Herrera v. Lufkin Industries, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
January 4, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

LEW IS H ER RER A,

Plaintiff - Appellant,
v.
No. 04-8089
LUFKIN IN DUSTRIES, IN C.,

Defendant - Appellee.

Appeal from the United States District Court
for the District of W yoming
(D .C. No. 03-CV-1012-D)

Jeffrey C. Gosman, Gosman Law Office, Casper, W yoming, for
Plaintiff-A ppellant Lewis Herrera.

Douglas E. Hamel, Vinson & Elkins L.L.P. (Amy S. Farber, Vinson & Elkins
L.L.P., Houston Texas, Frank D. Neville and P. Craig Silva, W illiams, Porter,
Day and Neville, Casper, W yoming, with him on the briefs), Houston, Texas, for
Defendant-Appellee Lufkin Industries, Inc.

Before TA CH A, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL, *
District Judge.

EBEL, Circuit Judge.

*
Honorable Paul G. Cassell, United States District Judge for the District of
Utah, sitting by designation.
 Plaintiff-Appellant Lewis Herrera appeals the district court’s decision

granting his employer, Defendant-Appellee Lufkin Industries, Inc. (“Lufkin”)

summary judgment on Herrera’s Title VII claim alleging a racially hostile work

environment. Because we conclude that Herrera has presented evidence in

support of this claim sufficient to be entitled to have a jury resolve it, we

REVERSE the district court’s summary judgment decision and REM AND this

Title VII claim to the district court for further proceedings.

The district court also granted Lufkin summary judgment on his state-law

claim alleging Lufkin breached its employment contract with Herrera; granted

Lufkin judgment as a matter of law on Herrera’s state-law claim for the

intentional infliction of emotional distress; and, during discovery, required

Herrera to undergo a psychological examination. W e A FFIRM the district court’s

decision on these other matters.

I. B ACKGR OU N D

Lufkin is a publicly held company engaged in manufacturing and selling

oilfield equipment. Lufkin’s headquarters are located in Texas, but the company

also maintains a number of service centers throughout the country. In addition to

selling its oilfield equipment from these service centers, Lufkin also offers a

variety of related machine shop and oilfield services. Lufkin has a service center

in Casper, Wyoming, where Lufkin em ploys between six and ten people. Herrera

began working at Lufkin’s Casper service center in 1990 as a sales representative

2
and later became the center’s field supervisor. For most of this time, Herrera’s

immediate supervisor was Bruce Cunningham, the C asper service center’s

manager. Cunningham, in turn, reported to Lufkin’s general manager of service

operations, Buddy M oore, who was stationed in Lufkin’s Texas offices.

Herrera alleged that M oore created a racially hostile work environment for

Herrera by frequently referring to him as “the M exican” or “that fucking

M exican” and by making other derogatory remarks toward Herrera because he

was Hispanic. Herrera further alleged that this harassment intensified after

M oore sent management trainee Jason Dickerson to the Casper service center.

Cunningham retired as the Casper service center’s manager in M ay 2001.

According to H errera, M oore had promised to promote him to the manager’s

position vacated by Cunningham. But in October 2001, M oore instead transferred

the manager of another Lufkin service center, Steve Thompson, to be the new

manager of the Casper service center. At that same time, M oore removed

equipment from the Casper center that H errera used to provide oilfield services.

Believing, as Dickerson had told him, that his days with Lufkin were numbered,

Herrera quit on October 10, 2001.

Herrera then filed a complaint with the EEOC, alleging Lufkin had

discriminated against him because he is Hispanic. After receiving a right-to-sue

letter, Herrera sued Lufkin, asserting nine claims. Only three of those claims are

3
relevant to this appeal: 1) Lufkin was liable under Title VII 1 for the racially

hostile work environment created by its supervisors, M oore and Dickerson;

2) Lufkin breached its employment contract with Herrera when it constructively

discharged him without just cause; and 3) Lufkin was liable for M oore’s and

Dickerson’s intentional infliction of emotional distress. 2 The district court

granted Lufkin summary judgment on the hostile-work-environment and

breach-of-contract claims. The district court then tried Herrera’s remaining

claims to a jury. At the conclusion of Herrera’s evidence, however, the district

court granted Lufkin’s motion for judgment as a matter of law, see

Fed. R. Civ. P. 50, on Herrera’s state-law claim alleging the intentional infliction

of emotional distress. Herrera now appeals these three rulings. In addition,

Herrera challenges a discovery ruling requiring Herrera to undergo a

psychological examination pursuant to Fed. R. Civ. P. 35. Having jurisdiction to

consider this appeal under 28 U.S.C. § 1291, we A FFIRM the district court’s

1
42 U.S.C. §§ 2000e to 2000e-17.
2
In addition to the three claims at issue in this appeal, Herrera also asserted
claims alleging that Lufkin violated Title VII and 42 U.S.C. § 1981 when it failed
to promote, retaliated against, and constructively discharged Herrera because he is
Hispanic; and that Lufkin was negligent under W yoming state law in its hiring
and/or supervision of its supervisors, M oore and Dickerson. Before trial, the
district court granted Lufkin summary judgment on the constructive discharge
claim, as well as Herrera’s state-law claim alleging negligent hiring/supervision.
The other claims proceeded to trial, where the jury returned a verdict in Lufkin’s
favor on the Title VII disparate treatment and retaliation claims. Herrera does not
challenge any of these decisions on appeal.

4
decisions addressing discovery and the state-law claims, but we REVERSE the

district court’s decision granting Lufkin summary judgment on the Title VII

hostile-work-environment claim, and REM AND that claim to the district court for

further proceedings consistent with this court’s decision.

II. ISSUES

A. W hether the district court erred in granting Lufkin summary
judgment on H errera’s claim that his w ork environment w as
racially hostile.

1. Standard of review

This court reviews the district court’s summary judgment decision de novo,

view ing the evidence in the light most favorable to the non-moving party; in this

case, in Herrera’s favor. See Pepsi-Cola Bottling Co. of Pittsburgh, Inc. v.

Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c).

