                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00003-CV


LESLIE BURTON                                                       APPELLANT

                                       V.

CARTER BLOODCARE,                                                   APPELLEES
EMPLOYMENT PRACTICES
SOLUTIONS, INC., AND SUSAN
SORRELLS


                                    ----------

          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1
                                    ----------

      Appellant Leslie Burton appeals the trial court‘s final summary judgment,

which the court rendered in favor of appellees Carter BloodCare, Employment

Practices Solutions, Inc. (EPS), and Susan Sorrells. Appellant contends in five

issues that the trial court erred by granting summary judgment against her claims


      1
       See Tex. R. App. P. 47.4.
for age discrimination, false imprisonment, intentional infliction of emotional

distress, breach of contract, and defamation. We affirm.

                               Background Facts

      In August 2002, when appellant was over fifty years old, Carter BloodCare,

a not-for-profit blood center, hired her to be the director of donor collections.2

Appellant directed fixed-site collections, mobile collections, staff scheduling, and

mobile staging (preparing supplies and equipment for mobile blood drives).

Three managers—JoEllen Wallis, Brandye Norman, and Carla Buckendorf—

reported directly to appellant, and appellant reported to Joe Ridley, who was a

senior director. Other employees reported to the managers who were under

appellant‘s supervision, so appellant had many direct and indirect subordinates.

In 2003, in addition to her full-time duties associated with being the director of

donor collections, appellant also began to supervise Carter BloodCare‘s

collection training department (which Ridley had previously overseen), so she

gained more employees who reported directly to her. Appellant was reluctant to

supervise the collection training department, but she received a pay raise for

doing so.

      In the latter part of 2004 and the early part of 2005, Terrie Henderson, who

directs Carter BloodCare‘s human resources department, began receiving


      2
      Carter BloodCare receives blood donations and provides blood
components to hospitals and other medical centers. The donor collections
department is responsible for drawing blood products from donors.


                                         2
complaints from several managers about how appellant treated them and others.

Ridley received similar complaints. For example, Wallis cried while complaining

to Henderson about how appellant had treated her. Norman and Peggy Barlow

also complained to Henderson.      Norman and Barlow eventually resigned in

2005,3 and two other managers transferred away from appellant, including Wallis,

who transferred to Waco.     Mike Perez, who took Wallis‘s position after she

transferred, told Henderson that he was ―very upset about how [appellant]

behaved in the workplace.‖ Appellant had led a meeting in which she and other

managers had criticized Perez‘s job performance.

      Henderson told Ridley about the unrest in appellant‘s department, and

Ridley became concerned about employee turnover in the department. In 2005,

Carter BloodCare assigned appellant to work only in the collection training

department rather than the donor collections department.         Appellant‘s title

changed from director of donor collections to director of procedure development

and training. The reassignment gave appellant fewer employees to manage and

sometimes allowed her to work less hours per week, but Carter BloodCare did

not reduce her salary.       Ridley, who is older than appellant, assumed

responsibilities related to the donor collections department.      According to

appellant, she tried to meet with Ridley about the reassignment, but he would not


      3
       Appellant stated that Norman, who had been a good employee, resigned
because she was offended by something that appellant had said at a business
lunch. Appellant testified that she had nothing to do with Barlow‘s resignation.


                                       3
do so, and he was ―cold‖ toward her. Appellant did not complain in 2005 that the

reassignment had occurred because of her age.

      In approximately August 2005, appellant began reporting to Michelle

Stefan, who was another senior director, and different employees reported to

appellant.    According to appellant, she and Stefan met with each other

―infrequently‖ because of Stefan‘s ―lack of effort.‖ Parts of appellant‘s deposition

indicate, however, that appellant and Stefan communicated regularly in August

and September 2005 and that Stefan organized monthly lunch meetings.

      Stefan conducted 360-degree reviews of her subordinates. During these

reviews, employees who reported to or interacted with the reviewed employee

submitted written comments about the reviewed employee‘s strengths and

weaknesses. A document titled ―Summary of 360-Degree Feedback for Leslie

Burton – 2005,‖ which was compiled by Stefan in 2006, reveals that some of

Carter BloodCare‘s employees had positive things to say about appellant‘s 2005

performance, while others complained about her communication skills, flexibility,

demeanor, tendency to shift blame, threatening behavior, lack of organization,

and failure to create an ―atmosphere of cohesiveness.‖             One employee

commented that appellant had ―many capabilities which are tempered by her

attitude . . . .   She needs to work on exemplifying teamwork and an even

temper[.]‖   Another employee, however, called appellant a ―great leader who

cares for each employee and shows it.‖           Yet another commenter stated,

―[Appellant] constantly does things to bring this department together as a team.‖


                                         4
The document also stated that appellant would ―need to continue to overcome

the perceptions of staff/coworkers that she is unapproachable.‖      Finally, the

document stated,

      [Appellant] did receive some unfavorable scores and feedback from
      coworkers/peers on the 360-degree reviews. There is a perception
      held by some that she is difficult to work with and is not working on
      developing teamwork between departments. This is a perception
      that [appellant] will need to understand and recognize as she moves
      forward. [I]t will be critical for her to work on changing this
      perception and improving her communication and teambuilding
      skills.

Stefan and appellant discussed the negative comments that Stefan had received

about appellant.    Appellant believed that employees who had completed the

survey ―took it as an opportunity to document and say mean and gossipy and

untrue things.‖ Appellant promised to improve her performance.

      High turnover for employees who worked under appellant‘s supervision

continued after appellant‘s 2005 transfer; according to Henderson, between 2005

and 2008, several employees who reported to appellant transferred or resigned.

In 2007, Henderson received a complaint about appellant from an employee in

the collection training department; the employee called appellant ―harsh,‖

―confrontational,‖ and ―hostile.‖

      In 2008, Carter BloodCare reassigned appellant to lead a newly created

technical writing department, and Carter BloodCare assigned Sallie Tinney, who

is approximately five years older than appellant, to lead the collection training




                                       5
department.4 In the new department, appellant hired her own subordinates, as

she had in the other departments that she had worked in; one of these new

employees was Helen Serrano. According to Stefan, appellant‘s age had no

relation to the reassignment.

      Appellant again had fewer employees to manage based on the transfer,

but Carter BloodCare still did not reduce her pay. Stefan ―envisioned that, as a

director over a newly created procedure development department, [appellant]

would work in an area of her strength . . . . In the newly created procedure

development department, she would have fewer employees to manage and

hopefully fewer employee complaints and less employee unrest.‖ Respondents

to a 2008 360-degree survey said, however, that appellant was unprofessional;

often spoke poorly of others; was moody, childish, and difficult to work with; and

had ―no grasp of consistency.‖5     Also, in January 2009, Serrano complained

about how appellant was treating her.


      4
      The technical writing department was designed to write policies for Carter
BloodCare‘s other departments and implement revisions to Carter BloodCare‘s
processes.
      5
       The respondents also said positive things about appellant, including that
she was knowledgeable about the blood banking industry, that she ―seem[ed] to
have a firm focus on what [was] best for Carter BloodCare,‖ that her attitude was
―always positive,‖ that she was cheerful, that she was ―quality minded,‖ and that
she had an ―[a]bility to think outside the box.‖ Appellant opined in her deposition
that Carter BloodCare‘s employees were not properly trained about how to
complete the 360-degree reviews. She said that she was mischaracterized by
the reviews because employees who completed the survey had a ―negative
agenda.‖


                                        6
      In February 2009, Carter BloodCare hired EPS, a human resources

consulting company, to investigate the complaints against appellant. According

to Stefan, appellant had previously complained that Stefan made direct contact

with appellant‘s staff, so hiring EPS ―accommodated [appellant‘s] wish that

[Stefan] refrain from personal direct contact.‖    In a letter sent by EPS to

Henderson, EPS stated that Susan Sorrells, a ―Senior Consultant,‖ would

investigate the complaint on behalf of EPS. Sorrells considered herself to be an

independent contractor of EPS.

      Henderson and Stefan met with Sorrells and told her about Serrano‘s

complaint and issues pertaining to appellant‘s interactions with Carter

BloodCare‘s employees. Henderson allowed Sorrells to review appellant‘s and

Serrano‘s personnel files. Sorrells, who is a nonpracticing attorney, interviewed

many Carter BloodCare employees, including appellant, in a vacant room within

the human resources department.         Numerous employees made negative

comments to Sorrells about various aspects of appellant‘s job performance.

One employee told Sorrells that working with appellant was ―like working in a

bomb factory.‖ Some employees called Sorrells after the interviews concluded to

talk more about appellant.

