COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00047-CV

DAVINA KELLY APPELLANT

V.

CHURCH OF GOD IN 

CHRIST, INC.

APPELLEE

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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This is an appeal from a summary judgment for the Church of God in 

Christ, Inc. (COGIC) in this suit arising from a pastor‘s alleged acts toward a 

parishioner. In two issues, Davina Kelly, the former parishioner, contends that 

the trial court erred by granting both no-evidence and traditional summary 

judgments for COGIC. We affirm.

 

1See Tex. R. App. 47.4.
2

Background Facts

Kelly sued COGIC for (1) negligence, (2) negligent hiring, supervision, 

retention, and training, (3) intentional infliction of emotional distress, and

(4) respondeat superior for the alleged acts of Sherman Allen, pastor of Shiloh 

Institutional Church of God in Christ.2 Kelly‘s Sixth Amended Petition alleged that 

around 1990, a group of female parishioners complained to a bishop of Texas 

Northeast Church of God in Christ, Inc. that Allen had been paddling them ―in 

various stages of undress‖ and that COGIC took no action as a result of this 

complaint. Kelly further alleged that around 2001, Allen ―engaged in a pattern of 

egregious physical and sexual abuse against‖ her when she sought ―spiritual 

counseling‖ from him. According to Kelly‘s petition, these acts occurred both at 

the church and in the parsonage, and Allen instituted them ―under the guise of 

pastoral counseling.‖

Kelly said that she wrote a letter to COGIC ―specifically outlining this 

pattern of abuse‖ and that ―COGIC pursuant to [its] own policy and procedures 

appointed two Bishops to lead an investigation into these allegations.‖ However, 

Kelly contended that COGIC took no further action until she filed suit, at which 

time COGIC purported to suspend Allen.

COGIC filed both no-evidence and traditional motions for summary 

judgment. The no-evidence motion challenged Kelly‘s lack of evidence as to 

 

2Kelly also sued Allen and Shiloh, but she dismissed both parties after 

settling with them. Shiloh is now known as Shiloh Church.
3

(1) duty, breach, and causation for the negligence causes of action, (2) the

intentional or reckless, extreme and outrageous conduct, and directed-towardthe-plaintiff elements of intentional infliction of emotional distress, and (3) the 

employee acting within the course and scope of employment elements of 

respondeat superior. The traditional summary judgment raised First Amendment 

grounds as a bar to Kelly‘s negligent selection, hiring, and retention claims and 

pastor or church malpractice (negligence) claims; COGIC also argued that Allen 

was not an employee of COGIC as a matter of law. The trial court granted both 

of COGIC‘s motions and rendered a take nothing judgment.

No-Evidence Summary Judgment Standard of Review

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground 

that there is no evidence to support an essential element of the nonmovant=s 

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the 

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the 

nonmovant produces summary judgment evidence that raises a genuine issue of 

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 

425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable 

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 
4

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for 

evidence that would enable reasonable and fair-minded jurors to differ in their 

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if 

reasonable jurors could, and we disregard evidence contrary to the nonmovant 

unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W.3d at 310 

(quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the 

nonmovant brings forward more than a scintilla of probative evidence that raises 

a genuine issue of material fact, then a no-evidence summary judgment is not 

proper. Smith v. O=Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

Traditional Summary Judgment Standard of Review

We review a summary judgment de novo. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the

evidence presented in the light most favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if reasonable jurors could, and disregarding 

evidence contrary to the nonmovant unless reasonable jurors could not. Id. We 

indulge every reasonable inference and resolve any doubts in the nonmovant=s 

favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who 

conclusively negates at least one essential element of a cause of action is 

entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of 

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Tex. R. Civ. 

P. 166a(b), (c).
5

Analysis

Respondeat Superior3

In its traditional motion, COGIC argued that as a matter of law, Allen was 

not an employee of COGIC because it did not have the right to ―control the 

progress, details, and methods of operations of‖ his work.

Applicable Law

Under the doctrine of respondeat superior, an employer is vicariously liable 

for the negligence of an employee acting within the scope of his employment

although the employer has not personally committed a wrong. St. Joseph Hosp. 

v. Wolff, 94 S.W.3d 513, 541–42 (Tex. 2002); Farlow v. Harris Methodist Fort 

Worth Hosp., 284 S.W.3d 903, 910 (Tex. App.––Fort Worth 2009, pet. denied). 

The right of control is the ―supreme test‖ for whether a master-servant 

relationship, rather than an independent contractor relationship, exists. Wolff, 94 

S.W.3d at 542; Farlow, 284 S.W.3d at 911. An agent is considered an employee 

only if the principal has both (1) the right to assign the agent‘s tasks and (2) the 

right to control the means and details by which the agent will accomplish those 

tasks. Heritage Housing Dev., Inc. v. Carr, 199 S.W.3d 560, 565–66 (Tex. 