2. Analysis

“Title VII forbids employment discrimination on the basis of race or

national origin.” Chavez v. New M exico, 397 F.3d 826, 831 (10th Cir. 2005)

(citing 42 U.S.C. § 2000e-2(a)(1)). This includes an employee’s claims of a

hostile work environment based on race or national origin discrimination. See id.

5
at 831-32. To survive summary judgment on a claim alleging a racially hostile

work environment, Herrera “must show that a rational jury could find that the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment,” and that the victim

“was targeted for harassment because of [his] . . . race[] or national origin.”

Sandoval v. City of Boulder, 388 F.3d 1312, 1326-27 (10th Cir. 2004) (quotation

omitted); see also Chavez, 397 F.3d at 832.

In this case, Herrera has asserted sufficient evidence from which a jury

could find that his work environment was racially hostile. In particular, he has

submitted sufficient evidence indicating that his w orkplace was pervasively

discriminatory.

A plaintiff does not make a showing of a pervasively hostile work

environment “by demonstrating a few isolated incidents of racial enmity or

sporadic racial slurs. Instead, there must be a steady barrage of opprobrious

racial comments.” Chavez, 397 F.3d at 832 (quotations, citation omitted).

Nevertheless, “the severity and pervasiveness evaluation is particularly unsuited

for summary judgment because it is quintessentially a question of fact.” 3

3
“There is no ‘mathematically precise test’ for determining whether the
conduct is sufficiently . . . pervasive.” Turnbull v. Topeka State Hosp., 255 F.3d
1238, 1243 (10th Cir. 2001) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22
(1993)). “[W]hile courts have tended to count events over time to determine
(continued...)

6
M cCowan v. All-Star M aintenance, Inc., 273 F.3d 917, 923 (10th Cir. 2001)

(quotations omitted). In making this determination, we consider the w ork

atmosphere “both objectively and subjectively, . . . look[ing] at all the

circumstances from the perspective of a reasonable person in the plaintiff’s

position.” Id. (quotations, citation omitted).

Herrera presented evidence of several discrete incidents of racial

harassment occurring during the four years that Buddy M oore oversaw Lufkin’s

Casper service center while Herrera worked there. Herrera testified that when he

first met M oore, in 1997, M oore refused to shake Herrera’s hand. And in 1999,

M oore sent Cunningham some candy with a note attached indicating it was

“M exican peanut brittle.” M oore directed that Cunningham give this candy to

Herrera. Cunningham did so, including M oore’s note. Herrera was offended.

Herrera sought advice from an attorney about these incidents and complained to

Lufkin’s human resources attorney, to no avail.

Also in 1999, M oore told Cunningham to have Herrera talk to a certain

customer because that customer was M exican. Cunningham relayed this message

to Herrera. On another occasion in 1999, M oore himself told Herrera to go see

another customer because that customer “was from San Antonio . . . so he likes

3
(...continued)
pervasiveness, the word ‘pervasive’ is not a counting measure. The trier of fact
utilizes a broader contextual analysis.” Nieto v. Kapoor, 268 F.3d 1208, 1219 n.8
(10th Cir. 2001) (quotation omitted).

7
M exicans.” In addition, M oore once said directly to H errera, “Spanish lover,

come here.”

On yet another occasion, M oore told Cunningham to tell H errera not to

“M exicanize” Herrera’s new company truck. Carolyn Coleman, the Casper

service center’s secretary, translated “M exicanize” to mean “lots of chrome, you

know, dice hanging off the mirror.” M oore also wanted Herrera to remove a

cactus from atop the truck’s antenna. M oore gave this directive several times in

late 2000 and again in early 2001. Cunningham relayed these comments to

Herrera.

In addition to these discrete incidents, however, Herrera also asserted

evidence of other ongoing harassment occurring during this entire four-year time

period. M oore would refer to Herrera as “the M exican” or “the fucking M exican”

whenever M oore would speak to Herrera’s supervisor, Cunningham, and

sometimes when M oore spoke to the Casper service center’s secretary, Carolyn

Coleman, and the warehouse manager, Bill Bryant. This did not happen just once

or twice. Rather, there is evidence that M oore made such comments every two to

three days. 4 Although Cunningham did not tell Herrera about these comments

every time M oore made such references to Herrera, both Cunningham and

4
Cunningham testified that “about every second or third day M r. M oore
would call and he would make reference to that fucking M exican.” There were,
however, several times during this four-year span of time when Cunningham
would be out of the office for extended periods of time due to health problems.

8
Coleman did occasionally tell Herrera about them . 5 Further, in light of M oore’s

racially charged comments, Cunningham specifically warned Herrera to be w ary

of M oore because he was a bigot. 6

Additionally, it was M oore who transferred Jason Dickerson to the Casper

service center in September 2000. Herrera believed M oore had sent Dickerson to

get rid of him. Herrera’s suspicion was borne out when he asked Dickerson, in

the midst of a heated argument, why Dickerson had been trying to get rid of

5
In granting Lufkin summary judgment on this hostile-work-environment
claim, the district court indicated that “[t]he insults that were identified were
never, according to the evidence before the Court, divulged to the plaintiff. In
fact, his friends, knowing of these insults, largely concealed them from him. It
cannot be a hostile work environment if he doesn’t know about them.” But the
evidence in the record indicates to the contrary that Cunningham, Coleman and
Bryant did tell Herrera about M oore’s racist remarks.

The dissent speculates that, instead of stating that “[t]he insults that were
identified were never . . . divulged to the plaintiff,” the district court meant to say
that the insults were never “directed” toward Herrera. Dissent at 5 n. 11.
Although we cannot speculate as to what the district court really meant to say,
apart from the language the court in fact used, the word the district court actually
used, “divulge,” makes more sense in light of the sentences immediately
following that statement–“In fact, his friends, knowing of these insults, largely
concealed them from him. It cannot be a hostile work environment if he doesn’t
know about them.”
6
It cannot be, as the dissent suggests, see Dissent at 4-5, that the fact that
the harasser makes racially derogatory references about the victim to others
shields the harasser from any Title VII liability. This is not a case w here Herrera
was completely unaware of M oore’s racially derogatory references about H errera.
Rather, view ing the evidence in the light most favorable to Herrera, he clearly
was aware of these references and they were upsetting to him. And these racially
derogatory references served to buttress the racially charged treatment M oore
specifically directed at Herrera.

