Affirmed and Memorandum Opinion filed July 17, 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00309

- CV

ANGELA WILLIAMS , Appellant

V.
SHELL EXPLORATION AN D PRODUCTION COMPANY

- AMERICAS, BRICE PETERSON, AND CARMIE CHATTERS , Appellee s

On Appeal from the 334th District Court

Harris County, Texas Trial Court Cause No. 2011

- 61948

M E M O R A N D U M O P I N I O N Appellant, Angela Williams, sued appellees , Shell Exploration and Production Company

– Americas (“Shell”) , Brice Peterson, and Carmie Chatters, for inte ntional infliction of emotional distress, tortious interference with prospective business relations, and conspiracy . Williams’s claims were based on appellees’ alleged conduct towards Williams while she was employed by Shell and2

supervised by Chatters and Peterson

. Williams appeals the trial court’s summary judgment in favor of appellees on all claims. We affirm

. I. B ACKGROUND Williams began working for Shell in 2006. In 2008, she successfully applied for a different position , reserves analyst, within the company . In that position, Chatters was appellant’s reporting manager , Peterson was the department head , and Williams train ed under Leigh Adams. According to Williams , Adams harass ed and berated her , and Chatters failed to remedy the situation

. Will iams also contends that Chatters eventually began treat ing Williams with “disregard and condescension” because Williams reported errors she discovered during a “Reserve Review.” In late 2009, Shell began a process of reorganization, which included redistr ibution and reduction of personnel. The process required certain employees , including Williams, to re

- apply for positions within the company. During the first round of the process , Williams learned she would not be retained in her current position and wo uld be severed from Shell if she did not obtain a new position. During the second round of the process (in early 2010) , Williams applied for three additional positions.
Williams had two interviews with Ebere Chimezie, the hiring manager for one such po sition

. Williams asserts that d uring the second interview, Chimezie said he had narrowed his choice to “ a couple of ” candidates and Williams was a

“ strong possibility ” to get that position. It is unclear from Williams’s deposition testimony whether she c laims Chimezie made this latter representation or Williams gleaned she was a “ strong possibility ” based on the interview. In any event , Chimeze said he need ed to review Williams ’s 2009 Individual Performance Factor3

(“IPF”), which is a numerical representa tion of an employee’s performance review

. The interviews occurred before Williams received her 2009 review

. Shortl y thereafter , Williams received her 2009 review

. Chatters included some positive information about Williams’s performance ; but Chatters also reported that Williams was challenged in her relationships with key staff members which limited her ability to deliver results in some respects. Williams learned her IPF had been downgraded as a result of the review. Subsequently, Chimezie emailed Will iams , You are receiving this mail (copied in b cc ) because you have applied for the above position

. . . . To help us with the e valuation process, kindly email me, the last 3 years of your I ndividu al Performance Ranking (IPF). Please treat as very urgent. Williams responded by listing her IPFs for 2006

- 2008 and stating the 2009 IPF

was “ currently being reviewed. ” Although Williams had already received the 2009 IPF, she was challeng ing the performance review and associated IPF through Shell’s int ernal proc edures. After Williams received her 2009 IPF, she applied for the other two positions. The only communication s from that hiring manager, Alan Davies, w ere email s thanking Williams for the applications and stating , “We will be in touch in due course.”
Williams was severed from Shell on March 31, 2010 because she failed to secure another position. On October 14, 2011, she sued appellees for intentional infliction of emotional distress, tortious interference with prospective business relation s , and consp iracy to tortiously interfere. Williams requested actual and exemplary damages.4

In her petition, Williams’s factual complaints fell into four categories:

 Chatters failed to remediate Adams’s harassment of Williams;

 Chatters treated Williams with “disregar d and condescension” because Williams reported the errors discovered during the Reserve Review;

 Chatters and Peterson ignored requests for information regarding Williams’s work performance from the hiring managers for the three prospective positions; and

 C hatters included, with Peterson’s approval, unsubstantiated negative information on Williams’s 2009 performance review, causing a reduction in her IPF. Williams contends the latter two actions precluded her from obtaining one of the prospective positions and remaining employed by Shell . Williams further claims Chatters intended that result because she harbored “personal animosity” based on Williams report ing Adams’s harassment and errors in the Reserve Review. Williams included Shell as a defendant on th e ground the individuals were acting within the scope of their employment. Appellees filed a motion for summary judgment on all claims, to which Williams responded

. T he trial court signed a summary judgment , dismissing all of the claims with prejudice.

