dissenting
I respectfully dissent from the majority opinion affirming Franco and Mendez’s judgment against Southwestern Bell. I would reverse and render judgment for Southwestern Bell on Franco and Mendez’s claims for intentional infliction of emotional distress, attorney’s fees, and punitive damages.
Franco and Mendez worked as customer service representatives for Southwestern Bell Mobile Systems, and had some control over the distribution of free air-time credits to customers. They claimed that Southwestern Bell had fired them on the pretext of their having stolen certain air-time credits by giving them away to their family and friends, but in reality for having made prior complaints concerning sexual harassment by a former Southwestern Bell employee. Both women were terminated on November 1, 1990, by Southwestern Bell’s director of finance, Joe Villarreal. Franco testified that she was called into Villarreal’s office and told that she was being terminated for giving out air-time certificates to friends and relatives, but that Villarreal refused to give her specific information about the air-time credits in question. Franco was told to leave immediately, and Southwestern Bell retrieved the mobile phone from her car. Mendez similarly testified that she was called into Villarreal’s office and fired for giving air-time credits to her friends and relatives. Mendez further testified that she was asked to leave the premises immediately and that several other employees watched as she packed her belongings and had the mobile phone removed from her car.
Franco and Mendez sued Southwestern Bell for intentional infliction of emotional distress, defamation, and wrongful termination in retaliation for their complaints concerning sexual harassment. The case was tried to a jury and a verdict was returned in favor of Southwestern Bell on the defamation claims. However, the jury found that Southwestern Bell had intentionally inflicted severe emotional distress upon both women, and that the sums of $25,500 for Franco, and $20,000 for Mendez, would compensate them for the mental anguish and loss of earning capacity caused by such distress. The jury also found that Southwestern Bell discharged Franco and Mendez in retaliation for their complaints of sexual harassment, but that neither suffered any damages as a result. Finally, the jury assessed punitive damages at $20,-000 for Franco, and $25,500 for Mendez.
Franco and Mendez then filed post-trial motions asking, among other things, for the trial court to award attorney’s fees. The trial court heard these motions and granted judgment for both Franco and Mendez for $68,250.00 each, plus attorney’s fees, and ordered Franco reinstated to her position at Southwestern Bell.
By its first point of error, Southwestern Bell challenges the legal and factual sufficiency of the evidence to support the jury’s finding on intentional infliction of emotional *231distress. Specifically, Southwestern Bell contends that wrongful termination alone does not satisfy the elements of the tort.
The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the defendant’s actions caused the plaintiff emotional distress, and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1998). Liability for outrageous conduct should be found “ ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. at 621. Moreover, it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993) (quoting Restatement (Second) of Torts § 46 cmt. h (1965)).
Within the context of termination of employment, the Texas Supreme Court has generally distinguished between the act of termination itself, and the circumstances under which such termination was carried out. Wornick, 856 S.W.2d at 735. Accordingly, the termination of an at-will employee under conditions that do not raise an exception to the employment-at-will doctrine cannot, as a matter of law, constitute outrageous behavior. Wornick, 856 S.W.2d at 735.
Courts of appeals have followed the rationale of Womick, such that they will not consider the termination itself in determining whether a defendant’s conduct is extreme and outrageous, even if the termination was wrongful or in violation of a statute. Sebesta v. Kent Electronics Corp., 886 S.W.2d 459, 463-64 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (termination in violation of the Juror Reemployment Act); Shaheen v. Motion Industries, Inc., 880 S.W.2d 88, 92 (Tex.App.—Corpus Christi 1994, writ denied) (alleged oral employment contract). Under this interpretation of Wornick, the court looks strictly to the evidence of the employer’s conduct independent of the act of termination itself. Sebesta, 886 S.W.2d at 464. The employee may recover only if the manner of discharge is outrageous. Wornick, 856 S.W.2d at 735; Shaheen, 880 S.W.2d at 92.
However, one case cited by the majority, Higginbotham v. Allwaste, Inc., 889 S.W.2d 411 (Tex.App.— Houston [14th Dist.] 1994, writ denied), suggests that termination alone may be sufficiently outrageous when the employee is fired specifically for refusing to participate in an illegal activity. The court of appeals in Higginbotham reasoned that disallowing the cause of action would reward those who engage in illegal activity and punish those who do not, and that this is sufficiently intolerable in a civilized community to be considered outrageous conduct on the part of the employer. Id. at 416-17.
In the present case, Franco and Mendez were terminated for complaining about prior incidents of sexual harassment. There is no question that this was an improper reason for firing them, and that they had recourse to a statutory cause of action for retaliatory discharge as a form of prohibited discrimination under the Texas Commission on Human Rights Act.1 However, I agree with the reasoning of Sebesta, that the mere act of terminating an at-will employee, even for an illegal reason, is not itself sufficiently outrageous conduct to raise a cause of action for intentional infliction of emotional distress. Nor is there any indication here that Southwestern Bell attempted to coerce Franco and Mendez themselves to break the law or be terminated. Accordingly, the concerns mentioned in Higginbotham are not present here.
However, whether or not the termination itself is legal, it may be accompanied by outrageous behavior in the manner in which it is carried out. See Wornick, 856 S.W.2d at 735; Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198, 202 (Tex.1992). Nevertheless, the threshold requirements for “outrageous behavior” are high enough to exclude petty bickering, insults, indignities, lying and other such conduct that may tend to anger or even hurnili*232ate the employee. See Wornick, 856 S.W.2d at 735; Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 900-01 (Tex.App.—Amarillo 1995, no writ). Even the employer’s act of falsely depicting the employee as a thief, as the reason for his or her termination, is not by itself sufficiently outrageous to support a claim for intentional infliction of emotional distress. Diamond Shamrock, 844 S.W.2d at 202; Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 94 (Tex.App.—Dallas 1996, writ denied). The employer’s accusations of theft have only been held to be sufficiently outrageous when accompanied by such conduct as actively framing the employee by placing company cheeks in her purse. See Dean v. Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir.1989).
In the present ease, the alleged scheme to terminate Franco and Mendez did not involve any intrusion into their personal belongings or the planting of evidence therein. According to their testimony, they were each privately informed of their termination and the reason therefor by Villarreal, although they did then awkwardly have to clean out their belongings and leave the premises in view of other employees. I find nothing else to show that the manner of terminating Franco and Mendez was extreme or outrageous in any way.
I would hold that there is no evidence to support Franco and Mendez’s claims for intentional infliction of emotional distress and would sustain Southwestern Bell’s first point of error.
Accordingly, I would reverse the judgment of the trial court on plaintiffs’ claims for intentional infliction of emotional distress, attorney’s fees, and punitive damages,2 and render judgment that they take nothing thereon.
DORSEY, J., joins in this dissent.
. Franco and Mendez did not submit mental anguish as an element of damages in relation to their statutory claim, although it appears that, at least under the present act, they would be entitled to such damages. See Tex. Labor Code Ann. § 21.2585(d) (Vernon 1996).
. At the time that Franco and Mendez were fired in 1990, punitive damages were not available for the statutory cause of action for retaliatory discharge under the Commission on Human Rights Act absent a finding of an independent tort with accompanying actual damages. See Federal Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.1993); Tex.Rev.Civ. Stat. Ann. art. 5221k § 7.01 (amended to include punitive damages in 1993, at 73rd Leg. R.S. chp. 276 § 7; recodified into the Texas Labor Code in 1995, at 74th Leg., chp. 76 § 9.07(d).).