Jessica Shannon v. Memorial Drive Presbyterian Church U.S.

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed July 21,
2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00359-CV

JESSICA SHANNON, Appellant
V.

MEMORIAL DRIVE PRESBYTERIAN CHURCH U.S., Appellee

On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2013-49928

OPINION

We are asked to decide whether ecclesiastical immunity can shield a church
from contractual liability when the subject contract does not implicate church
doctrine. In seven issues, appellant Jessica Shannon challenges the trial court’s
grant of appellee Memorial Drive Presbyterian Church’s plea to the jurisdiction
and motions for summary judgment. Concluding that the Church is not entitled to
immunity from suit under these circumstances, we reverse the trial court’s grant of
the plea. Further concluding that the Church established as a matter of law that its
conduct was not extreme and outrageous for purposes of Shannon’s intentional
infliction of emotional distress claim, we affirm the trial court’s grant of summary
judgment in the Church’s favor on that claim. We reverse the trial court’s grant of
summary judgment on Shannon’s other claims and remand the case to the trial
court for proceedings consistent with this opinion.

Background

Shannon was dismissed from her position as Elementary Ministries Director
at the Church. She sent a demand letter to the Church asserting that she had been
terminated for making allegations of sexual harassment against an elder of the
Church. Shannon and the Church subsequently signed a “Confidential Separation
Agreement and Release.” The Church paid Shannon $25,000 and agreed that she
could “classify the end of th[e] employment relationship as a resignation, rather
than a termination . . . for purposes of . . . future employment offers.” The
Agreement includes a confidentiality clause applicable to Shannon and a provision
that “[i]n the event that [Shannon is] asked about her separation of employment,
[she] may reply only with the words ‘we have reached an amicable parting,’ but
will not otherwise indicate the nature of the resolution of these matters.” In
addition, the Church and Shannon each agreed not to “disparage” the other.

Shannon subsequently was hired by the Austin Presbyterian Theological
Seminary as a development officer. This position required her to participate in
fundraising efforts for the Seminary. An elder at the Church also served on the
Board of Trustees for the Seminary. He contacted the Board Chair at the Seminary
to ask whether the Seminary had checked Shannon’s references. The Board Chair
contacted the President of the Seminary, who instructed Kurt Gabbard, its Vice
President for Business Affairs, to check Shannon’s references. Gabbard then

2
contacted the head of human resources at the Church, Karen Winship. Winship
told Gabbard she could not discuss the reason Shannon left “because of a
severance agreement,” but Winship “could not think of a circumstance under
which the [C]hurch would rehire [Shannon] or that she would want to come back.”
Winship referred Gabbard to Dave Steane, Executive Pastor at the Church, who
stated that he “could not tell [Gabbard] the reasons why [Shannon] left because of
the existence of an agreement[, but] it should be obvious that there were issues,
otherwise there would not be an agreement.” Steane also stated “that it would be
difficult for [Shannon] to carry out her duties [to raise funds from the Church]” or
from “anywhere in Houston.” The Seminary terminated Shannon’s employment
because she purportedly misrepresented the circumstances surrounding her
departure from the Church and based on its concern that she would not be able to
solicit donations for the Seminary.

Shannon sued the Church, bringing claims for breach of contract, intentional
infliction of emotional distress, libel and slander, and fraudulent inducement. The
Church filed a plea to the jurisdiction, asserting the trial court lacked jurisdiction
because the Church is immune from suit under the ecclesiastical abstention
doctrine and the so-called ministerial exception. The Church also filed two
traditional motions for summary judgment with supplements and amendments,
contending (1) the Church is immune from liability under chapter 103 of the Labor
Code; (2) Shannon waived her right to enforce the provisions of the Agreement by
giving the Church “express authorization to provide full details concerning her past
employment to the Seminary in her Employment Application”; (3) the Church did
not breach the Agreement as a matter of law; (4) the Church’s behavior was not
extreme and outrageous for purposes of Shannon’s intentional infliction of
emotional distress claim; and (5) Shannon waived her fraudulent inducement claim

3
by releasing all claims that existed as of the date of the Agreement.1 The trial court
granted the plea to the jurisdiction and the motions for summary judgment and
rendered final judgment for Shannon to take nothing by way of her claims against
the Church.

Discussion

Shannon argues the trial court has jurisdiction over her claims because
neutral principles apply to the contractual dispute at issue and the ministerial
exception does not apply in a non-employment context. She also asserts that
chapter 103 of the Labor Code does not apply under these facts and she did not
waive her claims against the Church by authorizing the Church “to provide full
details regarding her past employment.” She further contends that fact questions
exist regarding whether the Church breached the Agreement and whether its
conduct was extreme and outrageous and that the trial court erred in concluding
that she released her fraudulent inducement claim.

We review a trial court’s ruling on a plea to the jurisdiction de novo. City of
Pasadena v. Belle, 297 S.W.3d 525, 528 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004)). A defendant’s plea may challenge either the plaintiff’s pleadings or
the existence of jurisdictional facts. Id. When, as here, the defendant challenges the
existence of jurisdictional facts, we must consider the relevant evidence submitted
by the parties. See id. If that evidence raises a fact issue as to jurisdiction, the plea
must be denied because the issue must be resolved by the factfinder. Id. If the
relevant evidence is undisputed or fails to present a jurisdictional fact issue,
however, we must rule on the plea as a matter of law. Id. A trial court properly

1
When necessary for clarity, we refer to all of the traditional summary judgment motions
at issue in this appeal together in the singular.

