United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-31008
Summary Calendar
MICHAEL TISDALE; CAROL TISDALE,
Plaintiffs-Appellants,
versus
WOMAN’S HOSPITAL, INC.; WOMAN’S HOSPITAL FOUNDATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:03-CV-604)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
This action by Michael and Carol Tisdale, husband and wife,
against Woman’s Hospital, Inc. and Women’s Hospital Foundation
(collectively the Hospital) claims violations of the Americans with
Disabilities Act (ADA), the Age Discrimination in Employment Act
(ADEA), and the Employee Retirement Income Security Act (ERISA), as
well as intentional infliction of emotional distress (IIED), all
arising from termination of their employment with the Hospital.
*
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this opinion should not be published and is not precedent except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.
Michael Tisdale, legally blind, had worked for the Hospital
since 1979; at termination, he was the director of materials
management. Carol Tisdale had worked for the Hospital since 1991;
at termination, she was the director of patient services and
telecommunications.
In November 2002, members of Michael Tisdale’s staff
complained to his supervisor that he required his subordinates to
perform personal errands. Those complaints prompted an
investigation that revealed the Tisdales had been operating a
personal business, NicaTraders, largely using Hospital resources.
On 6 November 2002, after meeting with their superiors to discuss
the allegations, the Tisdales were terminated upon admitting some
of the charges.
As a result, the Tisdales filed this action. In sum, the
Tisdales’ claim the true reasons for termination was Michael
Tisdale’s being blind. Without stating reasons, the district court
granted the Hospital summary judgment. (In granting summary
judgment on 4 October 2005, the district court stated “written
reasons to be filed at a later date”. As of the 28 October 2005
notice of appeal, those reasons had not been filed.)
The Tisdales claim the court erred because: (1) they have a
colorable IIED claim; (2) they have established a prima facie case
of discrimination under the ADA, ADEA, and ERISA; and (3) the
Hospital has not proffered a legitimate non-pretextual reason for
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their termination. A summary judgment is reviewed de novo, viewing
the evidence in the light most favorable to the non-movant. See,
e.g., Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402
(5th Cir. 2001).
For the IIED claim, the Tisdales have failed to create the
requisite genuine issue of material fact concerning their
termination’s being “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”. Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022
(La. 2000). Neither of the Tisdales claim they were treated
improperly when they were terminated. Instead, they claim the
Hospital inflicted emotional distress because, as a married couple,
their termination effectively eliminated all sources of family
income. Such conduct, they claim, is “beyond all bounds of
decency”. Under Louisiana law, the termination of an at-will
employee, even one with a long tenure, does not state a IIED claim.
See, e.g., id.
The ADA, AEDA, and ERISA claims for discrimination are
analyzed under the well-known McDonnell Douglas burden-shifting
framework. Assuming arguendo the Tisdales have presented a prima
facie case of discrimination under each Act, the Hospital presents
a legitimate, non-discriminatory reason for the termination, as
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discussed below. The Tisdales fail to present the requisite
genuine issue of material fact.
The Hospital claims the Tisdales were terminated because they
improperly used Hospital resources, some of which were in
furtherance of their NicaTraders business. Indeed, the Tisdales
admitted to some of these charges, including: using Hospital
employees subordinate to them to perform personal errands; posting
an advertisement for NicaTraders on the Hospital’s electronic
bulletin board; and the creation of the NicaTraders’ telephone
number and voice mail box within the Hospital’s telephone and voice
mail system.
The Tisdales claim this is merely a pretextual reason for
their termination because: (1) they were not operating NicaTraders
using Hospital resources and during office hours, pointing namely
to the voice mail box which Carol Tisdale claims she rented to a
NicaTraders co-owner; (2) other employees frequently posted
advertisements on the electronic advertising board; and (3) other
employees commonly used subordinates to perform personal errands.
Nevertheless, the Tisdales fail to provide specific examples of
other employees who are engaged in “nearly identical” improper use
of Hospital resources. See Okoye v. Univ. of Tex., Houston Health
Serv. Cent., 245 F.3d 507, 514 (5th Cir. 2001).
AFFIRMED
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