UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-20549
Summary Calendar
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KATHLEEN BUCKLEY,
Plaintiff - Appellant,
versus
SOUTHERN PACIFIC TRANSPORTATION COMPANY, also
known as Rio Grande Industries, also known as
Anschutz Corporation; RICK NELSON; BUCK
CLAYTON,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-94-CV-2689)
September 30, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Kathleen Buckley brought various state law claims against her
former employer, Southern Pacific Transportation Co. (“Southern
Pacific”), and her former supervisors, Rick Nelson and Buck
Clayton, in Texas state court. Defendants claimed fraudulent
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
joinder of nondiverse defendants (Nelson and Clayton) and removed
to federal district court, invoking diversity jurisdiction.
Buckley alleges that the district court erred in denying her motion
to remand and erred in dismissing several of her claims on the
merits.
In order to prove fraudulent joinder of nondiverse defendants,
the defendants must prove that the plaintiff has no possibility of
recovery in state court. See, e.g., Sid Richardson Carbon &
Gasoline Co. v. Interenergy Resources Ltd., 99 F.3d 746, 751 (5th
Cir. 1996). Buckley appeals the district court’s denial of her
motion to remand, arguing that a possibility exists that she could
recover from the defendants. Although the district court found no
possibility of recovery on the claim of intentional infliction of
emotional distress, it also found a factual dispute on the claim of
retaliatory discharge. Buckley alleges that this factual dispute
suggests she may recover, because retaliatory discharge may form
the basis of a claim for intentional infliction of emotional
distress. Several Texas lower court decisions, which were issued
after the district court’s opinion, suggested that retaliation may
support this tort. However, the Texas Supreme Court recently
rejected the claim that retaliation for reporting sexual harassment
is sufficiently “extreme and outrageous” to establish a claim for
intentional infliction of emotional distress. Southwestern Bell
Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998). We
find Buckley has no possibility of recovery against the individual
defendants for intentional infliction of emotional distress.
-2-
Having reviewed the remaining appellant’s arguments and the
record, for the reasons given by the district court, we AFFIRM all
rulings by the district court.
-3-