4
dismisses those claims over which it does not have subject matter jurisdiction but
retains claims in the same case over which it has jurisdiction. See Thomas v. Long,
207 S.W.3d 334, 338-39 (Tex. 2006); see also Heckman v. Williamson Cnty., 369
S.W.3d 137, 152-53 (Tex. 2012) (“[A] plaintiff must demonstrate that the court has
jurisdiction over . . . each of his claims; the court must dismiss those claims (and
only those claims) over which it lacks jurisdiction.”).

We generally analyze jurisdiction separately for each claim. See In re
C.D.B., No. 14-13-00718-CV, 2015 WL 1405921, at *2 (Tex. App.—Houston
[14th Dist.] Mar. 24, 2015, no. pet. h.). When the claims are dependent on the same
facts, however, it is not always necessary to address each claim separately. See
City of Dallas v. Jones, No. 05-07-00831-CV, 2008 WL 588997, at *4 (Tex.
App.—Dallas Mar. 5, 2008, pet. denied); cf. Moncrief Oil Int’l Inc. v. OAO
Gazprom, 414 S.W.3d 142, 150-51 (Tex. 2013) (holding in the context of personal
jurisdiction challenge that courts need not assess forum contacts on a claim-by-
claim basis if all claims arise from same forum contacts).2 The standard of review
for a plea to the jurisdiction based on submitted evidence generally mirrors that of
a traditional motion for summary judgment. Quested v. City of Houston, 440
S.W.3d 275, 279-80 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

We review de novo the trial court’s grant of summary judgment. See Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). In a traditional motion for summary judgment, the movant has the burden of

2
The Texas Supreme Court has not addressed whether it is necessary to analyze each
claim separately when they all arise from the same facts in the context of a plea to the
jurisdiction. We note that there may be some instances in which jurisdiction must be analyzed
separately as to each claim even when the claims are dependent on the same facts, for example,
when certain types of immunity apply only to certain types of claims. We note any such
applicable distinctions below. However, we further note that the parties conceded at oral
argument that under the facts of this case, we need not analyze Shannon’s claims separately.

5
establishing that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P.
166a(c)). To obtain summary judgment, the movant must conclusively disprove at
least one element of each of the nonmovant’s claims or conclusively establish all
elements of an affirmative defense as to each claim. Friendswood Dev. Co. v.
McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). The nonmovant has no burden
to respond to or present evidence regarding the motion until the movant has carried
its burden to conclusively establish the cause of action or defense on which its
motion is based. State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013). We consider
all the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848; see
also Quested, 440 S.W.3d at 280. The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).

With regard to a plea challenging jurisdictional facts, as here, the movant
must assert the absence of subject-matter jurisdiction and present conclusive proof
that the trial court lacks subject-matter jurisdiction. See City of Houston v. Little
Nell Apartments, L.P., 424 S.W.3d 640, 646 (Tex. App.—Houston [14th Dist.]
2014, pet. denied). Proof is conclusive only if reasonable people could not differ in
their conclusions. Id. When, as in this case, the order granting summary judgment
and the plea to the jurisdiction does not specify the grounds upon which the trial
court relied, we must affirm if the appellant does not attack all independent
grounds that may support the adverse ruling or if any of the independent grounds is

6
meritorious.3 See $90,235, 390 S.W.3d at 292; Sw. Bell Tel., L.P. v. Harris Cnty.,
267 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

I. Ecclesiastical Abstention Doctrine Inapplicable
In her fourth issue, Shannon argues the trial court erred in granting the
Church’s plea on the basis of the ecclesiastical abstention doctrine because the case
revolves around the breach of a secular contract. The First Amendment to the
United States Constitution, applicable to the states through the Fourteenth
Amendment, provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.
amend. I.; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). This
provision forbids the government from interfering with the rights of hierarchical
religious bodies to either establish their own internal rules and regulations or create
tribunals for adjudicating disputes over religious matters. Serbian E. Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 708−09, 724−26 (1976). Government action
is not permitted to interfere with the free exercise of religion by encroaching on a
religious institution’s ability to manage its internal affairs. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993); Kedroff v.
St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116
(1952).

The Texas Supreme Court has recognized that churches have a fundamental
right “to decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine.” Westbrook v. Penley, 231
S.W.3d 389, 397 (Tex. 2007); see also Watson v. Jones, 80 U.S. 679, 727 (1871).
The autonomy of a church in managing its affairs and deciding matters of church

3
The judge signed one final judgment ruling on the plea and all motions for summary
judgment.

7
discipline has long been afforded broad constitutional protection. Westbrook, 231
S.W.3d at 397; see also Watson, 80 U.S. at 733.

To enforce this constitutional provision, Texas courts have utilized the
“ecclesiastical abstention doctrine.”4 Reese v. Gen. Assembly of Faith Cumberland
& Presbyterian Church in Am., 425 S.W.3d 625, 627 (Tex. App.—Dallas 2014, no
pet.). The ecclesiastical abstention doctrine arises from the Free Exercise Clause of
the First Amendment and provides that the First Amendment prohibits civil courts
from exercising jurisdiction over matters concerning “theological controversy,
church discipline, ecclesiastical government, or the conformity of the members of
the church to the standard of morals required of them.” Milivojevich, 426 U.S. at
713−14; see also Jennison, 391 S.W.3d at 664−65. Under this doctrine, courts will
not attempt to right wrongs related to the hiring, firing, discipline, or
administration of clergy. Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex. App.—
Houston [1st Dist.] 1996, no pet.). “Although such wrongs may exist and be
severe, and although the administration of the church may be inadequate to provide
a remedy, the preservation of the free exercise of religion is deemed so important a
principle it overshadows the inequities which may result from its liberal
application.” Id.