9
Herrera since Dickerson arrived at the Casper service center and Dickerson

responded “W hy do you think I was sent here?” 7

7
Although the dissent does not specifically address the evidence, view ed in
the light most favorable to Herrera, of D ickerson’s harassment of Herrera
undertaken at M oore’s behest, that evidence is sufficient to link Dickerson’s
general harassment of Herrera to M oore’s demonstrated racial animus. And in
any event, “[f]acially neutral abusive conduct can support a finding of [racial]
animus sufficient to sustain a hostile work environment claim when that conduct
is viewed in the context of other, overtly [racially]-discriminatory conduct.”
Chavez, 397 F.3d at 833 (quotation omitted) (addressing sexual harassment
claim).

This is because what is important in a hostile environm ent claim is the
environment, and [racially]-neutral harassment makes up an important
part of the relevant work environment. Conduct that appears
[racially]-neutral in isolation may in fact be [race]-based, but may
appear so only w hen viewed in the context of other [race]-based
behavior. Thus, when a plaintiff introduces evidence of both
[race]-based and [race]-neutral harassment, and when a jury, viewing
the evidence in context, reasonably could view all of the allegedly
harassing conduct . . . as the product of [racial] hostility, then it is for
the fact finder to decide whether such an inference should be drawn.

Id. (quotations, citation omitted); see also M cCowan, 273 F.3d at 925-26; O’Shea
v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097, 1102 (10th Cir. 1999).
Further,

the totality of the circumstances analysis in cases like the one before us
obviates what would otherwise be the court’s call in deciding how many
racist comments constitute harassment or whether general profanity and
vulgarity mixed with specific racial, ethnic, or sexual epithets equate to
the sum of pervasiveness required . . . . Rather, by framing the
evidence on summary judgment within the context of this particular
workplace, we eliminate the suggestion that a certain number of
comments is or is not actionable . . . and leave the resolution to the trier
of fact.

M cCowan, 273 F.3d at 926.

10
 There was also evidence that Dickerson treated Herrera and his son, the

Casper service center’s only Hispanic employees, worse than he treated other

employees. 8 Dickerson spoke harshly and condescendingly to them. He enforced

company policies more strictly against Herrera and his son than against any other

Casper service center employee. 9 He constantly hounded Herrera to complete his

paperw ork w hen there were other employees further behind with their paperw ork

than Herrera. In addition, although there is no evidence that Dickerson

specifically directed any racial epithets toward Herrera, there was evidence

8
Cougar Boyce testified that he “never saw [Dickerson] talk to a Caucasian
like he did with M r. Herrera,” and Bill Bryant testified that Dickerson “w ould ask
stuff of [Herrera] that none of the rest of us had to do.”
9
For example, pursuant to new Lufkin guidelines, Dickerson directed
Herrera not to let his son, Lewis Herrera, Jr., drive Herrera’s Lufkin truck,
because Herrera was to use that truck only for work-related purposes. But
Herrera, Jr., was a Lufkin employee who would use Herrera’s company truck to
take the Lufkin field crew to and from job sites, a work-related activity. And
Lufkin’s policy did permit another Lufkin employee to drive a company vehicle
for work purposes. In fact, M oore acknowledged that Herrera, Jr.’s using the
Lufkin truck for this purpose would be appropriate under the company’s policy.
Yet Dickerson refused to permit it. M oreover, Dickerson himself apparently used
his company truck for personal reasons, because Coleman reported seeing beer
cans and shotgun shells in it. And Jeff Clark, the shop foreman, admitted that he
had used Lufkin’s bucket truck for personal business as well.

Dickerson also permitted Herrera and his field crew to recover expenses for
only two, instead of three, meals for each day they were working out of town, and
Dickerson required H errera and his crew to submit a receipt for every expense
incurred. Yet Lufkin policy only required receipts for any expenses over fifteen
dollars. And Lufkin reimbursed other Casper service center employees for three
meals a day while they were travelling for business purposes. Further, there was
evidence Dickerson audited Herrera’s receipts, and those of his field crew, but did
not audit those of any other service center employees.

11
Dickerson used such terms when referring to Hispanics in general conversation. 10

The evidence, submitted by Herrera and Lufkin, addressing whether

M oore’s and D ickerson’s racial harassment of Herrera was pervasive presents a

close question. And it may be that a jury, after considering all of the evidence

and cross-examination at trial, would find that M oore’s and Dickerson’s treatment

of H errera was not sufficiently pervasive to create a racially hostile work

environment. But, viewing this evidence in the light most favorable to Herrera,

he has established a genuinely disputed issue of fact as to the pervasiveness of the

racially-charged hostility in this w ork environment sufficient to be entitled to

have a jury decide the issue. 11

10
Herrera’s son testified that Dickerson used the terms “wetback” and
“spics” when discussing M exicans, and Cougar Boyce testified that Dickerson
referred to M exicans as “wetbacks” when discussing illegal immigration.
11
The dissent asserts that the fact that Herrera worked in a
“rough-and-tumble” environment negates H errera’s evidence that the atmosphere
at his w ork was racially hostile. See Dissent at 2-3, 5-6. The evidence did
suggest that profanity and ethnic jokes were the norm at Lufkin’s Casper service
center. If that was all that Herrera complained about, we might agree with the
dissent. But Herrera has presented evidence of racially derogatory treatment, well
beyond being sworn at and joked with, that was specifically directed at Herrera
because of his national origin. Cf. Gross v. Burggraf Constr. Co., 53 F.3d 1531,
1539, 1542-46, 1547-48 (10th Cir. 1995) (noting, in sexual harassment case, that,
although evidence “that a woman was subjected to a steady stream of vulgar and
offensive epithets because of her gender w ould be sufficient to establish a claim
under Title VII,” evidence of a single incident of gender-based conduct plus
evidence of supervisor’s frequent use of gender-neutral profanity and vulgarities
was insufficient for sexual harassment claim to survive summary judgment)
(emphasis added).

