Full opinion text
MEMORANDUM AND ORDER CRONE, United States Magistrate Judge. Pending before the court are Defendants United Parcel Service, Inc. (“UPS”), Joe Liana (“Liana”), Bob Schultz (“Schultz”), and Clayton Clark’s (“Clark”) Motion for Summary Judgment (# 41) and Defendants’ Rule 12(b)(6) Motion to Dismiss Vera Patton’s Claims for Failure to State a Claim (#40). Defendants seek summary judgment on David J. Patton (“David”) and Vera Patton’s (“Vera”) (collectively the “Pattons”) claims of reverse discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Texas Commission on Human Rights Act (“TCHRA”), Tex.Rev.Civ.Stat.Ann. art. 5221k (now recodified as Tex.Lab.Code § 21.001 et seq.), retaliation, constructive discharge, intentional infliction of emotional distress, defamation, invasion of privacy, wrongful discharge, and breach of the duty of good faith and fair dealing. The defendants also seek dismissal of Vera’s federal and state law claims. Having reviewed the motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the defendants’ motions should be granted. I. Background On September 2, 1975, David, a white male, was hired by UPS. After serving in various capacities and receiving several awards, on August 9,1993, David was demoted from his position of River Oaks Center Manager at the UPS Sweetwater facility in Houston, Texas, to on-car supervisor at the UPS Lakeside facility in Stafford, Texas. While at the River Oaks Center office on August 3, 1993, Dave Norstrom (“Norstrom”), the Inwood Center Manager, and Mike Cummins (“Cummins”), the Inwood Center Supervisor, mentioned to David that there were some new “souvenir” baseballs with “UPS” embossed on them. David told them that if they were able to obtain any of the baseballs he would like to have or see one. Later that day, David was talking on the telephone in the center office area, with his back to the door, when someone came inside and placed a white box on the counter/desk beside where he was sitting. According to David, he did not immediately turn around to see who had entered the office. A few minutes later, David turned around, and about that time, James Turner (“Turner”), the River Oaks Center Supervisor, entered the center office area. David asked Turner if he had brought the white box, to which Turner responded negatively. After noticing that the seal on the box had been broken, David opened the box and found a UPS baseball made in China and a sheet of blister-bubble plastic, with a note that said, “Congratulations, Shipper. We’re glad that you’ve been involved in this test for UPS.” After David and Turner looked at the ball, David told Turner that Norstrom or Cummins must have left it for him. Subsequently, David put the ball back into its original white box and left it sitting on the counter/desk in the center office. Unknown to David, Turner later put the baseball in David’s personal office after David had left work for the day. On August 4, 1993, sometime after lunch, David received a call from Norstrom asking David what he had done with the baseball he had given him. Norstrom advised David that Loss Prevention was searching for missing baseballs. David asked Turner where the white box was, and Turner said that he had placed the box in David’s personal office the night before. According to David, he immediately went into his office and found the box sitting on his desk. David then took the box to Loss Prevention Supervisor, Jerry McGee (“McGee”), and said, “Here, I think this is what you’re looking for.” According to David, McGee responded, “Yes. Yes, we’re looking for those baseballs.” A few minutes later, Sharon Sylvie (“Sylvie”), Loss Prevention Manager, approached David in his office and asked him who had given him the baseball. David responded, “I really can’t say.” The following afternoon, August 5, 1993, Clark, the Division Manager, went to David’s office and asked him who had given him the baseball. David declined to answer. According to Clark, he told David that he needed to know who had been involved in removing the package(s) from their storage location. David again failed to answer Clark’s question. Instead, Clark claims that David stated that he had talked with the individual and that he believed the person had no additional knowledge. Clark ended the meeting. On Friday, August 6, Clark met with David again and asked him for the name of the person involved. David again refused to divulge the name. Clark informed David that he had no intention of disciplining the individual involved. Clark instructed David to tell him the name. Clark contends that David refused, stating that his loyalty to a “partner” prevented him from following the instruction. Clark maintains that he informed David that his loyalty was misplaced and that he could in fact lose his job for refusing to follow instructions. Clark then told David to report to the office of Liana, the Southeast Texas District Manager. David met with Liana, Clark, and Claude Anderson, the District Loss Prevention Manager, in Liana’s office. Liana asked David who had brought the baseball to his office. According to Liana, David responded by saying that he would not sell out a partner. Liana claims that he told David that as a partner in UPS he was expected to cooperate during an investigation and that he had a duty to answer questions specifically pertaining to this incident or any other incident. Liana also told David nothing would happen to the person who gave him the baseball. After David refused to answer his question, Liana told David to go home and think about the situation and report back to him on Monday morning. Liana advised David that Clark had recommended that David be demoted and that unless David answered Liana’s question, he would go along with that recommendation. On Saturday, August 7, Norstrom telephoned David at home and said that he would come forward and explain that he had put the baseball in David’s office. Norstrom attempted to telephone Sylvie at home but was unable to reach her. On Sunday night, Norstrom reached Sylvie by telephone and told her that he had brought the baseball to David. Sylvie called him back that evening and told him to meet with Clark and her on Monday morning. On Monday morning, August 9, 1993, Norstrom met with Sylvie and Clark and admitted placing the baseball in David’s office. No adverse action was taken against Norstrom as a result of this incident. Norstrom then told David what he had told management. Afterwards, David met with Schultz, the Human Resources Manager, and Clark. Schultz and Clark once again asked David who had given him the baseball. David still refused to answer. Liana met with David again in the presence of Anderson, Schultz, and Clark. When Liana asked David if he was going to tell them who had given him the baseball, David said, “I’m sorry, but I can’t do that.” David contends that because they already knew that information, there was no point in telling them. After David’s