The Texas Supreme Court also has recognized, however, that “[w]hile
Article I, Section 6 of the Texas Constitution and the First Amendment to the
United States Constitution afford broad protection to the free exercise of religion,
they do not necessarily bar all claims which may touch on religious conduct.”
Tilton, 925 S.W.2d at 677. The Free Exercise Clause does not protect actions in
violation of social duties or subversive to good order. Id.; see also Pleasant Glade
4
This doctrine has variously been referred to as one of “deference,” “ecclesiastical
abstention,” or “ecclesiastical exemption.” Jennison v. Prasifka, 391 S.W.3d 660, 661 n.1 (Tex.
App.—Dallas 2013, no pet.).

8
Assembly of God v. Schubert, 264 S.W.3d 1, 12 (Tex. 2008) (“[R]eligious practices
that threaten the public’s health, safety, or general welfare cannot be tolerated as
protected religious belief.”). Thus, acknowledging that churches, their
congregations, and hierarchy exist and function within the civil community, they
can be as amenable to rules governing civil, contract, or property rights as any
other societal entity. Lacy v. Bassett, 132 S.W.3d 119, 123 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (citing Dean v. Alford, 994 S.W.2d 392, 395 (Tex.
App.—Fort Worth 1999, no pet.) (“[C]ourts do have jurisdiction to review matters
involving civil, contract, or property rights even though they stem from a church
controversy.”)).

In determining whether the ecclesiastical abstention doctrine applies, courts
must analyze whether a particular dispute is “ecclesiastical” or simply a civil law
controversy in which church officials happen to be involved. Tran, 934 S.W.2d at
743. To resolve this issue, courts must look to the substance and effect of a
plaintiff’s complaint to determine its ecclesiastical implication. Green v. United
Pentecostal Church Int’l, 899 S.W.2d 28, 30 (Tex. App.—Austin 1995, writ
denied). A court may interpret church documents under neutral principles of law
when it can do so in purely secular terms without relying on religious precepts in
resolving the conflict. Hawkins v. Friendship Missionary Baptist Church, 69
S.W.3d 756, 759 (Tex. App.—Houston [14th Dist.] 2002, no pet.). However, if the
matter cannot be determined by the court without resolving a religious controversy,
then the court must defer to the resolution of the doctrinal issue by the authoritative
ecclesiastical body. Id.

Shannon argues that her claims arise from the breach of a secular settlement
agreement between a church and a former employee. Accordingly, the dispute
would not require the trial court to “delve into religious dogma, interpret doctrinal

9
beliefs, or resolve religious matter[s] for purposes of the ecclesiastical doctrine.”
The Church limits its argument that ecclesiastical matters are implicated to
Shannon’s allegation that the Church disparaged her. Thus, we limit our discussion
of this issue to that allegation. See Little Nell Apartments, 424 S.W.3d at 646
(noting movant in plea to jurisdiction in which pleading requirement has been met
has burden to assert and conclusively prove absence of jurisdiction).

In her live petition, Shannon alleges that the Church breached the
Agreement by, among other things, “disparag[ing]” her; the Church’s actions
caused her termination from the Seminary, resulting in “severe emotional distress”
(intentional infliction of emotional distress); the Church defamed her by stating
that she “would not be able to raise funds on behalf of the Seminary anywhere in
Houston or within her region” and by painting her as a “liar”; and the Church
fraudulently induced her to sign the Agreement “so that it could buy her silence
while it went about its business of disparaging her.” The Church concedes that
these claims “all arise from her allegation that the Church made disparaging
statements about her to the Seminary.” We agree. Thus, we analyze these claims
together, except as otherwise noted. See Jones, 2008 WL 588997, at *4.

The Agreement states, “[The Church] agrees that it will not disparage
[Shannon].” Our primary concern in interpreting a contract is to ascertain and to
give effect to the intentions of the parties as expressed in the instrument. J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). We therefore give
terms their plain and ordinary meaning unless the contract indicates that the parties
intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache
Corp., 294 S.W.3d 164, 168 (Tex. 2009). We examine and consider the entire
writing in an effort to harmonize and give effect to all provisions of the contract, so
that none will be rendered meaningless. J.M. Davidson, 128 S.W.3d at 229.

10
 The Agreement does not define the word “disparage.” The Church argues
the trial court could not consider whether the Church disparaged Shannon because
it would have to determine whether the Church’s statements were “false or made
with malice.” As an initial matter, we reject this definition urged by the Church,
which is gleaned from the elements of business disparagement. See Hurlbut v. Gulf
Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987) (“The general elements of a
claim for business disparagement are publication by the defendant of the
disparaging words, falsity, malice, lack of privilege, and special damages.”).5 If the
parties had intended to define the word as synonymous with business
disparagement, which has a particular legal meaning, they could have done so. We
decline to apply this definition. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d
640, 646 (Tex. 1996) (“We have long held that courts will not rewrite agreements
to insert provisions parties could have included.”). Instead, we apply the plain
meaning of the word “disparage” in analyzing whether the ecclesiastical abstention
doctrine applies.6 See Dynegy Midstream Servs., 294 S.W.3d at 168. “Disparage”
is defined as “[t]o speak of as unimportant or small; belittle” or “[t]o reduce in
esteem or rank.” The American Heritage Dictionary 406 (2d coll. ed. 1991); see
also In re Peebles, No. 14-10-00973-CV, 2010 WL 4892634, at *4 (Tex. App.—
Houston [14th Dist.] Dec. 2, 2010, no pet.) (mem. op.) (referring to plain meaning
of “disparage” as “to depreciate”).