App.—Houston [1st Dist.] 2006, no pet.); Hanna v. Vastar Res., 84 S.W.3d 372, 

 

3Although we typically review a no-evidence summary judgment first when 

both a traditional and no-evidence summary judgment are granted, we will review 

one of the grounds of the traditional motion first because some of the same 

evidence presented by Kelly is pertinent to the no-evidence issues. See 

Reynolds v. Murphy, 188 S.W.3d 252, 258 (Tex. App.––Fort Worth 2006, pet. 

denied) (op. on reh‘g), cert. denied, 549 U.S. 1281 (2007).
6

376 (Tex. App.––Beaumont 2002, no pet); see Limestone Prods. Distrib., Inc. v. 

McNamara, 71 S.W.3d 308, 312 (Tex. 2002).

We measure the right to control by considering (1) the independent nature 

of the worker‘s business, (2) the worker‘s obligation to furnish necessary tools, 

supplies, and materials to perform the job, (3) the worker‘s right to control the 

progress of the work except about final results, (4) the time for which the worker 

is employed, and (5) the method of payment, whether by unit of time or by the 

job. Limestone Prods., 71 S.W.3d at 312; Farlow, 284 S.W.3d at 911. Examples 

of the type of control normally exercised by an employer include when and where 

to begin and stop work, the regularity of hours, the amount of time spent on 

particular aspects of the work, the tools and appliances used to perform the work, 

and the physical method or manner of accomplishing the end result. Thompson 

v. Travelers Indem. Co. of R.I., 789 S.W.2d 277, 278–79 (Tex. 1990).

The right to control must relate to the conduct complained of. See 

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007); 

Farlow, 284 S.W.3d at 912; Williams v. United Pentecostal Church Int’l, 115 

S.W.3d 612, 618 (Tex. App.––Beaumont 2003, no pet.). Additionally, the right to 

terminate an agreement engaging the services of a worker is not evidence that 

details of the work are subject to the principal‘s control. Bell v. VPSI, Inc., 205 

S.W.3d 706, 714 (Tex. App.––Fort Worth 2006, no pet.).
7

Whether a person is an employee is generally a question of law. Dow 

Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Farlow, 284 S.W.3d at 

913.

COGIC’s Evidence

Here, COGIC presented summary judgment evidence that although Shiloh 

was at one time affiliated with COGIC, the proper paperwork was never 

completed; therefore, Shiloh had always been independent. Likewise, Allen was 

not ordained, nor was he selected as a prophet by COGIC. It is undisputed that 

Allen has continued to pastor Shiloh until the time of submission of this appeal.

COGIC also presented the testimony of Bishop Neaul Haynes4that 

although he appointed pastors to COGIC churches and the pastors were 

responsible for financial reporting to the bishops, he did not supervise the 

pastors, and they were on their own. The COGIC Official Manual, also attached 

to COGIC‘s motion for summary judgment, states that a pastor is responsible for 

the spiritual and doctrinal guidance of the local church, has a right to appoint or 

remove local church officers, and has the right to administer his office in 

accordance with COGIC‘s charter, bylaws, and constitution.

We conclude and hold that COGIC presented evidence that Allen was not 

an ―employee‖ of COGIC as a matter of law. We therefore look to Kelly‘s 

 

4Because many of the pastors and COGIC officials referred to in the 

evidence are often referred to by different titles, we will refer to those pastors and 

officials solely by their last names to prevent confusion.
8

responsive evidence to determine if she raised a fact issue sufficient to defeat 

COGIC‘s summary judgment motion.

Kelly’s Evidence

Kelly‘s Sixth Amended Petition states that COGIC ―allowed . . . Allen to be 

[p]astor of Shiloh, administer pastoral counseling to members of Shiloh, attend 

COGIC seminars and conferences as a speaker[,] and generally controlled the 

duties, position and whereabouts of . . . Allen.‖ In her brief, Kelly states that ―the 

physical and sexual abuse [she] endured occurred in the church or on church 

property during Allen‘s counseling. . . . Indeed the paddling was clearly 

 ̳connected with‘ and grew out of the  ̳counseling‘ administered by Allen as pastor 

of the church.‖ Kelly asserts this shows that Allen used ―COGIC‘s reputation, 

assets[,] and property‖ in commission of the alleged acts.

Kelly attached to her response to COGIC‘s motion a copy of COGIC‘s 

―Official Manual with the Doctrines and Discipline of the Church of God in Christ 

1973.‖ The manual provides that the General Assembly ―has power to express 

doctrines and creeds of the Church, and its decisions shall be binding on all 

members of‖ COGIC. It also provides that a Jurisdictional Bishop of a 

Jurisdictional Assembly within the General Assembly shall appoint the pastor of a 

local church but that a local church may ―establish its own constitution and bylaws, provided the same shall not be in conflict with or repugnant to the Charter, 

Constitution, Laws and Doctrines‖ of COGIC. Further, the manual states that a 

Jurisdictional Bishop has ―general supervision over all departments and 
9

Churches in his jurisdiction.‖ The Elders Council of a Jurisdictional Assembly 

may suspend or remove a pastor found guilty of (1) failure to abide by COGIC‘s 

rules and regulations, (2) misfeasance, malfeasance, or nonfeasance in office, 

(3) being convicted of a felony or misdemeanor involving moral turpitude, (4) 

espousing doctrines repugnant to COGIC‘s articles of faith, (5) personal 

misconduct, (6) misappropriation or misuse of funds, or (7) conduct unbecoming 

to a minister.

