UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________________
No. 92-8280
_________________________________________
FRED McKETHAN,
Plaintiff-Appellant,
VERSUS
TEXAS FARM BUREAU, and
Affiliated Companies, Including
its Subsidiaries and Subdivisions, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
July 19, 1993
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
This appeal centers on whether cutting comments by the
presenter at an awards ceremony to one of the recipients, Fred
McKethan, can be the basis for age discrimination, intentional
infliction of emotional distress, and slander. McKethan contests
adverse judgments on those claims, rendered by the district court
following his jury trial case-in-chief. In addition, he challenges
a number of other rulings and actions by the court, as well as the
denial of his Rule 60(b) motion for recusal, disqualification, and
a new trial. Because we agree with the disposition of the claims,
and conclude that the district court did not abuse its discretion,
we AFFIRM. And, because McKethan failed to file a notice of appeal
from the Rule 60(b) ruling, it is not subject to review.
I.
Texas Farm Bureau (TFB), inter alia, assists in providing
insurance coverage to its membership families. To that end, it
affiliates with several insurance companies, which employ "career
agents" to market and service a variety of products. Texas
counties are organized by sales districts; and each is supervised
by a district sales manager, who is an employee of TFB and is
compensated with, inter alia, a base salary plus commission,
bonuses, and retirement benefits. The district managers have a
variety of responsibilities, including the supervision of agency
managers1 and career agents within the district, and the
recruitment and training of new agents.
Employed by TFB in 1971 as a career agent, McKethan became a
district sales manager in 1973, and held that position throughout
his career. He was often recognized for outstanding work. In all
but one year, he won "the Top 10 jacket"; and, in his 20 years with
TFB, he never failed to win the "All-Star and Roundtable Trip"
awards.
In May 1990, TFB held its annual statewide agents' meeting in
San Antonio. Approximately 700 people were in attendance,
including agents, agency managers, all 14 district managers
(including McKethan), the two regional sales managers, (Paul
1
Agency managers supervise career agents and also sell
insurance. Like the career agents, they are under contract with
the various insurance agencies on a commission basis.
2
Lancaster and Don Grantham), two associate state sales managers,
and the state sales manager (Robert Peacock).
The following represents McKethan's version of what transpired
during the awards ceremony, at which Lancaster and Grantham
introduced recipients. McKethan had received positive recognition
at 17 consecutive banquets. When his turn for recognition came,
Grantham told him to stand up, but then said, "[s]it down, you
don't have anything, you haven't done anything to be recognized
for"; that McKethan "never had a master agent and never would have
one".2 The remarks lasted approximately one to two minutes;
McKethan "felt like [he] had been poleaxed with a four-by-four".
For the remainder of the evening, he had a characteristic "red
stripe" in the middle of his forehead, which appears when he
becomes angry. At the close of the program, Randy Grantham, an
employee in McKethan's district and Don Grantham's son, approached
McKethan and said, "I went to Dad and told him, `Congratulations,
Dad, you've just ruined my career with Farm Bureau Insurance
Company'". McKethan then located Don Grantham, picked him up, and
stated, without laughter, "I ought to kill you".3
2
A master agent is "a young man or woman that's done an
outstanding job".
3
As stated, the foregoing represents McKethan's version, which
we accept as true in view of the procedural posture of this case.
See infra. According to Grantham and Peacock, Grantham asked
McKethan to stand up, and, while he was nervously looking for
McKethan's listing (he had never addressed a crowd that large),
stated "Fred, it doesn't look like you did anything"? He then
found McKethan's name, stated "Fred, I was just kidding", and
announced McKethan's accomplishments. He testified that his
comments lasted two or three seconds, and that he said nothing
about master agents. Regarding McKethan's confrontation with
3
That night, McKethan played poker for one hour, and then went
to bed. When he awoke, he "was upset terribly"; "[he] felt ...
they had effectively destroyed [his] credibility with home office
people, with [his] district, with [his] life". He called his
immediate supervisor, Lancaster, and told him that he was ill; that
he had been to the bathroom seven times with an upset stomach; that
he "couldn't face the agents"; and that he was returning home. He
conveyed the same information to Peacock, who called a few minutes
later; but Peacock did not apologize or otherwise respond.