The Church argues a determination of whether it disparaged Shannon would
fall within the ecclesiastical abstention doctrine because it would require the trial

5
A private individual such as Shannon need not prove malice to establish defamation.
See In re Lipsky, No. 13-0928, 2015 WL 1870073, at *9 (Tex. Apr. 24, 2015). Thus, any
argument by the Church that Shannon should be required to show the Church acted with malice
would be without merit.
6
The Church puts forth various other meanings for the word. For the reasons discussed,
we reject any definition other than the plain meaning.

11
court to evaluate (1) the reasons the Church decided to terminate Shannon and to
settle her claims for sexual harassment, (2) the decision to notify the Seminary of
the Church’s issues with Shannon, and (3) whether such decisions were in the best
interest of the Church, the Seminary, and the Presbyterian community in Houston.
We disagree.

Shannon’s allegations are directed toward the Church’s actions after the
parties signed the Agreement and after Shannon assumed a new position at the
Seminary, not at the Church’s decisions related to her termination. Thus, the
allegations do not invoke the reasons she left the Church. The parties agree that
Shannon’s claims revolve around the parties’ Agreement, in which the Church
agreed not to “disparage” Shannon. The reason the Church elder asked the
Seminary to check Shannon’s references has no relevance in determining whether
the Church disparaged her. The reasons behind the Church’s decisions both before
and after Shannon left—and whether these decisions were in the Church’s best
interest—likewise are irrelevant to the question of whether the Church disparaged
Shannon.

The Church argues that it is immune from suit because “what is
‘disparaging’ involves subjective judgment through the eyes of the Church.” To
the contrary, applying the plain meaning of the word “disparage,” a factfinder
could determine whether the Church belittled Shannon or “reduce[d her] in esteem
or rank” when, as alleged, (1) a Church member initiated a conversation with the
Seminary about Shannon’s references after Shannon already had been hired,
(2) Winship, the Church’s head of human resources, told Gabbard, the
representative from the Seminary, that she could not discuss the reasons Shannon
left the Church but also “could not think of a circumstance under which the
[C]hurch would rehire [Shannon] or that [Shannon] would want to come back,”

12
and (3) Steane told Gabbard that “it should be obvious that there were issues,
otherwise there would not be an agreement” and “it would be difficult for
[Shannon] to carry out her duties as a fundraiser” anywhere in Houston. Although
these facts may be disputed, they can be analyzed under a neutral definition in
purely secular terms.7

We may interpret a contract in a civil law controversy in purely secular
terms when doing so does not require us to rely on religious precepts or resolve a
religious controversy. See Lacy, 132 S.W.3d at 123. Making the determination of
whether the Church disparaged Shannon merely involves interpreting the contract
as a matter of law and applying the facts as found by the factfinder. Moreover,
under these circumstances, we are not required to intervene in the hiring, firing,
discipline, or administration of the Church’s clergy, address the Church’s standards
of morality, or address any other matters traditionally held to involve religious
doctrine. See id. at 125. Similarly, we are not required to interpret any Church
constitution, by-laws, or other governing documents. See id. Finally, we are not
asked to decide matters relating to the congregational or hierarchical nature of the
Church. See id. We conclude that this lawsuit, revolving around the Church’s
purported disparagement of Shannon in violation of the Agreement, is a civil law
controversy in which Church officials happen to be involved. See id. at 123.
Accordingly, the ecclesiastical abstention doctrine does not apply.

We sustain Shannon’s fourth issue.

II. Ministerial Exception Not a Jurisdictional Bar
In its plea to the jurisdiction, the Church also argued the “ministerial

7
We note that the Church has not offered any religious explanation for its actions that
might entangle the court in a religious controversy in violation of the First Amendment. See
Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 472 (8th Cir. 1993).

13
exception” required dismissal of Shannon’s claims. Under this doctrine, if an
employee is a minister, courts are precluded from reviewing the employment
decision regardless of whether the claims are ecclesiastical in nature. See Patton v.
Jones, 212 S.W.3d 541, 548 (Tex. App.—Austin 2006, pet. denied); see also Lacy,
132 S.W.3d at 123 (“[C]ourts should not involve themselves in matters relating to
the hiring, firing, discipline, or administration of clergy.”). The United States
Supreme Court has recognized the ministerial exception; however, the court
concluded that the “exception operates as an affirmative defense to an otherwise
cognizable claim, not a jurisdictional bar.” Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 709 n.4 (2012) (“That is because the
issue presented by the exception is ‘whether the allegations the plaintiff makes
entitle him to relief,’ not whether the court has ‘power to hear [the] case.’”). The
Church moved only on the ministerial exception as a jurisdictional bar and did not
move for summary judgment as to this affirmative defense. Accordingly, the trial
court erred to the extent that it concluded it did not have subject matter jurisdiction
over Shannon’s claims under the ministerial exception. We sustain Shannon’s fifth
issue.

