Affirmed in Part, Reversed and Remanded in Part, and Opinion filed July 21, 

2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00359-CV

JESSICA SHANNON, Appellant

V.

MEMORIAL DRIVE PRESBYTERIAN CHURCH U.S., Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2013-49928

O P I N I O N

We are asked to decide whether ecclesiastical immunity can shield a church 

from contractual liability when the subject contract does not implicate church 

doctrine. In seven issues, appellant Jessica Shannon challenges the trial court’s 

grant of appellee Memorial Drive Presbyterian Church’s plea to the jurisdiction 

and motions for summary judgment. Concluding that the Church is not entitled to 

immunity from suit under these circumstances, we reverse the trial court’s grant of 
2

the plea. Further concluding that the Church established as a matter of law that its 

conduct was not extreme and outrageous for purposes of Shannon’s intentional 

infliction of emotional distress claim, we affirm the trial court’s grant of summary 

judgment in the Church’s favor on that claim. We reverse the trial court’s grant of 

summary judgment on Shannon’s other claims and remand the case to the trial 

court for proceedings consistent with this opinion.

Background

Shannon was dismissed from her position as Elementary Ministries Director 

at the Church. She sent a demand letter to the Church asserting that she had been 

terminated for making allegations of sexual harassment against an elder of the 

Church. Shannon and the Church subsequently signed a “Confidential Separation 

Agreement and Release.” The Church paid Shannon $25,000 and agreed that she 

could “classify the end of th[e] employment relationship as a resignation, rather 

than a termination . . . for purposes of . . . future employment offers.” The 

Agreement includes a confidentiality clause applicable to Shannon and a provision 

that “[i]n the event that [Shannon is] asked about her separation of employment, 

[she] may reply only with the words ‘we have reached an amicable parting,’ but 

will not otherwise indicate the nature of the resolution of these matters.” In 

addition, the Church and Shannon each agreed not to “disparage” the other.

Shannon subsequently was hired by the Austin Presbyterian Theological 

Seminary as a development officer. This position required her to participate in 

fundraising efforts for the Seminary. An elder at the Church also served on the 

Board of Trustees for the Seminary. He contacted the Board Chair at the Seminary 

to ask whether the Seminary had checked Shannon’s references. The Board Chair 

contacted the President of the Seminary, who instructed Kurt Gabbard, its Vice 

President for Business Affairs, to check Shannon’s references. Gabbard then 
3

contacted the head of human resources at the Church, Karen Winship. Winship 

told Gabbard she could not discuss the reason Shannon left “because of a 

severance agreement,” but Winship “could not think of a circumstance under 

which the [C]hurch would rehire [Shannon] or that she would want to come back.” 

Winship referred Gabbard to Dave Steane, Executive Pastor at the Church, who 

stated that he “could not tell [Gabbard] the reasons why [Shannon] left because of 

the existence of an agreement[, but] it should be obvious that there were issues, 

otherwise there would not be an agreement.” Steane also stated “that it would be 

difficult for [Shannon] to carry out her duties [to raise funds from the Church]” or 

from “anywhere in Houston.” The Seminary terminated Shannon’s employment 

because she purportedly misrepresented the circumstances surrounding her 

departure from the Church and based on its concern that she would not be able to 

solicit donations for the Seminary. 

Shannon sued the Church, bringing claims for breach of contract, intentional 

infliction of emotional distress, libel and slander, and fraudulent inducement. The 

Church filed a plea to the jurisdiction, asserting the trial court lacked jurisdiction 

because the Church is immune from suit under the ecclesiastical abstention 

doctrine and the so-called ministerial exception. The Church also filed two 

traditional motions for summary judgment with supplements and amendments, 

contending (1) the Church is immune from liability under chapter 103 of the Labor 

Code; (2) Shannon waived her right to enforce the provisions of the Agreement by 

giving the Church “express authorization to provide full details concerning her past 

employment to the Seminary in her Employment Application”; (3) the Church did 

not breach the Agreement as a matter of law; (4) the Church’s behavior was not 

extreme and outrageous for purposes of Shannon’s intentional infliction of 

emotional distress claim; and (5) Shannon waived her fraudulent inducement claim 
4

by releasing all claims that existed as of the date of the Agreement.1The trial court

granted the plea to the jurisdiction and the motions for summary judgment and 

rendered final judgment for Shannon to take nothing by way of her claims against 

the Church.

Discussion

Shannon argues the trial court has jurisdiction over her claims because 

neutral principles apply to the contractual dispute at issue and the ministerial 

exception does not apply in a non-employment context. She also asserts that 

chapter 103 of the Labor Code does not apply under these facts and she did not 

waive her claims against the Church by authorizing the Church “to provide full 

details regarding her past employment.” She further contends that fact questions 

exist regarding whether the Church breached the Agreement and whether its 

conduct was extreme and outrageous and that the trial court erred in concluding 

that she released her fraudulent inducement claim.

We review a trial court’s ruling on a plea to the jurisdiction de novo. City of 

Pasadena v. Belle, 297 S.W.3d 525, 528 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 

(Tex. 2004)). A defendant’s plea may challenge either the plaintiff’s pleadings or 

the existence of jurisdictional facts. Id. When, as here, the defendant challenges the 

existence of jurisdictional facts, we must consider the relevant evidence submitted 

by the parties. See id. If that evidence raises a fact issue as to jurisdiction, the plea 

must be denied because the issue must be resolved by the factfinder. Id. If the 

relevant evidence is undisputed or fails to present a jurisdictional fact issue, 

however, we must rule on the plea as a matter of law. Id. A trial court properly

 

1 When necessary for clarity, we refer to all of the traditional summary judgment motions 

at issue in this appeal together in the singular.
5

dismisses those claims over which it does not have subject matter jurisdiction but 

retains claims in the same case over which it has jurisdiction. See Thomas v. Long, 

207 S.W.3d 334, 338-39 (Tex. 2006); see also Heckman v. Williamson Cnty., 369 

S.W.3d 137, 152-53 (Tex. 2012) (“[A] plaintiff must demonstrate that the court has 

jurisdiction over . . . each of his claims; the court must dismiss those claims (and 

only those claims) over which it lacks jurisdiction.”).

