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Full Opinion
GTE SOUTHWEST, INCORPORATED, Petitioner,
v.
Rhonda BRUCE, Linda Davis, and Joyce Poelstra, Respondents.
Supreme Court of Texas.
*608 John R. Mercy, Texarkana, for Petitioner.
Ned A. Stewart, Jr., Texarkana, for Respondents.
Justice ABBOTT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice BAKER, Justice HANKINSON, Justice O'NEILL, and Justice GONZALES join.
In this case we determine whether three GTE Southwest, Incorporated employees may recover damages for intentional infliction of emotional distress based on the workplace conduct of their supervisor. The trial court rendered judgment for the employees on the jury verdict, and the court of appeals affirmed. 956 S.W.2d 636. We affirm the judgment of the court of appeals.
I
Facts
Three GTE employees, Rhonda Bruce, Linda Davis, and Joyce Poelstra, sued GTE for intentional infliction of emotional distress premised on the constant humiliating and abusive behavior of their supervisor, Morris Shields. Shields is a former U.S. Army supply sergeant who began working for GTE in 1971. Between 1981 and May 1991, Shields worked as a supervisor in GTE's supply department in Jacksonville, Arkansas. During his tenure there, four of Shields's subordinate employees (none of the employees involved in this case) filed formal grievances against Shields with GTE, alleging that Shields constantly harassed them. As a result of these complaints, GTE investigated Shields's conduct in 1988 and 1989, but took no formal disciplinary action against him.
In May 1991, GTE transferred Shields from Jacksonville to Nash, Texas, where he became the supply operations supervisor. The supply department at Nash was small, consisting of two offices and a store room. There were approximately eight employees other than Shields. Bruce, Davis, and Poelstra ("the employees") worked under Shields at the Nash facility. Like the GTE employees in Jacksonville, Bruce, Davis, and Poelstra complained to GTE of Shields's conduct, alleging that Shields constantly harassed and intimidated them. The employees complained about Shields's daily use of profanity, short temper, and his abusive and vulgar dictatorial manner. The employees complained that, among other offensive acts, *609 Shields repeatedly yelled, screamed, cursed, and even "charged" at them. In addition, he intentionally humiliated and embarrassed the employees.
GTE investigated these complaints in April 1992, after which GTE issued Shields a "letter of reprimand." After the reprimand, Shields discontinued some of his egregious conduct, but did not end it completely.
Eventually, Bruce, Davis, and Poelstra sought medical treatment for emotional distress caused by Shields's conduct. In March 1994, the employees filed suit, alleging that GTE intentionally inflicted emotional distress on them through Shields. The employees asserted no causes of action other than intentional infliction of emotional distress. The jury awarded $100,000.00 plus prejudgment interest to Bruce, $100,000.00 plus interest to Davis, and $75,000.00 plus interest to Poelstra.
II
The Texas Workers' Compensation Act
GTE argues that, because it is a subscriber to the Texas Workers' Compensation Act, the employees' claim for intentional infliction of emotional distress is barred by the Act, which provides the exclusive remedy for an employee covered by workers' compensation insurance against an employer for a work-related injury. See TEX. LAB.CODE § 408.001. GTE contends that the Act provides compensation for the employees' injuries, and accordingly, the Act bars the employees' claims unless they can show that GTE committed an intentional tort. See Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983). The employees respond that the Act cannot bar their intentional infliction of emotional distress claim because their injuries are not in fact compensable under the Act.
The court of appeals held that the Act did not bar the employees' claims because GTE was alleged to have committed intentional acts by and through its supervisor, Morris Shields. 956 S.W.2d at 639; see Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996) (Act does not bar recovery for intentional torts directly attributable to the employer). Because it held that the tort was directly attributable to GTE, the court of appeals did not consider whether the employees' injuries were compensable under the Act in the first instance. We conclude that the employees' injuries are not compensable under the Act.
The employees allege that they suffered severe emotional distress, which manifested "in the form of tension, nervousness, anxiety, depression, loss of appetite, inability to sleep, crying spells, and uncontrollable emotional outbursts." Because of these problems, the employees sought medical and psychological treatment. GTE argues that the employees' emotional distress is a "compensable injury," defined by the Act as "an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle," because the Act provides compensation for psychological services prescribed by a doctor. TEX. LAB.CODE §§ 401.011(10), 401.011(19)(C). Although the Act provides compensation for the types of medical care obtained by the employees, the definition of "injury" under the Act must still be satisfied before such compensation is allowed. Thus, we must determine whether the employees' allegations establish an "injury" for which compensation is payable under the Act.