For the foregoing reasons, we conclude the trial court erred in dismissing
Shannon’s claims for lack of subject matter jurisdiction. We turn to the other issues
addressed in the Church’s motions for summary judgment.

III. Labor Code Chapter 103 Inapplicable
In her first issue, Shannon argues that the Church was not entitled to
immunity from her claims under chapter 103 of the Labor Code. The legislature
enacted chapter 103 to provide the affirmative defense of immunity from civil
liability to an employer who makes a disclosure based on information that he
“would reasonably believe to be true.” Tex. Labor Code § 103.001; see Graham v.

14
Rosban Constr., Inc., No. 03-07-00317-CV, 2009 WL 3319911, at *3 (Tex.
App.—Austin Oct. 14, 2009, no pet.) (mem. op.). Under the statute, “An employer
may disclose information about a current or former employee’s job performance to
a prospective employer of the current or former employee on the request of the
prospective employer or the employee.” Tex. Labor Code § 103.003(a).

Shannon asserts chapter 103 does not apply because Church representatives
did not discuss her job performance with Gabbard.8 “Job performance” is defined
in the statute as “the manner in which an employee performs a position of
employment and includes an analysis of the employee’s attendance at work,
attitudes, effort, knowledge, behaviors, and skills.” Id. § 103.002(3). Steane
confirmed that Shannon did not leave based on any allegations of sexual
misconduct by her, expressed concern that Shannon would have difficulty
soliciting donations for the Seminary, and stated that “there were issues, otherwise
there would not be an agreement.” Winship also indicated the Church would not
rehire Shannon and Shannon would not want to come back. Shannon argues these
statements do not reflect the manner in which she performed her job as Elementary
Ministries Director and include no analysis of her attendance, attitudes, effort,
knowledge, behavior, or skills.

The Church cites Graham to support its argument that its statements related
to Shannon’s job performance.9 In that case, a former employer told a prospective

8
Shannon also contends that the statute does not apply because (1) the Seminary was her
current, not prospective, employer when the damaging reference was given by the Church;
(2) the reference was not given “on the request of” the Seminary because the Church elder,
purportedly at the prompting of Steane, suggested the Seminary should inquire; (3) Steane’s
disclosures were made with malice; (4) chapter 103 only applies to defamation claims; and
(5) the Church waived any protections under chapter 103 by agreeing not to “disparage”
Shannon. We need not reach these arguments because we agree that Church representatives did
not discuss her job performance with Gabbard.
9
We note that the Church also cited Leija v. Sky Properties, LLC, No. 01-13-00019-CV,

15
employer that when the company instituted a drug testing policy, the plaintiff
chose to quit rather than be tested. Graham, 2009 WL 3319911 at *2. The plaintiff
argued that this statement did not relate to his job performance as a truck driver.
See id. at *4. The court concluded that the statement fell within the definition of
job performance because the plaintiff was required to participate in drug testing as
part of his job in compliance with company policy. Id.

Here, the Church did not present evidence of any statements to the Seminary
relating to Shannon’s violation of any policy of the Church or failure to perform
her job as required by the Church. The Church did not establish that Steane’s
statement expressing doubts about Shannon’s ability to solicit donations for the
Seminary was related to the manner in which she performed her job at the Church.
At most, one might infer that Shannon left the Church on unfavorable terms, but
these statements provide no analysis of her attendance, attitudes, effort,
knowledge, behavior, or skills as Elementary Ministries Director. Accordingly, the
Church has not conclusively established its entitlement to summary judgment on
the affirmative defense of immunity under chapter 103.

We sustain Shannon’s first issue.

IV. Failure to Present Conclusive Evidence of Intent to Waive Claims
In her third issue, Shannon contends that she did not waive her claims
against the Church by filling out an online employment application for her position

2014 WL 523474 (Tex. App.—Houston [1st Dist.] Jan. 30, 2014, no pet.), in this section of its
brief; however, neither Leija nor the Church’s argument addresses job performance. Moreover,
the Leija court did not address chapter 103. It addressed the common law privilege for statements
made by a former employer to a prospective employer. Id. at *3. We need not address whether
the common law privilege applies under the facts of this case, as the Church has not asserted it
and it had the burden to conclusively establish immunity. See Little Nell Apartments, 424 S.W.3d
at 646 (“[T]he movant must assert the absence of subject-matter jurisdiction and present
conclusive proof that the trial court lacks subject-matter jurisdiction.”).

16
at the Seminary in which she “authorize[d] all [her] prior employers to provide full
details concerning [her] past employment.”10 Specifically, Shannon contends that
this authorization did not waive her rights under the confidentiality and anti-
disparagement clauses of the Agreement. Shannon argues that she was entitled to
rely on the Church to honor its obligation under the Agreement not to disparage
her.

Waiver is the intentional relinquishment of a known right or intentional
conduct inconsistent with claiming that right. Tenneco, 925 S.W.2d at 643. The
elements of waiver are (1) an existing right, benefit, or advantage held by a party;
(2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to
relinquish the right, or intentional conduct inconsistent with the right. Ulico Cas.
Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008); Clear Lake Ctr., L.P.
v. Garden Ridge, L.P., 416 S.W.3d 527, 542 (Tex. App.—Houston [14th Dist.]
2013, no pet.). Intent to waive must be clear, decisive, and unequivocal. Thompson
v. Kerr, No. 14-08-00978-CV, 2010 WL 2361636, at *4 (Tex. App.—Houston
[14th Dist.] June 15, 2010, no pet.) (mem. op.) (citing Ferguson v. Ferguson, 111
S.W.3d 589, 598 (Tex. App.—Fort Worth 2003, pet. denied)). A court should
conclude a waiver occurred only when a party unequivocally manifested the intent
not to assert her rights.11 Id. (citing Robinson v. Robinson, 961 S.W.2d 292, 299
(Tex. App.—Houston [1st Dist.] 1997, no writ)).