final refusal to cooperate, Liana told David to take off the rest of the week and that he would be reassigned on Monday, August Í6. On August 16, David met with Schultz and Liana and, due to his refusal to cooperate, was demoted one level to an on-car supervisor. David was transferred to the Lakeside facility in Stafford, Texas, because the center was short-handed and needed supervisors. David’s supervisor at the Lakeside facility was Mike Morrison (“Morrison”). David’s salary of $4,500.00 per month did not change as a result of his demotion and reassignment. On September 9, Morrison told David that there was a problem with his August expense report. David had sought reimbursement for the mileage difference between the Sweetwater and Stafford facilities. The Stafford facility is approximately fifty miles from David’s home in Spring, Texas. Morrison refused to reimburse David and referred his questions to Schultz. On September 16, David telephoned Schultz, who confirmed that UPS does not reimburse employees for differences in mileage when transferred to a new assignment. David protested, claiming that he had been reimbursed in the past when his office had been moved from Sweet-water to Stafford. Schultz informed David that if that were the case, it was a mistake and should not have occurred. Therefore, David’s request for reimbursement of mileage traveling to and from work was denied by UPS. The Pattons contend that this amounted to a $350.00 per month pay cut. By letter dated September 17, 1993, David informed Liana of his resignation effective October 1, 1993. David’s letter stated that his resignation was “[d]ue to both family and financial hardships incurred as a result of ■being transferred across Houston to the Stafford Building following your demotion of me without just cause.... ” On November 1,1993, David filed a charge against UPS with the Equal Employment Opportunity Commission (“EEOC”) claiming that he had been discriminated against in violation of Title VII on the basis of sex. David’s EEOC charge was amended on November 22, 1993, to include allegations of discrimination on the basis of race, color, sex, retaliation and disparate treatment. After the EEOC issued David a right to sue letter, the Pattons initiated this action on June 13, 1994. II. Analysis A. David Patton’s Claims 1. The Standard for Summary Judgment Rule 56(c) provides that “[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552; Anderson, 477 U.S. at 257, 106 S.Ct. at 2515; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The controverted evidence must be viewed in the light most favorable to the non-movant and all reasonable doubts must be resolved against the moving party. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. “In such situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23, 106 S.Ct. at 2552. 2. Title VII of the Civil Rights Act a. Prima Facie Case The United States Supreme Court has expressly recognized that white persons have standing to sue under Title VII for race discrimination in private employment. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). “The Act prohibits all racial discrimination in employment, without exception for any group of particular employees....” Id. at 283, 96 S.Ct. at 2580. In McDonnell Douglas and Burdine, the Supreme Court outlined the framework for establishing a prima facie ease in Title VII eases. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The United States Court of Appeals for the Fifth Circuit, however, has refined the test for claims of reverse race discrimination. To prove an allegation of reverse race discrimination, the plaintiff must show: “(1) that he belongs to a racial minority within the company; (2) that he was terminated from a position for which he was qualified; and (3) that he was replaced with someone not in his protected class.” Switzer v. Texas Commerce Bank, 850 F.Supp. 544, 547 (N.D.Tex.), aff'd without opinion, 42 F.3d 642 (5th Cir.1994) (citing Flanagan v. Aaron E. Henry Community Health Serv. Ctr., 876 F.2d 1231, 1233 (5th Cir.1989)). Recently, in Singh v. Shoney’s, Inc., a case involving a white supervisor’s claim of race discrimination under 42 U.S.C. § 1981, the Fifth Circuit discussed the prima facie elements for a reverse discrimination case. 64 F.3d 217, 219 (5th Cir.1995). In Singh, the court stated, “[i]n order to make out a prima facie ease of discrimination a plaintiff alleging discriminatory discharge must show (1) that she is a member of a protected group; (2) that she was qualified for the job that she formerly held; (3) that she was discharged; and (4) that after her discharge, the position she held was filled by someone not within her protected class.” Id. Hence, the Fifth Circuit may have retreated from its previous holding in Flanagan that the plaintiff must belong “to a racial minority within the [employer],” now requiring as an element only that the plaintiff be “a member of a protected group.” See id; Flanagan, 876 F.2d at 1233. In Singh, however, the facts suggest that Singh may have belonged to a racial minority within the particular restaurant at which she worked. See Singh, 64 F.3d at 218. At all times, the plaintiff has the ultimate burden to prove race discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, -, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Marcantel v. Department of Transp. & Dev., 37 F.3d 197, 200 (5th Cir.1994). Once a prima facie ease is established, the burden then shifts to the employer to articulate a legitimate, non-diseriminatory reason for its actions. Id.; McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. If the employer meets its burden, the prima facie case is dissolved, and the burden shifts back to the plaintiff to establish that the reason proffered by the employer is merely a pretext for discrimination. Id.; Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 542 (5th Cir.1994); Marcantel, 37 F.3d at 200; Moham v. Steego Corp., 3 F.3d 873, 875 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). To demonstrate a “pretext for discrimination,” the plaintiff must show both that the employer’s proffered reason was false and that race discrimination was the real reason. See St. Mary’s Honor Ctr., 509 U.S. at -, 113 S.Ct. at 2752; Rhodes, 39 F.3d at 542. An employee’s own subjective belief of race discrimination, however genuine, cannot serve as the basis for judicial relief. Little v. Republic Ref. Co., 924 F.2d 93, 96 (5th Cir.1991); Sherrod v. Sears, Roebuck & Co., 785 F.2d 1312, 1316 (5th Cir.1986); Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir.1985); Elliott v. Group Medical & Surgical Serv., 714 F.2d 556, 567 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). Although Title VII, and similarly, the TCHRA, protects employees against racial discrimination in the terms and conditions of employment, it does not afford minorities special preference or place upon the employer an affirmative duty to accord them special treatment. See Williams v. General Motors Corp., 656 F.2d 120,129 (5th Cir.1981), cert, denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). Furthermore, the employment discrimination laws are “not intended to be a vehicle for judicial second-guessing of business decisions, nor ... to transform the courts into personnel managers.” Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir.1988); see also Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir.1993); Thombrough v. Columbus & Greenville R. Co., 760 F.2d 633, 647 (5th Cir.1985); Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). In the instant case, it is undisputed that David is white, that he resigned, and that he was qualified for the position. It also undisputed that David does not belong to a racial minority within the management ranks of the employer. Flanagan, 876 F.2d at 1233; Switzer, 850 F.Supp. at 547. In fact, the affidavit of Mike Lazarte (“Lazarte”), the Employment Manager for the Southeast Texas District, indicates that there were 68 managers in the district in 1992, 67 managers in 1993, and 74 managers in 1994. Lazarte states that of those, in 1992, 51 were white; in 1993, 48 were white; and in 1994, 54 were white. Based on Lazarte’s affidavit, it is apparent that white employees hold the majority of management positions in the Southeast Texas District — the district within which David was employed. Thus, under Flanagan, the Pattons have failed to establish the first element of a prima facie case of reverse race discrimination. The Pattons have likewise failed to establish the fourth element of a prima facie ease — that David was replaced by a person outside of his protected class. Rather, Lazarte’s affidavit indicates that David’s center manager duties were transferred to four white UPS employees. The Pattons attempt to sidestep this issue by arguing that Lazarte’s affidavit is unreliable and irrelevant. The Pattons, however, never contest the fact that David was replaced by four white employees. In addition, the defendants contend that because David voluntarily resigned on September 17,1993, the Pattons cannot establish the third element of a prima facie case — that in spite of his qualifications he was discharged. David admitted at deposition that he was not terminated. Instead, the Pattons argue that David was constructively discharged from UPS on October 1, 1993. b. Constructive Discharge A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that a reasonable employee would have felt forced to resign. Boze v. Branstetter, 912 F.2d 801, 804 (5th Cir.1990); Junior v. Texaco, Inc., 688 F.2d 377, 378 (5th Cir.1982); Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir.1975). To determine whether a constructive discharge has occurred, the plaintiffs actions must be analyzed from the standpoint of a “reasonable employee.” Boze, 912 F.2d at 804; Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). The working conditions must have been “so difficult or unpleasant that [a] reasonable person in [the plaintiffs] shoes would have felt compelled to resign.” McKethan v. Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994) (citing Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir.1993)). The plaintiffs actions must be evaluated objectively, without regard to the “employee’s subjective preference for one position over another.” Epps v. NCNB Texas, 7 F.3d 44, 46 (5th Cir.1993) (citing Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755 (5th Cir.1986), remanded in part on other grounds, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). In this case, the Pattons assert in their response that “UPS deliberately transferred David Patton to a position with such intolerable working conditions that he was forced to resign____” The Pattons claim the following allegedly intolerable working conditions: (1) David was not qualified for his new position; (2) David had to spend more time driving a longer distance to work each day; (3) David had to work harder, with longer hours, than in his previous position; and (4) David’s health precluded him from enduring the stress and physical strain of this new position. David claimed at deposition that he was forced to resign because he was demoted to on-car supervisor and transferred to the Stafford facility. David contends that he was not qualified for the new position because he had never trained a package ear driver. In addition, David alleges that he had to drive an hour and a half in heavy traffic to get to work and at least an hour home every night without reimbursement for the mileage, which allegedly cost him an additional $350.00 per month. David further contends that his coworkers treated him differently than they did when he was a manager, claiming that people were “shunning” him. David stated at deposition that he did not have a valid Department of Transportation (“DOT”) certification card to drive and that his blood pressure was “sky high.” The Pattons also assert in ¶ 24 of their First Amended Original Petition that David’s “health was such that he could not physically perform the duties of an on car supervisor and his annual compensation was significantly reduced.” The defendants maintain that, even if true, none of David’s complaints reflects working conditions imposed by UPS that were so offensive that a reasonable person in David’s shoes would have felt compelled to resign. David stated at deposition that he thought the reason he was sent to Stafford as an on-car supervisor was because they were shorthanded. David admitted that at UPS “you go where you’re needed.” As for David’s not being reimbursed for mileage, Morrison testified at deposition that he rejected David’s mileage claim because it was his understanding that there was no compensation for driving from one’s home to one’s place of business or work. Further, David’s base salary was not reduced, even though his level of responsibility was decreased. Although David claims that his stock distribution was affected, he admits that he resigned before he found out whether he would receive fewer stock units for the year. According to Liana, because David had worked most of the year as a manager, he most likely would have received two units of stock, the usual amount for a manager. As for David’s allegations of medical problems, David’s DOT certification card was reinstated in September 1993 by Dr. Strauss. According to the defendants’ unrefuted evidence, none of David’s managers knew that David had allowed his DOT certification to lapse or of his alleged health problems. Thus, from UPS’s standpoint, there was no apparent reason that David would have any problem performing the on-car supervisor job. Finally, the defendants contend that David has never produced any evidence of medical restrictions on his ability to function, either at the time of his transfer or during the course of this lawsuit. As to the Pattons’ claim of intolerable working conditions, the challenged working