AFFIRM; and Opinion Filed March 6, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00448-CV MEOSHA JACKSON, Appellant V. HEAD START OF GREATER DALLAS, INC., Appellee On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-19136 MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Rosenberg 1 Opinion by Justice Rosenberg Appellant Meosha Jackson appeals the trial court’s order granting summary judgment in favor of appellee Head Start of Greater Dallas, Inc. (Head Start) on Jackson’s intentional or reckless infliction of emotional distress claim. In two issues, Jackson contends the trial court erred in granting Head Start’s traditional summary judgment motion because the motion lacked supporting evidence and, as to Head Start’s affirmative defense of preemption, lack ed a factual and legal basis. In a third issue, Jackson contends the trial court erred in granting Head Start’s no-evidence

1 The Hon. Barbara Rosenberg, Justice, Assigned.–2– summary judgment motion because she presen ted evidence of the elements of her claim, including outrageous conduct, severe emotional di stress, intentionality or recklessness in the outrageous conduct, a nd proximate causation. For the following reasons, we affirm. Background In 2018, Head Start employed Jackson as a health assistant. In that position, she educated parents of Head Start st udents on health is sues and conducted enrollments and screenings. Breana Hende rson, a health specialist, had been Jackson’s supervisor for over a year. Do rruth Boyd, a Head Start health service manager, was Henderson’s su pervisor and the director of Jackson’s department. According to her deposition testimony, Ja ckson went to Henderson’s office to deliver some notices during the workday on June 27, 2018. Jackson thought the office was empty; the door was closed and she did not recall seeing lights. Upon entering the office, Jackson observed He nderson and another health assistant engaged in a consensual se xual encounter. Everyone ju mped; Jackson immediately walked out, closing the door behind her. She was “embarrassed” and “scared.” Several days later, Henderson spoke to Jackson about the incident and Henderson’s conduct. Jackson was offended by the lack of “decency” and “d ecorum” of someone having sex in the office. Henderson testified by deposition that ne ither the June 27 incident nor the subsequent discussion occurred.–3– According to Jackson, Henderson began to find fault with Jackson after the June 27 incident. Nothing had change d in Jackson’s work performance, but Henderson would “poke around” and find thi ngs Jackson had not done and text or email Jackson. Henderson also investigated Jackson’s use of leave under the Family and Medical Leave Act and adjusted the sc reening and enrollment schedules in ways that Jackson believed were unfair. Henderson made sar castic remarks about Jackson being available to atte nd scheduled meetings. 2 Jackson also believed Henderson’s November 2018 annual review of Jackson was unfair. Jackson testified that Boyd was not rece ptive to Jackson’s complaints about Henderson and squelche d any discussion of the June 27 incident. On August 14, 2018, Jackson approached Boyd to discuss so me issues Jackson had with Henderson, but Boyd cut Jackson off and said they woul d need to have a meeting for Jackson to voice her concerns. Boyd, however , never scheduled the meeting. On September 20, 2018, Jackson called Boyd to discuss a disagreement she and Henderson had over the screening schedul e. Boyd advised that they “figure it out.” During the call, Jackson told B oyd that Henderson and the other health assistant were “messing around.” Boyd, however, hung up. After receiving her annual review in N ovember 2018, Jackson complained to Boyd that Henderson had been “abusing her supervisory role.” Jackson “screamed