The Church cites Smith v. Holley, in which a police chief provided to a
prospective employer certain information from the plaintiff’s personnel file despite

10
The Church presented a copy of the employment application in support of its motion
for summary judgment.
11
Waiver is ordinarily a question of fact. Tenneco, 925 S.W.2d at 643. When the facts
and circumstances are admitted or clearly established, however, the question becomes one of
law. Id.

17
an agreement that the information would be purged. 827 S.W.2d 433, 435-36 (Tex.
App.—San Antonio 1992, writ denied). In Smith, the plaintiff signed an
authorization similar to the one at issue here, except for an additional paragraph: “I
hereby release any individual, including record custodians, from any and all
liability for damages of whatever kind or nature which may at any time result to
me on account of compliance, or any attempts to comply, with this authorization.”
Id. at 435. A copy of the authorization was given to the police chief before he
provided the offending information.12 Although the court in Smith, which predates
Chapter 103 of the Labor Code, found the police chief enjoyed a qualified
privilege as to plaintiff’s defamation claim, it made no holding as to waiver.13 Id. at
439-40. Smith is distinguishable.

Assuming Shannon authorized the Church to speak with the Seminary, the
Church nevertheless was bound to communicate in accordance with the terms of its
Agreement. We conclude that in signing the authorization, Shannon did not
unequivocally manifest the intent not to assert any of her rights under the
Agreement. In other words, Shannon did not authorize the Church to disparage
her.14 Accordingly, the Church has not conclusively established that Shannon

12
There is no evidence in our record regarding when or how the Church obtained a copy
of Shannon’s authorization.
13
The Smith court held that the plaintiff consented to the disclosure. 827 S.W.2d at 439.
However, the scope of a plaintiff’s consent “does not exceed what is reasonable in light of the
language or circumstances that created it.” Brooks v. AAA Cooper Transp., 781 F. Supp. 2d 472,
485 (S.D. Tex. 2011) (quoting Smith, 827 S.W.2d at 439). Brooks noted the language in the
Smith release cited above “is worded broadly enough to reach all kinds of defamatory remarks”
and “releases every kind of lawsuit imaginable.” Brooks, 781 F. Supp. 2d at 485 (quoting Smith,
827 S.W.2d at 439-40).
14
Shannon also argues that, despite signing the authorization, she was entitled to rely on
the Church to confirm that her departure was “amicable.” She bases this contention on the
confidentiality clause in the Agreement, which required her, if asked about her departure from
the Church, to respond that she and the Church had “reached an amicable parting.” While the
Church’s statements that Shannon left “because of a severance agreement,” the Church would

18
intended to waive her claims by signing the authorization.

We sustain Shannon’s third issue.

V. Breach of Contract Not Disproven as a Matter of Law
In her second issue, Shannon argues the trial court erred in rendering
summary judgment in the Church’s favor on her breach of contract claim. The
Church asserted in its motion for summary judgment that it did not breach the
Agreement as a matter of law.

A. Provisions at Issue Construed in Light of Non-disparagement
Clause
The Church asserted in its motion that the following provisions quoted from
the Agreement did not impose any obligations on the Church:

 [Shannon] and [the Church] agree that for purposes of [Shannon’s]
future employment efforts, [Shannon] may classify the end of this
employment relationship as a resignation, rather than a termination.

 Confidentiality. This Agreement and its terms shall be maintained in
strict confidence by [Shannon]. [Shannon] agrees that she will not
disclose, directly or indirectly, the terms of this Agreement or of any
communications constituting or concerning the negotiation of this
Agreement to any third person, apart from [Shannon’s] immediate
family and any attorney or tax advisor that [Shannon] may consult
concerning this Agreement. In the event that [Shannon], her
immediate family, tax advisor, and attorneys are asked about her
separation of employment, [Shannon] may reply only with the words
“we have reached an amicable parting,” but will not otherwise
indicate the nature of the resolution of these matters.

not rehire Shannon, and “there were issues, otherwise there would not be an agreement” do not
provide any details of the reasons for her departure, they do conflict with the idea that Shannon
parted from the Church on “amicable” terms—which is what Shannon was constrained to tell the
Seminary under the Agreement—and thus could be construed by the factfinder as disparaging
her under the circumstances. Whether the Church’s statements were disparaging is a fact
question for the jury, as discussed below.

19
Shannon responded that the first provision was a mutual agreement that Shannon
resigned and was not terminated and that the confidentiality clause was binding on
both parties.

As discussed above, in construing contracts, we must ascertain and give
effect to the parties’ intentions as expressed in the instrument. See J.M. Davidson,
Inc., 128 S.W.3d at 229. If the written instrument permits us to ascertain a definite
legal meaning as to which one of two possible meanings is proper, the contract is
not ambiguous, and we will interpret the contract as a matter of law. See Lopez v.
Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). Ambiguity
does not arise simply because the parties advance conflicting interpretations of the
contract; rather, for an ambiguity to exist, both interpretations must be reasonable.
Id. Because we conclude the language of the Agreement can be given a definite
legal meaning, and it is not reasonably susceptible to more than one meaning, it is
unambiguous, and we construe the Agreement as a matter of law. See id.