Kelly also attached COGIC‘s Sexual Misconduct Policy, which provides 

that any allegations involving a local church or pastor be reported at the 

jurisdictional level. The policy prohibits ―employees, agents[,] or representatives‖ 

of COGIC from engaging in sexual harassment or misconduct. It further makes 

local church pastors ―responsible for the implementation and enforcement‖ of the 

policy and for ―maintaining a working worship environment, free from sexual 

misconduct of any kind.‖

In 2007, COGIC either ordered Haynes to suspend Allen, or Haynes asked 

for COGIC‘s permission to suspend Allen after being advised by counsel of the 

results of a COGIC investigation into Kelly‘s complaint. Regardless, in June 

2007, Haynes sent Allen a letter stating,

Due to the allegations of sexual misconduct, the Presiding Bishop 

and General Board have been advised by the General Counsel of 

the Church of God in Christ, to authorize me to give the following 

ruling to you:

I therefore advise you that this letter serves as official notification of 

suspension, with pay, of your pastoral duties and responsibilities at 
10

the Shiloh Institutional Church of God in Christ, Fort Worth, Texas 

and as Vice-President of the National Evangelist Department. This 

suspension is effective immediately and will continue indefinitely 

pending the outcome of the civil investigation.

This edict is made under the authority of the General Board‘s 

Resolution to the General Assembly, voted on and approved in the 

November, 2002 session. It reads as follows:

―The Presiding Bishop and General Board will have the

authority to suspend any officer, elected or appointed, 

including, but not limited to, Bishops, Supervisors, 

Pastors, Elders, Ministers, Missionaries, Evangelists or 

Deacons, pending the outcome of any allegations of 

misconduct which ha[ve] the potential to substantially 

impact the National Church financially, morally and 

spiritually. The Presiding Bishop, with the approval of 

the General Board, shall have authority to delegate this 

authority to the Jurisdictional Bishop where the 

misconduct occurred.‖

Even though he purported to suspend Allen from his pastoral duties in the 

letter, Haynes stated in his deposition that he did not relieve Allen of his ―duties 

at the pulpit‖ and told Allen he could continue preaching because Haynes did not 

have anyone else to preach at the church. However, Haynes explained that 

Allen was no longer able to participate in national business of the church and in 

his position as an assistant officer.5

When asked if Shiloh was still a part of COGIC in 2007, Haynes replied,

For all practical purposes, their participation in the church activities 

had been continued from the time that he asked and I said okay. He 

had been a member of the church, had been a member of the Fort 

Worth district under J.L. Johnson all that time. That‘s how he came 

 

5At some point, Allen held a national position with COGIC as assistant to 

the evangelist department president.
11

about becoming an officer. So he was considered a member even 

though he had not been granted the certificate of membership.

When asked whether Shiloh and Allen were ―under the authority of‖ COGIC from 

1992 to 2007, Bishop Haynes answered, ―Yes.‖

Kelly‘s evidence shows that Allen was the pastor for several years before 

Shiloh began ―fellowshipping‖ with COGIC, which means that although Shiloh 

was allowed to use the name ―Church of God in Christ‖ and Allen participated in 

ecclesiastical activities of COGIC, Shiloh never applied for nor was registered as 

a member church of COGIC.

Kelly attached a letter from Allen to COGIC, sent after Haynes‘s letter 

purporting to suspend Allen, stating that Shiloh was severing ―ecclesiastical ties‖ 

with COGIC and taking COGIC out of Shiloh‘s name, pointing out that Shiloh was 

never issued a certificate of membership for COGIC, and noting that COGIC‘s 

name was not on any of Shiloh‘s property or bank accounts, nor was Shiloh ever 

incorporated as ―Church of God in Christ.‖ 6 Kelly presented no evidence that 

COGIC had any control or ownership interest over Shiloh’s assets or property.

Analysis

Kelly asserts that COGIC‘s authority to ―suspend‖ Allen from preaching at 

Shiloh shows the amount of control required for Allen to be considered an 

 

6

In contrast, COGIC‘s Doctrines and Discipline states, ―A local church, 

which has been accepted by [COGIC] and issued a Certificate of Membership, 

shall not have the legal right or privilege to withdraw or sever its relations with the 

General Church, except by and with the permission of the General Assembly.‖
12

employee of COGIC for respondeat superior purposes, but the ability to 

terminate a worker is not the sole touchstone of ―control.‖ Bell, 205 S.W.3d at 

713. COGIC‘s argument that Shiloh was merely ―fellowshipping‖ with COGIC, 

and therefore was not a full member of COGIC, also fails to adequately address 

the issue at hand, which is whether COGIC controlled the details of Allen‘s work.

The evidence shows that COGIC did not hire Allen, did not own any assets 

connected with Shiloh, and although it purported to suspend Allen, that 

suspension merely extended to Allen‘s participation in COGIC activities. Allen‘s 

and Shiloh‘s severance from COGIC without any attendant consequences shows 

that COGIC really did not have the authority to meaningfully discipline, suspend, 

or terminate Allen with respect to his activities at Shiloh.