conditions must be viewed objectively by examining the specific conditions imposed by UPS, not by viewing David’s state of mind. Epps, 7 F.3d at 46 (citing Jett, 798 F.2d at 755)); Shawgo v. Spradlin, 701 F.2d 470, 481 n. 12 (5th Cir.), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983). As the United States Court of Appeals for the Fourth Circuit noted: Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). To prevail, however, the employee need not show that the employer imposed intolerable conditions with the specific intent to force the employee to resign. Boze, 912 F.2d at 804; Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990). An employee can recover under a constructive discharge theory based on a demotion if the working conditions in the new position were so intolerable that a reasonable employee would have resigned. Boze, 912 F.2d at 806. Although demotions may give rise to a constructive discharge, a “slight decrease in pay coupled with some loss of supervisory responsibilities is insufficient to constitute a constructive discharge.” Jurgens, 903 F.2d at 391-92. When the humiliation and embarrassment of a demotion are not significant, there can be no claim of constructive discharge. Id. at 391. In this ease, upon his demotion to on-car supervisor, David’s working conditions were not so difficult or unpleasant that he had no choice but to resign. While his job title and duty station changed, his base salary was unaffected. Moreover, David adduces no evidence that after his demotion he was treated disrespectfully by management or that he was asked to perform duties that were demeaning or not required of other employees. David’s assertion that UPS deliberately transferred him to a position with such intolerable working conditions is merely David’s own eonclusory allegation. Such assertions, unsupported by facts, are insufficient to defeat summary judgment. Williams v. Weber Management Servs., Inc., 839 F.2d 1039, 1041 (5th Cir.1987); see also Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860-61 (5th Cir.1986); Friedel v. City of Madison, 832 F.2d 965, 972 (7th Cir.1987). There must be evidence giving rise to reasonable inferences that support the nonmoving party’s position. St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.1987). Mere allegations are insufficient. Lodge Hall Mu sic, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Because the Pattons have neither described any working conditions that would be considered intolerable by a reasonable person, nor have they demonstrated that David was reasonable in resigning from UPS, the Pattons have failed to show that David was constructively discharged by UPS. c. Disparate Treatment The Pattons also claim that David was a victim of disparate treatment when compared to black employees. To establish a claim of disparate treatment under Title VII, David must show that UPS gave preferential treatment to a minority employee under “nearly identical” circumstances. See Little, 924 F.2d at 97; Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir.1990); Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. [Unit B] 1982); Switzer, 850 F.Supp. at 547. The Pattons claim that black employees, specifically Brenda Fair (“Fail’”) and Reggie Charles (“Charles”), received preferential treatment. The Pattons contend that Fair was treated more favorably than David when she was demoted a second time from manager to safety supervisor. Fair stated at deposition that she had worked for UPS since 1974 and was promoted to center manager in 1989. In late 1989, Fair was demoted by Liana to supervisor because she failed to report two accidents in her center to the safety office. Liana again promoted Fair to center manager in 1992. In 1993, however, Fair was demoted after she improperly submitted a form for another employee. David complains in his response that he was not considered for the safety position that was given to Fair. The defendants point out, however, that this position did not exist until three weeks after David’s demotion. As to Charles, the Pattons complain that he was promoted to a management position even though he was not qualified. Morrison testified at deposition that Charles was promoted in 1993 to “Stafford hub manager, night sort,” although, in Morrison’s opinion, he was not qualified due to his shortcomings in the areas of accountability and attention to detail. The Pattons have failed to show that David’s and Fair’s demotions were “nearly identical.” Rather, the demotions were for two completely different types of misconduct under factually distinct circumstances. There is no evidence that Fair refused to cooperate in an investigation or disobeyed a direct order of her supervisor. In addition, unlike Fair, David chose to resign rather than continuing to pursue other management positions at UPS. In any event, the fact remains that Fair, a black employee, was twice demoted. Further, the Pattons do not demonstrate the relevance of Charles’ promotion. There is no evidence that he and David were similarly situated or that David and Charles were competing for the same position. Moreover, David is not complaining in this lawsuit of a failure to promote him, as he was initially promoted, and then, after his demotion, he did not remain at UPS long enough to be considered for another promotion. Accordingly, the Pattons have failed to meet their burden to prove a prima facie ease of reverse race discrimination, d. UPS’s Legitimate Nondiscriminatory Reason for David’s Demotion Furthermore, without regard to the fact that the Pattons have not established a prima facie case of race discrimination, UPS has articulated a legitimate, nondiscriminatory reason for David’s demotion — his insubordinate behavior. Thus, the prima facie case is dissolved, and the burden shifts back to the plaintiffs to establish that the reason proffered by the employer is merely a pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824; Rhodes, 39 F.3d at 542; Marcantel, 37 F.3d at 200; Moham, 3 F.3d at 875. The Pattons contend in their response to the motion for summary judgment that the “baseball incident” was a pretext for demoting David. The Pattons claim that “[t]his lawsuit actually arose out of UPS’s need or desire to promote black managers in its Southeast Texas District without adding so many new managers that the Southeast Texas District would appear ‘top heavy’, thereby reflecting poorly on defendants Clark, the Division Manager, and Liana, the District Manager, and Schultz, the District Human Resources Manager.” Although not presented in their response to the motion for summary judgment, the Pattons’ First Amended Original Petition mentions five demoted white managers, including David, and five promoted black supervisors. David claimed at deposition that UPS promoted the five black supervisors in an effort to make the numbers look better in a report to the Office of Federal Contract Compliance. When asked what