We construe these provisions in light of the non-disparagement clause in the
Agreement, in which the Church agreed not to disparage Shannon. The Church
agreed that Shannon could classify her departure from the Church “as a
resignation, rather than a termination” and required Shannon to tell prospective
employers, if asked, only that she and the Church had “reached an amicable
parting” but to refrain from sharing “the nature of the resolution of [the parties’
dispute].” Construing these provisions in light of the Agreement as a whole, the
Agreement limited the Church’s ability to reveal any aspects of Shannon’s
departure in a way that would disparage her, by for example, implying that she
misrepresented the nature of her departure from the Church.

B. Fact Question on Disparagement Exists

The Church further argued in its motion that, as a matter of law, it did not

20
disparage Shannon. The Church relied on the elements of business disparagement
and contended that Shannon was required to prove that its statements were
defamatory and malicious or false. We have already declined to apply this
definition of disparagement. As discussed, we apply the plain meaning of the word
to determine whether the Church conclusively established it did not disparage
Shannon.

Shannon presented the following evidence in support of her response to the
Church’s summary judgment motion. She attested she was not terminated from the
Church because of her job performance or attitude. She further attested that she
was fired because she “reported sexual harassment and false imprisonment to [the
Church] that [she] had suffered [at] the hands of a very active and wealthy
[Church] volunteer/Elder elect” and because she made a comment on a social
networking website about drinking a beer “that offended an undisclosed member of
[the Church].” During her interview for the position at the Seminary, Shannon
indicated that she had left the Church on amicable terms after she and her
supervisor, who “left around the same time,” “had revived the children’s ministry.”
Shannon did not discuss the Agreement or any reasons for her departure from the
Church. Gabbard later told Shannon she was being terminated from the Seminary
because she “had lied on [her] application to the Seminary as to why she left the
[Church].”

Shannon also presented Gabbard’s deposition testimony, which reflects the
following information. Gabbard learned about the Agreement from Winship and
Steane. He inferred from the existence of the Agreement that Shannon and the
Church had had a “disagreement” and “likely she [had] left the employment of the
[C]hurch on less-than-favorable terms.” Gabbard testified: “[T]here was some
reason that [Shannon] left the employment of [the Church] that would lead to a

21
severance agreement and would indicate that, just the existence of that, that she left
on other than favorable terms.” Gabbard further testified that Steane’s comments
regarding Shannon’s purported inability to raise funds within the Church and the
Houston Presbyterian community was a “major factor” leading to her termination.
Shannon attested that she did not participate in fundraising at the Church.

Shannon further presented Gabbard’s notes from his phone conversation
with Steane. Gabbard noted that Steane contacted the Church elder on the
Seminary’s Board of Trustees, who in turn contacted a representative of the
Seminary to prompt a reference check for Shannon.

The forgoing evidence supports the conclusion that the Seminary’s decision
to terminate Shannon was made as a direct result of Steane’s instigating a reference
check by the Seminary, as well as Winship’s and Steane’s comments that
(1) Shannon left because of a severance agreement, from which one could infer
that “obviously” there had been “issues,” (2) the Church would not rehire Shannon,
and (3) Shannon could not raise funds from the Church or anywhere in Houston.
Accordingly, a fact question exists as to whether the Church’s statements to the
Seminary belittled Shannon or “reduce[d her] in esteem or rank.” In conclusion,
the Church did not conclusively establish it did not disparage Shannon.

We conclude that the Church did not conclusively establish as a matter of
law that it did not breach the Agreement. We thus sustain Shannon’s second issue.

VI. No Extreme and Outrageous Conduct
In her sixth issue, Shannon argues the trial court erred in rendering summary
judgment in the Church’s favor on Shannon’s intentional infliction of emotional
distress claim. The Church moved for summary judgment on the basis that its
conduct was not extreme and outrageous.

22
 To prevail on this claim, Shannon would have to prove, among other things,
that the Church’s conduct was extreme and outrageous. Kroger Tex. Ltd. P’ship v.
Suberu, 216 S.W.3d 788, 796 (Tex. 2006). A defendant’s conduct satisfies the
second element only if it is “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. (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)).

Whether conduct is extreme and outrageous for the purpose of intentional
infliction of emotional distress generally is a question of law. Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814, 817 (Tex. 2005). Such claims are submitted to the jury
only when reasonable minds may differ. Id. Intentional infliction claims do not
extend to ordinary employment disputes. Id. Certain post-termination conduct may
constitute intentional infliction, but “[c]allous, meddlesome, mean-spirited,
officious, overbearing, and vindictive” conduct is not enough. Id. As set forth
above, the conduct must “go beyond all possible bounds of decency” and “be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. The
supreme court has gone so far as to say that “except in circumstances bordering on
serious criminal acts,” even claims “stemming from heinous acts . . . rarely have
merit as intentional infliction claims.” See id. at 818.

In Creditwatch, a former supervisor made lewd advances toward a woman
after her employment had been terminated. Id. at 816. When she rebuffed his
advances, the supervisor refused to give her a reference letter. Id. at 817. The
supervisor also required a current employee—who had invited her financially-
strapped former co-worker to live in her home—to evict the woman if the
employee wanted to keep her job. Id. The supreme court held that this behavior
was not extreme and outrageous under the required standard for intentional

23
infliction of emotional distress. Id. at 817-18.