I I. A NALYSIS In her first three issues, Williams challenges the trial court’s grant of summary judgment on all of her claims

. Williams’s fourth and final issue is a contention that she is entitled to exemplary damages because she asserts a valid claim for actual damages.
A. Claim for Intentional Infliction of Emotional Distress In her first issue, Williams contends the trial court erred by granting summary judgment on her claim for intentional infliction of emotional distress.5

I ntentional infliction of emo tional distress is a “gap

- filler” tort applicable only whe n “a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann

– La Roche Inc. v. Zeltwanger , 144 S.W.3d 438, 447 (Tex. 2004)

. The elements of the tort are (1) the defendant acted intentionally or recklessly , (2) the defendant’s conduct was extreme and outrageous , (3) the conduct caused the plaintiff emotional distress , and (4) the em otional distress was severe. Id

. Appellees moved f

or summary judgment on the following grounds: (1) Williams cannot main tain the claim because recovery for mental anguish is available under her tortious

- interference cause of action ; (2) the alleged conduc t was not “extreme and outrageous ; ” and ( 3 ) the emotional distress allegedly suffered by Williams was not severe. We agree the alleged conduct was not “extreme and outrageous” as a matter of law; thus, we need not consider the other grounds

. 1. Standard o f Review
The contention that appellees’ conduct was not extreme and outrageous is a traditional summary

-

judgment ground. A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgme nt as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215

– 16 (Tex. 2003). A defendant moving for traditional summary judgment must negate at least one element of each of the plaintiff’s theories of recovery or plead and conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997) . If the defendant establishes his right to summary judgment as a matter of law, the b urden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 1976

(Tex. 1995)

. We review a summary judgment de novo

. Knott , 128 S.W.3d at 215. We take all eviden ce favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in h er favor. Id. 1

2. Applicable L aw

“ Extreme and outrageous ” in the context of this tort means conduct “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.” Hoffmann

– La Roche , 144 S.W.3d at 44 5 ; GTE Sw., Inc. v. Bruce , 998 S.W.2d 605, 611 (Tex. 19 99 ). Generally, “insensitive or even rude” behavior does not constitute extreme and outrageous conduct. GTE , 998 S.W.2d at 61 2. Similarly, l iability does not extend to “ mere insults, indignities, threats, annoyances, petty oppres sions, or other trivialities

. ” Id. Further, i t is not enough that the defendant acted with an intent that is tortious, malicious, or even criminal, or that he intended to inflict emotional distress. Id. at 616

. Although the defendant ’ s intent is releva nt, the conduct itself must be extreme and outrageous to support liability

. Id. It is for the court to determine, in the first instance, whether a defendant ’ s conduct was extreme and outrageous. Id. However, when reasonable minds may differ, it is for t he jury, subject to the court ’ s control, to determine

1 At the outset of the motion, ap pellees asserted they were moving for summary judgment under Rule 166a(c), wh ich governs traditional motions

. See Tex. R. Civ. P. 166a(c)

. Then , when summarizing their a rgument s , appellees assert ed Williams’s cla i ms are barred by the statute of limitatio ns ( relative to the tortious interference claim), which is a traditional summary

judgment ground, “and/or she has no evidence to support one or more essential elements of her claims”

— the standard for a no

- evidence motion. See id. 166a(i). However, appell ees never cite d Rule 166a(i) or expressly state d the motion contain ed both traditional and no

- evidence grounds. They cite d only Rule 166a(c) and the standard for a traditional motion. We construe appellees’ contention that their conduct was not “extreme or outrageous” as a traditional ground because they argue Williams’s factual allegations cannot establish an element of the claim as a matter of law.7

whether the conduct was sufficiently extreme and outrageous to result in liability. Id. In deciding whether particular conduct rises to an extreme and outrageous level, courts should consider both the context of the con duct and the parties ’ relationship. Id. at 612. In the workplace, while an employer ’ s conduct might in some instances be unpleasant, the employer must have some discretion to “supervise, review, criticize, demote, transfer, and discipl ine” its workers. Id. Accordingly, the sup reme court has declined to recognize intentional

- infliction

- of

emotional

- distress claims for “ordinary employment disputes,” emphasizing that extreme conduct in this context “exists only in the most unusual of circumstances.” Id. at 612

– 13. “ The range of behavior encompassed in ‘ employment dispute s ’ is broad, and includes at a minimum such things as criticism, lack of recognition, and low evaluations, which, although unpleasant and sometimes unfair, are ordinarily expected in the work environment.” Id. at 61 3