caused him to reach that conclusion, David responded, “Because subsequently five white managers in the same sequence were demoted for ridiculous reasons, just like mine. I was one of the five.” David also asserted that he believed that these individuals were promoted to make the report look better because in the 1980s, he worked in personnel and had helped fill out the report before it became automated. Additionally, David claimed his belief was based on the fact that all the changes were announced at the same time. When asked if he was directly involved in any of the four white individuals’ situations or with the facts surrounding their terminations or demotions, David responded that he was not. The Pattons also argue in their response that the defendants’ reason for the “witch-hunt” will not withstand scrutiny because the defendants continued to “persecute” David after Norstrom came forward and accepted responsibility, ie., the defendants knew that Norstrom had placed the ball in David’s office before they actually reassigned David to a lower-level position. Thus, according to the Pattons, this shows that the baseball incident was merely a pretext for David’s demotion. David further stated at deposition that UPS’s actions were arbitrary because a three-step disciplinary procedure was not utilized when demoting him. Yet, David could recall only one instance in which UPS had used a three-step procedure with a supervisor or manager. Furthermore, there is no evidence that a three-step procedure was the only method of discipline utilized at UPS or that it was the preferred method in cases of insubordination. In his affidavit, Lazarte indicates that the five black employees to whom the Pattons refer in their First Amended Original Petition were promoted in three separate years and none of them replaced David. In addition, Lazarte’s affidavit reflects that in the same month in 1993 when two of the black supervisors were promoted, two white supervisors were also promoted to manager. Moreover, none of the witnesses deposed by the Pattons, ie., Liana, Schultz, Fair, or Morrison, stated that they were ever pressured to promote unqualified employees. The record is completely devoid of any evidence, besides David’s own deposition testimony and conclusory allegations, of any alleged affirmative action plan by UPS, let alone showing that such a plan served to discriminate against David. As noted above, an employee’s own subjective belief of race discrimination, however genuine, cannot serve as the basis for judicial relief. Little, 924 F.2d at 96; Sherrod, 785 F.2d at 1316; Hornsby, 777 F.2d at 246; Elliott, 714 F.2d at 567. In summary, the Pattons’ proffered summary judgment evidence consists exclusively of conclusory and speculative allegations of race discrimination, which are unsupported by specific facts. In the court’s view, the evidence is insufficient to support a prima facie ease of employment discrimination or refute UPS’s legitimate nondiscriminatory reason for David’s demotion. While the matter could have been handled differently, it is not the court’s place to second-guess management’s business decisions or to serve as a self-appointed, corporate personnel manager. Waggoner, 987 F.2d at 1165; Bienkowski 851 F.2d at 1507-08. Furthermore, Title VII does not make an “employer liable for simply erroneous or arbitrary decisions.” Friedel, 832 F.2d at 973. Although summary judgment is often ill-suited for sorting out nebulous questions of motivation, that is not always the situation. Honore v. Douglas, 833 F.2d 565, 569 (5th Cir.1987). As the First Circuit stated in Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990): Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation. See also Waggoner, 987 F.2d at 1164; Elliott, 714 F.2d at 566. Here, because the Pattons’ racial discrimination claims rest solely on conclusory allegations, improbable inferences, and unsupported speculation, summary judgment is likewise appropriate in this case. 3. Retaliation Title VII prohibits employers from retaliating against an employee who opposes what he believes to be unlawful employment practices. 42 U.S.C. § 2000e-3(a); see Wells v. Hutchinson, 499 F.Supp. 174, 196 (E.D.Tex.1980). Retaliation under Title VII is an action taken by an employer against an employee because of the employee’s opposition to perceived discriminatory practices. De Anda v. St. Joseph Hosp., 671 F.2d 850, 852 n. 1 (5th Cir.1982). To establish a prima facie case of retaliation in violation of Title VII, the plaintiff must show: (1) that he participated in statutorily protected activity; (2) that an adverse employment action occurred; and (3) that a causal connection exists between the protected activity and the adverse action. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir.1995); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992); Jones v. Flagship Int’l, 793 F.2d 714, 724 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Hamilton v. Rodgers, 791 F.2d 439, 441-42 (5th Cir.1986). In order to maintain an action for retaliation, an employee need only establish that he had a reasonable belief that discriminatory practices existed. De Anda, 671 F.2d at 853 n. 2. In addition, the employee must show that his opposition to unlawful activity was a motivating or determining factor in his termination, i.e., there must be a causal connection. Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983). The plaintiff must show that he would not have been subjected to the adverse action “but for” the protected activity. See Mayberry, 55 F.3d at 1092; Jack, 743 F.2d at 1131. The defendants contend that no retaliation could have occurred because David did not file his EEOC charge until after he resigned. The defendants also argue that the Pattons abandoned their retaliation claim. At deposition, David was asked if he saw in ¶26 of the First Amended Original Petition that it states that defendants retaliated against the him. David responded as follows: A Well, I think UPS retaliated against me, yes. I think this is — I wasn’t working for UPS when the employment discrimination charges were made. So, I think that’s a mistake. But, yes, they retaliated against me when I was working there. I think that whole — that whole Stafford baseball incident and its aftermath was retaliation. Wouldn’t cooperate, whatever. They wanted to get rid of me, and they did. Q Are you alleging that there is anything else you did, conduct you engaged in, of whatever nature, that you were being retaliated against for? A There is nothing else I did. I wouldn’t tell them the name of one person. That’s the whole purpose. Although in their response to the motion for summary judgment, the Pattons do not refute the defendants’ allegation that David abandoned his claim for retaliation, the protection afforded by Title VII is not limited to individuals who have filed formal complaints of discrimination, but also extends to informal protests. Graham v. Texasgulf