      According to appellant, she believed before her meeting with Sorrells that

the meeting was to be part of a general employee survey about Carter

BloodCare‘s strengths and weaknesses.        But when the three-hour meeting

occurred, Sorrells was, according to appellant, aggressive, unrelenting, and


                                       7
insulting. Appellant described her meeting with Sorrells as an ―interrogation‖ and

said that she felt confined, restricted, and overwhelmed.      Sorrells, however,

believed that she had asked open-ended questions that appellant had difficulty

answering because appellant did not want to ―face what other people were

saying about her.‖

      After Sorrells completed her investigation, she presented a verbal report to

Henderson, Stefan, Bob Grigsby (Carter BloodCare‘s chief operating officer), and

Dr. Merlyn Sayers (the company‘s chief executive officer).          According to

Henderson and Grigsby, Sorrells‘s report indicated there had been substantial

employee unrest focused around appellant‘s behavior in the workplace. Sorrells

was not asked for her opinion about whether appellant should be fired, but after a

meeting attended by Henderson, Stefan, Grigsby, and Dr. Sayers, Carter

BloodCare terminated appellant‘s employment in March 2009, when she was in

her late fifties. According to affidavits filed by Henderson, Stefan, Grigsby, and

Dr. Sayers, their decision to discharge appellant had nothing to do with her age;

rather, the decision was based on appellant‘s workplace behavior. From being

fired until her deposition in January 2010, appellant was unable to find suitable

employment in the blood banking industry.

      Appellant filed a charge of discrimination against Carter BloodCare,

alleging that the termination of her employment ―was preceded by disparate

treatment on the ground of age.‖ Appellant then sued appellees. She alleged a

false imprisonment claim against all appellees (based on the interview she had


                                        8
with Sorrells); defamation, invasion of privacy,6 and an age discrimination claim

against only Carter BloodCare; and an intentional infliction of emotional distress

claim against only EPS and Sorrells. Appellant asked for actual and punitive

damages.

          Carter BloodCare filed traditional and no-evidence motions for summary

judgment against all of the claims appellant had asserted against it. EPS and

Sorrells also jointly filed traditional and no-evidence motions for summary

judgment on appellant‘s claims against them.           Appellant responded to the

motions. Carter BloodCare objected to appellant‘s responses on the ground that

she had raised a breach of contract claim for the first time in them and had

attached her own deposition testimony that was, in part, conclusory, without

foundation, and based on hearsay. EPS and Sorrells filed a motion to strike

parts of appellant‘s summary judgment evidence for similar reasons. Appellant

responded to Carter BloodCare‘s objections and Sorrells and EPS‘s motion to

strike.       The trial court sustained all of appellees‘ evidentiary objections and

granted appellees‘ motions for summary judgment.             Appellant brought this

appeal.

                            Summary Judgment Standards

          We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

          6
       As discussed below, appellant later relabeled her invasion of privacy claim
as a breach of contract.


                                            9
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. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We must consider whether

reasonable and fair-minded jurors could differ in their conclusions in light of all of

the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566,

568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

       When a party moves for both a traditional and a no-evidence summary

judgment, we generally first review the trial court‘s summary judgment under no-

evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 526 (Tex.

App.—Fort Worth 2009, pet. denied). ―When the trial court does not specify the

basis for its summary judgment, the appealing party must show it is error to base

it on any ground asserted in the motion. The appellate court must affirm the

summary judgment if any one of the movant‘s theories has merit.‖                Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (citations omitted).

       In a traditional summary judgment case, the issue on appeal is whether the

movant met the summary judgment burden by establishing that no genuine issue

of material fact exists and that the movant is entitled to judgment as a matter of

law.   Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848.                  If


                                         10
uncontroverted evidence is from an interested witness, it does nothing more than

raise a fact issue unless it is clear, positive and direct, otherwise credible and

free from contradictions and inconsistencies, and could have been readily

controverted. Tex. R. Civ. P. 166a(c); Morrison v. Christie, 266 S.W.3d 89, 92

(Tex. App.—Fort Worth 2008, no pet.).

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant‘s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008).    If the nonmovant brings forward more than a scintilla of

probative evidence that raises a genuine issue of material fact, then a no-

evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417,

424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003), cert. denied, 541 U.S. 1030 (2004).

                              Age Discrimination

      In her first issue, appellant argues that the trial court erred by granting

summary judgment for Carter BloodCare on her age discrimination claim. In her

pleading, appellant contended that she could prevail on her age discrimination


                                        11
claim under the labor code because she was demoted twice while younger peers

in similar circumstances were not, subjected to various work conditions while

younger peers in similar circumstances were not, and fired when there was not a

legitimate, nondiscriminatory reason for doing so.      Carter BloodCare sought

summary judgment on traditional and no-evidence grounds.

      An employer commits an unlawful employment practice if, because of age,

the employer discharges an individual or discriminates against an individual in

connection with compensation or the terms, conditions, or privileges of

employment. Tex. Labor Code Ann. § 21.051(1) (West 2006);7 Davis v. City of

Grapevine, 188 S.W.3d 748, 767 (Tex. App.—Fort Worth 2006, pet. denied).

An unlawful employment practice is generally established when a plaintiff

demonstrates that age ―was a motivating factor for an employment practice, even

if other factors also motivated the practice.‖ Tex. Labor Code Ann. § 21.125(a)

(West 2006). But in the ―absence of other evidence of an unlawful employment

practice, evidence of the employment of one person in place of another is not

sufficient to establish an unlawful employment practice.‖     Id. § 21.061 (West

2006).




      7
        In enacting section 21.051, the legislature intended to correlate state law
with federal law in employment discrimination cases; thus, we may rely on
federal law to interpret and apply section 21.051. See M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000); Cox v. Waste Mgmt. of
Tex., Inc., 300 S.W.3d 424, 432 (Tex. App.—Fort Worth 2009, pet. denied).


                                        12
      In discrimination cases that have not been fully tried on the merits and in

which the plaintiff alleges that the employer‘s stated reason for an adverse action

was a pretext for discrimination (as appellant has here), we apply the McDonnell

Douglas burden-shifting scheme. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973); Wal-Mart Stores, Inc. v.

Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Hernandez v. Grey Wolf Drilling,

L.P., 350 S.W.3d 281, 284 (Tex. App.—San Antonio 2011, no pet.); Ptomey v.

Tex. Tech Univ., 277 S.W.3d 487, 492 (Tex. App.—Amarillo 2009, pet. denied).

As we explained in Davis,

      Under this framework, the plaintiff must first demonstrate a prima
      facie case of discrimination,[8] and if the plaintiff is successful, the
      burden of production shifts to the defendant employer to show a
      legitimate and non-discriminatory basis for the adverse employment
      decision.    If the defendant employer demonstrates a non-
      discriminatory reason for its employment action, the plaintiff must
      show that the defendant‘s proffered reason is merely a pretext.

188 S.W.3d at 767 (citation omitted); see Hernandez, 350 S.W.3d at 284;

Ptomey, 277 S.W.3d at 492–93; see also Jackson v. Cal-W. Packaging Corp.,

602 F.3d 374, 378 (5th Cir. 2010) (stating that the Fifth Circuit applies the

McDonnell Douglas framework to age discrimination cases).           A plaintiff may

show pretext by showing that the employer‘s explanation for the employment

action is unworthy of credence. Ptomey, 277 S.W.3d at 493 (citing Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981)).

      8
      This burden is ―not onerous.‖      Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 477 (Tex. 2001).


                                        13
      Carter BloodCare sought summary judgment on the basis that appellant

had no evidence of a prima facie case of age discrimination. To prevail against

Carter BloodCare‘s no-evidence motion, appellant was required to produce more

than a scintilla of evidence that she is in the protected class (meaning that she is

at least forty years old),9 was discharged (or suffered another ultimate adverse

employment action, such as a reduction in compensation),10 was qualified for the

position from which she was discharged, and was replaced by someone under

forty, replaced by someone younger, or was otherwise discharged because of

age. See Hernandez, 350 S.W.3d at 284; Ptomey, 277 S.W.3d at 492; Davis,

188 S.W.3d at 767. The establishment of such a prima facie case is a condition

precedent to a pretext analysis. Jones v. Union Pac. R.R. Co., 302 F.3d 735,

741 (7th Cir. 2002).

      We agree with appellant that she presented more than a scintilla of

evidence that she was over 40 years old when she was discharged from a

position that she had been qualified for.     We must still determine, however,

whether she presented more than a scintilla of evidence that she was replaced

by someone under forty, replaced by someone younger, or was otherwise

discharged because of age. Appellant did not present evidence that she was

replaced by someone under forty or younger than she was, so she must show

      9
       See Tex. Labor Code Ann. § 21.101 (West 2006).
      10
       Appellant‘s briefing focuses on her termination as Carter BloodCare‘s
adverse employment action.


