IIED: Cause of Action of Last Resort (so to speak) in Texas
Intentional infliction of emotional distress is a gap-filler tort: “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
Where the gravamen of a complaint is covered by another common-law or statutory tort, intentional infliction of emotional distress is not available. Id. This is true even if plaintiff does not assert the precluding claim in her petition—such as Chapter 21 of the Texas Labor Code in this instance—or asserts the displacing claim but does not prevail—such as Title VII of the Civil Rights Act of 1964 in this instance. See id. at 448.
Shell and Penilla argued that Garcia’s intentional infliction of emotional distress claims against them were precluded by Title VII and Chapter 21 of the Texas Labor Code. See 42 U.S.C. § 2000e-2; TEX. LAB. CODE ANN. § 21.051 (Vernon 2006).
The Texas employment discrimination statutes were modeled after Title VII with the purpose of executing the policies set forth in Title VII. Hoffman-La Roche, 144 S.W.3d at 445. Due to their similarity, federal cases analyzing Title VII may be cited as authority in cases relating to the Texas statutes. Id. at 446. Like the federal statute, Texas law provides, “An employer commits an unlawful employment practice if because of . . . sex . . . the employer . . . discriminates in any . . . manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” TEX. LAB. CODE ANN. § 21.051(1). Also like the federal statute, Texas defines employer in this context as “a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” TEX. LAB. CODE ANN. § 21.002(8) (Vernon Supp. 2010).
Accordingly, for the purposes of this appeal, we draw no distinction between the federal and state statutes in determining whether they preclude Garcia’s intentional infliction of emotional distress claims.
The Texas Supreme Court recently held that a statutory sexual harassment claim precludes all common-law causes of action for the same injury. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 803 (Tex. 2010). Specifically, the court held, “Today’s question is whether employer liability for unwanted sexual touching by a coworker . . . is limited to a tailored [statutory] scheme that specifically covers employer liability for sexual harassment. We think the answer should be yes.” Id.
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00773-CV - 9/8/11