Accordingly, McKethan left the meeting.
A day or two later, Lancaster left a message on McKethan's
answering machine, stating, "[s]orry that happened in San Antonio,
hope you're feeling better, and you're the best district manager I
have in the south". Grantham did not apologize. He testified that
Peacock told him that he did not think an apology was necessary.
Nor did McKethan request one.
Approximately two weeks after the meeting, McKethan told
Lancaster that he intended to retire in 13 months (July 1, 1991).
He hoped to wait that long for tax reasons. Neither Lancaster nor
any other TFB official attempted to persuade him to stay.
In February 1991, McKethan filed an age discrimination charge
with the Equal Employment Opportunity Commission (EEOC), pursuant
to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §
Grantham, Peacock testified that McKethan put his arm around
Grantham's neck, and, with laughter, stated, "I loved it, you son
of a bitch, I ought to kill you".
4
621, et. seq., claiming that the awards incident constituted
constructive discharge. He was approximately 58 years old.
McKethan's attorney advised TFB that March that he represented
McKethan both in his age discrimination claim and in his slander
and intentional infliction of emotional distress claims, and that
unless the matter was resolved, suit would be filed in late April.
TFB responded by denying McKethan's allegations. It did not
apologize for the awards incident or ask McKethan to reconsider his
decision to retire.
McKethan, by letter to Peacock that May, requested an excused
absence from the statewide meeting because of the comments made the
year before. 4 He warned that, given this stress, his doctor had
advised him not to attend, and if required to do so, he would "seek
compensation" for any stress-induced harm.
Peacock excused McKethan from attending the meeting, noting by
letter that he was "unaware" that McKethan was under a physician's
care, and remarking, "I still can't understand your reaction to
last year's meeting". In addition, he advised that he intended to
select McKethan's replacement soon (he was conducting the search),
4
His letter stated:
I cannot forget that the statewide meeting last
year was where everything fell apart -- where I was
subjected to ridicule in front of everyone.
Nothing on earth can undo what was done, and it
would be grossly demeaning for me to attend, and I
am hoping and requesting that you spare me from
this experience. Please understand that in view of
what happened, nothing that is said or not said at
this meeting can undo the harm that was done.
5
and thanked him for "offering to introduce your replacement to the
people in your district prior to your retirement on July 1st".
Also in May, McKethan filed suit for discharge (constructive)
on the basis of age, in violation of the ADEA, with a supplemental
slander claim.5 The defendants answered that, "[w]ith regard to
reinstatement, ... it is not necessary, as [McKethan] is still an
employee of Defendants, and his continued employment is workable
and feasible. ... [McKethan] can continue to work as a district
sales manager for TFB".
McKethan retired in July, as planned. Two months later, an
amended answer included the above quoted statement. Shortly after
reviewing it, McKethan wrote to Peacock, accepting "the invitation
... to continue working as a District Sales Manager". He
explained, "[a]lthough I have great misgivings because of all that
has happened ... I cannot stand being unemployed ...." He
requested, inter alia, that TFB notify those in attendance at the
meeting that Grantham's comments were not intended to be
derogatory; that Grantham be asked to apologize; and that TFB
reimburse him for lost wages. However, he did not condition his
return on those requests. In closing, McKethan stated, "[w]hile I
can never forget what happened to me ... I am prepared to forgive,
and under these circumstances I am anxious to get back to work
immediately".
5
In January 1992, McKethan added supplemental claims for
intentional and negligent infliction of emotional distress.
6
TFB responded by denying McKethan's reinstatement request,
stating that the position had been filled following his retirement.
It explained that at the time of its original answer, McKethan was
still employed, and that had he requested to stay prior to his
retirement, his request would have been honored. TFB's attorney
apologized for his failure to omit the continued employment offer
from the amended answer.
In April 1992, the defendants' summary judgment motion was
denied, and, a few days later, a jury trial held. At the close of
McKethan's evidence, TFB and Grantham moved successfully on the age
discrimination and emotional distress claims for a directed verdict
(pursuant to 1991 amendments to Fed. R. Civ. P. 50, now "judgment
as a matter of law"). In addition, the court sua sponte
reconsidered, and granted, summary judgment on the slander claim.6
Judgment was entered on April 25; McKethan timely appealed on May
21.