                                        14
that she was ―otherwise discharged because of [her] age.‖ Davis, 188 S.W.3d at

767.      In an attempt to establish this fact, appellant relies on the following

allegations: ―age[-]biased statements were made‖ by her supervisors, and she

was treated differently in ―numerous aspects of . . . supervision‖ than her younger

peers.

Alleged ageist comments

          Ridley allegedly made the first age-biased statement upon which appellant

relies.     During her deposition, appellant testified that Ridley had made a

comment ―that it was the intent of Carter BloodCare to hire a younger

management team because we were all getting older and we wouldn‘t be there

for long.‖ Appellant said that Ridley made this comment three to five times, but

she conceded that the comment was made in reference to hiring decisions.

Appellant also recognized that Ridley was not in her chain of command and had

not been her boss for several years when Carter BloodCare fired her. Stefan

allegedly made a second age-biased statement. Specifically, appellant testified

that Stefan had made a comment, after forgetting something that she had

planned to do, ―that because she was over 40 she guessed she was getting too

old.‖

          For two reasons, Ridley‘s and Stefan‘s alleged comments are inadequate

to show that appellant was discharged because of her age.             First, Carter

BloodCare objected in the trial court to the admissibility of the alleged comments,

asserting that they were irrelevant and lacked foundation. While appellant relies


                                          15
on Ridley‘s and Stefan‘s alleged statements, she has not expressly argued that

the trial court abused its discretion by sustaining Carter BloodCare‘s objection

and excluding them. ―Where evidence has been held to be inadmissible and that

holding has not been challenged on appeal, this court cannot consider the

excluded evidence.‖ Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth

1999, pet. denied); Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263,

265 (Tex. App.—Fort Worth 1986, no writ).

      Second, even if we were to consider the comments, they are insufficient to

raise a fact issue concerning discrimination.       In Jackson, the Fifth Circuit

considered the effect of an alleged comment from an employer‘s chief operating

officer that Jackson, who had brought an age discrimination claim, was an ―old,

gray-haired fart.‖ 602 F.3d at 380. The Fifth Circuit decided that the statement

had no probative value and explained that comments are evidence of

discrimination only if they are

      1) related to the protected class of persons of which the plaintiff is a
      member; 2) proximate in time to the complained-of adverse
      employment decision; 3) made by an individual with authority over
      the employment decision at issue; and 4) related to the employment
      decision at issue. . . . Comments that do not meet these criteria are
      considered ―stray remarks,‖ and standing alone, are insufficient to
      defeat summary judgment.

              While [the chief operating officer‘s] alleged comment meets
      the first and third criteria, Jackson has provided no evidence that the
      comment was proximate in time to his firing or related to the
      employment decision at issue. . . . The comment appears wholly
      unrelated to Jackson‘s termination, and Jackson has not presented
      any evidence to show otherwise.



                                        16
Id. (footnotes and citations omitted); see also Rubinstein v. Adm’rs of Tulane

Educ. Fund, 218 F.3d 392, 400–01 (5th Cir. 2000) (holding that in a plaintiff‘s

claim of discrimination based on his national origin, comments that he was a

―Russian Yankee‖ and a ―Russian Jew‖ were insufficient to defeat the employer‘s

motion for summary judgment because the comments were not proximate in time

to the plaintiff‘s failure to receive raises or promotions, and the comments were

therefore ―stray remarks‖), cert. denied, 532 U.S. 937 (2001). Texas courts take

the same approach regarding ―stray remarks‖ as the Fifth Circuit. See AutoZone,

Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (―We have held that stray

remarks are insufficient to establish discrimination and statements made

remotely in time by someone not directly connected with termination decisions do

not raise a fact issue about the reason for termination.‖); Niu v. Revcor Molded

Products Co., 206 S.W.3d 723, 729–30 (Tex. App.—Fort Worth 2006, no pet.)

(holding that a comment made eight months before a termination decision was

not proximate enough in time to be probative of discrimination).

      In her deposition, appellant dated Ridley‘s alleged comment about

intending to hire a younger management team as occurring ―very early in [her]

career.‖ She admitted that Ridley was referring to hiring decisions in the context

of filling open vacancies, and she said that he explained that he and other

employees would ―be retiring soon.‖ Appellant admitted that Ridley was not in

her chain of command when she was fired, and appellant did not present

evidence showing that Ridley had any influence on Carter BloodCare‘s decision


                                       17
to fire her. Thus, because of proximity of time, Ridley‘s apparent lack of authority

over the decision to fire appellant, and the fact that Ridley‘s comment was

focused on hiring and retiring rather than firing, we hold that Ridley‘s alleged

comment is no evidence to support a prima facie case of discrimination.

For similar reasons, we conclude that Stefan‘s comment, which was made,

according to appellant, ―at one point,‖ had nothing to do with managing

employees, and had nothing to do with appellant but was rather focused on

Stefan herself feeling old, cannot raise a fact issue on discrimination.

Alleged disparate treatment

      Appellant contends that there were ―numerous instances of disparate

treatment . . . , including an involuntary demotion and numerous aspects of . . .

supervision . . . to which younger peers were not subject.‖ Appellant said in her

deposition that

      when she changed departments in 2005, she was being treated differently
      than ―younger employees that had similar allegations and problems with
      the company,‖ such as Debbie Liles, who had allegedly micromanaged,
      embarrassed, and disrespected an employee but was not demoted or
      terminated (although appellant did not know whether anyone complained
      to human resources or upper management about Liles‘s behavior);

      Henderson ―had personnel problems‖ with a long-term employee and was
      not demoted, counseled, reprimanded, or placed in a smaller office, as
      appellant had been;

      Jacalyn Biersmith had ―difficult‖ working relationships with her employees
      without consequences; and




                                         18
      Norman had some ―personnel issues‖ and ―questionable behavior,‖ and
      nothing happened to Norman ―to [appellant‘s] knowledge.‖11

Appellant admitted, however, that she did not know for a fact that Henderson,

Liles, Norman, or Biersmith were younger than she was. Appellant also testified

that Stefan, among other alleged faults, could not relate to appellant because of

appellant‘s age; isolated appellant from meetings while not isolating appellant‘s

younger peers; did not diligently address criticism with appellant like she did with

appellant‘s younger peers; denied equivalent space or administrative support that

was provided to appellant‘s younger peers; and was more animated, friendly, and

communicative with younger employees.

      Carter BloodCare objected to the portions of appellant‘s deposition when

she discussed the alleged lack of comparable discipline for younger employees

(Liles, Henderson, Biersmith, and Norman).         The objections asserted that

appellant‘s testimony was without foundation, irrelevant, and speculative since

she had no personal knowledge of the ages or birthdays of her peers and

because appellant did not show that her own circumstances were sufficiently

comparable to the younger employees‘ situations. The trial court sustained the

objections, and appellant‘s original briefing did not challenge that decision.




      11
        It seems that much of appellant‘s testimony concerning these events was
based on second-hand information. Appellant admitted that her information
about Liles was based on ―office gossip‖ and that she had ―heard‖ that Biersmith
was a taskmaster.


                                        19
Thus, we conclude that we cannot consider that evidence. 12 See Frazier, 987

S.W.2d at 610.

      But even if we were to consider the evidence, we would conclude that it

fails to raise a genuine issue of material fact about whether appellant was

discharged because of her age.        The following exchange occurred during

appellant‘s deposition:

            Q. . . . [W]hen you say [Henderson‘s] younger than you, what
      do you base that on?

            A. I have no basis of fact.

            ....

            Q. Do you know for a fact [Biersmith‘s] younger than you?

            A. Not for a fact.

            Q. Okay.

            A. Nor Debbie Liles, nor Brandye Norman.

Because appellant did not produce more than a scintilla of evidence that the

employees whom she used for disparate treatment comparisons were actually

younger than she was, much less significantly younger than she was, she cannot


      12
         Although appellant attempted to raise a complaint about the trial court‘s
evidentiary ruling in a postsubmission letter, we have held that a ―reply brief may
not be used to raise new complaints.‖ Penley v. Westbrook, 146 S.W.3d 220,
227 (Tex. App.—Fort Worth 2004), rev’d on other grounds, 231 S.W.3d 389 (Tex.
2007); see Dallas Cnty. v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas
2006, pet. denied) (op. on reh‘g) (―The Texas Rules of Appellate Procedure do
not allow an appellant to include in a reply brief a new issue in response to some
matter pointed out in the appellee‘s briefs but not raised by the appellant‘s
original brief.‖).


