IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60014
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ROWAN COMPANIES, INC.,
Plaintiff-Appellee,
VERSUS
TIMOTHY MILLER,
Defendant-Appellant,
* * * * * * * * * * * * * * * * * * * * * * *
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No. 98-60475
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ROWAN COMPANIES, INC.,
Plaintiff-
Counter Defendant-
Appellee,
VERSUS
TIMOTHY MILLER,
Defendant-
Counter Claimant-
Appellant.
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Appeals from the United States District Court
for the Southern District of Mississippi
(4:96-CV-60-W-S, & 4:96-CV-60)
_________________________
May 4, 1999
Before SMITH, WIENER, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Timothy Miller appeals the dismissal of his claim of hostile
work environment under title VII and his supplemental state-law
claim of intentional infliction of emotional distress
("i.i.e.d.").1 Agreeing with the district court that no reasonable
jury could find for Miller on either claim, we affirm.
I.
A.
At the close of Miller’s case, his former employer, defendant
Rowan Companies, Inc. (“Rowan”), moved for judgment as a matter of
law ("j.m.l.") under FED. R. CIV. P. 50, which 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 law against that party with respect to a
claim or defense that cannot under controlling law be
maintained or defeated without a favorable finding on
that issue.
We review the district court’s decision de novo. Burch v. Coca-
Cola Co., 119 F.3d 305, 313 (5th Cir. 1997), cert. denied,
118 S. Ct. 871 (1998). We affirm if we conclude that there is
insufficient evidence to create a fact question for the jury.
*
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should not be published and is not precedent except under the limited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.
1
The defendant company initiated this as a declaratory judgment action to
establish its maintenance and cure obligations; Miller counterclaimed on the
basis of the issues discussed in this opinion.
2
Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir. 1994). “If the
facts and inferences point so strongly and overwhelmingly in favor
of the moving party . . . that reasonable jurors could not have
arrived at a contrary verdict, then [we] will conclude that the
motion should have been granted.” Burch, 119 F.3d at 313.
B.
Miller, a black former police officer, was hired by Rowan in
July 1994 as a roustabout assigned to Rig 38, an offshore drilling
facility in the Gulf of Mexico. Although he got along well with
the crew and was promoted to floorman (with a corresponding pay
increase) in seven months, Miller claims that he was subjected to
racially derogatory comments. Two crewmen, George Szemborski and
Don Rutan, held themselves out as Klansmen and invited Miller to
their purported KKK meetings. Miller responded by greeting his
white coworkers with the “power salute”SSan arm gesture indicating
“power to the people.” In similar fashion, when told of an
incident in Vidor, Texas, in which a black family’s home had been
burned down because “niggers” are not welcome there, Miller
indicated an interest in moving there. Wilson reported none of
this banter to his supervisors.
In March 1995, Miller found an envelope, anonymously put into
his locker by Szemborski and Rutan, containing a piece of rope tied
like a noose and a hand-written note stating “wear this to the
party tonight.” Miller told his supervisor, Kirkpatrick, about
this incident, whereupon Kirkpatrick indicated support for Miller
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and told him not to worry about it. Miller then reported this
incident to another one of his supervisors, Ramage, who asked
Miller whether he had been bothering anybody. When Miller
indicated that he had not, Ramage remarked that all this
“horseplay” had to be cut out. He then untied the rope and threw
it out.
Hearing how upset he had become over the incident, several of
Miller’s white coworkers came forward and spoke words of support
and encouragement to him. Dick Cain, the night tool pusher, told
Miller that he would put a stop to such incidents. Even Szemborski
and Rutan came forth and admitted their wrongdoing to Miller,
explaining that the whole matter was intended as a “joke.”
Miller accepted their apologies, and his work thereafter
continued without incident. Miller claims, however, to have
suffered nightmares about the event. When he reported this to the
Vice President of Industrial Relations, Bill Person, his claim was
met with surprise; Person said that the incident “shouldn’t have
affected” a former police officer such as Miller.