We generally analyze jurisdiction separately for each claim. See In re 

C.D.B., No. 14-13-00718-CV, 2015 WL 1405921, at *2 (Tex. App.—Houston 

[14th Dist.] Mar. 24, 2015, no. pet. h.). When the claims are dependent on the same 

facts, however, it is not always necessary to address each claim separately. See 

City of Dallas v. Jones, No. 05-07-00831-CV, 2008 WL 588997, at *4 (Tex. 

App.—Dallas Mar. 5, 2008, pet. denied); cf. Moncrief Oil Int’l Inc. v. OAO 

Gazprom, 414 S.W.3d 142, 150-51 (Tex. 2013) (holding in the context of personal

jurisdiction challenge that courts need not assess forum contacts on a claim-byclaim basis if all claims arise from same forum contacts).2

The standard of review 

for a plea to the jurisdiction based on submitted evidence generally mirrors that of 

a traditional motion for summary judgment. Quested v. City of Houston, 440 

S.W.3d 275, 279-80 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

We review de novo the trial court’s grant of summary judgment. See Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 

2009). In a traditional motion for summary judgment, the movant has the burden of 

 

2

The Texas Supreme Court has not addressed whether it is necessary to analyze each 

claim separately when they all arise from the same facts in the context of a plea to the 

jurisdiction. We note that there may be some instances in which jurisdiction must be analyzed 

separately as to each claim even when the claims are dependent on the same facts, for example, 

when certain types of immunity apply only to certain types of claims. We note any such 

applicable distinctions below. However, we further note that the parties conceded at oral 

argument that under the facts of this case, we need not analyze Shannon’s claims separately.
6

establishing that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 

166a(c)). To obtain summary judgment, the movant must conclusively disprove at 

least one element of each of the nonmovant’s claims or conclusively establish all 

elements of an affirmative defense as to each claim. Friendswood Dev. Co. v. 

McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). The nonmovant has no burden 

to respond to or present evidence regarding the motion until the movant has carried 

its burden to conclusively establish the cause of action or defense on which its 

motion is based. State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013). We consider 

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

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

evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848; see 

also Quested, 440 S.W.3d at 280. The evidence raises a genuine issue of fact if 

reasonable and fair-minded jurors could differ in their conclusions in light of all of 

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 755 (Tex. 2007).

With regard to a plea challenging jurisdictional facts, as here, the movant 

must assert the absence of subject-matter jurisdiction and present conclusive proof 

that the trial court lacks subject-matter jurisdiction. See City of Houston v. Little 

Nell Apartments, L.P., 424 S.W.3d 640, 646 (Tex. App.—Houston [14th Dist.] 

2014, pet. denied). Proof is conclusive only if reasonable people could not differ in 

their conclusions. Id. When, as in this case, the order granting summary judgment 

and the plea to the jurisdiction does not specify the grounds upon which the trial 

court relied, we must affirm if the appellant does not attack all independent 

grounds that may support the adverse ruling or if any of the independent grounds is 
7

meritorious.3See $90,235, 390 S.W.3d at 292; Sw. Bell Tel., L.P. v. Harris Cnty., 

267 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

I. Ecclesiastical Abstention Doctrine Inapplicable

In her fourth issue, Shannon argues the trial court erred in granting the 

Church’s plea on the basis of the ecclesiastical abstention doctrine because the case 

revolves around the breach of a secular contract. The First Amendment to the 

United States Constitution, applicable to the states through the Fourteenth 

Amendment, provides that “Congress shall make no law respecting an 

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. 

amend. I.; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). This 

provision forbids the government from interfering with the rights of hierarchical 

religious bodies to either establish their own internal rules and regulations or create 

tribunals for adjudicating disputes over religious matters. Serbian E. Orthodox 

Diocese v. Milivojevich, 426 U.S. 696, 708−09, 724−26 (1976). Government action 

is not permitted to interfere with the free exercise of religion by encroaching on a 

religious institution’s ability to manage its internal affairs. See Church of the 

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993); Kedroff v. 

St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 

(1952). 

The Texas Supreme Court has recognized that churches have a fundamental 

right “to decide for themselves, free from state interference, matters of church 

government as well as those of faith and doctrine.” Westbrook v. Penley, 231 

S.W.3d 389, 397 (Tex. 2007); see also Watson v. Jones, 80 U.S. 679, 727 (1871). 

The autonomy of a church in managing its affairs and deciding matters of church 

 

3

The judge signed one final judgment ruling on the plea and all motions for summary 

judgment.
8

discipline has long been afforded broad constitutional protection. Westbrook, 231 

S.W.3d at 397; see also Watson, 80 U.S. at 733.