                                          20
rely on the comparisons to show age-related discriminatory conduct. See Acosta

v. Gov’t Emps. Credit Union, 351 S.W.3d 637, 643–44 (Tex. App.—El Paso

2011, no pet.); see also Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 705

(Tex. App.—Amarillo 1999, no pet.) (―[W]hen one attempts to establish a prima

facie case of age discrimination under section 21.051 by comparing his treatment

with that of a younger individual, the difference in age between the two must be

significant.‖) (citing O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313,

116 S. Ct. 1307, 1310 (1996)).13

      Appellant also relies on her alleged ―involuntary demotion‖ in an attempt to

prove disparate treatment. But as we have discussed above, appellant did not

present nonexcluded evidence that she was transferred to different departments

within Carter BloodCare while similarly situated and significantly younger

employees were not.14 Moreover, the evidence establishes that older employees

assumed appellant‘s responsibilities once she was transferred from her old

positions to new ones. Thus, we hold that appellant‘s transfers do not raise a

genuine fact issue of age discrimination.

      13
       Federal courts have likewise held that in a disparate treatment claim, the
compared employee must be significantly younger than the plaintiff. See, e.g.,
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000) (holding that a
seven-year difference was not significant).
      14
         Appellant testified that when she was transferred in 2005, she was ―being
treated differently than younger employees that had similar allegations and
problems with the company.‖ Carter BloodCare objected to this evidence, and
the trial court excluded it. Appellant states in her brief that her second transfer
was ―justified on the positive basis of urging her to take it.‖


                                        21
      Finally, in her brief, appellant argues, ―There were also numerous

instances of disparate treatment . . . including . . . numerous aspects of the

supervision of [appellant] to which younger peers were not subject.‖        In her

statement of facts, appellant directs us to her deposition testimony, in which she

stated that Stefan treated her differently than younger employees because unlike

Stefan‘s interactions with those employees, Stefan allegedly refused to meet with

appellant,15 failed to respond promptly to her, excluded her from meetings,

isolated her, did not celebrate her birthday, did not properly coach or train her,

did not provide periodic performance evaluations, denied her administrative

support, denied her a director‘s office and eventually placed her in a cubicle, and

solicited false and negative comments about her. Again, however, the trial court

sustained Carter BloodCare‘s objection to appellant‘s testimony about how

Stefan had treated her as compared to younger peers, and since appellant has

not expressly appealed that ruling, we cannot consider the evidence.

See Frazier, 987 S.W.2d at 610. Moreover, as the Beaumont Court of Appeals

recently explained in a case where a plaintiff attempted to use other employees‘

inappropriate conduct to prove disparate treatment for his own misconduct and

therefore raise an inference of discrimination,

      ―To prove discrimination based on disparate discipline, the
      disciplined and undisciplined employees‘ misconduct must be of

      15
       Two of the employees that Stefan allegedly met with regularly are Liles
and Norman. As explained above, appellant did not produce evidence that Liles
and Norman are significantly younger than she is.


                                        22
      ‗comparable seriousness.‘‖ Precise equivalence in culpability is not
      required, but a plaintiff must usually show that the misconduct for
      which he was discharged was nearly identical to the conduct
      engaged in by an employee whom the company retained.

Flores v. City of Liberty, 318 S.W.3d 551, 556 (Tex. App.—Beaumont 2010, no

pet.) (citations omitted); see Reyes, 272 S.W.3d at 593–95 (applying the

comparable seriousness/nearly identical disparate treatment standard); Ysleta

Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005) (same);

Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex. App.—Fort Worth 2006,

no pet.) (―More favorable treatment of a person outside a protected class can be

used to show discrimination only if the circumstances are nearly identical.‖).

In other words, as the Fifth Circuit has explained,

      Employees with different supervisors, who work for different
      divisions of a company or who were the subject of adverse
      employment actions too remote in time from that taken against the
      plaintiff generally will not be deemed similarly situated. Likewise,
      employees who have different work responsibilities or who are
      subjected to adverse employment action for dissimilar violations are
      not similarly situated. This is because we require that an employee
      who proffers a fellow employee as a comparator demonstrate that
      the employment actions at issue were taken ―under nearly identical
      circumstances.‖ The employment actions being compared will be
      deemed to have been taken under nearly identical circumstances
      when the employees being compared held the same job or
      responsibilities, shared the same supervisor or had their
      employment status determined by the same person, and have
      essentially comparable violation histories. . . . If 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,‖ the employees are not similarly situated for the
      purposes of an employment discrimination analysis.




                                         23
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009) (citations and

footnotes omitted).

      Even if the evidence had been admitted to show that Stefan treated

appellant differently than other employees who worked under Stefan‘s authority,

we conclude, based on our review of appellant‘s deposition, that she did not

present more than a scintilla of evidence to demonstrate that she was similarly

situated to those other employees or was significantly older than them. For that

reason as well, we conclude that appellant failed to raise a genuine issue of

material fact about the fourth prima facie element of age discrimination: that she

was discharged because of her age.

      Because appellant has not directed us to more than a scintilla of admitted

evidence that supports a prima facie case for age discrimination under chapter

twenty-one of the labor code, we hold that the trial court did not err by granting

Carter BloodCare‘s no-evidence motion for summary judgment against that

claim. See Tex. R. Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426. We overrule

appellant‘s first issue.

                              False Imprisonment

      In her second issue, appellant asserts that the trial court erred by granting

appellees‘ motions for summary judgment on her false imprisonment claim.

Each appellee moved for summary judgment on appellant‘s false imprisonment

claim on traditional and no-evidence grounds.




                                        24
The requirement of a willful detention

      To defeat appellees‘ no-evidence summary judgment motions, appellant

was required to produce more than a scintilla of evidence of a willful detention

that was without consent and was without the authority of law. Dangerfield v.

Ormsby, 264 S.W.3d 904, 909 (Tex. App.—Fort Worth 2008, no pet.); see Wal-

Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Randall’s Food

Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). ―[L]iability for false

imprisonment extends beyond those who willfully participate in detaining the

complaining party to those who request or direct the detention.‖ Dangerfield, 264

S.W.3d at 909–10; see Rodriguez, 92 S.W.3d at 507.

      The first element of false imprisonment, a willful detention,

      may be accomplished by violence, by threats, or by any other means
      that restrains a person from moving from one place to another.
      Where it is alleged that a detention is effected by a threat, the
      plaintiff must demonstrate that the threat was such as would inspire
      in the threatened person a just fear of injury to her person,
      reputation, or property.

Johnson, 891 S.W.2d at 645 (citation omitted); see Rodriguez, 92 S.W.3d at 511

(―[F]alse imprisonment is an intentional tort, requiring a willful detention by the

defendant.‖).

      In Johnson, Johnson, a store‘s manager, had failed to pay for a Christmas

wreath when leaving the store. 891 S.W.2d at 643. When Johnson returned to

work two days later, the store‘s director, Lewis Simmons, escorted her to an

office and questioned her about the wreath; Johnson admitted to not paying for



                                        25
the wreath, and Simmons called the store‘s district manager, Mike Seals. Id.

Because Seals wanted to meet with Johnson later that day, Simmons asked her

to stay at the store but suggested that she stay in the office or work on a

volunteer project. Id. Johnson generally stayed in the office, although she left it

twice while waiting for Seals to arrive. Id. When he did so, he and Simmons

questioned Johnson further, which caused her to cry, and then Seals suspended

Johnson for thirty days. Id. Johnson sued the store, Seals, and Simmons for

false imprisonment under the theories that Simmons had detained her by sternly

insisting that she stay put while waiting for Seals and that he had restricted her

from entering areas of the store. Id. at 645. The supreme court concluded that

Johnson had not been willfully detained, stating in part,

             Simmons‘ request that Johnson not work in one area of the
      workplace does not constitute false imprisonment.         When an
      employer supervises its employees, it necessarily temporarily
      restricts the employees‘ freedom to move from place to place or in
      the direction that they wish to go. Without more, however, such a
      restriction is not a ―willful detention.‖ An employer has the right,
      subject to certain limited exceptions, to instruct its employees
      regarding the tasks that they are to perform during work hours. . . .
      In order to effectively manage its business, an employer must be
      able to suggest, and even insist, that its employees perform certain
      tasks in certain locations at certain times. As a matter of law, [the
      store] did not falsely imprison Johnson.

Id. at 645–46 (citations and footnotes omitted). The court distinguished cases in

which threats had been made to an employee‘s person, reputation, or property.