The Act defines "injury" as "damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm," including an occupational disease. Id. § 401.011(26). An "occupational disease" is defined as "a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury." Id. § 401.011(34). A "repetitive trauma injury" means "damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic *610 activities that occur over time and arise out of and in the course and scope of employment." Id. § 401.011(36).
This Court has liberally construed the word "injury" in cases involving emotional distress and traumatic neurosis. See Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 860 (Tex.1972). The phrase "physical structure of the body" refers to the entire body, and emotional distress may constitute an "injury" when it results in malfunctioning of the physical structure of the body. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336-37 & n. 2 (Tex.1979); Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318-19 (1955).
We have previously considered whether an injury caused by repetitious mental traumatic activity rather than physical activity is compensable under the Act. In Maksyn, the employee suffered from "anxiety depression" attributed to long hours and stress. Maksyn, 580 S.W.2d at 334-35. We held that repetitive mental trauma resulting in injury is not a compensable occupational disease under the Act. Id. at 337-39. However, we also recognized that an employee may recover for an accidental injury due to mental trauma (as opposed to an occupational disease) when there is evidence of an undesigned, untoward event traceable to a definite time, place, and cause. Id. at 336-37; see also Brown v. Texas Employers' Ins. Ass'n, 635 S.W.2d 415, 416 (Tex.1982); Olson, 477 S.W.2d at 859-60.
GTE argues that the employees' injuries are traceable to a definite time, place, and causenamely, Morris Shields's behavior toward the employees at GTE from March 1, 1992 to October 1, 1993. GTE relies on Director, State Employees Workers' Compensation Division v. Camarata, 768 S.W.2d 427, 429 (Tex.App.El Paso 1989, no writ), in which the court of appeals held the employee's post-traumatic stress syndrome to be a compensable accidental injury because it was traceable to the particular event of seeing a supervisor's memo criticizing his work performance.
A survey of the cases allowing recovery for accidental injuries due to mental trauma indicates that, in each case, as in Camarata, the injuries were caused by a particular exciting event. See, e.g., Bailey, 279 S.W.2d at 316 (traumatic neurosis suffered by worker on scaffold after almost falling from scaffold and seeing fellow worker fall to his death); Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948) (traumatic neurosis following single injury to foot and elbow); Travelers Ins. Co. v. Garcia, 417 S.W.2d 630 (Tex. Civ.App.El Paso 1967, writ ref'd n.r.e.) (neurosis after experiencing armed robbery); see also Maksyn, 580 S.W.2d at 336-37 ("The ascertainable single event, though caused by mental stimuli, supported [the employee's] contention that he suffered an accidental injury.") (emphasis added); Olson, 477 S.W.2d at 860 ("The cases allowing recovery for heart attacks, strokes, and traumatic neuroses have involved particular events."). In contrast, we have found no case allowing recovery for injuries resulting from repetitive mental trauma. See, e.g., Maksyn, 580 S.W.2d at 338-39; Olson, 477 S.W.2d at 860; Jackson v. Liberty Mut. Ins. Co., 580 S.W.2d 70, 71-72 (Tex.Civ.App.El Paso 1979, writ ref'd n.r.e.) (evidence that truck driver's job was stressful was not an event sufficient to prove a compensable injury from a heart attack).[1]
*611 Here, the employees alleged that the cause of their distress was the continuing harassment and abuse inflicted by Shields from May 1991 to October 1993. GTE does not point to any particular event that caused the mental distress, and instead refers to the scope of events occurring over two-and-a-half years. These allegations establish that the employees' injuries were caused by repetitive mental trauma rather than an ascertainable event. When there is no evidence of a particular event causing the mental injury, there can be no recovery under the Act. Brown, 635 S.W.2d at 416. Accordingly, the employees' injuries are not compensable under the Act. See Olson, 477 S.W.2d at 860; Shannon v. Texas Gen. Indem. Co., 889 S.W.2d 662, 665 (Tex.App.Houston [14th Dist.] 1994, no writ); see also Chavis v. Director, State Worker's Compensation Div., 924 S.W.2d 439, 444 (Tex.App. Beaumont 1996, no writ) ("[A] mental condition caused by a gradual buildup of emotional stress over a period of time is not compensable as an occupational disease without accompanying physical force or exertion.") (quoting Shannon, 889 S.W.2d at 664). Because the injuries are not compensable under the Act, the Act does not bar the employees' intentional infliction of emotional distress claims. Accordingly, we conclude, as the court of appeals did, that the employees' claims are not barred by the Act, although we do so on different grounds.