Moreover, even if COGIC exercised some control to which Allen 

acquiesced by virtue of the ―fellowshipping‖ arrangement––for example, that he 

would abide by the sexual misconduct policy as pastor of Shiloh––there is still no 

evidence of an ability to control the details of how Allen went about his work as 

pastor, including preaching, overseeing the church, and counseling parishioners. 

Requiring a worker to comply with applicable laws, regulations, and safety 

requirements does not show a right of control over the details of how a worker 

performs his or her job. See Farlow, 284 S.W.3d at 915.

Accordingly, we conclude and hold that the evidence shows that COGIC 

did not have such a right of control over the details of Allen‘s work as pastor of 

Shiloh that it could be liable as an employer for purposes of respondeat 
13

superior.7 See, e.g., id. at 915–17. We overrule Kelly‘s second issue to the 

extent it complains about the traditional summary judgment on respondeat 

superior grounds.8

No-Evidence Motion

In its no-evidence motion, COGIC contends that Kelly produced no 

evidence of duty, breach, or proximate causation for the negligence claim and 

the negligent hiring, supervision, retention, and training claims. Additionally, it 

contends there is no evidence that it acted recklessly or intentionally, that its 

conduct was extreme and outrageous, or that it directed extreme and outrageous 

conduct at Kelly, for purposes of her intentional infliction of emotional distress 

claim.

Negligence

Kelly alleged in her Sixth Amended Petition that COGIC was negligent in 

the following ways:

(a) in failing to provide a safe environment for members and

attendees of Shiloh such as Davina Kelly;

(b) in failing to protect Davina Kelly while she was under the 

supervision of [Allen and COGIC];

 

7Kelly did not plead or attempt to raise a fact issue on ostensible agency. 

See, e.g., Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949–50 (Tex. 

1998); Farlow, 284 S.W.3d at 919–20.

8COGIC also moved for a no-evidence summary judgment on whether 

Allen was an employee of COGIC. Kelly‘s evidence fails to raise a fact issue 

under that standard as well.
14

(c) in failing to provide adequate and safe supervision of Davina 

Kelly while she was engaged in Shiloh sponsored activities;

(d) in negligently hiring and/or approving its 

agents/employees/chaperones;

(e) [in] negligently retaining its agents/employees/chaperones;

(f) [in] negligently supervising its agents/employees/chaperones;

(g) [in] failing to timely and properly implement and enforce 

policies to prevent the abuse of women;

(h) in failing to provide adequate supervision and monitoring of 

Sherman Allen;

(i) in failing to institute and implement policies for the protection 

of members attending Shiloh;

(j) in failing to take steps, after learning of Sherman Allen‘s 

inappropriate behavior, to make sure that other people were not 

beaten and raped;

(k) in failing to warn the congregation that complaints had been 

received about the inappropriate behavior; and

(l) in covering up the allegations against Sherman Allen, and 

refusing to cooperate with investigations, thus increasing the chance 

that other people would be beaten and raped.

Kelly alleged that COGIC was liable vicariously for the acts of Allen, 

Haynes, Gerald Harris, Williams, a COGIC elder,

9

and ―all members of the 

General Board at all times relevant to the allegations in [the] Petition and any 

other employees, officers, deacons, ministers[,] and directors who knew or 

should have known of Sherman Allen‘s behavior.‖ She further alleged that 

 

9COGIC appointed Harris and Williams to investigate Kelly‘s 2005 

complaint to COGIC.
15

COGIC ―had a legal duty to persons who attended . . . Shiloh to act in a 

reasonable manner to protect members participating in Shiloh activities and 

during their employment.‖

Applicable Law10

―The two elements of proximate cause are cause in fact (or substantial 

factor) and foreseeability. . . . . Cause in fact is established when the act or 

omission was a substantial factor in bringing about the injuries, and without it, the 

harm would not have occurred.‖ IHS Cedars Treatment Ctr., 143 S.W.3d at 798–

99 (citations omitted). Causation must be proved, and conjecture, guess, or 

speculation will not suffice as that proof. Akin, Gump, Strauss, Hauer & Feld, 

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009).

Kelly’s Evidence

According to Kelly, she presented evidence that COGIC owed her a duty 

because its agents knew of allegations that Allen had paddled at least two 

parishioners in 1990; thus, her injury was foreseeable. She also alleged that 

COGIC had superior knowledge than she did of Allen‘s past behavior and that 

COGIC brought Allen into contact with her by allowing him to remain in a position 

of trust as pastor of Shiloh when COGIC knew he ―was peculiarly likely to 

 

10The parties agree that the question of whether a duty exists is controlled 

by Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 

S.W.2d 287 (Tex. 1996). For purposes of our analysis, we will presume, without 

deciding, that COGIC owed Kelly a duty under the principles set forth in Golden 

Spread.
16

physically or sexually assault under circumstances which afforded [him] the 

opportunity and temptation for such acts.‖ However, Kelly did not discuss 

causation in her summary judgment response, stating only that ―[b]y failing to act 

and remaining a bystander to the horrors being committed by Allen, COGIC 

breached its duty to . . . Kelly. The evidence of damages speaks for itself.‖

Kelly presented deposition testimony from Carrie Lee Drake, who testified 

that she attended a meeting with her husband, her friend Rosina Robinson and 

Robinson‘s husband, and Ava Johnson and her husband. COGIC elder Battles, 

Haynes, and another pastor were present. According to Drake, Allen was not 

there. They discussed ―the paddling [and] the questions that [were] asked that 

were inappropriate.‖ She recalled specifically telling Haynes and Battles that 

Allen had paddled her with her clothes off. She also told them that Allen had 

asked her inappropriate questions, such as whether she was on the pill or 

sexually active. She also told them that if these things had happened to her, they

would happen to someone else, and she did not want that to happen to anyone 

else. Robinson asked for Allen to be removed. Battles said he would look into 

the matter, and Haynes said, ―[O]ld habits die hard.‖ Drake said that Battles 

taped the meeting and gave the tape to Robinson.