See id. at 645 n.4; see also Grant v. Stop-N-Go Mkt. of Tex., Inc., 994 S.W.2d

867, 870–72 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (concluding that the



                                        26
evidence raised a fact issue on false imprisonment when a store‘s manager, who

suspected the plaintiff of stealing, grabbed the plaintiff‘s arm, told him to ―shut up‖

and to not leave, and called the police, which resulted in the plaintiff‘s trip to a

police station); Black v. Kroger Co., 527 S.W.2d 794, 796–97, 800–01 (Tex. Civ.

App.—Houston [1st Dist.] 1975, writ dism‘d) (holding that a jury could reasonably

find false imprisonment based on an inability to exercise free will to leave an

interview room when the plaintiff was threatened with being taken to jail and with

not seeing her daughter for a long time if she did not admit to stealing money);

Kroger Co. v. Warren, 420 S.W.2d 218, 220–22 (Tex. Civ. App.—Houston [1st

Dist.] 1967, no writ) (upholding the trial court‘s finding of false imprisonment

when the plaintiff was told that she could not leave the room until she signed a

statement and was physically restrained when she attempted to leave).

      We have also had an occasion to hold, as a matter of law, that evidence

did not support a false imprisonment claim. See Safeway Stores, Inc. v. Amburn,

388 S.W.2d 443, 447 (Tex. Civ. App.—Fort Worth 1965, no writ).                Kenneth

Amburn had been working at a Safeway Store when R.C. Newman, a district

manager, led him to a secluded area at the back of the store to speak to an

independent investigator, Bill Koch, about Amburn‘s alleged stealing. Id. at 444–

45. Without telling Amburn that he had to remain in the area or using physical

force to restrain him, Koch interviewed Amburn for thirty to forty minutes; Amburn

had the physical ability to leave the area but did not attempt to do so or indicate a

desire to do so. Id. at 445. Koch told Amburn that there was evidence to send


                                          27
Amburn to a penitentiary and that ―the salary in Huntsville for checkers was not

very good.‖ Id. Eventually, Amburn signed a document in which he admitted

stealing money. Id. Amburn sued the store for false imprisonment, alleging that

he was ―overawed and intimidated, frightened to the extent of being incapable of

exercising his will in removing himself, and thereby prevented from leaving said

place in said store where he was thus held and willfully and maliciously detained

. . . against his will.‖ Id. at 445–46. We reversed the trial court‘s judgment in

Amburn‘s favor and rendered judgment against him, stating,

      [T]his case raises the question of the limitations imposed upon an
      employer in discussing with an employee matters relevant to his
      employment. We think an employer is entitled to discuss with his
      employees all matters bearing upon the duties and purposes
      attendant to the employment . . . . We also think the employee is
      entitled to be forthwith confronted with such information and that the
      logical place for such a conference would be in the establishment
      where the employee is hired to work. It is possible, o[f] course, for
      such an interview to be held at an improper place and conducted in
      an improper manner. From a careful review of the record, however,
      we do not believe this to be the case as far as Amburn is concerned.
      The conference with Amburn was conducted in the regular place of
      business by one whose duty it was to investigate such matters. The
      area was sufficient to accommodate the presence of the persons
      involved. No threats or physical efforts were made to restrain
      Amburn. He was at all times free to leave. There was no
      impediment to restrain Amburn from removing from one place to
      another.

            We do not approve of the conduct of Koch. Such conduct,
      however, bears only upon the value of Amburn‘s confession . . . . It
      has nothing to do with whether he was falsely imprisoned.
      The confession . . . may have been made because Amburn feared
      that he would be sent to the penitentiary . . . . This fact may have
      rendered the confession . . . involuntary. It did not render Amburn‘s
      presence in the area of interrogation false imprisonment.



                                       28
             While employers should be admonished that their dealing with
      employees should always be reasonable and humane, we cannot
      adopt a rule which would constantly place an employee in jeopardy
      of a charge of false imprisonment. The interview with Amburn had a
      direct bearing upon his duties as an employee.            He was
      compensated during the time that he was in the area. Under the
      circumstances, it cannot be said that his requested presence for
      purposes of interrogation constituted false imprisonment unless he
      was unlawfully detained. We accept at face value Amburn‘s
      testimony that he was scared. It is not unlikely that any person
      being confronted with questions concerning his personal integrity
      would relish such an interview. This, however, is not the same as
      false imprisonment.

             ....

            . . . The threat which is alleged to have resulted in false
      imprisonment must be calculated to detain the person. It must result
      in more than intimidation if one can, by ordinary means, relieve
      himself from any restraint or detention.

Id. at 446–47 (emphasis added); see also Morales v. Lee, 668 S.W.2d 867, 869

(Tex. App.—San Antonio 1984, no writ) (concluding that there was no evidence

of false imprisonment although a defendant screamed at his employee in the

defendant‘s office, told her not to leave, and told her that if she did leave, he

would call the police).

      A year before deciding Amburn, we decided, under distinct facts, that a

jury could have justifiably found some evidence of false imprisonment.

See Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687, 690 (Tex. Civ. App.—Fort

Worth 1964, writ ref‘d n.r.e.). Stewart had been working for a drug store when

she was accused of stealing and was asked to go to a meeting. Id. at 688–89.

The investigator told Stewart that she could not leave until she wrote a statement



                                       29
that she had stolen money and merchandise, told her that she was going to the

penitentiary, and physically restricted her from getting up from a table. Id. at

689–90.

Application of law to facts

      Carter BloodCare hired EPS in February 2009 because, in part, the

company was concerned that it had high employee turnover. EPS independently

contracted with Sorrells, who, by the time of her deposition, had conducted

seventy to eighty employee investigations. Sorrells met with Carter BloodCare‘s

officials about a complaint made by Serrano, one of Carter BloodCare‘s technical

writers, against appellant.       The officials gave Sorrells several names of

individuals who had previous issues with appellant, and the officials allowed

Sorrells to review Serrano‘s and appellant‘s personnel files. Serrano told Sorrells

that there was ―abuse from [appellant].‖ Serrano also said that she wanted to

find somewhere else to work in Carter BloodCare because she was ―afraid of

[appellant‘s] backlash.‖    Sorrells also interviewed other employees, including

Willis, who told Sorrells that appellant ―had told the technical writers, [‗]I‘ll destroy

anyone who challenges me.[‘]‖ Willis told Sorrells that Willis was scared because

appellant‘s behavior was erratic.

      Before appellant‘s meeting with Sorrells in an office at Carter BloodCare,

appellant had recently used the same office to conduct an employee‘s

performance review.        Sorrells described the room where she interviewed

appellant as a


                                           30
      vacant office. It‘s obvious that it‘s nobody‘s current office. It has a
      little bit of storage . . . either boxes or shelves. . . . [It has] a desk,
      two chairs. I recall that there‘s a phone. And I don‘t recall there
      being much else as far as supplies or anything of that nature . . . .
      [T]he office was very comfortable for two people.

      At the beginning of the interview, Sorrells closed the door of the office

where she and appellant sat.       According to Sorrells, she did so to keep the

conversation private. Appellant sat as close to the door as Sorrells did.

      Sorrells introduced herself as a nonpracting attorney, told appellant that

she was not recording the conversation, and ensured that appellant was also not

doing so. Sorrells also told appellant that the interview would be ―confidential to

the extent possible‖ but that she would report the results of the interview to

Carter BloodCare‘s officials.     Sorrells warned appellant that she could be

disciplined for discussing the interview with others.

      Sorrells interviewed appellant for about three hours (she had met with

Carter BloodCare‘s other employees from thirty minutes to two hours). During

that time, appellant did not ask for a bathroom break. Sorrells never touched

appellant or threatened to do so. But according to appellant, Sorrells‘s tone

―became agitated and frustrated at certain points.‖         Sorrells asked appellant

about ―numerous negative comments‖ that, according to Carter BloodCare‘s

employees, appellant had made. According to Sorrells, appellant denied making

some of the comments but admitted to ―saying some things.‖ Appellant testified

in a deposition that Sorrells‘s ―posture during most of the interrogation was

leaning forward and asking . . . closed-ended, accusatory questions.‖ Sorrells


                                          31
denied conducting the interview with appellant in an aggressive manner and

denied asking leading questions. Appellant said that Sorrells made her feel ―dirty

and worthless and unworthy and embarrassed and shamed and insulted.‖

Appellant believed that she was to meet with Sorrells for an hour-long employee

satisfaction survey, rather than, in appellant‘s words, a ―three-hour bashing that

left [her] totally degraded, ashamed, devastated, shocked, horrified, diminished,

[and] feeling worthless.‖      Appellant said that Sorrells‘s questioning was

―unrelenting, repetitive, and shocking.‖      She believed that Sorrells had asked

insulting questions, had made insulting comments, and that Sorrells ―had no

regard for [appellant‘s] discomfort with the questions.‖

      Although appellant stated that she did not believe that she had the

authority to leave the interview with Sorrells because Sorrells was there at Carter

BloodCare‘s senior management‘s direction, appellant admitted that she never

asked or tried to leave. Appellant also conceded that she was not told that she

was not free to leave the room.

