a(c). Then,
when summarizing their arguments, appellees asserted Williams’s claims are barred by the
statute of limitations (relative to the tortious interference claim), which is a traditional summary-
judgment ground, “and/or she has no evidence to support one or more essential elements of her
claims”—the standard for a no-evidence motion. See id. 166a(i). However, appellees never
cited Rule 166a(i) or expressly stated the motion contained both traditional and no-evidence
grounds. They cited only Rule 166a(c) and the standard for a traditional motion. We construe
appellees’ contention that their conduct was not “extreme or outrageous” as a traditional ground
because they argue Williams’s factual allegations cannot establish an element of the claim as a
matter of law.
                                                 6
whether the conduct was sufficiently extreme and outrageous to result in liability.
Id.

       In deciding whether particular conduct rises to an extreme and outrageous
level, courts should consider both the context of the conduct and the parties’
relationship. Id. at 612. In the workplace, while an employer’s conduct might in
some instances be unpleasant, the employer must have some discretion to
“supervise, review, criticize, demote, transfer, and discipline” its workers. Id.
Accordingly, the supreme court has declined to recognize intentional-infliction-of-
emotional-distress claims for “ordinary employment disputes,” emphasizing that
extreme conduct in this context “exists only in the most unusual of circumstances.”
Id. at 612–13. “The range of behavior encompassed in ‘employment disputes’ is
broad, and includes at a minimum such things as criticism, lack of recognition, and
low evaluations, which, although unpleasant and sometimes unfair, are ordinarily
expected in the work environment.” Id. at 613.

       3.      The Conduct at Issue

       Williams’s claim for intentional infliction of emotional distress was
apparently based on the four factual complaints mentioned above.2

       We will discuss the first two complaints together because our analysis is
similar. With respect to the alleged harassment by Adams, Williams testified as
follows in her deposition.          Beginning in October 2008, during some of their
interactions, Adams instructed Williams to “shut up,” not speak unless Adams


       2
          In the “Statement of Facts” section of her appellate brief, Williams mentions all of the
factual complaints made in her petition. However, in her subsequent argument, Williams asserts
that the act of ignoring requests for information was the basis for the intentional-infliction claim
and advances no argument that any other acts would support that claim. Nonetheless, we will
liberally construe her brief and address summary judgment on this claim as to all of her factual
complaints.

                                                 7
gave permission, and refrain from embarrassing herself and the department in
meetings, and beckoned her “like a dog.” Williams reported these remarks to
Chatters, who possessed authority to remedy the situation, but she replied, “You
just need to suck it up. Some people just talk that way.” The remarks ceased in
April 2009 when Williams insisted that Adams not speak to her in that manner.
Relative to Chatters’s alleged “disregard and condescension,” Williams testified
their relationship eventually evolved to the point that Chatters refused to
acknowledge Williams when they passed in the hallway.

      Williams likens her allegations to the situation in GTE—the unusual case in
which the supreme court affirmed an award of damages for intentional infliction of
emotional distress based on workplace behavior. See 998 S.W.2d at 617. In GTE,
a supervisor’s behavior created a “den of terror” for the three employees who later
sued the employer. See id. Over a period of two years, the supervisor engaged in a
pattern of “grossly abusive, threatening, and degrading conduct,” which included:

       daily using the “harshest vulgarities,” including cursing, obscene jokes,
        and sexual innuendo, with intent to abuse the employees;
       frequently physically and verbally assaulting the employees, including
        lunging headfirst at them with his fists balled before stopping
        uncomfortably close to their faces;
       screaming, yelling, and pounding his fists when making requests of the
        employees;
       threatening the employees with losing their jobs;
       raging about the employees leaving items such as purses or umbrellas on
        office furniture;
       threatening to “get even” when they complained about his behavior;
       repeatedly calling one employee into his office and staring at her for
        extended periods or standing over her desk staring at her;
       telling one employee during an annual review, “You’re mean and you’re
        deadly, very deadly;”

                                         8
       forcing the employees to vacuum the floors although the company had a
        cleaning service and forcing one employee to clean spots on the floor on
        her hands and knees and clean tobacco stains from a wall;
       ordering an employee who forgot some work-related paperwork to wear a
        post-it stating, “Don’t forget your paperwork.”
See id. at 613–14.

      The supreme court held that the severity and regularity of the supervisor’s
behavior exceeded “the necessary leeway to supervise, criticize, demote, transfer,
and discipline” employees and moved into the “realm of extreme and outrageous
conduct”:

      Occasional malicious and abusive incidents should not be condoned,
      but must often be tolerated in our society. But once conduct such as
      that shown here becomes a regular pattern of behavior and continues
      despite the victim’s objection and attempts to remedy the situation, it
      can no longer be tolerated. It is the severity and regularity of [the
      supervisor’s] abusive and threatening conduct that brings his behavior
      into the realm of extreme and outrageous conduct. Conduct such as
      being regularly assaulted, intimidated, and threatened is not typically
      encountered nor expected in the course of one’s employment, nor
      should it be accepted in a civilized society. An employer certainly has
      much leeway in its chosen methods of supervising and disciplining
      employees, but terrorizing them is simply not acceptable.
Id. at 617.