. 3
. The Conduc t at Issue
Williams’s claim for intentional infliction of emotional distress was apparently based on the four factual complaints mention ed above

. 2

We will discuss the first two complaints together because our analysis is similar. W ith respect to the alleg ed harassment by Adams , Williams testified as follows in her deposition . B eginning in October 2008, during some of their interactions, Adams instruct ed Williams to “shut up , ” not speak unless Adams

2 In the “Statement of Facts” section of her appellate brief, Williams mentions all of the factual complai nts made in her petition. However, in her subsequent argument, Williams asserts that the act of ignoring requests for information was the basis for the intentional

- infliction claim and advances no argument that any other act s would support that claim. N o n etheless, we will liberally construe her brief and address summary judgment on this claim as to all of her factual complaints

.8

gave permission , and refrain from embarrassing herself an d the department in meetings , and beckon ed her “like a dog.” Williams report ed these remarks to Chatters , who possessed authority to remedy the situation, but she replied, “ You just need to suck it up. Some people just talk that way. ” The remarks ceased in April 2009 when Williams insisted that Adams not speak to her in that manner. Relative to Chatters’s alleged “disregard and condescension,” Williams testified their relationship eventually evolved to the point that Chatters refused to acknowledge Will iams when they passed in the hallway. Williams likens her allegation s to the situation in GTE

— the unusual case in which the supreme court affirmed an award of damages for intentional infliction of emotional distress based on workpla ce behavior. See 998 S.W.2d at 617

. In GTE , a supervisor’s behavior created a “den of terror” for the three employees who later sued the employer. See id. Over a period of two years, the supervisor engaged in a pattern of “ grossly abusive, threatening, and degrading conduct ,” which included:

 daily using the “harshest vulgarities , ” including cursing, obscene jokes, and sexual innuendo, with intent to abuse the employees;

 frequently physically and verbally assaulting the employees, including lunging hea dfirst at them with his fists balled before stopping uncomfortably close to their faces;

 screaming, yelling, and pounding his fists when making requests of the employees;

 threatening the employees with losing their jobs;

 raging about the employees leavi ng items such as purses or umbrellas on office furniture;

 threatening to “get even” when they complained about his behavior;

 repeatedly calling one employee into his office and staring at her for extended periods or standing over her desk staring at her;

 telling one employee d uring an annual review, “You ’ re mean and you ’ re deadly, very deadly;”9

 forcing the employees to vacuum the floors although the company had a cleaning service and forcing one employee to clean spots on the floor on her hands and knee s and clean tobacco stains from a wall;

 ordering an employee who forgot some work

- related paperwork to wear a post

- it stating, “Don’t forget your paperwork.” See id. at 613

– 14

. The supreme court held that the severity and regularity of the supervisor’s be havior exceeded “the necessary leeway to supervise, criticize, demote, transfer, and discipline” employees and moved into the “realm of extreme and outrageous conduct” : Occasional malicious and abusive incidents should not be condoned, but must often be tolerated in our society. But once conduct such as that shown here becomes a regular pattern of behavior and continues despite the victim ’ s objection and attempts to remedy the situation, it can no longer be tolerated. It is the severity and regularity o f [the supervisor’s] abusive and threatening conduct that brings his behavior into the realm of extreme and outrageous conduct. Conduct such as being regularly assaulted, intimidated, and threatened is not typically encountered nor expected in the course of one ’ s employment, nor should it be accepted in a civilized society. An employer certainly has much leeway in its chosen methods of supervising and disciplining employees, but terrorizing them is simply not acceptable. Id. at 617.
In contrast, t aking Williams’s testimony as true, Adams’s remarks over a six month period may be characterized as rude and insulting . However, they do not rise to the level of terrorizing, threatening, and assaultive conduct that occurred
over a two

- year period in GTE

. See id. at 613

– 1 7

. Moreover, Williams does not allege that Chatters made these remark s

— only that she failed to stop Adams from doing so . Th is aspect o f th e allegation supports that Williams’s complaint is an ordinary employment dispute because she complains about a matter within Chatters’s discretion as Williams’s supervisor

— whether to intervene in a conflict10

among employees. Further, Chatters’s alleged refus al to acknowledge Williams in the hallway , even if “ petty , ” is minor compared to the abuse endured by the GTE employees