III
Intentional Infliction of Emotional Distress
An employee may recover damages for intentional infliction of emotional distress in an employment context as long as the employee establishes the elements of the cause of action. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998). In addition, "[a] claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort." Id. at 68. Accordingly, a claim for intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant's conduct. Id.
GTE contests its liability for intentional infliction of emotional distress on several grounds. First, GTE argues that the alleged conduct does not rise to the level necessary to constitute extreme and outrageous conduct. Second, GTE argues that the employees did not prove that GTE, as opposed to Shields, had the requisite intent. And, third, GTE contends that the employees have not shown that they suffered severe emotional distress. We consider these arguments in turn.
A. Extreme and Outrageous Conduct
GTE first argues that Shields's conduct is not extreme and outrageous. To be extreme and outrageous, conduct must be "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." Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993)); RESTATEMENT *612 (SECOND) OF TORTS § 46 cmt. d (1965). Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Natividad, 875 S.W.2d at 699. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. See Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex.App.San Antonio 1997, writ denied); Restatement (Second) of Torts § 46 cmt. d (1965).
In determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship between the parties. See Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 569, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) ("[S]ome States consider the context and the relationship between the parties significant, placing special emphasis on the workplace."); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991) ("The facts of a given claim of outrageous conduct must be analyzed in context...."). "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." RESTATEMENT (SECOND) OF TORTS § 46 cmt. e (1965).
In the employment context, some courts have held that a plaintiff's status as an employee should entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. See, e.g., Alcorn v. Anbro Eng'g, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216, 218 n. 2 (1970); White v. Monsanto Co., 585 So.2d 1205, 1209-10 (La.1991); see also Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.App. 227, 335 S.E.2d 445, 448 (1985) ("[T]he existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist."); Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419, 426-27 (1998). This approach is based partly on the rationale that, as opposed to most casual and temporary relationships, the workplace environment provides a captive victim and the opportunity for prolonged abuse. See Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d 303, 306 (1989).
In contrast, several courts, including Texas courts, have adopted a strict approach to intentional infliction of emotional distress claims arising in the workplace. See, e.g., Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 900-01 (Tex.App. Amarillo 1995, no writ); Amador v. Tan, 855 S.W.2d 131, 135 (Tex.App.El Paso 1993, writ denied); Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App.San Antonio 1992, writ denied) ("Incidents in which a Texas court has determined the conduct to be extreme and outrageous in the employer/employee setting are few."); see also Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329, 330 (1989) ("We have taken a strict view of claims for outrage in employment situations."). These courts rely on the fact that, to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees. See Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 34 (5th Cir.1992); Sterling, 772 S.W.2d at 330. Although many of these acts are necessarily unpleasant for the employee, an employer must have latitude to exercise these rights in a permissible way, even though emotional distress results. See Miller, 911 S.W.2d at 901; Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 809 S.W.2d 514, 522 (Tex.App.San Antonio 1991), aff'd in part and rev'd in part on other grounds, 844 S.W.2d 198 (Tex.1992); RESTATEMENT (SECOND) OF TORTS § 46 cmt. g (1965). We agree with the approach taken by these courts.
Given these considerations, Texas courts have held that a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. *613 Miller, 911 S.W.2d at 900-01; see also Johnson, 965 F.2d at 33. The range of behavior encompassed in "employment disputes" is broad, and includes at a minimum such things as criticism, lack of recognition, and low evaluations, which, although unpleasant and sometimes unfair, are ordinarily expected in the work environment. See, e.g., Johnson, 965 F.2d at 33-34; Ulrich v. Exxon Co., U.S.A., 824 F.Supp. 677, 687 (S.D.Tex.1993). Thus, to establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. See Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir.1992) (requiring employee to show conduct "elevating [the employer's] actions above those involved in an `ordinary employment dispute' "). Such extreme conduct exists only in the most unusual of circumstances.[2]See Porterfield, 948 S.W.2d at 920-21 ("Only in the most unusual of employment cases does the conduct move out of the `realm of an ordinary employment dispute' and into the classification of extreme and outrageous ...."); see also Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5 th Cir.1991).