2 Jackson also complained of a remark by Boyd. Specifically, Boyd commented on Jackson’s lack of questions during a meeting, despite having told Jackson before the meeti ng “not to ask stupid questions.”–4– at [Boyd] and was telling her that . . . all of this stuff is going on because [Jackson] caught” Henderson “in a sex act .” Before Jackson could explain, Boyd cut her off and explained that they need ed to have a meeting with everyone involved. Again, no meeting was scheduled. In April 2019, Henderson prepared an ac tion plan for Jackson. The action plan, which Jackson considered a “write- up,” noted issues with (1) interpersonal relationships with Head Start families and other em ployees; (2) recordkeeping procedures; (3) adhering to the enrollment schedule; and (4) a ttendance. Jackson disagreed with the plan. Further, Henders on would not provide in formation to help Jackson correct any deficien cies. Noting that she had never been written up before, Jackson believed Henderson “needed [Jackson] gone,” as did Head Start. Jackson also believed Henderson and/or Head Start had an obligation to report the June 27 incident. In August 2019, Jackson and Henders on had a lengthy email exchange. Jackson forwarded the email exchange to Boyd along with a request to change supervisors. As a result of the ex change, Boyd wrote up both Henderson and Jackson, noting a need to improve their ha ndling of interpersonal relationships. The three women also had a meeting. Boyd de nied Jackson’s request for a supervisor change because there was “no objective ev idence of a stressful environment.” Jackson testified that she explained the problems had arisen because she “caught” Henderson and the other health assistant ha ving sex. Henderson responded that “she–5– wanted all the lies to stop.” Jackson su ggested that Boyd “pu ll up the cameras” and do an investigation; Boyd responded that she would have to investigate both Henderson and Jackson. In a note about the meeting, which Jack son wrote shortly thereafter, she made no mention of the June 27 incident or her e fforts to explain the incident to Boyd. Both Boyd and Henderson disputed that J ackson discussed the June 27 incident during the meeting. According to Hende rson, Jackson referre d to Henderson and the other health assistant but did not el aborate when Henderson asked Jackson what she meant. Boyd testified that she did not receive any notice of sexual activity between Henderson and the other health assistant prior to October 2019. Jackson left her employment with He ad Start in October 2019 because she “had had enough.” She did not recall what occurred that day to make her leave, but testified that she “had enough of all of th e intimidation, being angry, crying, upset, [and] uncertainty.” In December 2019, Jackson filed this suit against Head Start, alleging that she was the victim of an intentional or reck less infliction of emotional distress arising out of the sexual conduct she observed and the subsequent conduct of Henderson and Boyd. Head Start filed a combinat ion traditional and no-evidence summary judgment motion, asserting Jackson could not establish, or had no evidence to raise a fact issue, that (1) Head Start’s c onduct was extreme and outrageous, (2) the emotional distress Jackson suffered was se vere, or (3) Jacks on had no alternative–6– cause of action that would provide her with a similar remedy. The trial court held a telephonic hearing on the motion. Thereafte r, the trial court entered an order granting Head Start’s motion and dismissing Jackson’s claim with prejudice. This appeal followed. Standard of Review “After adequate time for discovery, a party . . . may move for summary judgment on the ground that there is no evid ence of one or more essential elements of a claim or defense on whic h an adverse party would ha ve the burden of proof at trial.” T EX

. R. C IV . P. 166a(i). The nonmovant ha s the burden to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of its claim or defense. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). We review a no-evidence summary judgm ent under the same legal sufficiency standards as directed verdicts. Id . We consider the evid ence in the light most favorable to the nonmovant, crediting evid ence favorable to the nonmovant if reasonable jurors could and disregarding ev idence contrary to the nonmovant unless reasonable jurors could not. Id . We sustain a no-evidence challenge “when (a) there is a complete absence of evidence of a vita l fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vita l fact is no more than a mere scintilla, or–7– (d) the evidence conclusively establis hes the opposite of the vital fact.” Id. (citations omitted). If a defendant files a combination tr aditional and no-evidence motion for summary judgment, we first review th e summary judgment under the no-evidence standard. E.g. , Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). If, as in this case, the trial court does not specify its ground for granting the summary judgment motion, we must affirm its deci sion if any ground presented to the court and preserved for appellate review is meritorious. Merriman , 407 S.W.3d at 248; see also T EX