To enforce this constitutional provision, Texas courts have utilized the 

“ecclesiastical abstention doctrine.”4Reese v. Gen. Assembly of Faith Cumberland 

& Presbyterian Church in Am., 425 S.W.3d 625, 627 (Tex. App.—Dallas 2014, no 

pet.). The ecclesiastical abstention doctrine arises from the Free Exercise Clause of 

the First Amendment and provides that the First Amendment prohibits civil courts 

from exercising jurisdiction over matters concerning “theological controversy, 

church discipline, ecclesiastical government, or the conformity of the members of 

the church to the standard of morals required of them.” Milivojevich, 426 U.S. at 

713−14; see also Jennison, 391 S.W.3d at 664−65. Under this doctrine, courts will 

not attempt to right wrongs related to the hiring, firing, discipline, or 

administration of clergy. Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex. App.—

Houston [1st Dist.] 1996, no pet.). “Although such wrongs may exist and be 

severe, and although the administration of the church may be inadequate to provide

a remedy, the preservation of the free exercise of religion is deemed so important a 

principle it overshadows the inequities which may result from its liberal

application.” Id.

The Texas Supreme Court also has recognized, however, that “[w]hile 

Article I, Section 6 of the Texas Constitution and the First Amendment to the 

United States Constitution afford broad protection to the free exercise of religion, 

they do not necessarily bar all claims which may touch on religious conduct.” 

Tilton, 925 S.W.2d at 677. The Free Exercise Clause does not protect actions in 

violation of social duties or subversive to good order. Id.; see also Pleasant Glade 

 

4

This doctrine has variously been referred to as one of “deference,” “ecclesiastical 

abstention,” or “ecclesiastical exemption.” Jennison v. Prasifka, 391 S.W.3d 660, 661 n.1 (Tex. 

App.—Dallas 2013, no pet.). 
9

Assembly of God v. Schubert, 264 S.W.3d 1, 12 (Tex. 2008) (“[R]eligious practices 

that threaten the public’s health, safety, or general welfare cannot be tolerated as 

protected religious belief.”). Thus, acknowledging that churches, their 

congregations, and hierarchy exist and function within the civil community, they 

can be as amenable to rules governing civil, contract, or property rights as any 

other societal entity. Lacy v. Bassett, 132 S.W.3d 119, 123 (Tex. App.—Houston 

[14th Dist.] 2004, no pet.) (citing Dean v. Alford, 994 S.W.2d 392, 395 (Tex. 

App.—Fort Worth 1999, no pet.) (“[C]ourts do have jurisdiction to review matters 

involving civil, contract, or property rights even though they stem from a church 

controversy.”)). 

In determining whether the ecclesiastical abstention doctrine applies, courts 

must analyze whether a particular dispute is “ecclesiastical” or simply a civil law 

controversy in which church officials happen to be involved. Tran, 934 S.W.2d at 

743. To resolve this issue, courts must look to the substance and effect of a 

plaintiff’s complaint to determine its ecclesiastical implication. Green v. United 

Pentecostal Church Int’l, 899 S.W.2d 28, 30 (Tex. App.—Austin 1995, writ 

denied). A court may interpret church documents under neutral principles of law

when it can do so in purely secular terms without relying on religious precepts in 

resolving the conflict. Hawkins v. Friendship Missionary Baptist Church, 69 

S.W.3d 756, 759 (Tex. App.—Houston [14th Dist.] 2002, no pet.). However, if the 

matter cannot be determined by the court without resolving a religious controversy, 

then the court must defer to the resolution of the doctrinal issue by the authoritative 

ecclesiastical body. Id.

Shannon argues that her claims arise from the breach of a secular settlement 

agreement between a church and a former employee. Accordingly, the dispute 

would not require the trial court to “delve into religious dogma, interpret doctrinal 
10

beliefs, or resolve religious matter[s] for purposes of the ecclesiastical doctrine.” 

The Church limits its argument that ecclesiastical matters are implicated to

Shannon’s allegation that the Church disparaged her. Thus, we limit our discussion 

of this issue to that allegation. See Little Nell Apartments, 424 S.W.3d at 646 

(noting movant in plea to jurisdiction in which pleading requirement has been met 

has burden to assert and conclusively prove absence of jurisdiction).

In her live petition, Shannon alleges that the Church breached the

Agreement by, among other things, “disparag[ing]” her; the Church’s actions 

caused her termination from the Seminary, resulting in “severe emotional distress” 

(intentional infliction of emotional distress); the Church defamed her by stating 

that she “would not be able to raise funds on behalf of the Seminary anywhere in 

Houston or within her region” and by painting her as a “liar”; and the Church 

fraudulently induced her to sign the Agreement “so that it could buy her silence 

while it went about its business of disparaging her.” The Church concedes that 

these claims “all arise from her allegation that the Church made disparaging 

statements about her to the Seminary.” We agree. Thus, we analyze these claims 

together, except as otherwise noted. See Jones, 2008 WL 588997, at *4.

The Agreement states, “[The Church] agrees that it will not disparage 

[Shannon].” Our primary concern in interpreting a contract is to ascertain and to 

give effect to the intentions of the parties as expressed in the instrument. J.M. 

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). We therefore give 

terms their plain and ordinary meaning unless the contract indicates that the parties 

intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache 

Corp., 294 S.W.3d 164, 168 (Tex. 2009). We examine and consider the entire 

writing in an effort to harmonize and give effect to all provisions of the contract, so 

that none will be rendered meaningless. J.M. Davidson, 128 S.W.3d at 229.
11

The Agreement does not define the word “disparage.” The Church argues 

the trial court could not consider whether the Church disparaged Shannon because 

it would have to determine whether the Church’s statements were “false or made 

with malice.” As an initial matter, we reject this definition urged by the Church, 

which is gleaned from the elements of business disparagement. See Hurlbut v. Gulf 

Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987) (“The general elements of a 

claim for business disparagement are publication by the defendant of the 

disparaging words, falsity, malice, lack of privilege, and special damages.”).5If the 

parties had intended to define the word as synonymous with business 

disparagement, which has a particular legal meaning, they could have done so. We 

decline to apply this definition. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 

640, 646 (Tex. 1996) (“We have long held that courts will not rewrite agreements 

to insert provisions parties could have included.”). Instead, we apply the plain 

meaning of the word “disparage” in analyzing whether the ecclesiastical abstention

doctrine applies.6See Dynegy Midstream Servs., 294 S.W.3d at 168. “Disparage” 

is defined as “[t]o speak of as unimportant or small; belittle” or “[t]o reduce in 

esteem or rank.” The American Heritage Dictionary 406 (2d coll. ed. 1991); see 

also In re Peebles, No. 14-10-00973-CV, 2010 WL 4892634, at *4 (Tex. App.—

Houston [14th Dist.] Dec. 2, 2010, no pet.) (mem. op.) (referring to plain meaning 

of “disparage” as “to depreciate”).