GTE contends that the evidence establishes nothing more than an ordinary employment dispute. To the contrary, the employees produced evidence that, over a period of more than two years, Shields engaged in a pattern of grossly abusive, threatening, and degrading conduct. Shields began regularly using the harshest vulgarity shortly after his arrival at the Nash facility. In response, Bruce and Davis informed Shields that they were uncomfortable with obscene jokes, vulgar cursing, and sexual innuendo in the office. Despite these objections, Shields continued to use exceedingly vulgar language on a daily basis. Several witnesses testified that Shields used the word "f___" as part of his normal pattern of conversation, and that he regularly heaped abusive profanity on the employees. Linda Davis testified that Shields used this language to get a reaction. Gene Martin, another GTE employee, testified that Shields used the words "f___" and "motherf___er" frequently when speaking with the employees. On one occasion when Bruce asked Shields to curb his language because it was offensive, Shields positioned himself in front of her face, and screamed, "I will do and say any damn thing I want. And I don't give a s___ who likes it." Another typical example is when Gene Martin asked Shields to stop his yelling and vulgarity because it upset the female employees, and Shields replied "I'm tired of walking on f___ing eggshells, trying to make people happy around here." There was further evidence that Shields's harsh and vulgar language was not merely accidental, but seemed intended to abuse the employees.
More importantly, the employees testified that Shields repeatedly physically and verbally threatened and terrorized them. There was evidence that Shields was continuously in a rage, and that Shields would frequently assault each of the employees by physically charging at them. When doing so, Shields would bend his head down, put his arms straight down by his sides, ball his hands into fists, and walk quickly toward or "lunge" at the employees, stopping uncomfortably close to their faces while screaming and yelling. The *614 employees were exceedingly frightened by this behavior, afraid that Shields might hit them. Linda Davis testified that Shields charged the employees with the intent to frighten them. At least once, another employee came between Shields and Poelstra to protect her from Shields's charge. A number of witnesses testified that Shields frequently yelled and screamed at the top of his voice, and pounded his fists when requesting the employees to do things. Bruce testified that Shields would "come up fast" and "get up over her"causing her to lean backand yell and scream in her face for her to get things for him. Shields included vulgar language in his yelling and screaming. Bruce stated that such conduct was not a part of any disciplinary action against her. Further, the incidents usually occurred in the open rather than in private. Bruce testified that, on one occasion, Shields began beating a banana on his desk, and when he jumped up and slammed the banana into the trash, Bruce thought he would hit her. Afterwards, Shields was shaking and said "I'm sick."
Bruce also told of an occasion when Shields entered Bruce's office and went into a rage because Davis had left her purse on a chair and Bruce had placed her umbrella on a filing cabinet in the office. Shields yelled and screamed for Bruce to clean up her office. Shields yelled, "If you don't get things picked up in this office, you will not be working for me." He later said that Bruce and Davis would be sent to the unemployment line and "could be replaced by two Kelly girls" that were twenty years old. On another occasion, Shields came up behind Bruce and said, "You're going to be in the unemployment line." Once he told Bruce that he had been sent to Nash to fire her. Another time, he typed "quit" on his computer and said, "That's what you can do." Davis testified that Shields threatened to "get them" for complaining about his behavior. And both Bruce and Martin testified that Shields had stated that "he was in a position to get even for what [the employees] had done."
Bruce also testified that Shields called her into his office every day and would have her stand in front of him, sometimes for as long as thirty minutes, while Shields simply stared at her. Bruce was not allowed to leave Shields's office until she was dismissed, even though Shields would periodically talk on the phone or read papers. This often occurred several times a day. Bruce testified that it made her nauseated and intimidated her. On one occasion, Shields backed Bruce into a corner, leaned over her, and said, "Rumor has it that you know how to get anything you want out here." During an annual review, Shields said to Bruce, "You're mean and you're deadly, very deadly." Davis also testified that Shields would stand over her desk and stare at her.
Shields required Bruce and Davis, both general clerks at GTE, to purchase vacuum cleaners with company funds and to vacuum their offices daily, despite the fact that the company had a cleaning service that performed janitorial services such as vacuuming. The purpose of this seemed not to clean, but to humiliate. Bruce testified that she was ridiculed by other employees. Shields also yelled and screamed when he discovered a spot on the carpet; he made Bruce get on her hands and knees and clean the spots while he stood over her yelling. Poelstra testified that Shields required her to clean tobacco stains from a wall in the warehouse. Poelstra testified that, after she forgot her paperwork for a driving test, Shields ordered her to wear a post-it note on her shirt that said, "Don't forget your paperwork." Other witnesses corroborated the employees' testimony about Shields's conduct.