      In contrast, taking Williams’s testimony as true, Adams’s remarks over a six
month period may be characterized as rude and insulting. However, they do not
rise to the level of terrorizing, threatening, and assaultive conduct that occurred
over a two-year period in GTE. See id. at 613–17. Moreover, Williams does not
allege that Chatters made these remarks—only that she failed to stop Adams from
doing so. This aspect of the allegation supports that Williams’s complaint is an
ordinary employment dispute because she complains about a matter within
Chatters’s discretion as Williams’s supervisor—whether to intervene in a conflict

                                        9
among employees. Further, Chatters’s alleged refusal to acknowledge Williams in
the hallway, even if “petty,” is minor compared to the abuse endured by the GTE
employees.

      We will also consider together Williams’s third and fourth factual
complaints because our analysis is similar. Williams claims that Chatters (with
Peterson’s approval) intended to end Williams’s career at Shell and thereby caused
her emotional distress. On appeal, Williams cites the following communications as
evidence that Chatters and Peterson received, and intentionally ignored, requests
for information about Williams from the hiring managers for the prospective
positions: (1) the emails from Davies to Williams (on which Chatters was copied)
stating he would “be in touch in due course;” (2) the email from Chimezie to
Williams requesting her 2009 IPF; (3) Williams’s testimony that she informed
Chatters of her plan to interview for Chimezie’s position and Chatters would have
received an email notification of the application; and (4) Williams’s testimony
indicating that after the severance, Chimezie told her he had tried to obtain
information about her reduced 2009 IPF, although he did not identify the persons
whom he contacted. Williams essentially cites her own opinions expressed in her
deposition as evidence that the negative information in her performance review
was intentionally false.

      Relative to the claim for intentional infliction of emotional distress,
appellees did not present a summary judgment ground contending the evidence
negates, or there is no evidence, to support these allegations.     Thus, we will
assume, solely for purposes of discussion, that they are true.

      With respect to these allegations, this case is akin to Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814 (Tex. 2005)—“the tenth time in little more than six
years, [the supreme court reversed] an intentional infliction of emotional distress

                                         10
claim for failing to meet the exacting requirements of that tort.” Id. at 815. In that
case, the court held that even an employer’s post-termination retaliatory actions
against its former employee did not constitute “severe and outrageous” conduct
sufficient to establish the tort. Id. at 817. Similar to the present case, the plaintiff
claimed the employer refused to give her a reference or take calls seeking a
reference. Id. The employer also engaged in actions more extreme than those in
the present case. See id. For instance, the employer forced another employee, who
was providing gratis post-termination housing to the plaintiff, to evict the plaintiff
or face termination herself. Id.

      The court stated the employer’s actions, if true, were “callous, meddlesome,
mean-spirited, officious, overbearing, and vindictive—but 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.’” Id. at 817–18. The court summarized, “We certainly understand
judicial reticence to dismiss claims like this one stemming from heinous acts. But
except in circumstances bordering on serious criminal acts, we repeat that such acts
will rarely have merit as intentional infliction claims.” Id. at 818 (noting GTE as
example of conduct bordering on criminal and sufficient to support the tort).

      Likewise, even if appellees’ actions relative to Williams’s attempts to obtain
another position may be characterized as malicious and vindictive, as she suggests,
Creditwatch dictates they do not rise to the requisite level of “extreme and
outrageous” conduct. See id. at 817–18. Rather, the negative review and refusal to
provide information to potential hirers, even if unfair and based on questionable
motives, cannot be removed from the realm of an ordinary employment dispute.
See also Lassiter v. Wilkenfeld, 930 S.W.2d 803, 807–08 (Tex. App.—Beaumont
1996, writ denied) (holding physician’s apparent attempt to have hospital

                                          11
administrator fired for physician’s own personal reasons did not rise to the
requisite level of extreme conduct even if “morally unjustifiable”).

         Finally, recognizing that the GTE court focused on the pattern of behavior,
in addition to the severity, see 998 S.W.2d at 617, we evaluate the totality of the
alleged behavior in the present case: six months of Adams making rude and
insulting, but not threatening or obscene, remarks to Williams; Chatters eventually
refusing to acknowledge Williams when they passed in the hallway; and Chatters
and Peterson including some negative information in Williams’s performance
review and refusing to provide information about her to prospective hiring
managers. We conclude, as a matter of law, that there was no pattern of behavior
“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.” Hoffmann–La Roche, 144 S.W.3d at 445.

         Accordingly, the trial court did not err by granting summary judgment on the
claim for intentional infliction of emotional distress. We overrule Williams’s first
issue.

B.       Claim for Tortious Interference with Prospective Business Relations

         In her second issue, Williams challenges summary judgment on her claim
for tortious interference with prospective business relations.