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. P. 47.1. Intentional Infliction of Emotional Distress In its no-evidence summary judgment motion, Head Start asserted that Jackson had no evidence on the following el ements of her claim for intentional infliction of emotional distress: (1) ex treme and outrageous conduct; (2) severe emotional distress; and (3) no a lternative cause of action. In her third issue, Jackson contends that the trial court erred in granting summary judgment because she provided summary judgment evidence to rais e a fact issue on each of the elements. A party claiming intentional infliction of emotional distress must prove: (1) the defendant acted intenti onally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) th e conduct caused the claimant emotional distress; and (4) the emotional di stress was severe. Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003) (per curiam); Twyman v. Twyman , 855 S.W.2d 619, 621 (Tex. 1993).–8– Intentional infliction of emo tional distress is a “gap-fille r” cause of action; it is available only when no other a lternative cause of action is available to a plaintiff. Standard Fruit & Vegetable Co. v. Johnson , 985 S.W.2d 62, 68 (Tex. 1998). Claims for intentional infliction of em otional distress rare ly are meritorious because “most human conduct, even that wh ich causes injury to others, cannot be fairly characterized as extreme and outrageous.” Rico v. L-3 Commc’ns Corp. , 420 S.W.3d 431, 441 (Tex. App.—Dal las 2014, no pet.) (quoting Kroger Texas Ltd. P’ship v. Suberu , 216 S.W.3d 788, 796 (Tex. 2006)). For a defendant’s conduct to be actionable, it must be “so outrageous in character, and so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Hoffman-La Roche, Inc. v. Zeltwanger , 144 S.W.3d 438, 445 (Tex. 2004); see also Creditwatch , Inc. v. Jackson , 157 S.W.3d 814, 817–18 (Tex. 2005). Conduct that is tortious or otherwise wrongful is not necessarily extreme or outrageous. Bradford v. Vento , 48 S.W.3d 749, 758 (Tex. 2001); Brewerton v. Dalrymple , 997 S.W.2d 212, 215–16 (Tex. 1999) (an action that is “intentional, malicious, or even crimin al does not, standing alone, mean that it is extreme or outrageous for purposes of inten tional infliction of em otional distress”). Texas courts follow a strict approach when intentional infliction of emotional distress claims arise in the workplace; an ordinary employment dispute will not give rise to a claim. GTE Sw., Inc. v. Bruce , 998 S.W.2d 605, 612 (Tex. 1999) (citations omitted). Accordingly, employment matters such as “criticism, lack of recognition,–9– and low evaluations” are not actionable, even if unfair or unpleasant. Hoffman-La Roche , 144 S.W.3d at 449 (quoting Bruce , 998 S.W.2d at 613). Instead, “an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dis pute and into the realm of extreme and outrageous conduct,” whic h “exists in only the most unusual of circumstances.”
Bruce , 998 S.W.2d at 613 (citations and footnote omitted). The trial court determines, in the firs t instance, whether a defendant’s conduct was extreme and outrageous. Id . at 616. The issue becomes a question for the jury only when reasonable minds may differ. Id . The court considers the context, the relationship between the pa rties, and the defendant’s conduct “as a whole.” Toles v. Toles , 45 S.W.3d 252, 261–62 (Tex. Ap p.—Dallas 2001, pet. denied); Tiller , 121 S.W.3d at 715. The court ex amines the defendant’s conduc t throughout the parties’ relationship because intentio nal infliction of emotional distress is most often a “continuing tort.” Toles , 45 S.W.3d at 262. Viewed in the light most favorable to Jackson, the summary judgment evidence shows that she entered Henderson’ s office and, for a moment, observed a consensual sex act. A few days later, Henderson discussed the incident and her conduct with Jackson. Afterwards, Hende rson increased Jackson’s workload and became critical of Jackson’s work perform ance. Boyd cut off Jackson when Jackson complained about Henderson and refused to assign a new supervisor to Jackson or recognize that Jackson’s work environment b ecame stressful as a result of the June–10– 27 incident. Jackson believed Henderson a nd Boyd were using negative reviews and disciplinary measures as a means to terminate Jackson. To be sure, Henderson’s conduct on June 27, as alleged, was inappropriate and unprofessional. That alone, however , does not render the conduct extreme and outrageous for purposes of maintaining an intentional in fliction of emotional distress claim. 3 Bradford , 48 S.W.3d at 758 (wrongful c onduct is not, standing alone, “extreme and outrageous” conduct). Those Texas courts that have upheld a finding, or found a fact issue, on extreme and out rageous conduct in an employment context have done so only when the plaintiff was the subject of unwanted harassment or advances and usually over an extended period of time. See, e.g. , Bruce , 998 S.W.2d at 613, 616–17 (supervisor engage d in “pattern of grossly abusive, threatening, and degrading conduct”); Fields v. Teamsters Local Union No. 988 , 23 S.W.3d 517, 531–33 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (supervisor threatened to fire employee if she did not succumb to repeated sexual advances over threemonth period); Gonzales v. Willis , 995 S.W.2d 729, 736 (Tex. App.—San Antonio 1999, no pet.) (defendant repeatedly initia ted sexually explicit conversations and made “vile” sexual advances in spite of plaintiff’s protes ts and suggested he could