Inc., 662 F.Supp. 1451, 1462 (D.Conn.1987), aff'd without opinion, 842 F.2d 1287 (2d Cir.1988); see generally Garcia v. Rush-Presbyterian-St. Luke’s Medical Ctr., 80 F.R.D. 254, 261-62 (N.D.Ill.1978); Wilson v. Willowbrook, Inc., 433 F.Supp. 321, 322 (N.D.Tex.1977), cert. denied, 439 U.S. 845, 99 S.Ct. 141, 58 L.Ed.2d 145 (1978). In ¶20 of their First Amended Original Petition, the Pattons allege that “[w]hen Plaintiff refused to divulge who had placed the baseball on the counter, he was retaliated against by being assigned to the only center that had no center manager and was forced to report to a supervisor acting as a center manager. In addition, he was forced to drive an additional sixty (60) miles daily through heavy traffic.” Assuming, arguendo, that the Pattons have not abandoned their retaliation claim, they still have not demonstrated that David engaged in any protected activity or “opposition” to unlawful employment practices, much less that UPS retaliated against him due to his participation. “[A]n employer cannot be guilty of retaliation for an employee’s opposition to discrimination unless he is aware of that opposition.” Corley v. Jackson Police Dep’t, 639 F.2d 1296, 1300 (5th Cir. [Unit A] 1981). Moreover, an employee’s statement cannot be deemed to be in oppositicm to an unlawful employment practice unless it refers to a specific practice of the employer that is allegedly unlawful. EEOC v. Crown Zellerbach Corp., 720 F.2d 1608, 1013 (9th Cir.1983). Here, there is no evidence that David ever voiced any concerns about perceived discriminatory treatment while employed at UPS, hither generally or specifically. Thus, the Pattons have failed to establish a prima facie case of retaliation. Accordingly, the Pattons’ retaliation claim lacks sufficient foundation to /withstand summary judgment. 4. Liability of Liana, Schultz, and Clark Title VII imposes liability upon employers who violate its provisions. “Employer” is defined as “a person engaged in an industry affecting commerce ... and any agent of such a person.” 42 U.S.C. § 2000e(b). In construing the term “any agent,” courts have found immediate supervisors to be employers under the Act when they have been delegated an employer’s traditional rights, such as hiring and firing. Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990); Hamilton, 791 F.2d at 443. Only when the supervisor is acting in an official capacity, however, can he be deemed an “agent” of the employer. Harvey, 913 F.2d at 228. Therefore, any recovery against the agent must be in his official, not individual, capacity. Id. The purpose of the inclusion of the “agent” provision in § 2000e(b) was to incorporate respondeat superior principles into Title VII, not to impose individual liability on supervisory employees. Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Miller v. Maxwell’s Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). Therefore, finding an individual employee of a private corpora- tion liable in his “official” capacity is tantamount to finding the corporation liable. The Pattons correctly point out in their response that there is nothing in Grant to insulate Liana, Schultz, and Clark from individual liability for the Pattons’ tort claims. The Pattons also contend, however, that Liana, Schultz, and Clark are individually liable for claims brought under the TCHRA and Title VII. The Pattons assert that Liana, Schultz, and Clark are “agents of UPS, and therefore employers under the plain language of the statute.” Furthermore, the Pattons allege that because the summary judgment evidence “indisputably shows that Liana, Clark and Schultz had the power to demote or reassign David Patton, and Liana controlled David Patton’s compensation ..., these individuals are employers under the statute and should be held individually liable for their Title VII violations.” The Pattons further claim that “[a]ny authority purporting to disregard this plain statutory language is simply incorrect.” The Pattons then cite a Tenth Circuit case that analyzes the Fifth Circuit’s alleged departure from the statutory language. See Ball v. Renner, 54 F.3d 664, 667 (10th Cir.1995). This court, however, is bound by Fifth Circuit precedent. Jett Racing & Sales, Inc. v. Transamerica Commercial Fin. Corp., 892 F.Supp. 161, 163 (S.D.Tex. 1995); Cedillo v. Volcar Enters. & Darling Del. Co., 773 F.Supp. 932, 936 (N.D.Tex. 1991); Peregoy v. Amoco Prod. Co., 742 F.Supp. 372, 375 (E.D.Tex.1990), aff'd, 929 F.2d 196 (5th Cir.), cert. denied, 502 U.S. 864, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991). Here, there is ample Fifth Circuit authority on point, which this court must follow absent an intervening United States Supreme Court or en banc Fifth Circuit decision to the contrary. See Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.1995); Coca-Cola Bottling Co. v. Coca-Cola Co., 988 F.2d 386, 411 n. 25 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 289, 126 L.Ed.2d 239 (1993). Accordingly, the Pattons’ reference to other circuits in this regard is unpersuasive. Under established Fifth Circuit precedent, individual employees, even those functioning in a management capacity, such as Liana, Schultz, and Clark, cannot be held personally liable under Title VII. Grant, 21 F.3d at 652-53. Similarly, under Texas precedent, they cannot be held personally liable under the TCHRA, as the Act does not create a cause of action against supervisors or individual employees. See Thompson v. City of Arlington, 838 F.Supp. 1137, 1153 (N.D.Tex.1993); City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.App.—Austin 1992, no writ). Therefore, the Pattons’ claims based on Title VII and the TCHRA against Liana, Schultz, and Clark, individually, must be dismissed. 5. Claims under the TCHRA One purpose of the TCHRA is to “provide for the execution of the policies of Title VII.” Tex.Lab.Code Ann. § 21.001; Thompson, 838 F.Supp. at 1153; Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1345 (S.D.Tex.1987), aff'd without opinion, 863 F.2d 881 (5th Cir.1988); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). Therefore, consistent with the TCHRA’s general policy, it is interpreted in a manner consistent with Title VII. Elstner, 659 F.Supp. at 1345; see Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Gifford, 824 S.W.2d at 739. Accordingly, this court will construe all claims under the TCHRA consistent with similar claims under Title VII. Therefore, to the extent that summary judgment is appropriate with respect to the Pattons’ claims under Title VII, it is also appropriate as to their parallel claims under the TCHRA. 