Nelson Lee Drake, Drake‘s ex-husband, testified that after she told him 

about the paddling in 1989 or 1990, they ―got a group together, because we 

found more victims, and we wanted something done about it.‖ The group met 
17

with Battles.

11 Nelson confirmed that Drake and the other women told Battles 

about the paddling. Nelson remembered that Robinson had a cast on her wrist 

because Allen had tried to paddle her and broke her wrist. According to Nelson, 

the women did not complain about any behavior other than the paddling. Battles 

said he would look into the matter, talk to Allen, and get back to the group. Also, 

Battles was the one who called the police. The group told the police the same 

thing they told Battles, but the police told them there was nothing they could do 

because it was a church matter. The police did not file a report.

Kelly also attached Rosina Robinson McDonald‘s deposition testimony to 

her summary judgment response. McDonald testified that she and her husband 

called Battles in 1990 to report what Allen did to her and to report what others at 

the church were saying. According to McDonald, at the time, Battles was 

―superintendent of a certain area of churches in [COGIC] in Fort Worth.‖ When 

McDonald and her husband told Battles about the allegations, he said, ―Sherman 

is like my son. . . . I know that this can‘t be true because he is like a son to me.‖

However, he agreed to talk to Allen and get back to them.

When Battles called McDonald back, he said Allen denied the allegations 

and that Haynes should be consulted. McDonald testified that after that, she got 

letters from ―everybody that had come forth‖ and took those letters to Battles. 

Battles then asked if McDonald would come to a meeting with Haynes. She 

 

11Nelson could not remember meeting with Haynes.
18

agreed. The meeting attendants were McDonald and her husband, Haynes, 

Allen, Battles, J.L. Johnson, Liddell Thomas,12 and two unidentified men. She 

confirmed that Battles taped the meeting.

Haynes let McDonald explain what Allen did to her, Drake, and another 

friend named ZZ. Haynes then told McDonald that Allen had explained to him 

that she was making up the allegations because she was angry Allen had ―let 

[her] mother die.‖ McDonald testified that she told Haynes,

I already know that - - he openly said, Sherman Allen openly 

said that you guys scratch each others‘ back. I said, I know you‘re 

not going to do shit to him anyway. I said, so all I‘m asking from you 

is to tell the other people in the church that this is something that 

God does not require of them in order to be saved or to be a part of 

the church. . . . [J]ust tell the people so the people will be informed 

that this is not anything that God requires to allow somebody to do 

this to them.

And he said, well, Sister McDonald, we‘re going to try to help 

any way we can. And I said, you‘re not going to do anything 

because it‘s a habit for him. And he said, well, Sister McDonald, 

can‘t habits be broken? I said, you‘re right, Bishop, . . . [i]t‘s a 

lifestyle for him. I said, it will happen again. He said, we‘re going to 

make sure that Superintendent Johnson comes and is like - - the 

word he used was - - I think he used the words ―supervising him,‖ 

and that if anything goes on, you call me and you let me know.

McDonald testified to a second meeting at Shiloh with Haynes, Allen, 

Johnson, and West, another pastor. All the church members were at the 

meeting, which was not held on a Sunday. Haynes said they were there 

because of some problems in the church, but he did not say anything about the 

 

12McDonald thought Johnson was a COGIC superintendent; Thomas was 

another pastor.
19

paddling. Instead, he said that even if a pastor has problems, no one has a right 

to destroy a church. He told the church members that Johnson would be 

―making sure that he‘s . . . supervising the services.‖ Haynes also told the 

members that if anything else happened, ―he [presumably Johnson] knows how 

to contact me.‖

Kelly also attached an affidavit from Allen stating that ―[i]n 1990, Bishop 

Neaul Haynes assigned J.L. Johnson to monitor me at the Shiloh Church based 

on complaints made by female members of the Shiloh Church involving 

allegations that I had paddled them.‖

Haynes testified about his role as a bishop of COGIC. He stated that if he 

becomes aware of any conflict or rule-breaking, he appoints an investigative 

committee, selects the members of that committee, and guides the committee in 

conducting an authentic investigation. His role is defined by COGIC. Once a 

complaint is found to be true, the complaint is sent to the national elders‘ council 

for trial. The council is made up of all the elders in COGIC. A ―court‖ is selected 

from among the members of the council. The court reviews the information 

compiled by the investigative committee and then makes a recommendation to 

the bishop as to what action should be taken regarding the complaint. In a past 

proceeding, Haynes had removed a pastor, or the pastor resigned, and the 

church remained in existence with a new pastor appointed by Haynes.