The Church argues a determination of whether it disparaged Shannon would 

fall within the ecclesiastical abstention doctrine because it would require the trial 

 

5 A private individual such as Shannon need not prove malice to establish defamation. 

See In re Lipsky, No. 13-0928, 2015 WL 1870073, at *9 (Tex. Apr. 24, 2015). Thus, any 

argument by the Church that Shannon should be required to show the Church acted with malice 

would be without merit. 

6

The Church puts forth various other meanings for the word. For the reasons discussed, 

we reject any definition other than the plain meaning.
12

court to evaluate (1) the reasons the Church decided to terminate Shannon and to 

settle her claims for sexual harassment, (2) the decision to notify the Seminary of 

the Church’s issues with Shannon, and (3) whether such decisions were in the best 

interest of the Church, the Seminary, and the Presbyterian community in Houston.

We disagree. 

Shannon’s allegations are directed toward the Church’s actions after the 

parties signed the Agreement and after Shannon assumed a new position at the 

Seminary, not at the Church’s decisions related to her termination. Thus, the

allegations do not invoke the reasons she left the Church. The parties agree that 

Shannon’s claims revolve around the parties’ Agreement, in which the Church 

agreed not to “disparage” Shannon. The reason the Church elder asked the 

Seminary to check Shannon’s references has no relevance in determining whether 

the Church disparaged her. The reasons behind the Church’s decisions both before 

and after Shannon left—and whether these decisions were in the Church’s best 

interest—likewise are irrelevant to the question of whether the Church disparaged 

Shannon. 

The Church argues that it is immune from suit because “what is 

‘disparaging’ involves subjective judgment through the eyes of the Church.” To 

the contrary, applying the plain meaning of the word “disparage,” a factfinder 

could determine whether the Church belittled Shannon or “reduce[d her] in esteem 

or rank” when, as alleged, (1) a Church member initiated a conversation with the 

Seminary about Shannon’s references after Shannon already had been hired, 

(2) Winship, the Church’s head of human resources, told Gabbard, the 

representative from the Seminary, that she could not discuss the reasons Shannon 

left the Church but also “could not think of a circumstance under which the 

[C]hurch would rehire [Shannon] or that [Shannon] would want to come back,” 
13

and (3) Steane told Gabbard that “it should be obvious that there were issues, 

otherwise there would not be an agreement” and “it would be difficult for 

[Shannon] to carry out her duties as a fundraiser” anywhere in Houston. Although 

these facts may be disputed, they can be analyzed under a neutral definition in 

purely secular terms.

7

We may interpret a contract in a civil law controversy in purely secular 

terms when doing so does not require us to rely on religious precepts or resolve a 

religious controversy. See Lacy, 132 S.W.3d at 123. Making the determination of 

whether the Church disparaged Shannon merely involves interpreting the contract 

as a matter of law and applying the facts as found by the factfinder. Moreover, 

under these circumstances, we are not required to intervene in the hiring, firing, 

discipline, or administration of the Church’s clergy, address the Church’s standards 

of morality, or address any other matters traditionally held to involve religious 

doctrine. See id. at 125. Similarly, we are not required to interpret any Church 

constitution, by-laws, or other governing documents. See id. Finally, we are not 

asked to decide matters relating to the congregational or hierarchical nature of the 

Church. See id. We conclude that this lawsuit, revolving around the Church’s 

purported disparagement of Shannon in violation of the Agreement, is a civil law 

controversy in which Church officials happen to be involved. See id. at 123. 

Accordingly, the ecclesiastical abstention doctrine does not apply. 

We sustain Shannon’s fourth issue. 

II. Ministerial Exception Not a Jurisdictional Bar

In its plea to the jurisdiction, the Church also argued the “ministerial 

 

7 We note that the Church has not offered any religious explanation for its actions that

might entangle the court in a religious controversy in violation of the First Amendment. See 

Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 472 (8th Cir. 1993).
14

exception” required dismissal of Shannon’s claims. Under this doctrine, if an

employee is a minister, courts are precluded from reviewing the employment 

decision regardless of whether the claims are ecclesiastical in nature. See Patton v. 

Jones, 212 S.W.3d 541, 548 (Tex. App.—Austin 2006, pet. denied); see also Lacy, 

132 S.W.3d at 123 (“[C]ourts should not involve themselves in matters relating to 

the hiring, firing, discipline, or administration of clergy.”). The United States 

Supreme Court has recognized the ministerial exception; however, the court 

concluded that the “exception operates as an affirmative defense to an otherwise 

cognizable claim, not a jurisdictional bar.” Hosanna-Tabor Evangelical Lutheran 

Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 709 n.4 (2012) (“That is because the 

issue presented by the exception is ‘whether the allegations the plaintiff makes 

entitle him to relief,’ not whether the court has ‘power to hear [the] case.’”). The 

Church moved only on the ministerial exception as a jurisdictional bar and did not 

move for summary judgment as to this affirmative defense. Accordingly, the trial 

court erred to the extent that it concluded it did not have subject matter jurisdiction 

over Shannon’s claims under the ministerial exception. We sustain Shannon’s fifth 

issue.

