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Click here for the full text of this decision FACTS:Joan Zeltwanger sued her former employer, Hoffmann La-Roche Inc., for sexual harassment under Texas Labor Code �21.051, retaliation under Texas Labor Code �21.055, and intentional infliction of emotional distress. Zeltwanger also sued Jim Webber, her supervisor at Roche, for intentional infliction of emotional distress. The court decides whether a plaintiff can recover damages on a claim for intentional infliction of emotional distress when the Legislature has created a statutory right to seek emotional damages for the same actions that form the basis of the intentional-infliction claim. The court of appeals concluded that the plaintiff could recover damages under both claims, electing mental anguish and punitive damages under her intentional-infliction claim while taking other compensatory damages and attorney’s fees under her sexual harassment claim. HOLDING:The court reverses and remands the cause to the trial court for it to render judgment for the appropriate damages under Zeltwanger’s sexual harassment claim. Roche complains that Zeltwanger has improperly used the intentional-infliction tort to circumvent the legal limitations on the amount of mental anguish and punitive damages recoverable in a sexual harassment suit. Roche submits that the intentional-infliction tort is a “gap-filler” that only applies under special circumstances when more established torts do not permit recovery. Because the Commission on Human Rights Act provided a statutory remedy for essentially the same conduct, Roche submits there was no gap to be filled by the common law and hence no right to an award of further damages against it. Roche’s gap-filler argument is based on Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998). There the court recognized that the intentional infliction of emotional distress was, first and foremost, 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. The tort’s “clear purpose,” the court noted, was “to supplement existing forms of recovery by providing a cause of action for egregious conduct” that might otherwise go unremedied. But the court cautioned that the tort was “a �gap-filler’ tort that should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines.” Likewise, in this case, the tort should not be extended to thwart legislative limitations on statutory claims for mental anguish and punitive damages. By combining her sexual harassment claim with the intentional-infliction tort, Zeltwanger has circumvented, by more than 30-fold, the legislative determination of the maximum amount that a defendant should pay for this type of conduct. In creating the new tort, the court never intended that it be used to evade legislatively-imposed limitations on statutory claims or to supplant existing common law remedies. Properly cabined, the tort simply has no application when the “actor �intends to invade some other legally protected interest,’ even if emotional distress results.” Where the gravamen of a plaintiff’s complaint is really another tort, intentional infliction of emotional distress should not be available. Thus, the court need not decide whether, in the absence of a legislative remedy for sexual harassment, the evidence here would be sufficient to support a claim for intentional infliction of emotional distress. The court does not believe that Zeltwanger’s intentional-infliction claim is independent of her sexual harassment claim. Because the CHRA provides a remedy for the same emotional damages caused by essentially the same actions, there is no remedial gap in this case and thus no support for the award of damages under the intentional-infliction claim. Moreover, even were the court to consider only that conduct that might arguably form an independent basis for such a claim and indulge every reasonable inference and intendment in favor of such claim, it would still not be sufficient to raise a fact issue. OPINION:: Phillips, C.J.; Hecht, Owen, Jefferson, Wainwright and Brister, JJ., join. Hecht, J., filed a concurring opinion. O’Neill filed a concurring opinion in which Smith, J., joins. Schneider, J., did not participate in the decision.

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