Haynes appointed Johnson as ―overseer‖ of Allen, not because it was 

mandated by COGIC policy, but because
20

the way that it was brought to my attention, that was all I could do. I 

felt that I had to do something to see if this was going to - - the 

seriousness of it and if it was valid and what have you and him being 

an official of the church and what have you, I felt that would be a 

way to resolve this if it was - - needed to do so.

Haynes first recalled hearing about Allen from Battles who called in 1989 

or 1990 and ―suggested that probably to look into his activities would be 

meaningful and helpful.‖ Battles was ―emphatic‖ that Haynes should ―check into 

what is happening‖ and suggested a meeting would be helpful. Haynes then 

heard other people mention ―something happening‖ in conversation and decided 

to meet with Allen and some other pastors. Haynes denied hearing any rumors 

about Allen until after the conversation with Battles.

Haynes held the meeting suggested by Battles at Battles‘s church. 

Battles, Johnson, a man named R.L. Samples, Allen, two or three women whose 

names he could not remember and a husband of one of them,

13 and a nowdeceased pastor were present. Haynes remembered the young woman there 

with her husband because ―the things she said made me remember her.‖ The 

women ―talked about their personal relationships with . . . Allen,‖ and Haynes 

―remember[ed] distinctly that neither of them who spoke, spoke in a derogatory 

way about . . . Allen.‖ According to Haynes,

one of the young ladies, the one whose husband was there, she said 

to . . . Allen, you know I told you I would always love you and I still 

will always love you, and her husband was sitting right there, and I‘m 

 

13Haynes later said another of the women‘s husbands may have been 

present.
21

dodging because I didn‘t know whether - - but it was very evident

that they were present, but they were not adamant and hostile 

toward . . . Allen at all.

According to Haynes, he held the meeting because Allen was seeking to 

become a member of COGIC, and Haynes ―needed to know if there was 

something seriously going on.‖ Haynes could not remember if the women talked 

about paddling, but he said, ―There might have been a mentioning of him doing 

something to them.‖ However, Haynes testified that nothing was going on 

―except they were disgruntled about the relationship that was existing presently 

between them and . . . Allen.‖ When asked whether he remembered the women 

mentioning paddling, Haynes said he did not and explained: ―[I]n a situation 

where people are talking, if they were trying to damage him in any kind of 

permanent or appreciable way, it was not that obvious to me.‖ Haynes admitted 

that he could not ―do anything concrete‖ to Allen unless ―he was guilty of doing 

something that the church did not approve of.‖ Haynes said he only invited the 

pastors to the meeting and that one of the pastors must have invited the women.

After the meeting, Haynes

assigned . . . Johnson to . . . attend the services of . . . Allen‘s church 

for six weeks. He was to go there on Sunday night, sit up on the 

rostrum, on the front where everybody could see him so everybody 

knew who he was, and if there was anything that anybody wanted to 

ask him or say to him, they would have an opportunity to do so, and 

he was also to determine if there was anything of an unusual nature, 

he was to report it back to me.

Haynes wanted Johnson to write down phone numbers or information reported to 

him. Haynes did not instruct Johnson to make an announcement because 
22

everyone would have known who he was, and Allen would not have ignored a 

COGIC official at a church service. Johnson was not supposed to tell the 

congregation why he was there.

When Johnson reported to Haynes, he said that ―he found nothing. 

Nobody reported anything to him, nobody complained of any improprieties or 

anything.‖ Haynes did not take any further action because he did not get any 

complaints after that. The next time he heard about anything ―fishy‖ having to do 

with Allen was in 2005 when Kelly sent a letter to COGIC detailing her allegations 

against Allen. After COGIC received Kelly‘s 2005 letter, Haynes did not appoint 

an investigative committee and did nothing concerning the allegations until he 

sent the letter to Allen purporting to suspend Allen from his duties at Shiloh and 

in COGIC. According to Haynes, it was not his place to do so because the 

complaint was initiated at the national level.

J.L. Johnson testified by deposition about the meeting. He said that he, 

Allen, Haynes, and Samples attended, but he could not remember whether 

Battles attended. He did not know if West was there; he knew some other 

COGIC representatives attended, but he could not remember their names. He 

likewise did not remember the names of the women who attended the meeting.

Johnson testified that the meeting took place at his church. Johnson 

remembered a discussion, but he could not remember discussing paddling 

specifically. He remembered Haynes asking him to ―once or twice‖ supervise or 

look in on Allen and the congregation about the allegations in the meeting. 
23

Johnson reported back to Haynes that he visited three or four times but that 

everything was fine. No one talked to him while he was at Shiloh. Johnson said 

he never made any announcements or gave any talks to the congregation.

Kelly also attached a May 15, 2007 letter from Allen to the General Board 

responding to a statement to the press indicating Allen had been suspended. In 

the letter, Allen said that he had voluntarily stopped preaching at Shiloh in 

February 2007.14 He also referred to COGIC as ―our church.‖ He stated he did 

not want to appear to defy an order of COGIC because he had taught Shiloh 

members to respect the structure of COGIC.