On June 1, 1992, McKethan filed a motion to recuse,
disqualify, and for a new trial, based upon an ex parte contact in
January 1992, reflected in defendants' post-trial motion for
attorney's fees. The motion was transferred to another judge, who
denied it. McKethan did not file a notice of appeal from this
order.
6
As stated in Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 185 (5th Cir. 1990), "because the denial of a motion
for summary judgment is an interlocutory order, the trial court is
free to reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law".
7
II.
McKethan challenges discovery and procedural rulings and other
actions by the district court, the judgments on his substantive
claims, and the denial of his post-trial motion.
A.
McKethan agrees that our standard of review for the contested
discovery and procedural rulings and actions is abuse of
discretion. See United States v. Doucette, 979 F.2d 1042, 1044
(5th Cir. 1992); Mills v. Beech Aircraft Corp., 886 F.2d 758, 761
(5th Cir. 1989); Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th
Cir. 1986). Primarily at issue is the denial of his untimely
motion to change the trial location and date.7
McKethan filed suit in the Western District of Texas, Austin
Division, on May 1, 1991. That July, Judge James R. Nowlin
reassigned the case to Judge Walter S. Smith, Jr. On August 2,
trial was set for December 16 in Austin; on October 2, it was reset
for March 16, 1992. In response to TFB's agreed motion for a
continuance, Judge Smith on December 17 reset trial for April 20,
7
McKethan also maintains that the court abused its discretion
in refusing, prior to trial, to compel TFB to answer discovery
regarding its employment of blacks and females. McKethan asserts
that it was needed to impeach Peacock's deposition testimony,
likely to be reiterated at trial, regarding TFB's employment
practices, thus calling into question the credibility of TFB's
denial of age discrimination. Because we hold infra that the court
concluded properly that McKethan failed to raise a fact issue on
constructive discharge, irrespective of TFB's intent to
discriminate, we need not address this issue.
In addition, McKethan contends that the court abused its
discretion by expressing frustration with McKethan's counsel in the
presence of the jury, and by curtailing cross-examination. We
disagree; the error, if any, was harmless.
8
1992, and, sua sponte, moved it to the Waco division of the
district.8
On January 14, 1992, Judge Smith transferred approximately 90
cases, including this one, to Judge Sam Sparks. On January 16, he
took back seven, including this one, and assigned Judge Sparks four
others.9
8
McKethan does not contest the court's discretion to transfer
the trial to a different division within the district. Instead, as
noted, he contends that the transfer and subsequent refusal to
grant a continuance constitute an abuse of discretion.
In addition, he maintains for the first time on appeal that
the court reversibly erred by transferring venue without affording
him notice and an opportunity to be heard. TFB counters that Judge
Smith did not transfer venue; rather, he provided notice of a
"special session", pursuant to 28 U.S.C. § 141, which states:
Special sessions of the district court may be
held at such places in the district as the nature
of the business may require, and upon such notice
as the court orders.
Any business may be transacted at a special
session which might be transacted at a regular
session.
This circuit has not analyzed the discretionary powers arising from
§ 141; and, we refrain from doing so here because, even accepting
McKethan's characterization of the order as a transfer of venue
under 28 U.S.C. § 1404, our failure to review his untimely
procedural contention will not result in plain error. As we stated
in Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th
Cir. 1988), "while generally a hearing is desirable the lack
thereof does not indicate the invalidity of the subsequent order".
Moreover, McKethan had notice, four months before trial, that it
would be held in Waco. Although he had ample opportunity to timely
object, he failed to do so. See infra.
9
Judge Sparks on January 16 granted McKethan leave to file an
amended complaint. McKethan maintains that the court reversibly
erred by reassigning the case to its docket after Judge Sparks had
exercised "jurisdiction" over it. Even assuming this contention
has any merit, McKethan failed to sufficiently brief it;
accordingly, we consider it waived. See Fed. R. App. P. 28(a)(5)
("[t]he argument shall contain the contentions of the appellant
9
TFB received a copy of the January 16 reassignment order;
McKethan's counsel maintains that he did not. On April 8, 1992,
McKethan filed a motion for trial to be held in Austin, and for a
continuance, in which he objected to the earlier transfer to Waco.