6. State Law Claims a. Intentional Infliction of Emotional Distress To prevail on their claim of intentional infliction of emotional distress, the Pat-tons must establish: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused them emotional distress; and (4) the emotional distress suffered by them was severe. MacArthur v. University of Tex. Health Ctr., 45 F.3d 890, 898 (5th Cir.1995); McKethan, 996 F.2d at 742; Ugalde, 990 F.2d at 243; Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1375 (5th Cir.1992); Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir.1992); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995) (citing Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993)); Womick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). While “extreme and outrageous,” as used in the second element of this standard, is an amorphous phrase that escapes precise definition, there appears to be a consensus that conduct is “outrageous” if it is “atrocious” and surpasses “all possible bounds of decency,” such that it is “utterly intolerable in a civilized community.” See MacArthur, 45 F.3d at 898; Ugalde, 990 F.2d at 243; Johnson, 965 F.2d at 33; Dean, 885 F.2d at 306; Randall’s Food Mkts., Inc., 891 S.W.2d at 644; Wornick, 856 S.W.2d at 734. In Dean, the Fifth Circuit (citing Restatement (Second) of Torts § 46, comment d (1965)) stated: Liability [for outrageous conduct] has been found only where the conduct has been 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.... Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, “Outrageous.” 885 F.2d at 306. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Ugalde, 990 F.2d at 243; Johnson, 965 F.2d at 33; Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991). There is no occasion for the law to intervene in every ease where someone’s feelings are hurt. Id. Specifically, in the employment context, the Fifth Circuit, applying Texas law, has repeatedly stated that a claim for intentional infliction of emotional distress will not lie for “mere employment disputes.” MacArthur, 45 F.3d at 898; Johnson, 965 F.2d at 33. The courts recognize that in order to manage its business properly, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees. Id. at 34; Wilson, 939 F.2d at 1143. Even actions that may be illegal in an employment setting may not be the sort of behavior that constitutes “extreme and outrageous” conduct for purposes of an intentional infliction of emotional distress claim. Ugalde, 990 F.2d at 243; see Sebesta, v. Kent Elecs. Corp., 886 S.W.2d 459, 462-63 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In this ease, by incorporating allegations previously asserted in the fact section of their petition, the Pattons assert in ¶ 27 that the “Defendants intentionally inflicted emotional distress upon Plaintiff Patton.” The previous paragraphs describe the “baseball incident.” During this time period, several UPS representatives asked David to explain how he came into possession of the baseball. David alleged at deposition that he was put through a “kangaroo court” and “basically just put me to run the gauntlet” when he refused to explain who placed the baseball in his office. David also complained that when he returned to work on Monday morning, August 9, 1993, “they made me sit in a conference room for about two hours” before being able to meet with his supervisors. He described the objectionable conduct as including “hollering,” insults, “smart-alecky” allusions to “not being man enough” or somehow being “dirty,” as well as a “derogatory, sarcastic attitude” displayed by his superiors. In their motion for summary judgment, the defendants address the third element of a claim for intentional infliction of emotional distress, asserting that their conduct during the “baseball incident” was not “extreme and outrageous” under Texas law. In response, the Pattons argue: Since the defendants (sic) summary judgment evidence is largely inadmissible, and since the remaining evidence indicates beyond a doubt that the defendants hounded, persecuted, and harassed David Patton for (i) information and (ii) a 99-cent baseball, even after the defendants already had both of them, it is difficult to see how a reasonable jury could describe the defendants’ conduct as anything other than “extreme and outrageous.” At the very least, this is a question best left to a jury. Clearly, the conduct alleged by the Pattons is far less egregious than other actions found not to constitute intentional infliction of emotional distress as a matter of law in a number of eases. See, e.g., Ramirez, 970 F.2d at 1376-77; Johnson, 965 F.2d at 34; Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992); Clayton v. Nabisco Brands, Inc., 804 F.Supp. 882, 888 (S.D.Tex.1992); Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App.—San Antonio 1992, writ denied). Only in the most unusual of situations does conduct move out of the “realm of an ordinary employment dispute,” into the classification of “extreme and outrageous,” as required for the tort of intentional infliction of emotional distress. Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir.1994) (quoting Dean, 885 F.2d at 307). Here, the Pattons do not allege that David was accused of criminal conduct, physically assaulted, restrained, or even subjected to profane language in the course of the “baseball incident.” The Fifth Circuit has held that, under Texas law, informing the police that someone is engaged in an activity such as being intoxicated or using drugs “is not sufficiently outrageous conduct to warrant the recovery of damages for the intentional infliction of emotional distress even if those statements are false:” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.1994). Hence, in this case, the challenged behavior does not even approach the level of “extreme and outrageous” conduct required to support a recovery for intentional infliction of emotional distress under Texas law. Furthermore, the Pattons have made no showing that any emotional distress David suffered was severe. A claim of intentional infliction of emotional distress requires that there be “sufficient proof of severe emotional distress, wholly apart from any outrageous conduct on the defendant’s part.” Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 944 (Tex.App.—Beaumont 1985, writ ref'd n.r.e.); see also Badgett v. Northwestern Resources Co., 818 F.Supp. 998, 1003 (W.D.Tex.1993). The severity of distress is an element of the cause of action, not merely a matter of damages. Benavides v. Moore, 848 S.W.2d 190, 195 (Tex.App.—Corpus Christi 1992, writ denied); K.B. v. N.B., 811 S.W.2d 634, 640 (Tex.App.—San Antonio 1991, writ denied), cert. denied, 504 U.S. 918, 112 S.Ct. 1968, 118 L.Ed.2d 564 (1992). “Emotional distress” means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, and nausea. Behringer v. Behringer, 884 S.W.2d 839, 844 (Tex.App.—Fort Worth 1994, writ denied); see also Washington v. Knight, 887 S.W.2d 211, 216 (Tex.App.—Texarkana 1994, writ denied); Badgett, 818 F.Supp. at 1003; Tidelands Auto. Club, 699 S.W.2d at 945. In order to recover damages, however, the plaintiff must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Regan v. Lee, 879 S.W.2d 133, 136 (Tex. App.—Houston [14th Dist.] 1994, no writ); Haryanto v. Saeed, 860 S.W.2d 913, 923 (Tex. App.