         To prevail on a claim for tortious interference with prospective business
relations, the plaintiff must establish (1) there was a reasonable probability that the
plaintiff would have entered into a business relationship with a third party, (2) the
defendant either acted with a conscious desire to prevent the relationship from
occurring or knew the interference was certain or substantially certain to occur as a
result of the conduct, (3) the defendant’s conduct was independently tortious or


                                          12
unlawful, (4) the interference proximately caused the plaintiff injury, and (5) the
plaintiff suffered actual damage or loss as a result. Coinmach Corp. v. Aspenwood
Apt. Corp., 417 S.W.3d 909, 923 (Tex. 2013).

       Appellees moved for summary judgment on the tortious interference claim
on several grounds: (1) the claim is barred by the statute of limitations; and (2)
Williams failed to raise a genuine issue of material fact regarding the following
elements: (a) there was a reasonable probability a business relationship would have
been entered into; (b) any interference by appellees was intentional; and (c)
appellees committed an independently tortious or unlawful act. We conclude the
trial court properly granted summary judgment on the ground that appellees’
conduct was not independently tortious or unlawful—again, a traditional summary-
judgment ground.3 Thus, we need not consider the other grounds.

       1.     Applicable Law

       In Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713, 726 (Tex. 2001),
our supreme court propounded the requirement that, to prevail on a claim for
tortious interference with prospective business relations, the plaintiff must prove
the defendant’s conduct was “independently tortious or unlawful”—conduct that is
already recognized to be wrongful under the common law or statute. The court
explained that conduct which is merely “sharp” or perceived as “unfair
competition” is not actionable as tortious interference with prospective business
relations. Id. at 726. The plaintiff is not required to prove an independent tort;



       3
          At the outset of the portion of the motion challenging the tortious interference claim,
appellees asserted that Williams “has failed to adduce any evidence” on the elements—which
again sounds as a no-evidence ground. However, we construe the argument that followed
regarding the element at issue as a traditional ground because appellees asserted their conduct,
even if true, was not independently tortious or unlawful.

                                               13
instead, she need only establish that the defendant’s conduct would be actionable
under a recognized tort. Id. at 713, 726.

       2.      The Conduct at Issue

       Williams pleaded the claim for tortious interference based on only one
alleged action: Chatters and Peterson ignoring requests for information from the
hiring managers for the prospective positions.4 Williams maintains there was a
“reasonable probability” she would have obtained one of the positions if not for
this action.

       On appeal, for the elements of the cause of action, Williams cites a sister
court case issued before the supreme court held in Wal-Mart that the defendant
must have committed an independently tortious or other unlawful act. Williams
does not mention this element set forth by the supreme court, much less suggest a
tortious act allegedly committed by Chatters or Peterson relative to the conduct at
issue. The only argument we can possibly construe on this element is Williams’s
assertion that Chatters was “obligated” to “follow up” with, or respond to, the
hiring managers and failed to do so. Williams cites no evidence that Shell’s
company policy imposed such an obligation. Nonetheless, assuming there were
such an obligation, appellant cites no authority that Chatters’s (or Peterson’s)
alleged violation of an internal company policy constituted a tortious or other
unlawful act. Accordingly, Williams has not demonstrated that the trial court erred

       4
           In the portion of her appellate brief specifically challenging summary judgment on the
tortious interference claim, Williams focuses exclusively on the act of ignoring requests for
information, consistent with her pleading. However, at other points in her brief, she also
suggests the claim was based only on the negative performance review or based on both the
negative review and the act of ignoring requests for information. We will consider only this
latter action because we review a summary judgment based on the pleadings on file at the time of
the hearing, and a claim not asserted in the trial court cannot form the basis for reversal. See
Tex. R. Civ. P. 166(a)(c); Wakat v. Montgomery County, No. 09-09-00188-CV, 2011 WL
1224459, at *4 (Tex. App.—Beaumont Mar. 31, 2011, no pet.) (mem. op.).

                                               14
by granting summary judgment on the tortious interference claim. We overrule
Williams’s second issue.

C.     Claim for Conspiracy

       In her third issue, Williams challenges summary judgment on her claim for
conspiracy     to   tortiously   interfere   with   prospective   business   relations.
“Conspiracy” is generally defined as “a combination of two or more persons to
accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful
means.” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Conspiracy is a
“derivative tort” because a defendant’s liability depends on participation in some
underlying tort for which the plaintiff seeks to hold at least one of the named
defendants liable. Id. If all named defendants’ liability for the alleged underlying
tort is foreclosed as a matter of law, there is no claim for conspiracy. See id.; Soon
Phat, L.P. v. Alvarado, 396 S.W.3d 78, 94 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied). Because the trial court properly granted summary judgment as to all
appellees on the tortious interference claim pleaded by Williams, it did not err by
granting summary judgment on the conspiracy claim. We overrule Williams’s
third issue.

D.     Request for Exemplary Damages

       Finally, in her fourth issue, Williams contends she is entitled to seek
exemplary damages because she asserts a viable claim for actual damages.
Because the trial court properly granted summary judgment on all claims for actual
damages, we overrule Williams’s fourth issue.




                                             15
      Having overruled all of Williams’s issues, we affirm the trial court’s
judgment.



                                    /s/    John Donovan
                                           Justice




Panel consists of Justices McCally, Busby, and Donovan.




                                      16