      Appellant said that she shared with Sorrells on more than one occasion

that she was uncomfortable in the interview.        She added, ―I would not have

willingly gone into that meeting so totally unprepared and surprised by the tone at

that meeting.‖ She said, ―I object to the fact that I was so . . . humiliated, so

insulted, . . . that I was literally cemented to my seat in shock and horror . . . at

what was going on.‖      Sorrells admitted that appellant expressed discomfort

during the interview, and Sorrells stated that appellant seemed surprised by


                                         32
some of the questions that Sorrells had asked. According to Sorrells, this was

because appellant ―was finding the questions difficult to answer, that it was

difficult for her to face what other people were saying about her.‖ Sorrells did not

talk to appellant about favorable comments that had been made about her

because she did not believe that appellant would dispute the favorable

comments.

      At the end of the interview, Sorrells asked appellant whether appellant had

anything else to say, and appellant said that she did not. Sorrells told appellant

that appellant should not discuss anything that had happened in the interview

with anyone. Sorrells also gave appellant Sorrells‘s business card and asked

appellant if there was anyone that appellant would like her to contact ―to help

[appellant‘s] case.‖ Appellant said that she would ―think about it and get back to

her.‖ Later, appellant sent Sorrells an e-mail to provide Sorrells with additional

information; in that e-mail, appellant queried about whether she would have

another meeting with Sorrells. Sorrells responded that there were no plans for a

follow-up meeting.

      Despite the undisputed evidence that appellant was not physically

restrained, was not told that she had to stay in the interview, and never asked to

leave it, she contends that there are several facts by which we may infer

appellees‘ willful detention of her. First, appellant contends that Sorrells ―referred

to [appellant] as an accused individual, and consistent with doing so, admitted

asking [appellant] repeatedly about pejorative comments about her.‖ But the


                                         33
record citation appellant gives for that contention does not establish that Sorrells

referred to appellant as an accused individual at the time of the interview;

instead, the record shows that during her deposition, Sorrells referred generally

to issues related to accused individuals in her investigations.     Appellant also

contends in her brief that false imprisonment may be inferred from the fact that

Sorrells knew of appellant‘s ―psychological sensitivity‖ during the interview.

In her deposition, Sorrells said that during the interview, appellant disclosed that

she had visited a counselor about her prior transfer at Carter BloodCare.

We disagree, however, with appellant‘s assertion that this disclosure should have

―led to the immediate ending‖ of the interview. Like in Amburn, what other Carter

BloodCare employees had said about appellant‘s workplace behavior, and how

appellant responded to the employees‘ accusations, had a direct bearing upon

appellant‘s employment, and Carter BloodCare was entitled to investigate those

matters. See 388 S.W.2d at 446. Thus, we decline to infer false imprisonment

simply from Sorrells‘s asking various difficult questions or from appellant‘s

discomfort with the questions. See id. (―It is not unlikely that any person being

confronted with questions concerning his personal integrity would relish such an

interview. This, however, is not the same as false imprisonment.‖); see also

Morales, 668 S.W.2d at 869.

      Second, appellant contends that Sorrells admitted to misleading appellant

about the purpose of the interview. We have found no such admission in the

record references provided by appellant; instead, Sorrells testified that she told


                                        34
appellant the truth about the purpose of the interview. Third, appellant argues

that Sorrells ―admitted to a different and decidedly more detailed form of

preparation for the interrogation of [appellant] . . . and a much longer

interrogation of [appellant] . . . than any interview of [appellant‘s] subordinates.‖

We cannot agree that Sorrells‘s level of preparation for the interview with

appellant raises an inference of Sorrells‘s intent to detain appellant. Nor do we

believe that the comparative length of appellant‘s interview to Sorrells‘s other

interviews creates a fact issue on false imprisonment; it makes sense that

appellant‘s interview lasted longer because it involved questions generated by

facts that Sorrells accumulated in many other interviews.

       We also disagree with appellant‘s assertion that the facts of this case are

―precisely consistent‖ with the facts of Skillern and Black. See Black, 527 S.W.2d

at 800–01 (holding that there was evidence of false imprisonment when the

plaintiff was told that if she did not admit to taking money, she would be

handcuffed, taken to jail, and ―would not see her daughter for a long time‖);

Skillern, 379 S.W.2d at 689 (holding that evidence supported false imprisonment

when, according to the plaintiff, she was physically restrained and was told that

she could not leave until she admitted stealing money and merchandise).

Finally, we disagree that Sorrells‘s telling appellant that Sorrells would report the

results of the interview to Carter BloodCare‘s management amounts to evidence

of a willful detention. In most serious employment investigations, employees

could reasonably feel compelled to defend themselves in an attempt to avoid the


                                         35
prospect of an adverse employment action, but a false imprisonment claim is

generally not available when someone remains in a location while attempting to

establish innocence. See Martinez v. Goodyear Tire & Rubber Co., 651 S.W.2d

18, 21 (Tex. App.—San Antonio 1983, no writ).         Appellant testified that she

stayed in the interview because she ―felt compelled to . . . try to defend [her]

character.‖   She has given that same reason on appeal for staying in the

interview.

      Comparing the facts of this case, even when viewed in the light most

favorable to appellant, to the circumstances in the cases cited above in which

courts held that plaintiffs failed to raise fact issues on false imprisonment, we

hold that appellant did not present more than a scintilla of evidence to defeat

appellees‘ no-evidence motions for summary judgment on that claim. See Tex.

R. Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426. We therefore conclude that the

trial court did not err by granting summary judgment for appellees on the claim,

and we overrule appellant‘s second issue.

                  Intentional Infliction of Emotional Distress

      In her third issue, appellant contends that the trial court erred by granting

summary judgment on her intentional infliction of emotion distress (IIED) claim,

which she filed against only EPS and Sorrells. A claim for IIED requires the

plaintiff to show intentional or reckless conduct that was extreme and outrageous

and that caused the defendant severe emotional distress.         See Leachman v.

Dretke, 261 S.W.3d 297, 315 (Tex. App.—Fort Worth 2008, no pet.) (op. on


                                        36
reh‘g) (citing Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex.

2004)). ―An employee may recover damages for intentional infliction of emotional

distress in an employment context as long as the employee establishes the

elements of the cause of action.‖ GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611

(Tex. 1999).

      In the trial court, EPS and Sorrells sought summary judgment on

appellant‘s IIED claim on the basis, in part, that appellant could not provide

evidence of extreme and outrageous conduct. It is for courts to determine, in the

first instance, whether a defendant‘s conduct may reasonably be regarded as so

extreme and outrageous to permit recovery. Id. at 616. ―Only when reasonable

minds may differ is it for the jury to determine whether conduct has been

sufficiently extreme and outrageous to result in liability.‖ Canchola, 121 S.W.3d

at 741.

      Extreme and outrageous conduct is 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.‖

Zeltwanger, 144 S.W.3d at 445; Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.

1993). This ―rigorous‖ legal standard helps ―assure a meaningful delineation

between inadvertence and intentionally or recklessly outrageous misconduct.‖

Twyman, 855 S.W.2d at 622. Generally, ―insensitive or even rude behavior does

not constitute extreme and outrageous conduct. Similarly, mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities do not rise


                                         37
to the level of extreme and outrageous conduct.‖ Bruce, 998 S.W.2d at 612

(citation omitted); see also Horton v. Montgomery Ward & Co., Inc., 827 S.W.2d

361, 369 (Tex. App.—San Antonio 1992, writ denied) (―There is no occasion for

the law to intervene in every case where . . . feelings are hurt.‖). ―In deciding

whether particular conduct rises to an extreme and outrageous level, . . . courts

should consider both the conduct‘s context and the parties‘ relationship.‖ Tex.

Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610–11 (Tex. 2002).

―[T]he fact that an action 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.‖ Brewerton v. Dalrymple, 997 S.W.2d 212, 215

(Tex. 1999).

