dissenting in part and concurring in part
I dissent from the majority’s decision to sustain points of error four and five.
I would overrule point four because I believe that Johnson cannot prevail on her claim of intentional infliction of emotional distress. First, the majority opinion states that a claim of intentional infliction of emotional distress will not lie for mere “employment disputes.” Johnson v. Merrell Dow Pharm., Inc., 965 F.2d 31, 33 (5th Cir.1992). This is an employment dispute. Second, the defendants’ conduct was, as a matter of law, not extreme and not outrageous. The summary judgment evidence concerning this alleged tort is set out in the majority opinion. It consists solely of the following:
(1) Managers Simmons and Seals asked Johnson how she could forget to pay for an item when she was cheeking out and paying for others items at the same time;
(2) Simmons never used the words “theft,” “thief,” “steal,” or “stolen,” and never raised his voice to Johnson; and
(3) Johnson was shaken and crying because she was afraid of losing her job.
Liability for this tort “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts § 46 cmt. d (1965). Liability for outrageous conduct “has been 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.” Johnson, 965 F.2d at 33 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). In my opinion, this case does not come close to meeting that standard.
How can it be extreme and outrageous for an employer to respond this way when an employee admits she took the store’s property without paying for it? I would overrule point of error four and deny Johnson a trial on the claim of intentional infliction of emotional distress.
Johnson’s claim for false imprisonment seems equally frivolous to me. Johnson’s pleading is set out in the majority opinion. It consists of the following:
(1) After Simmons interviewed her, he told her to paint a booth for the store’s exhibit on parade at the Dickens on the Strand festival;
(2) Johnson told him she did not want to do that;
(3) Simmons stated he did not think it was a good idea for her to be out on the floor;
(4) Johnson’s subordinates were calling for her on the intercom because they needed assistance;
(5) Simmons never told her directly not to go out on the floor, but she thought that he would try to stop her if she did;
(6) Johnson nevertheless left the room on two occasions, once to go to the bathroom, and again to go to another back room.
The majority relies on Kroger Co. v. Warren, 420 S.W.2d 218 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ). The facts of that case seem much different to me. In Warren, security guards put an employee in a room for “about three hours,” caught her by the arm and held her to prevent her departure, threatened to call police if she did not sign a confession of stealing, threatened to embar-ass her family if she refused to sign, made theft accusations that a trial judge found to be false, and stated she would be held in the room and jailed unless she signed a confession. Id. at 220-21. Under those egregious circumstances, this Court held that a detention is unlawful if it prevents a person “from moving from place to place or in the direction he wishes to go.” Id. at 222. As applied to an employment dispute, that statement seems much too broad, but it is understandable, given the facts in Warren.
Here, Johnson left the room on two occasions and nobody tried to stop her. The “detention” of which she complains is that her supervisor told her to work on one task, the painting of the booth, when she wanted to work on another task, meeting her subordinates and customers on the sales floor.
Is it now false imprisonment when a supervisor tells an employee to work at a certain location on one task when the employee would prefer to work elsewhere on another *403task? I cannot see more to this claim than that. Generally, an employee’s duty is to go where his employer reasonably tells him to go and do what his employer reasonably tells him to do. If the employer says, “Stay here and work on the booth,” that should not be considered false imprisonment. Thus, I would overrule point of error five and deny Johnson a trial on the claim of false imprisonment.
In those respects, I dissent from the majority opinion.
I concur in the reversal on the slander claim regarding the wreath incident and the Ketner papers. Johnson presented evidence that managers told facts about those incidents to people who had no need to know them because they had no management responsibility for dealing with them. Specifically, she alleged the Ketner papers became known to low-ranking employees and to customers. Because Johnson states she did not reveal these facts to anyone, that is some evidence that others did. Because in reviewing a summary judgment we must grant all reasonable inferences from the evidence in favor of Johnson, we must, at this stage of the proceedings, treat this as some circumstantial evidence of nonprivileged communication of these facts by management.
Moreover, Johnson alleged that when the security guard interviewed witnesses in the store restaurant, he talked loud enough for others to hear that she was accused of theft. While this may be weak, it is probably enough to defeat a motion for summary judgment, given that we must give Johnson all reasonable inferences that may be drawn from these facts.
I agree with the Court’s disposition of Johnson’s other claims.