Here, the Church’s actions purportedly resulted in Shannon’s termination of
employment with the Seminary based on the Church’s instigating a conversation
with the Seminary about Shannon’s departure from the Church and providing an
unfavorable reference. While these actions may be interpreted as “[c]allous,
meddlesome, mean-spirited, officious, overbearing, and vindictive,” they do not
rise to the level of extreme and outrageous conduct required to maintain an
intentional infliction of emotional distress claim. See id.

The Church conclusively established that it was entitled to summary
judgment on this claim. We overrule Shannon’s sixth issue and affirm the trial
court’s judgment in the Church’s favor on Shannon’s intentional infliction claim.

VII. No Waiver of Fraudulent Inducement Claim or Disclaimer of
Reliance
In her seventh issue, Shannon contends the trial court erred in rendering
summary judgment in favor of the Church on her fraudulent inducement claim
because she asserts she did not release that claim. In the Agreement, Shannon
released the Church “from any and all claims . . . which [Shannon] now has or may
have . . . whether now known or unknown . . . .” Shannon further agreed that the
release “extend[ed] to all claims of every nature and kind, known or unknown,
arising from, attributable to, or related to any of the claims released” and agreed to

waive[] and assume[] the risk of any and all claims for damages which
exist[ed] as of the date of [the] release, but of which [s]he [did] not
know or expect to exist, whether through ignorance, oversight, error,
negligence, or otherwise, and which, if known, would materially
affect [Shannon’s] decision to enter into [the r]elease.

The Church argues that Shannon released her fraudulent inducement claim because
it would have existed at the time she signed the Agreement.

24
 Texas law favors and encourages voluntary settlements and orderly dispute
resolution. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.
1997). However, a release is a contract, and like any other contract, is subject to
avoidance on the ground of fraud. Id. Courts thus face competing concerns: the
ability to set aside a contract procured by fraud and the ability of the parties to
“fully and finally resolve disputes between them.” Id. at 179. Parties may waive
fraudulent inducement claims by disclaiming reliance, which is essential to a
fraudulent inducement claim. Id. A release that clearly expresses the parties’ intent
to waive fraudulent inducement claims, or one that disclaims reliance on
representations about specific matters in dispute, can preclude a claim of
fraudulent inducement, depending on the circumstances. Id. at 181. We apply rules
of contract interpretation to determine whether a release contemplates the clear and
unequivocal expression of intent necessary to disclaim reliance on specific
representations underlying a fraudulent inducement claim. See id. at 179.

We decide whether the parties expressed a clear and unequivocal intent to
disclaim reliance on representations or to waive fraudulent-inducement claims as a
threshold matter.15 Tex. Standard Oil & Gas, L.P. v. Frankel Offshore Energy, Inc.,
394 S.W.3d 753, 763 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Ultimately,
the determination of whether a provision forecloses a fraudulent inducement claim
is a question of law. Dresser-Rand Co. v. Bolick, No. 14-12-00192-CV, 2013 WL
3770950, at *7 (Tex. App.—Houston [14th Dist.] July 18, 2013, pet. abated)
15
A disclaimer of reliance will not always preclude a fraudulent-inducement claim.
Schlumberger, 959 S.W.2d at 181. Once the intent to disclaim reliance is established, a court
should be guided by four factors in determining the enforceability of a disclaimer of reliance:
(1) the terms of the contract were negotiated, rather than boilerplate, and during negotiations the
parties specifically discussed the issue which has become the topic of the subsequent dispute;
(2) the complaining party was represented by counsel; (3) the parties dealt with each other in an
arm’s length transaction; and (4) the parties were knowledgeable in business matters. Dresser-
Rand Co. v. Bolick, No. 14-12-00192-CV, 2013 WL 3770950, at *7 (Tex. App.—Houston [14th
Dist.] July 18, 2013, pet. abated) (mem. op.).

25
(mem. op.) (citing It. Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341
S.W.3d 323, 333 (Tex. 2011)).

Paraphrasing the above contractual language, Shannon released all claims
that existed at the time she signed the Agreement. However, reading the
Agreement as a whole, there is no express waiver of any fraudulent inducement
claims or any indication that Shannon disclaimed reliance on any of the Church’s
representations about the matters in dispute in this case. Thus, the Agreement does
not reflect a clear and unequivocal intent to disclaim reliance on representations or
to waive fraudulent-inducement claims, and we need not reach the factors to
determine the enforceability of any disclaimer of reliance. See Tex. Standard, 394
S.W.3d at 763 (acknowledging expression of “clear and unequivocal” intent to
disclaim reliance is threshold requirement to be satisfied before consideration of
other factors); see also It. Cowboy Partners, 341 S.W.3d at 334 (holding standard
merger clause including language indicating that no representations were made
other than those contained in the contract did not reflect intention to disclaim
reliance on representations).

We conclude that the Church has not established as a matter of law that
Shannon released her fraudulent inducement claim by agreeing to release her
claims existing at the time she signed the Agreement. We sustain Shannon’s
seventh issue.

Conclusion

We conclude the trial court erred in dismissing Shannon’s claims for lack of
subject matter jurisdiction and rendering summary judgment as to Shannon’s
claims other than intentional infliction of emotional distress. We affirm the trial
court’s judgment on the intentional infliction claim but reverse the judgment as to

26
Shannon’s other claims. We remand this case for proceedings consistent
with our opinion.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Jamison, Busby, and Brown.

27