       The Texas Supreme Court has recognized that to ―properly manage its

business, an employer must be able to supervise, review, criticize, demote,

transfer, and discipline employees.‖ Bruce, 998 S.W.2d at 612; see Sears, 84

S.W.3d at 610 (―It is simply not in the public‘s interest to dissuade employers

from   conducting   internal   investigations   when   employee-wrongdoing      is

suspected.‖). Thus, that court has held that a claim for intentional infliction of

emotional distress does not lie for ordinary employment disputes, explaining,

       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.
       Thus, to establish a cause of action for intentional infliction of
       emotional distress in the workplace, an employee must prove the
       existence of some conduct that brings the dispute outside the scope


                                        38
      of an ordinary employment dispute and into the realm of extreme
      and outrageous conduct. Such extreme conduct exists only in the
      most unusual of circumstances.

Bruce, 998 S.W.2d at 613 (citations omitted).

      In Canchola, an employee had accused Canchola, her boss, of sexual

harassment. 121 S.W.3d at 738. Canchola‘s supervisor suspended him pending

an investigation of the harassment charge, and the supervisor eventually fired

Canchola. Id. Canchola sued his employer, claiming that the investigation of the

harassment charge was extreme and outrageous because an employee had felt

pressured into writing a statement against Canchola. Id. at 741. The Supreme

Court disagreed, stating,

            It is neither extreme nor outrageous for an employer to ask an
      employee to share information concerning allegations made against
      a coworker, even if it is an unpleasant experience. An employer
      must be given some leeway in investigating serious accusations
      made against its employees. Wal-Mart‘s conduct in investigating
      and ultimately terminating Canchola was understandably unpleasant
      for him, but it was an ―‗ordinary employment dispute.‘‖ Assuming
      that Canchola‘s allegations about the investigation were true, Wal-
      Mart‘s conduct was ―within the bounds of its discretion to supervise,
      review, discipline, and ultimately terminate‖ its employees.

Id. at 741–42 (citations omitted); see also Johnson, 891 S.W.2d at 644 (rejecting

an IIED claim because an employer acted within its legal rights in investigating

reasonably credible allegations of an employee‘s misconduct); Williams v. First

Tenn. Nat’l Corp., 97 S.W.3d 798, 805 (Tex. App.—Dallas 2003, no pet.)

(deciding that an employer‘s questioning of an employee about personal use of a

company credit card in front of other employees was not extreme and outrageous



                                       39
conduct); Sebesta v. Kent Elecs. Corp., 886 S.W.2d 459, 463–64 (Tex. App.—

Houston [1st Dist.] 1994, writ denied) (refusing to assess liability although the

employee was yelled at and made to undergo an ―exit parade‖ during the busiest

time of the day).

      At trial and on appeal, appellant has contended that Sorrells‘s conduct

during her interview of appellant, which was conducted under Carter BloodCare‘s

direction as an attempt to investigate employee misconduct, was ―plainly

egregious‖ because (1) Sorrells ―was aware of the peculiar economic

susceptibility of [appellant] in threatening financial harm to her through loss of

employment‖; (2) Sorrells ―learned in the course of the interrogation of . . .

[appellant‘s] psychological susceptibility and used this to further undermine her

equanimity‖; and (3) Sorrells treated appellant as an accused individual, using

―machine-gun rhetorical questioning [and] assuming the truth of ugly allegations‖

against appellant. Appellant asserts that none of this behavior ―can be viewed as

normal everyday conduct even by human resource consultants‖ such as Sorrells.

      In her brief, appellant does not refer us to where the record discloses that

Sorrells knew of appellant‘s particular economic susceptibility and threatened

financial harm. Appellant could be referring to the part of her deposition in which

she testified that during the interview, Sorrells informed her that she would be

reporting the information that she gathered to Carter BloodCare‘s officials. 16


      16
        The Beaumont Court of Appeals has stated, ―A threat to fire someone
and ruin their career falls within the type of ordinary business dispute that is not

                                        40
Sorrells‘s deposition establishes that she learned during her interview with

appellant that appellant had sought counseling in relation to one of her transfers

at Carter BloodCare, but the deposition does not establish that Sorrells

proceeded with the interview differently based on that knowledge than she would

have without it. Appellant testified in her deposition that she told Sorrells at least

three times that she was uncomfortable with Sorrells‘s line of allegedly close-

ended questioning, which was ―edgy‖ and ―very accusatory and negative . . . . It

seemed that her questions were posed to imply wrongdoing and misconduct and

misbehavior on my part.‖          Appellant described Sorrells‘s demeanor as

―aggressive and unrelenting,‖ stated that Sorrells asked her ―insulting questions‖

and made ―insulting comments,‖ and explained that the interview, which was

―horrifying,‖ devastating, and shocking,

      took almost an immediate turn in an attempt to intimidate me, to
      accuse me, to degrade me, to make me feel less than, to soil my
      reputation by repeating false allegations. I literally could not
      understand what was happening to me, the relevancy of these
      questions and why there was an outside consultant having me in a
      closed room, rapid fire, asking me accusatory close-ended
      questions, purposefully looking for an admission of misconduct on
      my part. I was shocked by it all.

      Viewing these facts in the light most favorable to appellant, even if we

were to assume that Sorrells‘s conduct in her one-time, three-hour interview of

appellant was inappropriate and failed to meet typical professional standards, we

actionable as a claim for intentional infliction of emotional distress.‖ Louis v.
Mobil Chem. Co., 254 S.W.3d 602, 609 (Tex. App.—Beaumont 2008, pet.
denied).


                                           41
hold that the facts are insufficient to raise a genuine issue of material fact on the

rigorous, exacting standard of extreme or outrageous conduct. See Creditwatch,

Inc. v. Jackson, 157 S.W.3d 814, 815, 818 (Tex. 2005) (indicating that IIED

claims must typically be based on circumstances that border on ―serious criminal

acts‖).   Although Sorrells‘s interview was understandably unpleasant for

appellant, the facts in this case resemble facts of cases in which courts

precluded recovery for IIED. See id. at 817 (holding that there was no extreme

and outrageous conduct, but only ―callous‖ and ―mean-spirited‖ conduct, when a

company‘s chief executive officer refused to give a terminated employee a

reference letter and allegedly orchestrated the employee‘s eviction from a house

two months after the employee was terminated); Tiller v. McLure, 121 S.W.3d

709, 714 (Tex. 2003) (concluding that although the defendant acted

inappropriately and callously toward a woman whose husband was dying with a

brain tumor, causing the woman to cry, shake, and have insomnia, the

defendant‘s conduct was not extreme and outrageous because the defendant

never made physical threats and did not use vulgar or obscene language);

Brewerton, 997 S.W.2d at 216 (holding that although a defendant made negative

and allegedly retaliatory comments that were reflected in a professor‘s tenure file

and repeatedly recommended that the professor should not be allowed to

continue on a tenure track, this conduct was not extreme and outrageous).

Likewise, the facts of this case are dissimilar to facts that have compelled courts

to allow an IIED claim to proceed. See Morgan v. Anthony, 27 S.W.3d 928, 929–


                                         42
30 (Tex. 2000); Bruce, 998 S.W.2d at 613 (holding that there was evidence of

extreme and outrageous conduct when over a period of more than two years, a

supervisor used harsh language and sexual innuendo, physically threatened

employees and charged at them, screamed, and stared at them for as long as

thirty minutes at a time); see also Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d

307, 311–14 (Tex. App.—Tyler 2001, pet. denied) (comparing cases in which

courts recognized the existence of extreme and outrageous conduct with cases

in which courts refused to do so); Fields v. Teamsters Local Union No. 988, 23

S.W.3d 517, 533 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (holding that

a trial court erred by granting summary judgment against an IIED claim when the

employee faced severe and continual sexual harassment over a three-month

period).

      Because we hold that appellant did not produce more than a scintilla of

evidence of extreme and outrageous conduct under the exacting standard

mandated by the supreme court, we hold that the trial court did not err by

granting EPS and Sorrells‘s motion for summary judgment on her IIED claim, and

we overrule her third issue.

                               Breach of Contract

      In her fourth issue, appellant asserts that the trial court erred by granting

summary judgment against her claim that Carter BloodCare breached a contract

by disclosing her personnel file to Sorrells. In appellant‘s first amended original

petition, which was her live pleading at the time of the trial court‘s judgment, she


                                        43
stated, ―For her third cause of action, Plaintiff would show that purportedly

confidential   information   was   disclosed   by    [Carter   BloodCare]    under

circumstances in which such disclosure was not authorized.‖ Carter BloodCare

construed this statement as raising a claim about invasion of privacy on the

public disclosure of private facts, and the company sought summary judgment on

the basis that appellant could produce no evidence on that claim.17

In responding to Carter BloodCare‘s motion for summary judgment, appellant

stated that her complaint about the disclosure of her personnel file was based on

breach of contract principles rather than invasion of privacy principles.