Analysis

Kelly contends that COGIC‘s failure to protect her from Allen, to provide 

her and other church members a safe environment, and to warn other church 

members or take appropriate steps in 1990 proximately caused her injuries as a 

result of Allen‘s behavior. Thus, she contends that but for COGIC‘s failure to act 

in 1990, Allen would not have had the opportunity to injure her while she was 

being counseled by him and when she was working as an employee for him and 

for Shiloh.

Kelly has failed to bring forward a scintilla of evidence beyond mere 

conjecture, speculation, or guess showing that COGIC‘s failure to act in 1990 

 

14The record does not show how long this self-imposed cessation lasted; 

however, the record is clear that Allen resumed his duties at some point after 

breaking ties with COGIC.
24

proximately caused her injuries. The same affiliation between COGIC and Shiloh 

existed in 1990 as in 2007 when Haynes attempted to suspend Allen; even if 

COGIC had attempted to suspend Allen after learning of the 1990 allegations, 

there is no evidence that its doing so would have prevented Allen and Shiloh 

from severing ties with COGIC and Allen continuing to preach at Shiloh without 

COGIC affiliation as he did in 2007. Kelly brought forward no evidence that if 

COGIC had told the congregation at Shiloh of the allegations against Allen in 

1990 that Kelly would have heard of these allegations and not have begun or 

continued attending Shiloh. According to McDonald‘s and Drake‘s testimony, at 

least some of the parishioners were aware of their allegations that Allen had 

paddled young women in the church. Allen‘s letter attached as summary 

judgment evidence shows that even after the allegations became public and 

COGIC tried to suspend him, Shiloh, although in Chapter 11 bankruptcy, was still 

a functioning church and members were still attending. There is simply no 

evidence that even if COGIC representatives had made the congregation aware 

of the 1990 allegations at that time that Allen would not have remained as pastor 

of Shiloh and thus would not have been able to commit the alleged acts against 

Kelly.15

 

15Our analysis should not be construed to approve of COGIC‘s response to 

the 1990 allegations or to diminish the seriousness of Allen‘s alleged behavior. 

However, on the specific facts of this case, the link between COGIC‘s alleged 

lack of, or ineffectual, response in 1990 and the heinous acts alleged in 2001 

through 2005 are too attenuated to amount to cause in fact under our negligence 

law.
25

Accordingly, we conclude and hold that the trial court did not err by 

granting a no-evidence summary judgment on Kelly‘s negligence claims.16

Negligent Hiring, Supervision, Retention, and Training

Kelly‘s Sixth Amended Petition included claims for negligent hiring, 

supervision, retention, and training. These types of claims are all simple 

negligence causes of action based on ―an employer‘s direct negligence rather 

than on vicarious liability.‖ Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. 

App.––Fort Worth 2002, no pet.).

Applicable Law

Negligence in hiring or retention requires that an employer‘s failure to 

investigate, screen, or supervise its employees proximately caused the injuries 

the plaintiff alleges. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex.

 

16Because we conclude that there is no evidence of cause in fact, we do 

not address the parties‘ foreseeability arguments. We note that COGIC‘s 

argument––that the 1990 allegations of paddling ―did not make it foreseeable that 

a grown, competent, 28 year old woman would allow herself to be paddled 

regularly for 4 years and to be repeatedly raped over a period of 4 months‖––

appears to attack Kelly‘s credibility and, as such, does not comport with the 

applicable standard of review. [Emphasis added.] Nothing in the facts alleged 

by Kelly, including any delay in a failure to report, compels the conclusion that 

her testimony lacked credibility; furthermore, the credibility of a witness is not a 

matter to be resolved by a no-evidence summary judgment. See, e.g., Wilcox v. 

Marriott, 103 S.W.3d 469, 475 (Tex. App.––San Antonio 2003, pet. denied). 

Despite the offensiveness of this argument, which we presume was unintended 

but which nevertheless implies that a woman can be culpable for ―allow[ing]‖ 

herself to be ―repeatedly raped,‖ we did not consider it in our analysis of this 

issue as it was not necessary for us to reach foreseeability. See Cunningham v. 

Blue Cross Blue Shield of Tex., No. 02-06-00363-CV, 2008 WL 467399, at *2 

(Tex. App.––Fort Worth Feb. 24, 2008, pet. denied) (mem. op.) (on reh‘g).
26

2006); Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.––Fort Worth 

2008, no pet.). An employer is not negligent when there is nothing in the 

employee‘s background that would cause a reasonable employer not to hire or 

retain the employee. Fifth Club, 196 S.W.3d at 796; Dangerfield, 264 S.W.3d at 

912. To establish a claim for negligent training, a plaintiff must prove that a 

reasonably prudent employer would have provided training beyond that which 

was given and that failure to do so caused his injuries. Dangerfield, 264 S.W.3d 

at 912. To establish a claim for negligent supervision, a plaintiff must show that 

an employer‘s failure to supervise its employees caused his injuries. Id. at 913. 

Thus, to be liable for negligent hiring, supervision, retention, or training, a 

defendant must have been involved in hiring the actor or retaining that actor in its 

employ. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. 