12
 B. W hether the district court erred in granting Lufkin summary
judgment on H errera’s state-law claim alleging Lufkin breached
its employment contract w ith him. 12

1. Standard of review

In cases involving state-law claims, a federal court applies the substantive

law of the state, but applies federal procedural law. See Ahrens v. Ford M otor

Co., 340 F.3d 1142, 1145 (10th Cir. 2003). As noted earlier, this court reviews de

novo the district court’s summary judgment decision, viewing the evidence in the

light most favorable to Herrera. See Pepsico, Inc., 431 F.3d at 1255; Ahrens, 340

F.3d at 1145.

2. Analysis

Although under W yoming law a contract exists in every employment

situation (see Ormsby v. Dana Kepner Co. of W yo., Inc., 997 P.2d 465, 471

(W yo. 2000); see also Sierra Trading Post, Inc. v. Hinson (In re Sierra Trading

Post, Inc.), 996 P.2d 1144, 1147 (W yo. 2000)) that contractual employment

relationship

is presumed to be at will. In an at-will employment relationship, either
the employer or the employee may terminate the relationship at any
time, for any reason or for no reason at all. The presumption that the
employment relationship is at-will may be rebutted by a showing that
the parties entered into an express or implied-in-fact agreement that the
employee would be discharged only with just cause.

12
Despite Lufkin’s argument to the contrary, this court had jurisdiction to
consider this argument on appeal. Herrera clearly included the district court’s
decision granting Lufkin summary judgment on this breach-of-contract claim in
his notice of appeal.

13
Finch v. Farmers Co-op O il Co., 109 P.3d 537, 541 (Wyo. 2005) (citations,

quotations omitted). Stated another way, an employment relationship will not be

at-will if the employer promises the employee continued employment. See Boone

v. Frontier Refining, Inc., 987 P.2d 681, 685 (W yo. 1999).

Herrera argues that Lufkin’s employee manual created a contract promising

him continued employment. We disagree. It is true that, under W yoming law,

“[a]n employment handbook . . . may supply terms for an implied-in-fact

employment contract which requires termination for cause . . . .” Finch, 109 P.3d

at 542 (quotation, alteration omitted). Nevertheless, before the district court,

Herrera relied on only one provision of Lufkin’s employee handbook:

Job Security: LUFK IN makes every effort to provide continuous
em ployment. The ability to do so depends largely upon general
business conditions, but continuous employment also depends to a great
extent upon every LUFK IN employee. The company can remain
competitive only by producing more and better products and by
providing faster service at the low est possible cost. W hen the price is
right for quality products like ours we get more orders which means
m ore jobs and greater security for everyone. An individual employee
can increase his job security by increasing his know ledge and skills.
The more knowledge and skill you acquire, the more productive you are
likely to be, and naturally the more productive, the better your chance
for stable employment.

This provision, however, does not promise Herrera continued employment.

For the first time on appeal, Herrera asserts there are other provisions in the

Lufkin employee manual that promise continued employment. Because he did not

rely upon these provisions in the district court, however, he cannot do so now on

14
appeal. See Shell Rocky M ountain Prod. v. Ultra Res., Inc., 415 F.3d 1158, 1164

(10th Cir. 2005) (noting as general rule, appellate court will not review matters

raised for the first time on appeal). For these reasons, we affirm the district

court’s decision granting Lufkin summary judgment on this W yoming state-law

breach-of-contract claim. 13

C. W hether the district court erred in granting Lufkin judgm ent as a
matter of law , under Fed. R. Civ. P. 50(a), on H errera’s state-law
claim for the intentional infliction of emotional distress.

1. Standard of review

As previously mentioned, in cases involving state-law claims, a federal court

applies the substantive law of the state, but applies federal procedural law. See

Ahrens, 340 F.3d at 1145. After Herrera had presented his evidence at trial, the

district court granted Lufkin judgment as a matter of law, pursuant to Fed. R. Civ.

P. 50(a), on Herrera’s W yoming state-law claim for the intentional infliction of

emotional distress. Rule 50(a)(1) provides that

[i]f during a trial by jury a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue, the court may determine the issue
against that party and may grant a motion for judgment as a matter of

13
Herrera also asserts that verbal representations his supervisor,
Cunningham, made at the time Herrera was hired and when he went from being an
hourly to a salaried employee, further support his allegation that the employee
manual promised him continued employment. Because we conclude that the
employee manual does not promise Herrera continued employment and Herrera
did not adequately claim or establish a free-standing oral contract apart from the
employee manual, we need not separately address Cunningham’s verbal
representations.

15
 law against that party with respect to a claim or defense that cannot
under the controlling law be maintained or defeated without a favorable
finding on that issue.

A judgment as a matter of law is warranted “only if the evidence points but one

way and is susceptible to no reasonable inferences which may support the

opposing party’s position.” Riske v. King Soopers, 366 F.3d 1085, 1088-89 (10th

Cir. 2004) (quotation omitted).

The question is not whether there is literally no evidence supporting the
nonmoving party but whether there is evidence upon which a jury could
properly find for that party. For a jury to properly find for a party, the
party must present more than a scintilla of evidence supporting its
claim.

Century 21 Real Estate C orp. v. M eraj Int’l Inv. Corp., 315 F.3d 1271, 1278 (10th

2003) (quotation, alterations omitted).

This court reviews the district court’s Rule 50 decision de novo, see Riske,

366 F.3d at 1088, “reviewing all of the evidence in the record,” Stewart v. Adolph

Coors C o., 217 F.3d 1285, 1288 (10th Cir. 2000), in the light most favorable to

the non-moving party; in this case, in Herrera’s favor, see Riske, 366 F.3d at

1087.