. We will also consider together Williams’s third and fourth factual complaints because our analysis is similar . Williams claims that Chatters (with Peterson ’s approval) intended to end Williams’s career at Shell and thereby caused her e motional distress. On appeal, Williams cites the following communications as evidence that Chatters and Peterson received, and intentionally ignored, request s for information about Williams from the hiring managers for the prospective positions : (1) the e mails from Davies to Williams (on which Chatters was copied) stating he would “be in touch in due course ; ” (2) the email from Chimezie to Williams requesting her 2009 IPF; (3) Williams’s testimony that she informed Chatters of her plan to interview for Chi mezie’s position and Chatters would have received an email notification of the application ; and (4) Williams’s testimony indicating that after the severance, Chimezie told her he had tried to obtain information about her reduced 2009 IPF , although he did n ot identify the persons whom he contacted

. Williams essentially cites her own opinions expressed in her deposition as evidence that the negative information in her performance review

was intentionally false

. Relative to the claim for intentional inflict ion of emotional distress ,
a ppellees d id not present a summary judgment ground contending the evidence negates, or there is no evidence , to support these allegations. Th us , w e will assume, solely for purposes of discussion, that they are true. With resp ect to these allegations, t his case is akin to Creditwatch, Inc. v. Jackson , 157 S.W.3d 814 (Tex. 2005)

— “the tenth time in little more than six
years, [the supreme court reverse d] an intentional infliction of emotional distress11

cla im for failing to meet the exacting requirements of that tort

. ” Id. at 81 5

. In that case, t he court held that even an employer’s post

- termination retaliatory actions against its former employe e did not constitute “severe and outrageous” conduct sufficie nt to establish the tort

. Id. at 817. Similar to the present case, the plaintiff claimed the employer refused to give her a reference or take calls seeking a reference

. Id. The employer also engaged in actions more extreme tha n those in the present cas e

. See id. For instance , the employer forc ed another employee , who was providing gratis post

- termination housing to the plaintiff , to evict the plaintiff or face termination herself

. Id.
The court stated the employer’s actions, if true, were “ callous, meddlesome,

mean

- spirited, officious, overbearing, and vindictive

— but not ‘ 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

commun ity. ’ ” Id. at 817

– 18. The court summarized, “ We certainly understand judicial reticence to dismiss claims like this one stemming from heinous acts. But except in circumstances bordering on serious criminal acts, we repeat that such acts will rarely have merit as intentional infliction claims.” Id. at 818 ( noting GTE as example of conduct bordering on criminal and sufficient to support the tort )

. Likewise, e ven if appellees’ actions relative to Williams’s attempts to obtain another position may be char acterized as malicious and vindictive, as she suggests, Creditwatch dictates they do not rise to the requisite level of “extreme and outrageous” conduct. See i d. at 817

– 18

. Rather, the negative review and refusal to provide information to potential hirer s , even if unfair and based on questionable motives, cannot be removed from the realm of an ordinary employment dispute. S ee also Lassiter v. Wilkenfeld , 930 S.W.2d 803, 807

– 08 (Tex. App.

— Beaumont 1996, writ denied) ( holding physic ian’s apparent attempt to have hospital12

administrator fired for physician’s own personal reasons did not rise to the requisite level of extreme conduct even if “morally unjustifiable”). Finally, recognizing that the GTE court focused on the pattern of beha vior , in addition to the severity, see 998 S.W.2d at 617, we evaluate the totality of the alleged behavior i n the present case : six months of Adams making rude and insulting, but not threatening or obscene, remarks to Williams; Chatters eventually refusing to acknowledge Williams when they passed in the hallway; and Chatters and Peterson including some negative information in Williams’s performance review and refusing to provide information about her to prospective hiring
managers. We conclude, as a matter of law, that the re was no pattern of behavior “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.” Hoffmann

– La Roche , 14 4 S.W.3d at 44 5. Accordingly , the trial court did not err by granting summary judgment on th e claim for intentional infliction of emotional distress . We overrule Williams’s first issue.
B. Claim for Tortious Interference with Prospective Business Relatio ns
In her second issue , Williams challenges sum mary judgment on her claim for tortious interference with prospective business relations. To prevail on a claim for tortious interference with prospective business relations, the plaintiff must establish (1) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third party , (2) the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct , (3) the defendant ’ s conduct was independently tortious or13

unlawful , (4) the interference proximately caused the plaintiff injury , and (5) the plaintiff suffered actual damage or loss as a resul t. Coinmach Corp. v. Aspenwood Apt. Corp. , 417 S.W.3d 909, 923 (Tex. 2013)