—Houston [14th Dist] 1993, writ denied). “The law intervenes only where the distress is so severe that no reasonable person should be expected to endure it.” Behringer, 884 S.W.2d at 844 (citing Restatement (Second) of Torts § 46, comment j). The Pattons assert in ¶ 20 that “[d]ue to his employer’s intentional harsh, oppressive, harassing and malicious conduct, Plaintiff was caused to suffer emotional distress causing him to have headaches, insomnia and nausea. Plaintiff became physically exhausted and lost much of his motivation.” David does not claim to have experienced any psychiatric problems, like those encountered by the plaintiff in Johnson, or even debilitating headaches, such as those suffered by the plaintiff in Clayton, stemming from the defendant’s actions. See Johnson, 965 F.2d at 33; Clayton, 804 F.Supp at 885. David certainly does not claim to be suffering from anything approaching the possibly suicidal, reactive depression experienced by the plaintiff in Wilson. See Wilson, 939 F.2d at 1141; see also Motsenbocker v. Potts, 863 S.W.2d 126, 135 (Tex.App.—Dallas 1993, no writ); American Medical Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 343 (Tex.App.—Houston [14th Dist.] 1991, no writ). David also has not alleged that he suffers from post-traumatic stress syndrome as diagnosed in Haryanto. See Haryanto, 860 S.W.2d at 922. Hence, David’s claimed emotional distress cannot be said to be “so severe that no reasonable [person] could be expected to endure it.” K.B., 811 S.W.2d at 640; Benavides, 848 S.W.2d at 195. Therefore, because the Pattons have failed to adduce sufficient evidence to support two of the required elements of an intentional infliction of emotional distress claim under Texas law — extreme and outrageous conduct and severe emotional distress — summary judgment on this claim is proper. b. Defamation The Pattons also assert that the defendants slandered and defamed David. Slander is a defamatory statement published orally to a third person without legal excuse. Halbert, 33 F.3d at 530; Randall’s Food Mkts., Inc., 891 S.W.2d at 646. Libel is a written defamatory statement which tends to injure the plaintiffs reputation, thus exposing him to “public hatred, contempt, ridicule, or financial injury, or impeach his honesty, integrity, virtue or reputation.” Halbert, 33 F.3d at 530 (quoting Sellards v. Express-News Corp., 702 S.W.2d 677, 679 (Tex.App.—San Antonio 1985, writ ref'd)); Hill v. Herald-Post Publishing Co., 877 S.W.2d 774, 778 (Tex.App.—El Paso 1994), aff'd in part and rev’d in part on other grounds, 891 S.W.2d 638 (Tex.1994). “A statement may be false, abusive, and unpleasant without being defamatory.” Free v. American Home Assurance Co., 902 S.W.2d 51, 54 (Tex.App.-Houston [1st Dist.] 1995, n.w.h.). In addition, a plaintiffs opinion of the statements has no bearing on whether they were defamatory. Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs., 925 F.2d 866, 878 (5th Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991). It is a question of law for the court to determine whether words are reasonably capable of a defamatory meaning. Id. In order to recover for defamation, the plaintiff must show that the publisher knew or should have known the defamatory statement was false. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977); Houston Chronicle Publishing Co. v. Stewart, 668 S.W.2d 727, 729 (Tex.App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.). In suits brought by private individuals, truth is an affirmative defense. Randall’s Food Mkts., Inc., 891 S.W.2d at 646; see also Farias, 925 F.2d at 878. A showing of substantial truth will defeat the plaintiffs cause of action. See, e.g., McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990). In addition, a defamatory statement may be protected by a qualified privilege. “A qualified privilege protects statements made in good faith on a subject matter in which the author has an interest or with reference to which he has a duty to perform to another person having a corresponding interest or duty.” Halbert, 33 F.3d at 530; see also Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995); Danawala v. Houston Lighting & Power Co., 14 F.3d 251, 255 (5th Cir.1993); Free, 902 S.W.2d at 55; Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App.—Tyler 1980, no writ). This privilege is “based on a public policy that recognizes the need for the free communication of information to protect business and personal interests. To encourage open communication, it is necessary to afford protection from liability for misinformation given in an appropriate effort to protect or advance the interests involved.” Danawala, 14 F.3d at 254 (quoting Gaines v. CUNA Mutual Ins. Soc’y, 681 F.2d 982, 986 (5th Cir.1982)). Such statements, however, must be made in good faith and without malice; otherwise, the privilege is lost. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex.1987); Schauer v. Memorial Care Sys., 856 S.W.2d 437, 449 (Tex.App. —Houston [1st Dist.] 1993, no writ); Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex.Civ.App.— Corpus Christi 1977, no writ). “In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth.” Randall’s Food Mkts., Inc., 891 S.W.2d at 646; see also Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989); Schauer, 856 S.W.2d at 449. “This is a higher standard than common law malice; only clear and convincing proof will support recovery.” Duffy, 44 F.3d at 313. The Pattons claim in ¶ 17 of their First Amended Original Petition that “[s]uch disparate treatment and outrageous conduct [by the defendants] infringed on his [David’s] right of free speech and resulted in slander about him and the wrongful defamation of his character.” More specifically, the Pattons allege that “[h]is friends at United Parcel Service told him they had heard that Loss Prevention (security department) had found a baseball in his desk.” Although the Pat-tons contend this was not accurate, “once the rumor was started, he was treated like an outcast.” In addition, David testified at his deposition that “[everybody told me the same thing that I talked to, said, ‘Oh, I heard you got a baseball found in your desk, that you stole a baseball.’” David surmised in his deposition that this version of events was circulating due to Mike Kelly’s (“Kelly”) writeup of the incident. In addition, David declared that he was defamed when Clark told him that he had “sold out” his fellow employees and that “they were just talking about it up in the office.” David also claimed that “[b]y creating the entire situation as they have, it has affected my ability to go on and seek employment elsewhere. People want to know why an 18-year employee would leave UPS.” Moreover, although not mentioned in their response, the Pattons attach the affidavit of David Tarnosky (“Tamosky”), a former employee of UPS. Tarnosky states that he had a conversation with his boss, Rick Car