For the foregoing reasons, we conclude the trial court erred in dismissing 

Shannon’s claims for lack of subject matter jurisdiction. We turn to the other issues 

addressed in the Church’s motions for summary judgment.

III. Labor Code Chapter 103 Inapplicable

In her first issue, Shannon argues that the Church was not entitled to 

immunity from her claims under chapter 103 of the Labor Code. The legislature 

enacted chapter 103 to provide the affirmative defense of immunity from civil 

liability to an employer who makes a disclosure based on information that he 

“would reasonably believe to be true.” Tex. Labor Code § 103.001; see Graham v. 
15

Rosban Constr., Inc., No. 03-07-00317-CV, 2009 WL 3319911, at *3 (Tex. 

App.—Austin Oct. 14, 2009, no pet.) (mem. op.). Under the statute, “An employer 

may disclose information about a current or former employee’s job performance to 

a prospective employer of the current or former employee on the request of the 

prospective employer or the employee.” Tex. Labor Code § 103.003(a). 

Shannon asserts chapter 103 does not apply because Church representatives 

did not discuss her job performance with Gabbard.

8

“Job performance” is defined 

in the statute as “the manner in which an employee performs a position of 

employment and includes an analysis of the employee’s attendance at work, 

attitudes, effort, knowledge, behaviors, and skills.” Id. § 103.002(3). Steane

confirmed that Shannon did not leave based on any allegations of sexual 

misconduct by her, expressed concern that Shannon would have difficulty 

soliciting donations for the Seminary, and stated that “there were issues, otherwise 

there would not be an agreement.” Winship also indicated the Church would not 

rehire Shannon and Shannon would not want to come back. Shannon argues these 

statements do not reflect the manner in which she performed her job as Elementary 

Ministries Director and include no analysis of her attendance, attitudes, effort, 

knowledge, behavior, or skills. 

The Church cites Graham to support its argument that its statements related 

to Shannon’s job performance.9In that case, a former employer told a prospective 

 

8

Shannon also contends that the statute does not apply because (1) the Seminary was her 

current, not prospective, employer when the damaging reference was given by the Church; 

(2) the reference was not given “on the request of” the Seminary because the Church elder, 

purportedly at the prompting of Steane, suggested the Seminary should inquire; (3) Steane’s 

disclosures were made with malice; (4) chapter 103 only applies to defamation claims; and 

(5) the Church waived any protections under chapter 103 by agreeing not to “disparage” 

Shannon. We need not reach these arguments because we agree that Church representatives did 

not discuss her job performance with Gabbard.

9 We note that the Church also cited Leija v. Sky Properties, LLC, No. 01-13-00019-CV, 
16

employer that when the company instituted a drug testing policy, the plaintiff 

chose to quit rather than be tested. Graham, 2009 WL 3319911 at *2. The plaintiff 

argued that this statement did not relate to his job performance as a truck driver. 

See id. at *4. The court concluded that the statement fell within the definition of 

job performance because the plaintiff was required to participate in drug testing as 

part of his job in compliance with company policy. Id. 

Here, the Church did not present evidence of any statements to the Seminary 

relating to Shannon’s violation of any policy of the Church or failure to perform 

her job as required by the Church. The Church did not establish that Steane’s 

statement expressing doubts about Shannon’s ability to solicit donations for the 

Seminary was related to the manner in which she performed her job at the Church.

At most, one might infer that Shannon left the Church on unfavorable terms, but 

these statements provide no analysis of her attendance, attitudes, effort, 

knowledge, behavior, or skills as Elementary Ministries Director. Accordingly, the 

Church has not conclusively established its entitlement to summary judgment on 

the affirmative defense of immunity under chapter 103. 

We sustain Shannon’s first issue.

IV. Failure to Present Conclusive Evidence of Intent to Waive Claims

In her third issue, Shannon contends that she did not waive her claims 

against the Church by filling out an online employment application for her position 

 

2014 WL 523474 (Tex. App.—Houston [1st Dist.] Jan. 30, 2014, no pet.), in this section of its 

brief; however, neither Leija nor the Church’s argument addresses job performance. Moreover, 

the Leija court did not address chapter 103. It addressed the common law privilege for statements 

made by a former employer to a prospective employer. Id. at *3. We need not address whether 

the common law privilege applies under the facts of this case, as the Church has not asserted it 

and it had the burden to conclusively establish immunity. See Little Nell Apartments, 424 S.W.3d 

at 646 (“[T]he movant must assert the absence of subject-matter jurisdiction and present 

conclusive proof that the trial court lacks subject-matter jurisdiction.”).
17

at the Seminary in which she “authorize[d] all [her] prior employers to provide full 

details concerning [her] past employment.”10 Specifically, Shannon contends that 

this authorization did not waive her rights under the confidentiality and antidisparagement clauses of the Agreement. Shannon argues that she was entitled to 

rely on the Church to honor its obligation under the Agreement not to disparage 

her.

Waiver is the intentional relinquishment of a known right or intentional 

conduct inconsistent with claiming that right. Tenneco, 925 S.W.2d at 643. The 

elements of waiver are (1) an existing right, benefit, or advantage held by a party; 

(2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to 

relinquish the right, or intentional conduct inconsistent with the right. Ulico Cas. 

Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008); Clear Lake Ctr., L.P. 

v. Garden Ridge, L.P., 416 S.W.3d 527, 542 (Tex. App.—Houston [14th Dist.] 