2. Analysis

W yoming recognizes a tort cause of action for the intentional infliction of

emotional distress: “[o]ne who by extreme and outrageous conduct intentionally

or recklessly causes severe emotional distress to another is subject to liability for

16
such emotional distress, and if bodily harm to the other results from it, for such

bodily harm.” Cook v. Shoshone First Bank, 126 P.3d 886, 891 (W yo. 2006)

(quotation omitted). To recover on such a claim in this case, therefore, Herrera

must establish that Lufkin 1) “acted in an extreme and outrageous manner,” and

2) “intentionally or recklessly caused [Herrera] severe emotional harm.” W orley

v. W yo. Bottling Co., 1 P.3d 615, 628 (W yo. 2000). Because Herrera was unable

to assert sufficient evidence at trial from which a jury could have found that

Lufkin, on its own or through its supervisors, M oore and Dickerson, acted in an

extreme and outrageous manner, we need not address whether Herrera presented

the jury with sufficient evidence on the second element, that Lufkin intentionally

caused him severe emotional distress. 14

W hen the W yoming Supreme Court first adopted a cause of action for the

intentional infliction of emotional distress, it recognized that

[p]arties opposing the cause of action for intentional infliction of
emotional distress typically contend that its adoption will flood the
courts w ith fraudulent claims and create potentially unlimited liability
for every type of mental disturbance. W hile these problems are not to
be dismissed lightly, they can certainly be solved without rejecting the
action entirely.

Leithead v. Am. Colloid Co., 721 P.2d 1059, 1065 (W yo. 1986). The W yoming

Supreme Court was satisfied that, by adopting the definition of this tort from

14
In light of this conclusion, we also do not need to address Lufkin’s
alternative argument that, under W yoming law, an employer cannot be liable for
its employee’s conduct resulting in the intentional infliction of emotional distress.

17
Section 46 of the Restatement (Second) of Torts, this cause of action’s application

could be sufficiently limited. See id. at 1065-66 (discussing and adopting Section

46; noting that “[t]he limits imposed in § 46 of the Restatement, together with the

jury’s common sense, should prove to be adequate protection against fraudulent

or frivolous claims”); see also Hoflund v. Airport Golf Club, 105 P.3d 1079, 1089

(W yo. 2005) (noting Section 46 “attempts to clarify the parameters of outrageous

behavior”). In particular, the W yoming Supreme Court recognized the limitations

on that cause of action provided by comment d to Section 46, which limits

actionable “outrageous conduct” to “conduct which goes beyond all possible

bounds of decency, is regarded as atrocious, and is utterly intolerable in a

civilized community.” 15 Leithead, 721 P.2d at 1066.

15
In full, that comment provides that

d. Extreme and outrageous conduct. The cases thus far have found
liability only where the defendant’s conduct has been extreme and
outrageous. It has not been enough that the defendant has acted with an
intent w hich is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability 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 the recitation
of facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim “O utrageous!”

The liability clearly does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities. The rough
(continued...)

18
 In a further effort to limit application of this cause of action for the

intentional infliction of emotional distress, the W yoming Supreme Court also

adopted § 46’s comment h, which indicates that “‘[i]t is for the court to determine

in the first instance whether the defendant’s conduct may reasonably be regarded

as so extreme and outrageous as to permit recovery, or whether it is necessarily

so.’” Leithead, 721 P.2d at 1066 (quoting Restatement (Second) of Torts § 46

cmt. h). A claim, then, should only go to the jury if reasonable people could

differ as to whether the conduct at issue was extreme and outrageous. See id.

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

In subsequent cases considering claims for the intentional infliction of

emotional distress, the W yoming Supreme Court has specifically recognized “that

15
(...continued)
edges of our society are still in need of a good deal of filing down, and
in the meantime plaintiffs must necessarily be expected and required to
be hardened to a certain am ount of rough language, and to occasional
acts that are definitely inconsiderate and unkind. There is no occasion
for the law to intervene in every case w here some one’s feelings are
hurt. There must still be freedom to express an unflattering opinion,
and some safety valve must be left through which irascible tempers may
blow off relatively harmless steam. It is only where there is a special
relation between the parties, as stated in § 48 [addressing special
liability of a public utility for the insults of its servants], that there may
be recovery for insults not amounting to extreme outrage.

Restatement (Second) of Torts § 46 cmt. d (citation omitted). The W yoming
Supreme Court has relied on comment d in its entirety to define the outrageous
conduct necessary to state a claim for the intentional infliction of emotional
distress. See Hoflund, 105 P.3d at 1089-90; Loya v. W yo. Partners of Jackson
Hole, Inc., 35 P.3d 1246, 1252-53 (W yo. 2001); W orley, 1 P.3d at 627-28.

19
certain conduct in employment situations may be outrageous enough to provide

[an] employee with a claim for intentional infliction of emotional distress.”

Hoflund, 105 P.3d at 1089 (quotation omitted) (addressing such a claim in the

context of termination from employment); see also Kanzler v. Renner, 937 P.2d

1337, 1341-42 (W yo. 1997) (recognizing “inappropriate sexual conduct in the

workplace can, upon sufficient evidence, give rise to a claim of intentional

infliction of emotional distress”). In fact, “a number of courts have recognized

the employer-employee relationship as a significant factor to determining

outrageousness. It is only natural that [an employer’s] position of power over a[n

employee] may enhance [the employer’s] ability to do harm.” Loya, 35 P.3d at

1253 (citations, quotations omitted). N evertheless,

[t]hat does not mean, . . . that [the W yoming Supreme] Court wishes to
lower the threshold for determining liability whenever the parties are
employer and employee. The conduct m ust still reach the same degree
of outrageousness if an em ployee is to prove that his or her employer
has committed this tort; the employment relationship is merely one
factor among many to use in analyzing individual cases.

Id. (quotation omitted).

Under W yoming law generally

“liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. The rough edges of
our society are still in need of a good deal of filing down, and in the
meantime plaintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to occasional acts
that are definitely inconsiderate and unkind.”

W orley, 1 P.3d at 628 (quoting Restatement (Second) of Torts § 46 cmt. d). This

20
is no less true in the employment context. “Indeed, the w orkplace is not always a

tranquil world where civility reigns. Personality conflicts and angst over

disciplinary actions can be expected.” Id. at 629 (quotation, alteration omitted).

Thus, not all unkind or inappropriate conduct in the workplace is outrageous.