As explanation for his belated filing, counsel stated that he had
not received the order reassigning the case to Judge Smith;
accordingly, he was unaware that the case remained scheduled for
trial on April 20 in Waco until April 7, when he spoke with one of
Judge Smith's law clerks by telephone.10 The court denied this
motion, stating that "a transfer of this case to the Austin
Division at this late date would be highly prejudicial".
McKethan seeks a new trial, asserting that the district court
abused its discretion in refusing to reset the trial's location and
date.11 We disagree. The court acted within its discretion in
with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes, and parts of the
record relied on"); Marple v. Kurzweg, 902 F.2d 397, 399 n.2 (5th
Cir. 1990).
10
He added in his subsequent motion for a new trial that when
Judge Smith first set the case for trial in Waco, he "immediately
contacted Judge Smith's law clerk who advised a motion to have the
matter returned to Austin for trial would not be needed because the
case was being reassigned for trial in Austin to the docket of
Judge Sam Sparks".
While we recognize that some courts permit communications with
law clerks, they are not a substitute for the requisite papers to
be filed with the court and notice or other response from it. This
is especially true when, as here, the subject of the communication
is a basis for an issue on appeal. The numerous and fundamental
reasons for this are most obvious.
11
For purposes of this case, we treat McKethan's motion to reset
as a request to transfer venue, pursuant to 28 U.S.C. § 1404(a).
See supra note 8. As discussed in note 8, McKethan does not
maintain that the court lacked discretion to transfer the trial to
10
ruling that McKethan's motion, filed over four months after notice
and approximately ten days before trial, was far too late in the
day. As hereinafter discussed, the explanation for the belated
filing, based upon counsel's claimed failure to receive the
reassignment order, is quite unavailing.
First, and most important, Judge Smith's December 17 order set
the trial's location and date. Counsel received no notice that
either changed with transfer of the case to Judge Sparks. Rather,
counsel's confusion stemmed from his misplaced assumption,
discussed in note 10, supra, that the assignment to Judge Sparks
nullified the location and date. He proceeded for over four months
of discovery and pretrial motions without inquiring into an amended
setting.12 Simply because counsel did not receive the reassignment
order does not excuse his decision to assume, without notice from
the court, that the setting had been changed.
Moreover, the record contradicts counsel's purported lack of
knowledge. On February 3, Judge Smith, not Judge Sparks, signed an
order granting McKethan's motion for an extension of time to reply
to TFB's summary judgment motion. And, on February 14, TFB and
McKethan filed a joint motion, requesting an extension of time to
file the pretrial order because "the case was reset for April 20,
1992, in Waco, Texas".13 The pretrial order, filed on March 24,
Waco.
12
Of course, we refuse to consider his claimed reliance on a
conversation with a law clerk. See note 10, supra.
13
TFB's counsel signed the motion and certified that McKethan's
counsel desired to join. In addition, the certificate of service
11
approximately one month prior to the trial date, was signed by
McKethan's counsel. It referred to Judge Smith as presiding, and
specified April 20 as the trial date. Thus, at a minimum, one
month before the trial date, counsel was aware of it, and the
reassignment to Judge Smith.14 The court did not abuse its
discretion in denying McKethan's motion for a new setting.
B.
McKethan maintains that the district court erred in granting
judgment as a matter of law on his age discrimination and
intentional infliction of emotional distress claims,15 and in
granting summary judgment on his slander claim.
Summary judgment is appropriate if the record discloses "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). We apply the same standard of review as did the
district court, Hamilton v. Grocers Supply Co., 986 F.2d 97, 98
(5th Cir. 1993), drawing all inferences most favorable to the non-
moving party. Id. "The mere existence of a scintilla of evidence
stated that a copy had been sent by certified mail to McKethan's
counsel.
14
Counsel's contention in his reply brief that the pretrial
order did not so inform, because it "was submitted by [his]
associate" is totally without merit. In fact, it is almost, if not
completely, astonishing that such an assertion would be made.
Needless to say, that another lawyer in counsel's firm may have
prepared and submitted the pretrial order is immaterial; obviously,
that knowledge is imputed to him.
15
In his reply brief, McKethan withdrew his negligent infliction
of emotional distress claim in light of Boyles v. Kerr, 1993 Tex.