In considering whether the evidence establishes more than an ordinary employment dispute, we will also address GTE's argument that because none of Shields's acts standing alone rises to the level of outrageous conduct, the court of appeals erred in holding that, considered cumulatively, *615 the conduct was extreme and outrageous. 956 S.W.2d at 644, 647.
As already noted, the employees demonstrated at trial that Shields engaged in a course of harassing conduct directed at each of them, the totality of which caused severe emotional distress. It is well recognized outside of the employment context that a course of harassing conduct may support liability for intentional infliction of emotional distress. See, e.g., Duty v. General Fin. Co., 154 Tex. 16, 273 S.W.2d 64, 65-66 (1954) (debt collection). In such cases, courts consider the totality of the conduct in determining whether it is extreme and outrageous. See id. (analyzing creditor's entire course of conduct, including repetitive threatening phone calls and letters).
Similarly, in the employment context, courts and commentators have almost unanimously recognized that liability may arise when one in a position of authority engages in repeated or ongoing harassment of an employee, if the cumulative quality and quantity of the harassment is extreme and outrageous. See Wornick, 856 S.W.2d at 736 (recognizing that a number of cases in which courts have found extreme and outrageous conduct "involved repeated or ongoing harassment of an employee"); EDGAR & SALES, TEXAS TORTS AND REMEDIES § 45.09[3], at 45-63 (July 1998) ("[R]epeated or ongoing harassment of the employee is likely to be considered outrageous conduct."); see also, e.g., Howard Univ. v. Best, 484 A.2d 958, 986 (D.C.1984) ("This evidence of a pattern of harassment was sufficient for the jury to find that [defendant] intentionally and recklessly subjected [plaintiff] to outrageous conduct...."); White, 585 So.2d at 1210 ("Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time."); Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053, 1056 (1979) ("Repeated harassment ... may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability....").
When such repeated or ongoing harassment is alleged, the offensive conduct is evaluated as a whole. See, e.g., Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 114-15 (3d Cir.1996) (considering employee's evidence that supervisor repeatedly threatened, cursed and embarrassed employee and engaged in process called "root canal" sufficient to show extreme and outrageous behavior); Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1554-55, 1558 (11 th Cir.1995) (considering the "totality of the circumstances," district court properly entered judgment on evidence that supervisors repeatedly verbally abused and insulted employee, on one occasion tried to hit employee, on another occasion spat on employee, threatened employee, and engaged in concerted effort to provoke and demean employee); Coleman, 381 S.E.2d at 306 (recognizing that although some of the incidents standing alone would not amount to actionable infliction of emotional distress, the repetition, over plaintiff's protests, could be found to have a cumulative effect); Walters v. Rubicon Inc., 706 So.2d 503, 507 (La.Ct.App.1997) (evidence that supervisor continuously cursed at, screamed at, and threatened plaintiff, and required him to engage in activities he believed were illegal was sufficient to show extreme and outrageous conduct); Travis, 504 S.E.2d at 423 (considering totality of abusive conduct over a four-year period); Kanzler v. Renner, 937 P.2d 1337, 1343 (Wyo.1997) (concluding that extreme and outrageous conduct was shown by "repeated incidents over a period of several weeks in which [plaintiff's supervisor] stared at [plaintiff], followed her, and subjected her to sexually-motivated advances and physically intimidating behavior"). Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (emphasizing that whether harassment is severe "should be judged from the perspective of a reasonable person *616 in the plaintiff's position, considering `all the circumstances'"); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982) ("Whether sexual harassment at a workplace is sufficiently severe and persistent... is a question to be determined with regard to the totality of the circumstances."), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987) (quoted in Jones v. Flagship Int'l, 793 F.2d 714, 720 (5th Cir.1986)).
In addition to the court of appeals in this case, at least two other Texas courts of appeals have followed this approach. See Qualicare, Inc. v. Runnels, 863 S.W.2d 220, 223 (Tex.App.Eastland 1993, no writ) (considering as a whole evidence that supervisor made repeated threats and phone calls, surveilled the employees, and sent a black floral arrangement as a death threat); American Med. Int'l, Inc. v. Giurintano, 821 S.W.2d 331, 340-42 (Tex. App.Houston [14th Dist.] 1991, no writ) (considering as a whole evidence that hospital administrators spread rumors, yelled at, cursed, and insulted plaintiff as part of conspiracy to engage plaintiff in confrontations and use his responses to oppose his appointment). GTE cites no cases to the contrary. And amicus curiae Texas Employment Law Council cites only one court adopting a contrary view. See Denton v. Chittenden Bank, 163 Vt. 62, 655 A.2d 703, 706 (1994)