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A former saleswoman for Hoffman-La Roche Inc. isn’t entitled to damages for intentional infliction of emotional distress as well as damages she received for winning a sexual harassment claim against the pharmaceutical company, one of the company’s lawyers told the Texas Supreme Court on Feb. 5. Cynthia Timms, an attorney for the company, argued in Hoffman-La Roche Inc. v. Joan Zeltwanger that the reason for a tort of intentional infliction of emotional distress (IIED) is “to fill in gaps.” IIED provides a cause of action for egregious conduct when other more established torts would not permit recovery, Roche wrote in its brief to the supreme court. Timms, a partner in the Dallas office of Locke Liddell & Sapp, also contended at the hearing that Zeltwanger’s sexual harassment claim and her intentional infliction claim are based on the same facts. In its brief, Roche asserted that a plaintiff who brings a statutory claim for sexual harassment can avoid the caps on punitive and mental anguish damages that the Legislature has set for such claims by joining it to a common-law claim for intentional infliction of emotional distress — an argument disputed in Zeltwanger’s brief. Last week, Timms argued to the court that if it accepts Zeltwanger’s arguments, intentional infliction will become another common-law tort that can be “layered” onto other tort claims, instead of just filling in gaps as it was intended. Zeltwanger’s attorney, Jeffrey S. Levinger, argued to the justices that adopting the rule proposed by Roche effectively would require the supreme court to legislate. But Chief Justice Tom Phillips told Levinger that the court would not be legislating because intentional infliction is a “pretty new” tort, nationally and in Texas. “And we’re still struggling with the contours of what it means,” Phillips said. The supreme court adopted the intentional infliction tort in 1993′s Twyman v. Twyman and held in 1999′s GTE Southwest Inc. v. Bruce that employees could recover damages from employers if, within the workplace, a supervisor engages in conduct that causes emotional distress. Under GTE, employees must show that the defendant acted intentionally or recklessly, that the conduct was extreme and outrageous and that the emotional distress caused was severe. Levinger told the court that under Roche’s proposed rule, whenever conduct such as sexual or racial harassment was actionable under the Texas Commission on Human Rights Act, a claim could not be brought for intentional infliction of emotional distress. “The rule is illogical and unworkable,” Levinger, a partner in Dallas’ Carrington Coleman Sloman & Blumenthal, told the court. When Roche argues that the IIED is a gap-filler tort, the necessary premise of what the company is saying is that the Commission on Human Rights Act must fill that gap, Levinger said. The problem with that premise, he said, is that the act is not an exclusive remedy and doesn’t preclude common-law claims. Mike Gruber, who represented Zeltwanger at trial, says in an interview that the case is “fairly groundbreaking” and is being watched by attorneys who handle these kinds of suits. Gruber, a shareholder in Dallas’ Godwin Gruber, says one reason for their interest is the case is believed to have resulted in the highest jury award for a sexual harassment case in Texas. LET THEM EAT CAKE? According to her petition, Zeltwanger sued Roche and her supervisor, Jim Webber, in 1994 and alleged that she was disabled by emotional distress stemming from the company’s abuse of her through Webber and others. A 192nd District Court jury in Dallas returned a $19 million verdict for Zeltwanger in 1999 on her sexual harassment and IIED claims. Gruber says a $300,000 statutory cap on punitive damages in sexual harassment cases resulted in a reduction of the award when the court entered the judgment, but he estimates the award is worth about $15 million. Roche and Webber appealed. Roche appealed, arguing, among other things, that Zeltwanger’s intentional infliction of emotional distress claim should not have been submitted to the jury and the company wasn’t liable for any of Webber’s alleged conduct. Roche and Webber claimed that Webber’s alleged acts did not meet the standard of extreme and outrageous conduct. A three-judge panel of the 13th Court of Appeals affirmed the trial court’s judgment in January 2002. The jury reasonably could have found that Webber and Roche, both individually and collectively, engaged in conduct that was “outrageous,” former 2nd Court of Appeals Chief Justice John G. Hill wrote for the panel. Hill, who sat by assignment, was joined in the opinion by Justice J. Bonner Dorsey and Justice Nelda Rodriquez. According to the 13th Court’s opinion, Zeltwanger alleged, among other things, that Webber continually told her lewd jokes; talked to her about his sexual encounters; and rummaged through her underwear drawer while visiting her apartment to conduct an inventory of her prescription drug samples. Roche appealed to the Texas Supreme Court, alleging that intentional infliction of emotional distress should not be a tort used to layer onto other torts. The company did not ask the high court to set aside the judgment in Zeltwanger’s sexual harassment claim but it is asking to have her intentional infliction claim reversed. In her brief filed with the supreme court, Zeltwanger alleged that Webber became hostile when she refused to respond to him sexually and used his position to “psychologically terrorize” her. Zeltwanger further alleged that Roche told its division sales managers in June 1994 to give unfavorable ratings to employees so that the company could downsize and that Webber decided to give Zeltwanger a low rating. Zeltwanger alleged in the brief that Roche required her to go to Webber’s apartment for her performance review and that he “screamed and yelled” at her during the entire review that culminated with him giving her the rating that led to her termination. According to Zeltwanger’s brief, Webber settled with Zeltwanger after the 13th Court issued its opinion. Webber’s attorney, Winstead Sechrest & Minick shareholder Stuart Reynolds, did not return two phone calls seeking comment by press time on Feb. 6. However, in an earlier interview, Reynolds said Webber denied harassing Zeltwanger and that Webber testified at trial that the company sales staff shared a culture of telling off-color jokes. During the Feb. 5 arguments, Levinger contended that Zeltwanger’s claim is intentional infliction because it lays out the elements of the tort. He alleged there was ongoing abuse, a supervisor’s abuse of power and authority, and the mistreatment of an employee who was known by Webber and the company to be emotionally vulnerable. He also alleged that Roche directed Zeltwanger to go to Webber’s home for the review after it allowed him to find out that Zeltwanger had complained about his sexual harassment. “So anytime a company knows it’s got an emotionally fragile person and she works for a difficult supervisor and they say, ‘You’ve got two choices — you can leave or you can keep working for him, that’s IIED?” Justice Priscilla Owen asked Levinger. “What the company should not do is direct an employee to go into the home of a person who’s known to be a harasser having tipped him off already that the victim’s filed a complaint,” Levinger said. “But you can quit; you don’t have to go,” Justice Nathan Hecht responded. In an interview after the hearing, Gruber says the comments by Owen and Hecht reflect a “let-them-eat-cake attitude.”

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