Specifically, appellant contended that Carter BloodCare ―agreed in its

employment policies that personnel information . . . would not be provided to third

parties.‖   Carter BloodCare‘s employee handbook, which appellant received

during her employment, states,

            The information contained in your personnel file is the
      confidential property of [Carter BloodCare]. Due to the confidential
      nature of personnel files, the Human Resource Department is
      responsible for controlling all access to personnel files.

           . . . Personnel files are not available for review by former
      employees, unauthorized employees or outside parties except
      where provided otherwise by law. Generally, only supervisors and
      management personnel of [Carter BloodCare] who have a legitimate
      reason to review information in a file are allowed to do so.




      17
          See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473–74 (Tex. 1995)
(listing the elements of the invasion of privacy tort).


                                        44
The handbook, however, also states that it is ―not an employment contract or

contractual agreement.‖18

      Carter BloodCare objected to appellant‘s attempt to ―assert a claim which

is outside [of] the live pleadings,‖ and the company also objected to appellant‘s

―apparent attempt to try this issue by consent.‖ The trial court sustained this

objection.   Thus, because the trial court precluded appellant‘s attempt to

expressly raise a breach of contract claim for the first time during the summary

judgment proceedings and because appellant has not expressly appealed that

decision, we will not consider the merits of the claim. See Frazier, 987 S.W.2d at

610. We overrule appellant‘s fourth issue.

                                   Defamation

      In her fifth issue, appellant asserts that the trial court erred by granting

summary judgment for Carter BloodCare on her defamation claim. In the trial

court, appellant pled that employees of Carter BloodCare, acting within the scope

of their employment, ―made false defamatory statements to Sorrells.‖ Through


      18
         Appellant does not cite authority in the part of her brief relating to her
breach of contract claim, nor does she state the elements of that claim. For this
reason, in addition to the reason discussed below, we decline to consider the
merits of the claim. See Tex. R. App. P. 38.1(i); Gray v. Nash, 259 S.W.3d 286,
294 (Tex. App.—Fort Worth 2008, pet. denied). We note that we have held that
employee handbooks generally do not create contracts and that this is
―particularly true if the handbook contains a disclaimer.‖ Brown v. Sabre, Inc.,
173 S.W.3d 581, 585–86 (Tex. App.—Fort Worth 2005, no pet.); see Fed. Exp.
Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993) (stating that a disclaimer
in an employee handbook negates any implication that personnel procedures
create contractual relationships).


                                        45
an interrogatory, Carter BloodCare asked appellant to identify each employee

who had defamed her and to state the gist of the defamatory comment.

Appellant replied that the employees who had defamed her included, but were

not limited to, Ridley, Norman, Barlow, Serrano, Ronda Willis, and Melissa Court.

Later, in a deposition, when asked who had defamed her, appellant responded

that Court, DiAnna Richardson, Willis, Serrano, and Barlow had done so, and

that she could not think of anyone else ―at [that] time.‖

      Carter BloodCare sought summary judgment on the bases that appellant

had no evidence of her defamation claim, that the comments over which

appellant sued were not defamatory as a matter of law, that the company had a

qualified privilege regarding the comments, and that claims about some of the

comments were barred by a statute of limitations.            Appellant responded by

stating that the communications supporting her defamation claim fell into

categories of (1) statements by appellant‘s subordinates about appellant that

were made in a 360-degree review, and (2) statements made during interviews

with Sorrells and republished to senior management representatives of Carter

BloodCare. Appellant has referred to these same categories on appeal.

      For a private plaintiff (instead of a public official or public figure) to maintain

a defamation claim, the plaintiff must show that the defendant, while acting with

negligence, published a statement that was defamatory concerning the plaintiff.

Fox Entm’t Group, Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 531 (Tex. App.—Fort

Worth 2007, pet. denied) (op. on reh‘g); see AccuBanc Mortg. Corp. v.


                                          46
Drummonds, 938 S.W.2d 135, 147 (Tex. App.—Fort Worth 1996, writ denied)

(explaining that statements are published when they are ―communicated orally, in

writing, or in print to some third person capable of understanding their

defamatory import and in such a way that the third person did so understand‖).

A statement is defamatory when it tends to injure a person‘s reputation. See San

Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App.—San Antonio

1996, no writ). Slander is a defamatory statement that is orally communicated or

published to a third person without legal excuse. Johnson, 891 S.W.2d at 646.

In suits brought by private individuals, truth is an affirmative defense to slander.

Id. But a statement may be false, abusive, unpleasant, or objectionable to the

plaintiff and still not be defamatory in light of the surrounding circumstances. See

Ezrailson v. Rohrich, 65 S.W.3d 373, 376 (Tex. App.—Beaumont 2001, no pet.).

Also, a defamatory statement must be sufficiently factual to be susceptible of

being proved objectively true or false, as contrasted from a purely subjective

assertion. Thomas-Smith v. Mackin, 238 S.W.3d 503, 507 (Tex. App.—Houston

[14th Dist.] 2007, no pet.).

      On appeal, appellant refers generally to more than forty pages of the

record that she claims contain defamatory comments.19               These pages,

comprising deposition transcripts and Sorrells‘s handwritten notes from her

      19
       Appellant refers specifically to only one alleged comment that she
proposes was defamatory; she states that someone accused her of ―criminal
conduct of stealing.‖ We cannot locate in the record where anyone accused
appellant of taking something with criminal purposes.


                                        47
sixteen interviews of Carter BloodCare‘s employees, contain numerous

statements concerning appellant, including, as a sample of the statements, that

appellant had promoted herself; had created turmoil; had intimidated people; had

pressured employees; had called someone a ―twit‖; had threatened someone;

had treated someone unfairly; had made unflattering statements about a

coworker‘s character; had told an employee, ―If I ever hear you say anything,

your life will not be worth a thin dime‖; had violated standard operating

procedures; had said that she would destroy anyone who challenged her; and

had said that an employee was ―full of shit.‖ Appellant has not indicated whether

she relies on all of these comments in her defamation claim or on only some of

them. And in both her brief on appeal and in her brief in support of her response

to Carter BloodCare‘s motion for summary judgment in the trial court, appellant

failed to apply the defamation principles explained above to any of these

statements or the other comments contained in the record pages that she has

cited.     Instead, in her brief on appeal, appellant contends only that the

statements were collectively defamatory because they referred to her and were

calculated to injure her and to impute dishonesty toward her.

         An appellate brief must contain argument and the authorities and facts

relied upon for the appeal. Allegiance Hillview, L.P. v. Range Tex. Prod., LLC,

347 S.W.3d 855, 873 (Tex. App.—Fort Worth 2011, no pet.); see Tex. R. App. P.

38.1(i). An inadequately briefed issue may be waived on appeal. Allegiance

Hillview, L.P., 347 S.W.3d at 873 (overruling a party‘s issue about the trial court‘s


                                         48
failure to grant the party‘s request for additional findings of fact and conclusions

of law because the party did not ―identify which requested but refused additional

finding prevented it from properly presenting its appellate argument‖); Hall v.

Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied)

(noting that we are not generally required to search the record to find support for

a party‘s contentions); see also Fredonia State Bank v. Gen. Am. Life Ins. Co.,

881 S.W.2d 279, 284 (Tex. 1994) (discussing the ―long-standing rule‖ that a point

may be waived due to inadequate briefing). As the El Paso Court of Appeals has

explained, it is an appellant‘s burden to discuss assertions of error, and ―we have

no duty—or even right—to perform an independent review of the record and

applicable law to determine whether there was error. Nor are we required to sift

through the record in search of facts supporting a party‘s position.‖ Rubsamen v.

Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso 2010, no pet.) (citation

omitted).

      We decline to search through appellant‘s globally cited forty pages of the

record, unaided by a tailored argument by appellant, in an attempt to sort

statements that may meet the criteria for defamation from comments that do not.

See id.; Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of

Tex. & Jurisdiction v. Jackson, 732 S.W.2d 407, 412 (Tex. App.—Dallas 1987,

writ ref‘d n.r.e.) (en banc) (―This court is not required to search the record for

evidence supporting a litigant‘s position under particular points of error . . . .‖).

Because defamation is based on a statement and because appellant has not


                                         49
directed us to a specific statement that was defamatory, we overrule her fifth

issue as inadequately briefed.

                                 Conclusion

      Having overruled each of appellant‘s issues, we affirm the trial court‘s

judgment.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: January 5, 2012




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