3 Jackson asserts that both Henderson and Boyd “adm itted” the “outrageousness” of the “sex act.” Henderson, who denied the incident ever happened, tes tified that, if it did happen, it would be outrageous. Boyd testified that she would not have wanted to see it, it would have been shocki ng, and she could imagine it being outrageous for Jackson. In any event, the tria l court, guided by Texas law, determines if there is evidence to raise a fact issue on whether the conduct was sufficiently extreme or outrageous to serve as a basis for an intentional infliction of emotional distress claim. See Bruce , 998 S.W.2d at 616.–11– help plaintiff get a job in return for sexual favors), overruled in part on other grounds by Hoffmann–La Roche , 144 S.W.3d at 447–48. Here, Jackson does not claim any extreme and outrageous conduct initiated agai nst her. Instead, she claims to have happened upon Henderson enga ged in sexual conduct a si ngle time with another employee. Nor does the subsequent conduct of Henderson and Boyd show an extreme and outrageous course of conduct. To the contrary, the sarcastic remarks and negative comments, excessive workload, ne gative review, and discipline, even if done in a retaliatory manner, are the very wo rkplace insults, indignities, threats, and annoyances that Texas courts have determined do not gi ve rise to a claim for intentional infliction of emotional distress. See Bruce , 998 S.W.2d at 613;
Brewerton , 997 S.W.2d at 216 (negative comments in employee’s file, assigning excessive case load, and repeat edly recommending that plaintiff not be allowed to continue on tenure track, as a matter of law, was not extreme and outrageous); Tex. Farm Bureau Mut. Ins. Co. v. Sears , 84 S.W.3d 604, 611–12 (Tex . 2002) (failure to use reasonable care in investigating agen t for alleged insura nce fraud was not extreme and outrageous); Porterfield v. Galen Hosp. Corp. , 948 S.W.2d 916, 921 (Tex. App.—San Antonio 1997, writ de nied) (supervisor’s conduct, which amounted to poor communication and was discourteous and demanding, was not extreme and outrageous); Saucedo v. Rheem Mfg. Co. , 974 S.W.2d 117, 124 (Tex. App.—San Antonio 1998, pet. denied) (swearing at, insulting, and threatening–12– employee and blaming him for supervis or’s mistakes wa s not extreme and outrageous); Garcia v. Andrews , 867 S.W.2d 409, 412 (Tex. App.—Corpus Christi 1993, no writ) (making sexually suggestive and embarrassing remarks and “mentally” undressing employee was not extreme and outrageous). The Texas Supreme Court decision in Bruce is instructive. 998 S.W.2d 605. Several employees sued GTE based upon their superv isor’s behavior, which included sexual innuendo, vulga r obscenities, repeated physical and verbal threats, and demeaning conduct. Id

. at 613–14. Recognizing that liability may arise when a person with authority engages in repe ated or ongoing harassment, the supreme court determined the supervis or’s conduct supported the ju ry finding of intentional infliction of emotional distress. Id . at 616–17. The severity and regularity of the supervisor’s abusive and threatening con duct, which made the workplace “a den of terror for the employees,” brought his beha vior into the realm of extreme and outrageous conduct. Id . at 617. The supreme court, however, distingui shed those situations in which a supervisor’s conduct, even c onduct that was an abuse of th e supervisor’s position of power, amounted to mere insults , indignities, or annoyance. Id . at 612–13. The court cautioned that an employer must have latitude to “supervise, review, criticize, demote, transfer, and discipline” its employees in a permissible wa y and, as a result, extreme and outrageous conduct in the em ployment context “exists only in the most unusual of circumstances.” Id

.–13– The bar an employee must meet to assert a claim for intentional infliction of emotional distress in the workpl ace is exceptionally high. See id . at 617. Clearly, the conduct at issue in this case does not compare to the conduct at issue in Bruce

. Having considered the evidence in the light most favorable to Jackson, we conclude that she had not produced summary judgment evidence to raise a genuine issue of material fact on the extrem e and outrageous conduct elem ent of her claim against Head Start. The evidence shows, at most , an unfortunate employment dispute; there is no evidence of a regular pattern of seve rely abusive behavior “‘so outrageous in character, and so extreme in degree’” as to support a claim for intentional infliction of emotional distress. See id . at 611 (quoting Twyman , 855 S.W.2d at 621). Accordingly, because Head Start nega ted the second element of Jackson’s claim for intentional inflictio n of emotional distress, the trial court did not err in granting summary judgment in Head Start’ s favor. We overrule Jackson’s third issue. Conclusion We conclude that the trial court pr operly granted Jackson’s no-evidence motion for summary judgment. Having resolv ed this issue, we need not reach her remaining issues or Head Start’s ot her grounds for summary judgment. See
Merriman , 407 S.W.3d at 248; T EX

. R. A PP . P. 47.1.–14– We affirm the trial court’s order.

220448F.P05 /Barbara Rosenber g/ BARBARA ROSENBERG JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MEOSHA JACKSON, Appellant

No. 05-22-00448-CV V. HEAD START OF GREATER DALLAS, INC., Appellee On Appeal from the 298t h Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-19-19136. Opinion delivered by Justice Rosenberg. Justices Pedersen, III and Goldstein participating. In accordance with this Court’s opinion of this date, the trial court’s Order Granting Defendant’s Motion for Summary Judgment is AFFIRMED

. It is ORDERED that appellee HEAD START OF GREATER DALLAS, INC. recover its costs of this appeal fro m appellant MEOSHA JACKSON.
Judgment entered this 6th day of March 2023.