LEXIS 58, 36 Tex. Sup. Ct. J. 874 (Tex. May 5, 1993), which held
that Texas does not recognize that tort.
12
in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the
plaintiff". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). The foregoing standard also applies to our review of
judgments as a matter of law. Fed. R. Civ. P. 50(a)(1); Barnett v.
I.R.S., 988 F.2d 1449, 1452 n.5, 1453 (5th Cir. 1993).16
1.
For his age discrimination claim, McKethan must prove, inter
alia, his asserted constructive discharge. "The general rule is
that if the employer deliberately makes an employee's working
conditions so intolerable that the employee is forced into
involuntary resignation, then the employer has encompassed a
constructive discharge and is as liable for any illegal conduct
involved therein as if it had formally discharged the aggrieved
employee." Bozé v. Branstetter, 912 F.2d 801, 804 (5th Cir. 1990)
(internal quotations omitted). The test is that of a "reasonable-
employee"; that is, "were [the working conditions] so difficult or
unpleasant that [a] reasonable person in [McKethan's] shoes would
16
The Rule provides in part:
If during a trial by jury a party has been
fully heard with respect to an issue and there is
no legally sufficient evidentiary basis for a
reasonable jury to have found for that party with
respect to that issue, the court may grant a motion
for judgment as a matter of law against that party
on any claim ... that cannot under the controlling
law be maintained without a favorable finding on
that issue.
Fed. R. Civ. P. 50(a)(1).
13
have felt compelled to resign". Ugalde v. W.A. McKenzie Asphalt
Co., 990 F.2d 239, 242 (5th Cir. 1993).
First, we emphasize that none of the usual factors present in
a constructive discharge case are before us. It is undisputed that
McKethan was not demoted; he was not asked to perform duties
inconsistent with, or more onerous than, other TFB district sales
managers; and TFB did not reduce his compensation.17 Moreover, the
record is devoid of evidence indicating that the awards incident
diminished his reputation. McKethan testified that he knew of no
one whose opinion of him changed, and his agents performed better
during the months following the incident than they had in the
previous two years. Accordingly, his characterization of his
working conditions as intolerable was based only on the
embarrassment caused by the incident, TFB's failure to initiate a
proper apology,18 and otherwise dissuade him from retiring, and his
inferences that the foregoing reflected TFB's desire to replace him
with a younger person. Based on the evidence, a reasonable jury
could not find constructive discharge.
Even if Grantham's remarks were, as McKethan alleges, the
first step of a scheme to force him to retire because of his age,
a reasonable person would not have felt compelled to resign based
on that incident alone; rather, he would have demanded an apology
17
Rather, in the three years preceding his departure, his income
increased from $69,346.40 in 1988 to $83,956.96 in 1990.
18
As stated supra, Lancaster, McKethan's direct supervisor,
apologized a day or two after the incident; but, according to
McKethan, Lancaster's message "[did] not constitute an apology".
14
or otherwise attempted resolution within TFB, and, if necessary,
filed an age discrimination claim with the EEOC while employed.
See Ugalde, 990 F.2d at 243.19 We conclude that McKethan's working
conditions were more than sufficiently conducive to an attempt to
resolve his grievances.20 Our conclusion is buttressed by the fact
that McKethan voluntarily delayed retirement for 13 months for tax
benefits, and that, subsequent to retirement, requested his job
back.
McKethan may have felt humiliated; but, the standard is an
objective one. And, as stated, viewing all inferences in
McKethan's favor, we conclude that a reasonable employee would not
have felt compelled to resign. Accordingly, the district court
properly granted judgment against McKethan on his age
discrimination claim.
19
In Ugalde, one supervisor referred to Ugalde and other
Hispanic employees as "Mexicans" and "wetbacks". When Ugalde was
not immediately given a chance to meet with the head of the company
to voice his complaints, he walked off the job. We affirmed the
summary judgment because, under the circumstances presented in the
case, "a reasonable employee instead of resigning would first have
pursued either or both of two courses - completed the internal
grievance procedure, or filed a complaint with the EEOC". Id.
(quoting Bozé, 912 F.2d at 805).