In this case, even view ing the evidence in the light most favorable to

Herrera, see Riske, 366 F.3d at 1087, he did not present sufficient evidence at

trial from which jurors could have found that Lufkin and/or its supervisors acted

in a sufficiently extreme and outrageous manner. Herrera’s evidence of specific

incidents of racial harassment – M oore’s refusing to shake Herrera’s hand,

directing Herrera to call on particular customers because the customer either was

M exican or liked M exicans, sending Herrera “M exican peanut brittle,” and

directing that Herrera not “M exicanize” his Lufkin truck – amounts to no more

than the “‘insults, indignities, . . . annoyances, petty oppressions [and]

trivialities’” that are insufficient to support a claim for the intentional infliction

of emotional distress. W orley, 1 P.3d at 628 (quoting Restatement (Second) of

Torts § 46 cmt. d). So, too, are M oore’s frequent references to Herrera as “the

M exican” or the “fucking M exican.” Finally, Herrera’s evidence indicating that

Dickerson, at M oore’s direction, harassed Herrera generally in an attempt to get

rid of him, under the circumstances of this case, only amounts to a series of

workplace disputes that also cannot support a claim for the intentional infliction

of emotional distress.

21
 At first glance, our conclusion here – that Herrera’s evidence was

insufficient to establish the outrageous conduct necessary to support a claim for

the intentional infliction of emotional distress under W yoming law – seems to be

in some tension with our earlier conclusion in this opinion that Herrera was able

to assert a triable issue as to w hether Lufkin created a racially hostile work

environment actionable under Title VII. But a claim for the intentional infliction

of emotional distress makes actionable only the most egregious conduct. The

W yoming Supreme Court adopted this tort claim with that limitation explicitly in

mind. See Leithead, 721 P.2d at 1065-66. And the W yoming Supreme Court has

never equated the existence of harassment actionable under Title VII, alone, with

outrageous conduct sufficient to support a claim for the intentional infliction of

emotional distress. Cf. Kanzler, 937 P.2d at 1342 n.3 (addressing claim for the

infliction of emotional distress based on allegations co-worker sexually harassed

plaintiff, but also noting that the W yoming Court was using the term “sexual

harassment” in a more general sense than the Title VII definition); David C.

Yamada, The Phenomenon of “W orkplace Bullying” and the Need for

Status-Blind Hostile W ork Environment Protection, 88 Geo. L.J. 475, 503 (2000)

(noting that “the degree of severity of conduct and harm to the plaintiff required

under hostile work environment and discrimination analyses is notably lower than

that required under [intentional infliction of emotional distress]. In effect, the

courts have said that conduct that is actionable under an employment

22
discrimination theory often does not rise to the level of [intentional infliction of

emotional distress].”).

In addition, W yoming specifically makes the court the gatekeeper for

claims alleging the intentional infliction of emotional distress, charging the court

with preventing claims based upon less than outrageous conduct from even

getting to a jury. See Leithead, 721 P.2d at 1066 (adopting Restatement (Second)

of Torts § 46 cmt. h). W ith that in mind, we cannot conclude that the district

court in this case erred in granting Lufkin judgment as a matter of law on

Herrera’s claim for the intentional infliction of emotional distress. W e agree with

the district court that, to have done otherwise would be to shirk its gatekeeping

responsibilities imposed by W yoming law and, instead, to conclude that “every

time there’s a case for race discrimination it follows there’s a claim for

intentional infliction” of emotional distress. W yoming law does not require that

result. For these reasons, therefore, the district court did not err in granting

Lufkin judgment as a matter of law.

D. W hether the district court abused its discretion in requiring
H errera to undergo a mental exam ination under
Fed. R. Civ. P. 35.

1. Standard of review

This court reviews discovery decisions pertaining to Rule 35 examinations

for an abuse of discretion. See Green v. Branson, 108 F.3d 1296, 1304 (10th Cir.

1997). “U nder this standard, we will not disturb a trial court’s decision absent a

23
definite and firm conviction that the [district] court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

Norton v. City of M arietta, 432 F.3d 1145, 1156 (10th Cir. 2005) (per curiam)

(quotation omitted).

2. Analysis

Rule 35(a) of the Federal Rules of Civil Procedure provides that

[w]hen the m ental or physical condition . . . of a party . . . is in
controversy, the court in which the action is pending may order the
party to submit to a physical or m ental examination by a suitably
licensed or certified examiner . . . . The order may be made only on
motion for good cause shown and upon notice to the person to be
examined and to all parties and shall specify the time, place, manner,
conditions, and scope of the examination and the person or persons by
whom it is to be made.

Unlike other discovery mechanisms, such as interrogatories or depositions, which

a party can invoke on his own, Rule 35 requires the party seeking to conduct a

medical examination first to obtain the district court’s permission. See

Schlagenhauf v. Holder, 379 U.S. 104, 117-18 (1964). To obtain a court’s order

for an independent medical examination (“IM E”), the party seeking the exam

must show that “the mental or physical condition” of the party who is to be

examined “is in controversy,” and that there is “good cause” for the examination.

See id. at 118-19. Notwithstanding Rule 35’s requirements, however, “physical

and mental examinations are usually arranged by stipulation of the attorneys, with

the rule standing as a compulsory sanction that helps to produce stipulations.”

24
8A Charles Alan W right et al., Federal Practice and Procedure § 2234 (2d ed.

1994). And “[p]laintiffs who voluntarily submit to an examination by a physician

selected by defendant waive their right to insist upon a [Rule 35] motion for an

order of examination.” Id.

In this case, the parties agreed to a stipulated discovery schedule which

provided that Lufkin could obtain an IM E of H errera, pursuant to Rule 35(a),

within a specific twenty-day time period. 16 W hen Lufkin requested dates on

which Herrera was available for the IM E, however, H errera failed to respond.

Lufkin inquired a second time, after January 20, 2004, but this time H errera

responded that the time to conduct the IM E had expired. On February 9, 2004,

Lufkin filed a Rule 37 motion seeking to compel discovery of Herrera’s mental

16
The district court’s “Order on Stipulated Discovery Schedule” specifically
provided that

[t]he Defendant may require the Plaintiff to submit to a Rule 35
examination any time before five (5) weeks prior to comm encement
of trial.

a. The D efendant shall designate said expert on or before
one week after such examination.

b. If the Defendant designates an expert earlier, Defendant
must schedule and complete the examination no later than
twenty (20) days following the Plaintiff[’s] Deposition,
unless otherwise agreed by counsel.