Akins, 926 S.W.2d 287, 290 (Tex. 1996); CoTemp, Inc. v. Houston W. Corp., 222 

S.W.3d 487, 492 (Tex. App.––Houston [14th Dist.] 2007, no pet.).

Analysis

Because there is no evidence that COGIC participated in the hiring or

retention of Allen as pastor of Shiloh––or that it retained the requisite control over 

Allen‘s day-to-day activities as pastor––a no-evidence summary judgment was 

proper as to Kelly‘s negligent hiring, supervision, retention, and training claims. 

See Golden Spread, 926 S.W.2d at 290; Williams, 115 S.W.3d at 618. Even to 

the extent Haynes assigned Johnson to ―supervise‖ Allen in 1990, it is clear from 

the record that Allen acquiesced to those actions. Haynes testified that COGIC 
27

had a sexual misconduct policy in place, which made local pastors responsible 

for its implementation at the local level; however, Haynes did not initiate the 

process in 1990 because no one filed a written complaint. There is no evidence 

indicating that Allen was unaware of the sexual misconduct policy or that

additional training would have prevented Kelly‘s injuries. Finally, to the extent 

Kelly argues that COGIC should have investigated Allen‘s background before 

allowing Shiloh to use ―Church of God in Christ‖ in its name, as we have stated 

before, there is no evidence that the fellowshipping or affiliation with COGIC is 

what drew Kelly to attend Shiloh.

Intentional Infliction of Emotional Distress

COGIC further contends that Kelly did not present any evidence that it 

recklessly directed any conduct toward her or that its conduct was extreme or 

outrageous.

Applicable Law

To recover damages for intentional infliction of emotional distress, a 

plaintiff must establish that (1) the defendant acted intentionally or recklessly,

(2) the defendant‘s conduct was extreme and outrageous, (3) the defendant‘s 

actions caused the plaintiff emotional distress, and (4) the resulting emotional 

distress was severe. Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438, 

445 (Tex. 2004); Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 

(Tex. 1998). Extreme and outrageous conduct is conduct ―so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of 
28

decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.‖ Zeltwanger, 144 S.W.3d at 445 (quoting Twyman v. Twyman, 855 

S.W.2d 619, 621 (Tex. 1993)). Liability does not extend to mere insults, 

indignities, threats, annoyances, petty oppressions, or other trivialities. 

Zeltwanger, 144 S.W.3d at 445; GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 

(Tex. 1999); Restatement (Second) of Torts § 46 cmt. d (1965). It is for the court 

to determine, in the first instance, whether a defendant‘s conduct was extreme 

and outrageous. Zeltwanger, 144 S.W.3d at 445; GTE Sw., Inc., 998 S.W.2d at 

616; Restatement (Second) of Torts § 46 cmt. h. But when reasonable minds 

may differ, it is for the jury, subject to the court‘s control, to determine whether, in 

the particular case, the conduct was sufficiently extreme and outrageous to result 

in liability. Zeltwanger, 144 S.W.3d at 445; GTE Sw., Inc., 998 S.W.2d at 616; 

Restatement (Second) of Torts § 46 cmt. h.

Intentional infliction of emotional distress is, 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. 

Zeltwanger, 144 S.W.3d at 447. The tort‘s ―clear purpose‖ is ―to supplement 

existing forms of recovery by providing a cause of action for egregious conduct‖

that might otherwise go unremedied. Id. The tort should not be extended to 

―circumvent the limitations placed on the recovery of mental anguish damages 

under more established tort doctrines.‖ Id.
29

Analysis

The extreme and outrageous behavior alleged by Kelly is that COGIC 

knew of the allegations made against Allen in 1990 and did nothing, thus 

facilitating Allen‘s being able to do even worse things to her. Thus, her complaint 

is that COGIC‘s behavior was extreme and outrageous because it failed to 

prevent her injury by either warning the parishioners or suspending or terminating 

Allen as pastor of Shiloh. In other words, she complains that COGIC failed to 

prevent Allen from intentionally inflicting emotional distress on her by not 

disclosing these incidents to the parishioners of Shiloh Church or terminating 

Allen.

17

 COGIC‘s response to the 1990 allegations may have been so weak and 

ineffective as to be considered nonexistent, and possibly even calculated to 

discourage any further reporting, but it does not rise to the level of extreme and 

outrageous. See id. at 449. There is no evidence that COGIC knew of any

matters related to Kelly specifically until she sent a letter to COGIC in 2005 

detailing her allegations against Allen. Moreover, Kelly‘s complaint is at its core

a negligence complaint; thus, the tort of intentional infliction of emotional distress 

is not available. See id. at 447. We conclude and hold that the trial court did not 

err by granting a no-evidence summary judgment on Kelly‘s intentional infliction 

of emotional distress claim.

 

17The evidence shows that the Kellys began attending Shiloh in either 

1997 or 2000.
30

We overrule Kelly‘s first issue.18

Conclusion

Having overruled the dispositive parts of Kelly‘s two issues, we affirm the 

trial court‘s judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: May 12, 2011

 

18Because we have concluded that the trial court properly granted either a 

traditional or no-evidence summary judgment on all of Kelly‘s claims, we need 

not address the contention in her second issue that the negligence claims are not 

barred on First Amendment grounds. See Tex. R. App. P. 47.1.