2013, no pet.). Intent to waive must be clear, decisive, and unequivocal. Thompson 

v. Kerr, No. 14-08-00978-CV, 2010 WL 2361636, at *4 (Tex. App.—Houston 

[14th Dist.] June 15, 2010, no pet.) (mem. op.) (citing Ferguson v. Ferguson, 111 

S.W.3d 589, 598 (Tex. App.—Fort Worth 2003, pet. denied)). A court should 

conclude a waiver occurred only when a party unequivocally manifested the intent 

not to assert her rights.11 Id. (citing Robinson v. Robinson, 961 S.W.2d 292, 299 

(Tex. App.—Houston [1st Dist.] 1997, no writ)).

The Church cites Smith v. Holley, in which a police chief provided to a 

prospective employer certain information from the plaintiff’s personnel file despite 

 

10 The Church presented a copy of the employment application in support of its motion 

for summary judgment.

11 Waiver is ordinarily a question of fact. Tenneco, 925 S.W.2d at 643. When the facts 

and circumstances are admitted or clearly established, however, the question becomes one of 

law. Id.
18

an agreement that the information would be purged. 827 S.W.2d 433, 435-36 (Tex. 

App.—San Antonio 1992, writ denied). In Smith, the plaintiff signed an 

authorization similar to the one at issue here, except for an additional paragraph: “I 

hereby release any individual, including record custodians, from any and all 

liability for damages of whatever kind or nature which may at any time result to 

me on account of compliance, or any attempts to comply, with this authorization.”

Id. at 435. A copy of the authorization was given to the police chief before he 

provided the offending information.12 Although the court in Smith, which predates 

Chapter 103 of the Labor Code, found the police chief enjoyed a qualified 

privilege as to plaintiff’s defamation claim, it made no holding as to waiver.13 Id. at 

439-40. Smith is distinguishable.

Assuming Shannon authorized the Church to speak with the Seminary, the 

Church nevertheless was bound to communicate in accordance with the terms of its 

Agreement. We conclude that in signing the authorization, Shannon did not 

unequivocally manifest the intent not to assert any of her rights under the 

Agreement. In other words, Shannon did not authorize the Church to disparage 

her.14 Accordingly, the Church has not conclusively established that Shannon 

 

12 There is no evidence in our record regarding when or how the Church obtained a copy 

of Shannon’s authorization.

13 The Smith court held that the plaintiff consented to the disclosure. 827 S.W.2d at 439. 

However, the scope of a plaintiff’s consent “does not exceed what is reasonable in light of the 

language or circumstances that created it.” Brooks v. AAA Cooper Transp., 781 F. Supp. 2d 472, 

485 (S.D. Tex. 2011) (quoting Smith, 827 S.W.2d at 439). Brooks noted the language in the 

Smith release cited above “is worded broadly enough to reach all kinds of defamatory remarks” 

and “releases every kind of lawsuit imaginable.” Brooks, 781 F. Supp. 2d at 485 (quoting Smith, 

827 S.W.2d at 439-40).

14 Shannon also argues that, despite signing the authorization, she was entitled to rely on 

the Church to confirm that her departure was “amicable.” She bases this contention on the 

confidentiality clause in the Agreement, which required her, if asked about her departure from 

the Church, to respond that she and the Church had “reached an amicable parting.” While the 

Church’s statements that Shannon left “because of a severance agreement,” the Church would 
19

intended to waive her claims by signing the authorization.

We sustain Shannon’s third issue.

V. Breach of Contract Not Disproven as a Matter of Law

In her second issue, Shannon argues the trial court erred in rendering

summary judgment in the Church’s favor on her breach of contract claim. The 

Church asserted in its motion for summary judgment that it did not breach the 

Agreement as a matter of law. 

A. Provisions at Issue Construed in Light of Non-disparagement 

Clause

The Church asserted in its motion that the following provisions quoted from 

the Agreement did not impose any obligations on the Church:

 [Shannon] and [the Church] agree that for purposes of [Shannon’s] 

future employment efforts, [Shannon] may classify the end of this 

employment relationship as a resignation, rather than a termination.

 Confidentiality. This Agreement and its terms shall be maintained in 

strict confidence by [Shannon]. [Shannon] agrees that she will not 

disclose, directly or indirectly, the terms of this Agreement or of any 

communications constituting or concerning the negotiation of this 

Agreement to any third person, apart from [Shannon’s] immediate 

family and any attorney or tax advisor that [Shannon] may consult 

concerning this Agreement. In the event that [Shannon], her 

immediate family, tax advisor, and attorneys are asked about her 

separation of employment, [Shannon] may reply only with the words 

“we have reached an amicable parting,” but will not otherwise 

indicate the nature of the resolution of these matters.

 

not rehire Shannon, and “there were issues, otherwise there would not be an agreement” do not 

provide any details of the reasons for her departure, they do conflict with the idea that Shannon 

parted from the Church on “amicable” terms—which is what Shannon was constrained to tell the 

Seminary under the Agreement—and thus could be construed by the factfinder as disparaging

her under the circumstances. Whether the Church’s statements were disparaging is a fact 

question for the jury, as discussed below.
20

Shannon responded that the first provision was a mutual agreement that Shannon 

resigned and was not terminated and that the confidentiality clause was binding on 

both parties. 

As discussed above, in construing contracts, we must ascertain and give 

effect to the parties’ intentions as expressed in the instrument. See J.M. Davidson, 

Inc., 128 S.W.3d at 229. If the written instrument permits us to ascertain a definite 

legal meaning as to which one of two possible meanings is proper, the contract is 

not ambiguous, and we will interpret the contract as a matter of law. See Lopez v. 

Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). Ambiguity 

does not arise simply because the parties advance conflicting interpretations of the 

contract; rather, for an ambiguity to exist, both interpretations must be reasonable. 