Lufkin designated its expert on November 17, 2003, and completed Herrera’s
deposition on December 31, 2003. Lufkin, then, had twenty days from that date,
by approximately January 20, 2004, to conduct the IM E.

25
condition. 17 The magistrate judge granted that motion, ordering Herrera to submit

to an IM E. The district court upheld the magistrate judge’s decision. In doing so,

the district court did not abuse its discretion.

On appeal, as before the district court, Herrera argues that, despite the

parties’ stipulated discovery schedule, Lufkin still had to file a successful Rule 35

motion before the district court could compel Herrera to undergo an IM E. Even

assuming for purposes of this appeal that this is true, however, Lufkin sufficiently

complied with Rule 35’s requirements in this case. In its reply addressing the

motion to compel the IM E, Lufkin did specifically request an order under Rule 35

permitting it to conduct an examination. And both the magistrate judge’s ruling

granting the R ule 37 motion to compel discovery, as w ell as the district court’s

decision upholding that ruling, addressed Rule 35’s requirements for ordering a

mental examination, determining that Herrera’s physical and mental condition

was “in controversy” and that Lufkin had shown “good cause” for the exam. See

Schlagenhauf, 379 U.S. at 118-19. M oreover, Herrera himself “stipulate[d] that

his mental condition is in controversy.” 18 Further, both the magistrate judge and

17
Rule 37 of the Federal Rules of C ivil Procedure, in part, provides a
mechanism that allows “[a] party, upon reasonable notice to other parties and all
persons affected thereby, [to] apply for an order compelling disclosure or
discovery.” Fed. R. Civ. P. 37(a).
18
Additionally, the Supreme Court has noted that a party’s own pleading
may put his physical or mental condition “in controversy.” See Schlagenhauf,
379 U.S. at 119. Herrera’s allegations in this case, involving, inter alia, his
(continued...)

26
the district court addressed the scope of the IM E.

For these reasons, we cannot say that the district court, in requiring Herrera

to undergo a mental examination, abused its discretion; that is, the district court

did not make “a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances,” Norton, 432 F.3d at 1156 (quotation omitted). Our

conclusion is bolstered by the Supreme Court’s indication that Rule 35 is “to be

accorded a broad and liberal treatment, to effectuate [the civil procedure rules’]

purpose that civil trials in the federal courts no longer need be carried on in the

dark.” Schlagenhauf, 379 U.S. at 114-15 (citation, quotation omitted).

III. C ON CLU SIO N

For these reasons, we AFFIRM the district court’s discovery ruling

requiring Herrera to undergo a psychological examination and the district court’s

decisions addressing the state-law claims. But we REVERSE the district court’s

decision granting Lufkin summary judgment on Herrera’s Title VII

hostile-work-environment claim, and REM AND that claim to the district court for

further proceedings consistent w ith this opinion.

18
(...continued)
assertion that he suffered severe emotional distress, certainly put his mental
condition “in controversy.”

27
04-8089, Herrera v. Lufkin Industries, Inc.

CASSELL, District Judge (sitting by designation), dissenting in part.

Before trying this case, the district judge pruned it down by granting

summary judgment for Lufkin Industries on Herrera’s three weakest claims — an

intentional infliction of emotional distress claim, a breach of contract claim, and a

racially hostile work environment claim. The matter was then tried to a jury for

eleven days, eight of which were devoted to the plaintiff’s case. The jury found

against Herrera and for Lufkin on all claims presented to it. The majority now

sustains the jury verdict and agrees that the district court properly dismissed the

emotional distress claims and the breach of contract claim. It nonetheless

remands this case for what may end up being another eleven-day trial on one of

Herrera’s marginal claims – the hostile work environment claim.

I dissent from this unnecessary remand. I agree with the district court that

the isolated instances of harassment Herrera recites are not sufficient to create a

jury question on this claim. I would therefore affirm the district court in all

respects.

The District Court Properly G ranted Sum mary Judgm ent on
Herrera’s Hostile W ork Environment Claim.

The majority reverses the district court’s decision to grant summary

judgment on Herrera’s hostile work environment claim, stipulating that this issue
“presents a close question.” 1 And the majority recognizes Herrera must present

evidence of more than “‘a few isolated incidents of racial enmity’ or ‘sporadic

racial slurs.’” 2 Instead, “‘there must be a steady barrage of opprobrious racial

comments.’” 3

W hile I agree with the majority that this issue is a close one, I concur with

the district court’s decision to grant summary judgment. Before describing the

instances of alleged harassment Herrera relies upon, it is important to review his

working environment. Herrera admits that Lufkin was a rough-and-tumble oil

field equipment business that was not the typical office setting. He testified, in

response to a question regarding a coworker w ho said to him “fuck you,”

Q. [I]n the oil patch, people use [vulgar] language, correct?
A. Okay. Yes.
Q. In the shop, people use that kind of language — Lufkin
shop, yes?
A. Yes. I — some of them do. 4

He also testified:

Q. Have you ever told “M exican” jokes or anything such as
that?
A. That I may have done. I told a lot of jokes, but I don’t
remember saying any M exican jokes or black jokes, for

1
M ajority Op. at 12.
2
Id. at 6 (quoting Chavez v. New M exico, 397 F.3d 826, 832 (10th Cir.
2005)).
3
Id. (quoting Chavez, 397 F.3d at 832).
4
Appellant App. at 167.