. Appellees moved for summary judgment on the tortious interference claim on several grounds: (1) the claim is barred by the statute of limitations; and (2) Williams fail ed to raise a genuine issue of material fact regarding the following element s: (a) there was a reasonable probability a business relationship would have been entered into ; ( b ) any interference by appellees was intentional ; and (c) appellees c ommitted an independently tortious or unlawful act. We conclude the trial court properly granted summary judgment on the ground that appellees’ conduct was not independently tortious or unlawful

— again , a traditional summary

judgment ground

. 3 Thus, we nee d not consider the other grounds.
1. Applicable L aw
In Wal

– Mart Stores, Inc. v. Sturges , 52 S.W.3d 711, 7 13 , 726 (Tex. 2001) , our supreme court propounded the requirement that , to prevail on a claim for tortious interference with prospective business relations, the plaintiff must prove the defendant ’ s conduct was “independently tortious or unlawful ”

— conduct that is already recognized to be wrongful under the common law or statute. The court explained that conduct which is merely “ sharp” or perceived as “unfair competition” is not actionable as tortious interference with prospective business relations. Id. at 726. The plaintiff is not required to prove an independent tort;

3 At the outset of the portion of the motion challenging the tortious interference claim, appellees asserted that Williams “ha s failed to adduce any evidence” on the elements

— which again sounds as a no

- evidence ground. However, we construe the argument that followed regarding the element at issue as a traditional ground because appellees asserted their conduct, even if true, was not independently tortious or unlawful.14

instead, she need only establish that the defendant ’ s conduct would be actionable under a recognized tort. Id. at 7 13, 726

. 2. The Conduct at Issue
Williams pleaded the claim for tortious interference based on only one alleged action: Chatters and Peterson ignor ing requests for information from the hiring managers for the prospective positions

. 4 Williams maintains th ere was a “reasonable probability” she would have obtain ed one of the positions if not for th is action

. On appeal, for the elements of the cause of action, Williams cites a sister court case issued before the supreme court held in Wal

- M art that the defenda nt must have committed an independently tortious or other unlawful act. Williams does not mention this element set forth by the supreme court, much less suggest a
tort ious act allegedly committed by Chatters or Peterson relative to the conduct at issue. T he only argument we can possibly construe on this element is Williams’s assertion that Chatters was “obligated” to “ follow up ” with , or respond to, the hiring managers and failed to do so

. Williams cites no evidence that Shell’s company policy imposed su ch an obligation

. Nonetheless, a ssuming there were such an obligation, a ppellant cites no authority that Chatters’s (or Peterson’s) alleged violation of an internal company policy constituted a tortious or other unlawful act. Accordingly, Williams has no t demonstrated that the trial court err ed

4 In the portion of her appellate brief specifically challenging summary judgment on the tortious interference claim, Williams focuses exclusively on the act of ignoring requests for information, consistent with he r pleading. However, at other points in her brief, she also suggests the claim was based only on the negative performance review or based on both the negative review and the act of ignoring requests for information

. We will consider only this latter acti on because we review a summary judgment based on the pleadings on file at the time of the hearing , and a claim not asserted in the trial court cannot form the basis for reversal. See Tex. R. Civ. P. 166(a)(c) ; Wakat v. Montgomery County , N o . 09

- 09

- 00188

- CV , 2011 WL 1224459 , at *4 (Tex. App.

— Beaumont Mar

. 31, 2011 , no pet. ) ( mem. op. )

.15

by granting summary judgment on the tortious interference claim. We overrule Williams’s second issue.
C. Claim for Conspiracy In her third issue, Williams challenges summary judgment on her claim for conspiracy t o tortiously interfere with prospective business relations. “Conspiracy” is generally defined as “a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means.” Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996)

. Conspiracy is a “derivative tort” because a defendant ’ s liability depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Id

. If a ll named defendants’ liability for the alleged underlying tort is foreclosed as a matter of law, there is no claim for conspiracy. See id. ; Soon Phat, L.P. v. Alvarado , 396 S.W.3d 78, 94 (Tex. App.

— Houston [14th Dist.] 2013, pet. denied ). Because the trial co urt properly granted summary judgment as to all appellees on the tortious interference claim pleaded by Williams , it did not err by granting summary judgment on the conspiracy claim. We overrule Williams’s third issue.

D
. Request for Exemplary Damages
Fi nally, in her fourth issue, Williams contends she is entitled to seek exemplary damages because she asserts a viable c laim for actual damages. Because the trial court properly granted summary judgment on all claims for actual damages, we overrule Williams ’s fourth issue.16

Having overruled all of Williams’s issues, we affirm the trial court’s judgment.

/s/ John Donovan Justice

Panel consists of Justices McCally , Busby, and Donovan

.