Id. Because we conclude the language of the Agreement can be given a definite 

legal meaning, and it is not reasonably susceptible to more than one meaning, it is 

unambiguous, and we construe the Agreement as a matter of law. See id.

We construe these provisions in light of the non-disparagement clause in the 

Agreement, in which the Church agreed not to disparage Shannon. The Church 

agreed that Shannon could classify her departure from the Church “as a 

resignation, rather than a termination” and required Shannon to tell prospective 

employers, if asked, only that she and the Church had “reached an amicable 

parting” but to refrain from sharing “the nature of the resolution of [the parties’ 

dispute].” Construing these provisions in light of the Agreement as a whole, the 

Agreement limited the Church’s ability to reveal any aspects of Shannon’s 

departure in a way that would disparage her, by for example, implying that she 

misrepresented the nature of her departure from the Church. 

B. Fact Question on Disparagement Exists

The Church further argued in its motion that, as a matter of law, it did not 
21

disparage Shannon. The Church relied on the elements of business disparagement 

and contended that Shannon was required to prove that its statements were 

defamatory and malicious or false. We have already declined to apply this

definition of disparagement. As discussed, we apply the plain meaning of the word 

to determine whether the Church conclusively established it did not disparage 

Shannon.

Shannon presented the following evidence in support of her response to the 

Church’s summary judgment motion. She attested she was not terminated from the 

Church because of her job performance or attitude. She further attested that she 

was fired because she “reported sexual harassment and false imprisonment to [the 

Church] that [she] had suffered [at] the hands of a very active and wealthy 

[Church] volunteer/Elder elect” and because she made a comment on a social 

networking website about drinking a beer “that offended an undisclosed member of 

[the Church].” During her interview for the position at the Seminary, Shannon 

indicated that she had left the Church on amicable terms after she and her

supervisor, who “left around the same time,” “had revived the children’s ministry.” 

Shannon did not discuss the Agreement or any reasons for her departure from the 

Church. Gabbard later told Shannon she was being terminated from the Seminary 

because she “had lied on [her] application to the Seminary as to why she left the 

[Church].”

Shannon also presented Gabbard’s deposition testimony, which reflects the 

following information. Gabbard learned about the Agreement from Winship and 

Steane. He inferred from the existence of the Agreement that Shannon and the 

Church had had a “disagreement” and “likely she [had] left the employment of the 

[C]hurch on less-than-favorable terms.” Gabbard testified: “[T]here was some 

reason that [Shannon] left the employment of [the Church] that would lead to a 
22

severance agreement and would indicate that, just the existence of that, that she left 

on other than favorable terms.” Gabbard further testified that Steane’s comments 

regarding Shannon’s purported inability to raise funds within the Church and the 

Houston Presbyterian community was a “major factor” leading to her termination. 

Shannon attested that she did not participate in fundraising at the Church.

Shannon further presented Gabbard’s notes from his phone conversation 

with Steane. Gabbard noted that Steane contacted the Church elder on the 

Seminary’s Board of Trustees, who in turn contacted a representative of the 

Seminary to prompt a reference check for Shannon. 

The forgoing evidence supports the conclusion that the Seminary’s decision

to terminate Shannon was made as a direct result of Steane’s instigating a reference 

check by the Seminary, as well as Winship’s and Steane’s comments that 

(1) Shannon left because of a severance agreement, from which one could infer 

that “obviously” there had been “issues,” (2) the Church would not rehire Shannon, 

and (3) Shannon could not raise funds from the Church or anywhere in Houston. 

Accordingly, a fact question exists as to whether the Church’s statements to the 

Seminary belittled Shannon or “reduce[d her] in esteem or rank.” In conclusion, 

the Church did not conclusively establish it did not disparage Shannon.

We conclude that the Church did not conclusively establish as a matter of 

law that it did not breach the Agreement. We thus sustain Shannon’s second issue.

VI. No Extreme and Outrageous Conduct

In her sixth issue, Shannon argues the trial court erred in rendering summary 

judgment in the Church’s favor on Shannon’s intentional infliction of emotional 

distress claim. The Church moved for summary judgment on the basis that its 

conduct was not extreme and outrageous. 
23

To prevail on this claim, Shannon would have to prove, among other things, 

that the Church’s conduct was extreme and outrageous. Kroger Tex. Ltd. P’ship v. 

Suberu, 216 S.W.3d 788, 796 (Tex. 2006). A defendant’s conduct satisfies the 

second element only if it is “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.” Id. (quoting Restatement 

(Second) of Torts § 46 cmt. d (1965)).

Whether conduct is extreme and outrageous for the purpose of intentional 

infliction of emotional distress generally is a question of law. Creditwatch, Inc. v. 

Jackson, 157 S.W.3d 814, 817 (Tex. 2005). Such claims are submitted to the jury 

only when reasonable minds may differ. Id. Intentional infliction claims do not 

extend to ordinary employment disputes. Id. Certain post-termination conduct may 

constitute intentional infliction, but “[c]allous, meddlesome, mean-spirited, 

officious, overbearing, and vindictive” conduct is not enough. Id. As set forth 

above, the conduct must “go beyond all possible bounds of decency” and “be 

regarded as atrocious, and utterly intolerable in a civilized community.” Id. The 

supreme court has gone so far as to say that “except in circumstances bordering on 

serious criminal acts,” even claims “stemming from heinous acts . . . rarely have 

merit as intentional infliction claims.” See id. at 818.

In Creditwatch, a former supervisor made lewd advances toward a woman 

after her employment had been terminated. Id. at 816. When she rebuffed his 

advances, the supervisor refused to give her a reference letter. Id. at 817. The 

supervisor also required a current employee—who had invited her financiallystrapped former co-worker to live in her home—to evict the woman if the 

employee wanted to keep her job. Id. The supreme court held that this behavior 

was not extreme and outrageous under the required standard for intentional 
24

infliction of emotional distress. Id. at 817-18.

