Hooper v. Pitney Bowes, Inc., 06-94-00034-CV

• Decision Date: 31 January 1995
• Docket Number: No. 06-94-00034-CV,06-94-00034-CV
• Citation: 895 S.W.2d 773
• Parties: Elaine Petre HOOPER, Appellant v. PITNEY BOWES, INC., Gary Simpson, and Robert Moretti, Appellees.
• Court: Texas Court of Appeals

Page 773

895 S.W.2d 773

Elaine Petre HOOPER, Appellant v. PITNEY BOWES, INC., Gary Simpson, and Robert Moretti, Appellees.

No. 06-94-00034-CV.

Court of Appeals of Texas,

Texarkana.

Submitted Aug. 18, 1994.

Decided Jan. 31, 1995.

Britton D. Monts, Dallas, for appellant.

Charles T. Frazier, Jr., Cowles & Thompson; Joseph W. Spence, Cynthia Hollingsworth, Gardere & Wynne, and Gayla C. Crain, Epstein, Becker & Green, Dallas, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Elaine Hooper brought this suit against Gary Simpson, Robert Moretti, and Pitney Bowes, Inc. seeking damages for intentional infliction of emotional distress and slander. Hooper was a sales manager for Pitney Bowes, and Simpson and Moretti were two of her superiors. The jury found that only Simpson had inflicted emotional distress on Hooper. It also found that only Moretti had slandered Hooper, but it also found that Hooper consented to or otherwise produced the defamation. The jury awarded Hooper $50,000.00 actual damages and $5,000.00 punitive damages against Simpson and $20,000.00 actual damages and $5,000.00 punitive damages against Moretti. The trial court, however, rendered a take-nothing judgment for Moretti based on the jury's finding that Hooper consented to the slanderous statements. The jury did not find liability against Pitney Bowes.

On appeal Hooper contends that the jury's failure to find any liability against Pitney Bowes is against the conclusive evidence and the great weight of the evidence, that the jury answers as to Moretti's slander and Hooper's consent are irreconcilably conflicting, and that the finding of consent is against the great weight of the evidence. We conclude that the jury's failure to find liability against Pitney Bowes is against the great weight of the evidence, the issues of slander and consent are not conflicting, and the finding of consent is not against the great weight and preponderance of the evidence. Thus, we affirm the judgment as to Simpson and Moretti, but sever the cause of action against Pitney Bowes and reverse and remand that cause for a new trial.

Mrs. Hooper was a sales manager for Pitney Bowes. Her supervisors were Simpson, the regional vice-president, and Moretti, the branch manager. Hooper was a very successful sales manager and was highly regarded by her superiors. Eventually, however, officials of Pitney Bowes discovered that Hooper was conducting emotionally charged sales meetings, as well as private encounters, where Hooper encouraged her sales staff to engage in mind-altering exercises, experience emotional breakthroughs, and release their inner energy so they could become better sales persons. Attendees at these meetings with Hooper characterized them as "cult-like." Complaints about Hooper's actions were relayed to Simpson and Moretti, who in turn launched an official investigation. Ultimately, Simpson and Moretti determined that Hooper was acting inappropriately. Consequently, they gave her a multi-page list of restrictions on her future activities that were designed to end the intimate emotional encounters with her staff and to return their activities to a more normal business climate. Hooper did not obey all of the restrictions, and she was eventually fired. Hooper did not base her suit on the investigation itself, but rather on Simpson's and Moretti's acts and statements that characterized her conduct as cult-like or occult, new-age, unchristian, and even satanic. Sonny Craft, a Pitney Bowes sales manager, testified that he, Simpson, and Moretti made statements that Hooper was "in the occult," "a witch," "a sorceress," and "satanistic."

To recover for intentional infliction of emotional distress, Hooper must have established that Simpson committed intentional or reckless acts that were extreme and outrageous and that caused her to suffer severe emotional distress. Wornick Co. v. Casas, 856 S.W.2d 732 (Tex.1993); Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). Simpson, in a cross-point, and Pitney Bowes, in its reply to Hooper's brief, say there is no evidence that Simpson engaged in such conduct toward Hooper. They do not argue that the statements and actions did not occur; only that they were not extreme or outrageous and were not made in the scope of Simpson's employment.

To be considered extreme and outrageous the conduct must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. Wornick v. Casas, supra; Twyman v. Twyman, supra. In these times, a high degree of opprobrium has attached to terms such as "cultist," "occult," "unchristian," and especially "sorceress," "satanistic," and "witch." False accusations against or characterizations of persons using those and similar terms, we believe, can certainly be considered to be beyond all bounds of decency and to be atrocious and utterly intolerable in a civilized society. We find sufficient evidence to support the jury's implied finding that the conduct in question was extreme and outrageous.

The jury failed to find Pitney Bowes liable for either Simpson's infliction of emotional distress or Moretti's slander. The jury's answers must have been based on its implied failure to find that Simpson and Moretti were acting in the scope of their employment when they committed their acts. Hooper says this implied failure to find is against the conclusive evidence or is against the great weight and preponderance of the evidence. We agree that it is against the great weight and preponderance of the evidence.

In its general instructions the trial court told the jury that a corporation is responsible for the acts of its officers, agents, or employees that are done within the course and scope of their employment, and defined course and scope of employment as any act done by an officer, agent, or employee in the furtherance of the corporation's business. An action is sustainable against a corporation for defamation by its agent if the defamation is referable to the duty owed by the agent to the corporation and was made while in the discharge of that duty. Neither express authorization nor subsequent ratification is necessary to establish liability. Texam Oil Corp. v. Poynor, 436 S.W.2d 129, 130 (Tex.1968); Cotton Belt R.R. v. Hendricks, 768 S.W.2d 865, 870 (Tex.App.--Texarkana 1989, no writ). The undisputed evidence shows that both Moretti and Simpson were managers for Pitney Bowes at the local and regional levels and that each had managerial responsibility including the authority to hire and fire employees. It is also undisputed that all of the statements they made to coworkers and to those outside the company were made in the process of investigating Hooper's actions at her motivational meetings, and that their duties involved controlling the actions of a local manager such as Hooper. The investigation that they officially initiated was thus within their authority and responsibility.

Pitney Bowes argues that Simpson and Moretti did not act within the course of their employment because there is evidence that their investigation involved some clandestine meetings away from corporate offices, secret recordings, trips to libraries to investigate cult activity, and private meetings with employees concerning Hooper's behavior. It argues that this evidence shows that Simpson and Moretti were acting outside the scope of their employment because these activities would not have been approved by the company. Simpson's immediate superior testified that none of Simpson's actions was appropriate for the manager and that he would certainly want to know about them. Also, as soon as the central offices became aware of the accusations against Hooper an internal investigation was conducted which concluded that, although Hooper's actions as a manager were inappropriate, she should not be terminated, but instead should be given a second chance under strict written controls.

This evidence, however, is not dispositive on the question. The fact that an employee does an act that is unauthorized or that would not be approved by his...