2
 that matter.
....
Q. Okay. You would not be extremely surprised that
someone said, yes. I heard Lewis, Senior tell a joke with
the reference to a M exican in it, that would not be so out
of the ordinary that you would be shocked?
A. I wouldn’t be shocked, no. I told a lot of jokes in my
day. I don’t remember them.
Q. Sure. Okay. In fact, that happens in the work place, off
color jokes and so forth are told?
A. Not in relation to anybody else. I don’t do that. Blacks
or whites or religious, I don’t do that.
Q. Okay. But there are others that do that in the work
place, don’t they?
A. Yeah. The oil field is very co[a] rse.
Q. Yeah. The oil patch has people —
A. It’s own language. 5

W ith this general atmosphere in mind, the instances of alleged race-neutral

harassment Herrera invokes are insufficient to justify a remand for a trial on his

hostile w ork environment claim. Herrera worked under M oore for approximately

four years. In his deposition, Herrera identified five specific instances of alleged

harassment during those four years that unquestionably were linked to his race —

on average, about one instance every nine or ten months. M oore once sent him a

package of peanut brittle; attached to it was a note that read “M exican peanut

brittle.” 6 Herrera was twice asked to call on certain customers because they

5
Id. at 788 (emphasis added).
6
Id. at 785.

3
“liked M exicans” or were themselves Hispanic. 7 M oore, who worked out-of-state,

would call the W yoming office and ask for Herrera by calling him “that M exican”

or “that fucking M exican.” 8 Notably, Herrera does not allege that M oore said

those things directly to him. Finally, M oore once had other employees tell

Herrera not to “M exicanize” his work truck and to remove a cactus figurine from

the truck’s antenna.

The majority seems to agree that these “several discrete incidents” are not

sufficient to satisfy the requirements of our precedent for a hostile work

environment claim. It finds support for Herrera’s claims, however, in “evidence

of other ongoing harassment occurring during this entire four-year time period.” 9

On close examination, however, the evidence of any ongoing harassment is

scanty. The majority relies upon M oore’s references to Herrera as “that M exican”

or som etimes, “that fucking M exican” to other people. W hile these derogatory

comments may have been ongoing (at least view ing the evidence favorably to

Herrera), even the majority concedes that most of the remarks were never heard

by Herrera. Instead, the majority agrees that Herrera’s co-workers passed along

7
Id.
8
Id.
9
M ajority Op. at 8.

4
these remarks to him only “occasionally.” 10 And the record is undisputed that

when the remarks w ere passed along, they were passed along by those trying to

help Herrera, not harm him. For example, Cunningham w arned Herrera to be

wary of M oore because he was a bigot. It is hard to discern “pervasive”

harassment when racial remarks were “occasionally” passed along by persons

friendly to Herrera. Thus, I do not understand the majority to dispute the district

court’s conclusion that Herrera’s “friends, knowing of these insults, largely

concealed them from him.” 11 For example, the majority ventures only so far as to

say that Herrera was not “completely unaware” of derogatory remarks made by

M oore. 12

To find a basis for reversal, the majority couples these remarks with other

race-neutral incidents. Of course, our precedent requires us to view an

employee’s work environment as a whole. But given the coarse environment that

prevailed at Lufkin, these incidents do not com bine to create a viable hostile work

environment claim. Herrera alleges M oore refused to shake his hand; cow orkers

10
Id. at 9.
11
Appellant App. at 954 (emphasis added). The majority does disagree with
the district court’s statement that “[t]he insults that were identified were never,
according to the evidence before the Court, divulged to the plaintiff.” Id.
(emphasis added). I think the district court intended to use the word “directed”
rather than “divulged,” as the sentence quoted in text above makes clear. In any
event, the majority agrees that the insults were never directed at H errera.
12
M ajority Op. at 9 n.6.

5
told him to “watch your ass” because M oore was a bigot; he was treated like a kid

and yelled at, as was his son, by another Lufkin employee; coworkers swore at

him and Lufkin did nothing about it; he was audited and forced to produce

receipts before he could be reimbursed for road trip expenses; he was “hindered”

from doing his job and made to look incompetent; he had to drive his boss to the

airport; and some coworkers started prying into his personal life and accused him

of conducting side businesses. 13

Given the atmosphere M r. Herrera testified existed at Lufkin, these

incidents (while deplorable, if they happened) cannot be viewed as indicia of

pervasive racial discrimination. Vulgarity and other socially-unacceptable

behavior that might lead to termination in a typical office setting were

comm onplace in the oilfields. Since raucous race-neutral behavior permeated

Herrera’s working environment, the conduct he describes above — even when

yoked to the five unquestionably race-based incidents — is not evidence

Herrera’s work environment was permeated with discriminatory ridicule.

This result is required by our previous cases. For instance, in Bolden v.

PRC Inc., 14 we affirmed a district court’s grant of summary judgment where the

plaintiff cited two incidents of overtly racial discrimination and twenty instances

13
Appellant App. at 785–86.
14
43 F.3d 545 (10th Cir. 1994).

6
of race-neutral conduct during the last eighteen months of his employment. 15 And

in Hicks v. Gates Rubber Co., 16 we found that a district court’s bench trial ruling

of no hostile environment was not clearly erroneous despite evidence of

approximately nine incidents of harassment over a period of eight months. 17

These cases reveal the continuing import of our prior holding that “Title

VII is not a code of workplace conduct, nor w as it ‘designed to bring about a

magical transformation in the social mores of A merican workers.’” 18 As this court

noted in Gross v. Burggraf Construction Co., “[s]peech that might be offensive or

unacceptable in a prep school faculty meeting, or on the floor of Congress, is

tolerated in other work environments. . . . ‘Title VII was not meant to — or can

— change this.’” 19

Conclusion

W ith these points in mind, I would affirm the district court’s decision to

grant summary judgment on Herrera’s hostile work environment claim. To order

an unnecessary remand on this single claim when all the other — and many far

15
Id. at 549.
16
833 F.2d 1406 (10th Cir. 1987).
17
Id. at 1409–10.
18
Chavez, 397 F.3d at 833 (quoting Gross v. Burggraf Constr. Co., 53 F.3d
1531, 1538 (10th Cir. 1995)).
19
53 F.3d at 1538 (quoting Rabidue v. Osceola Ref. Co., 584 F. Supp. 419,
430 (E.D. M ich. 1984)).

7
stronger — claims have been rejected wastes court and attorney time. I would

also, like the majority, affirm the district court’s grant of judgment as a matter of

law on M r. Herrera’s intentional infliction of emotional distress claim, his breach

of contract claim, and the discovery ruling. I therefore respectfully dissent, in

part.

8