Here, the Church’s actions purportedly resulted in Shannon’s termination of 

employment with the Seminary based on the Church’s instigating a conversation 

with the Seminary about Shannon’s departure from the Church and providing an 

unfavorable reference. While these actions may be interpreted as “[c]allous, 

meddlesome, mean-spirited, officious, overbearing, and vindictive,” they do not 

rise to the level of extreme and outrageous conduct required to maintain an 

intentional infliction of emotional distress claim. See id. 

The Church conclusively established that it was entitled to summary 

judgment on this claim. We overrule Shannon’s sixth issue and affirm the trial 

court’s judgment in the Church’s favor on Shannon’s intentional infliction claim.

VII. No Waiver of Fraudulent Inducement Claim or Disclaimer of 

Reliance

In her seventh issue, Shannon contends the trial court erred in rendering

summary judgment in favor of the Church on her fraudulent inducement claim 

because she asserts she did not release that claim. In the Agreement, Shannon 

released the Church “from any and all claims . . . which [Shannon] now has or may 

have . . . whether now known or unknown . . . .” Shannon further agreed that the 

release “extend[ed] to all claims of every nature and kind, known or unknown, 

arising from, attributable to, or related to any of the claims released” and agreed to 

waive[] and assume[] the risk of any and all claims for damages which 

exist[ed] as of the date of [the] release, but of which [s]he [did] not 

know or expect to exist, whether through ignorance, oversight, error, 

negligence, or otherwise, and which, if known, would materially 

affect [Shannon’s] decision to enter into [the r]elease. 

The Church argues that Shannon released her fraudulent inducement claim because 

it would have existed at the time she signed the Agreement.
25

Texas law favors and encourages voluntary settlements and orderly dispute 

resolution. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 

1997). However, a release is a contract, and like any other contract, is subject to 

avoidance on the ground of fraud. Id. Courts thus face competing concerns: the 

ability to set aside a contract procured by fraud and the ability of the parties to 

“fully and finally resolve disputes between them.” Id. at 179. Parties may waive 

fraudulent inducement claims by disclaiming reliance, which is essential to a 

fraudulent inducement claim. Id. A release that clearly expresses the parties’ intent 

to waive fraudulent inducement claims, or one that disclaims reliance on 

representations about specific matters in dispute, can preclude a claim of 

fraudulent inducement, depending on the circumstances. Id. at 181. We apply rules 

of contract interpretation to determine whether a release contemplates the clear and 

unequivocal expression of intent necessary to disclaim reliance on specific 

representations underlying a fraudulent inducement claim. See id. at 179.

We decide whether the parties expressed a clear and unequivocal intent to 

disclaim reliance on representations or to waive fraudulent-inducement claims as a 

threshold matter.

15 Tex. Standard Oil & Gas, L.P. v. Frankel Offshore Energy, Inc., 

394 S.W.3d 753, 763 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Ultimately, 

the determination of whether a provision forecloses a fraudulent inducement claim 

is a question of law. Dresser-Rand Co. v. Bolick, No. 14-12-00192-CV, 2013 WL 

3770950, at *7 (Tex. App.—Houston [14th Dist.] July 18, 2013, pet. abated) 

 

15 A disclaimer of reliance will not always preclude a fraudulent-inducement claim.

Schlumberger, 959 S.W.2d at 181. Once the intent to disclaim reliance is established, a court 

should be guided by four factors in determining the enforceability of a disclaimer of reliance: 

(1) the terms of the contract were negotiated, rather than boilerplate, and during negotiations the 

parties specifically discussed the issue which has become the topic of the subsequent dispute; 

(2) the complaining party was represented by counsel; (3) the parties dealt with each other in an 

arm’s length transaction; and (4) the parties were knowledgeable in business matters. DresserRand Co. v. Bolick, No. 14-12-00192-CV, 2013 WL 3770950, at *7 (Tex. App.—Houston [14th 

Dist.] July 18, 2013, pet. abated) (mem. op.).
26

(mem. op.) (citing It. Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 

S.W.3d 323, 333 (Tex. 2011)).

Paraphrasing the above contractual language, Shannon released all claims 

that existed at the time she signed the Agreement. However, reading the 

Agreement as a whole, there is no express waiver of any fraudulent inducement 

claims or any indication that Shannon disclaimed reliance on any of the Church’s 

representations about the matters in dispute in this case. Thus, the Agreement does 

not reflect a clear and unequivocal intent to disclaim reliance on representations or 

to waive fraudulent-inducement claims, and we need not reach the factors to 

determine the enforceability of any disclaimer of reliance. See Tex. Standard, 394 

S.W.3d at 763 (acknowledging expression of “clear and unequivocal” intent to 

disclaim reliance is threshold requirement to be satisfied before consideration of 

other factors); see also It. Cowboy Partners, 341 S.W.3d at 334 (holding standard 

merger clause including language indicating that no representations were made 

other than those contained in the contract did not reflect intention to disclaim

reliance on representations).

We conclude that the Church has not established as a matter of law that 

Shannon released her fraudulent inducement claim by agreeing to release her 

claims existing at the time she signed the Agreement. We sustain Shannon’s 

seventh issue. 

Conclusion

We conclude the trial court erred in dismissing Shannon’s claims for lack of 

subject matter jurisdiction and rendering summary judgment as to Shannon’s 

claims other than intentional infliction of emotional distress. We affirm the trial 

court’s judgment on the intentional infliction claim but reverse the judgment as to 
27

Shannon’s other claims. We remand this case for proceedings consistent 

with our opinion.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, Busby, and Brown.