While visiting his parents during two weeks off between
shifts, Miller mentioned the March 21 incident. His father
contacted the local chapter of the NAACP, which sent a letter to
Rowan complaining of the affair.
Upon returning to work, Miller was contacted by Dereck
Necaise, the rig manager, who requested a private meeting with him,
at which Necaise offered to transfer Szemborski and Rutan to
another rig if Miller was uncomfortable working with them. Miller
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instead requested to be transferred, and his wish was granted.
Miller’s tenure on his new rig was without incident.
Explaining, however, that he was still upset by it, Miller
requested and was granted a paid leave of absence.
Rowan’s independent investigation of the incident led it to
conclude that it was an isolated breach of company policy.
Szemborski and Rutan were counseled and fined two weeks' pay as
punishment; each was informed that repetition of such conduct would
result in termination. Necaise was counseled regarding Rowan’s
anti-discrimination policy, and a written notice was issued to all
employees reminding them that horseplay and racial discrimination
would not be tolerated and could result in immediate suspension or
termination.
Necaise met with Miller during the leave of absence and
apologized for the incident. He assured Miller that the occurrence
was a violation of company policy that would not happen again and
requested that Miller return to work. Miller declined and is
currently pursuing a career in health care.
II.
A.
A title VII hostile work environment claim requires that
(1) plaintiff belongs to a protected class; (2) he was subject to
unwelcome harassment; (3) the harassment was racially motivated;
(4) the harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known about
5
the harassment and failed to take prompt remedial action. See Long
v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996). As the
district court correctly noted, Miller has failed to establish the
possibility of the fifth element.
Regarding Rowan’s notice, in the words of the district court:
“[T]he incident in question was isolated, unannounced, and not
preceded by any conduct brought to the attention of the defendant.”
See Jones v. Flagship Int’l, 793 F.2d 714, 720 (5th Cir. 1986).
Regarding remedial action, Rowan docked the perpetrators
(Szemborski and Rutan) two weeks’ pay, issued written warnings to
all crewmen, and instructed supervisory personnel on the gravity of
Miller’s plight. Rowan offered to remove either Miller or the
perpetrators from the rig, depending on Miller’s preference.
Finally, the culprits personally apologized to Miller, explained
that they were only joking, and Miller accepted their apologies and
explanations as such. The court was correct in holding that this
constituted prompt remedial action as a matter of law. See, e.g.,
Carmon v. Lubrizol Corp., 17 F.3d 791, 793-95 (5th Cir. 1994)
(finding prompt remedial action).
B.
The elements of a claim of i.i.e.d., under Mississippi law,
are that (1) plaintiff was subjected to conduct by defendant’s
employees that was “so outrageous in character, and extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
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community,” Wong v. Stripling, 700 So. 2d 296, 306 (Miss. 1997);
(2) the conduct proximately caused plaintiff severe emotional
distress; (3) defendant intended to inflict severe emotional
distress or knew or was substantially certain that severe emotional
distress would result; and (4) defendant’s employees were acting in
the course and scope of their employment, and the conduct was
ratified by the defendant, Tichenor v. Roman Catholic Church,
32 F.3d 953, 959 n.21 (5th Cir. 1994). The defendant is Rowan, not
Szemborski and Rutan. Miller has failed to adduce evidence from
which a reasonable jury could find that Rowan either “intended to
inflict severe emotional distress,” “knew or was substantially
certain that severe emotional distress would” befall Miller, or
“ratified” the offensive conduct in question. See, e.g., Leaf
River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss.
1995) (finding that defendant’s bona fide remedial efforts
precluded a finding of intentional infliction of emotional
distress). Under the totality of circumstances, Rowan's response
to Miller’s plight has been responsible, fair, and arguably
aggressive and by no means evinced improper intent or ratification.
The district court issued a fine opinion explaining all this.
The judgment is AFFIRMED.
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