20
For example, Peacock testified that in June 1990, following
the incident in May, he and McKethan played golf together and
socialized for over four hours; during that time, McKethan did not
express bitterness about either his decision to retire or the
incident. According to Peacock, the same occurred when they played
golf together in October of that year. McKethan does not dispute
this testimony.
15
2.
McKethan's intentional infliction of emotional distress claim
was based on the awards incident, TFB's failure to take corrective
action, and TFB's retraction of the continued employment offer
contained in its amended answer. Of course, we apply Texas law to
this claim and his other supplemental claim for slander, discussed
in part II.B.3. See Wilson v. Monarch Paper Co., 939 F.2d 1138,
1142 (5th Cir. 1991).
The Texas Supreme Court has recently adopted the tort of
intentional infliction of emotional distress, as stated in § 46(1)
of the Restatement (Second) of Torts (1965). See Twyman v. Twyman,
1993 Tex. LEXIS 59, 36 Tex. Sup. Ct. J. 827 (Tex. May 5, 1993).21
Accordingly, in order to recover for intentional infliction of
emotional distress, McKethan must establish that (1) the defendant
acted intentionally or recklessly; (2) the defendant's conduct was
21
The court explained:
As distinguished from the tort of negligent
infliction of emotional distress, we believe the
rigorous legal standards of the Restatement
formulation of intentional infliction of emotional
distress help to assure a meaningful delineation
between inadvertence and intentionally or
recklessly outrageous misconduct. The requirements
of intent, extreme or outrageous conduct, and
severe emotional distress before liability can be
established will, we think, strike a proper balance
between diverse interests in a free society. That
balance, at minimum, must allow freedom of
individual action while providing reasonable
opportunity for redress for victims of conduct that
is determined to be utterly intolerable in a
civilized community.
Id. at ** 5-6.
16
extreme and outrageous; (3) the defendant's actions caused him
emotional distress; and (4) the emotional distress was severe. Id.
at ** 3-4. "It 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."
Wornick Co. v. Casas, 1993 Tex. LEXIS 102, * 7 (Tex. June 30, 1993)
(internal quotations omitted).
In Wornick Co., the plaintiff was unexpectedly fired, even
though she had received favorable job-performance reviews; was told
to leave the premises immediately; and was met by a security guard
instructed to escort her off the premises. The guard waited while
she spoke with the president of the company, who promised that she
would be on a leave of absence, rather than terminated, pending a
meeting. Despite this promise, the plaintiff was removed from the
payroll shortly thereafter and not allowed to return to the
premises; no meeting was scheduled. Id. at ** 2-5.
The Texas Supreme Court held that although this conduct "could
reasonably be expected to cause humiliation ... [it] did not
`exceed all possible bounds of decency' and was not `utterly
intolerable in a civilized community'". Id. at * 8. The court
emphasized that to hold otherwise would wholly undermine the
employment at will doctrine by subjecting employers to "a potential
17
jury trial in connection with virtually every discharge".22 Id. at
* 12.
The conduct at issue is less extreme than that in Wornick Co.
Grantham's remarks were brief and, at worst, conveyed the message
that McKethan had not earned recognition; by contrast, the
termination in Wornick Co. implied incompetence or misbehavior. As
for the failure to delete the offer of continued employment from
the amended answer, this conduct, even if intentional, is not
meaningfully distinguishable from the president's conduct in
Wornick Co.23
In addition, McKethan failed to provide evidence that his
distress was severe. The Texas Supreme Court has not yet analyzed
the severity requirement; however, quoting the Restatement (Second)
of Torts § 46 comment j (1965), the Texas Court of Appeals has held
that in order to create a jury issue on liability, the plaintiff
must present evidence that his distress was so severe that "no
reasonable man could be expected to endure it". K.B. v. N.B., 811
S.W.2d 634, 640 (Tex. App.-San Antonio 1991, writ denied), cert.
denied, ___ U.S. ___, 112 S. Ct. 1963 (1992). McKethan failed to
22
Our decisions prior to the recent Texas Supreme Court
decisions compel the same result. We held that an "ordinary
employment dispute" rises to the level of "outrageous" conduct
under Texas law where there is evidence of intentional and
systematic degradation and humiliation, Wilson, 939 F.2d at 1145,
or reprehensible conduct that is "utterly intolerable in a
civilized community". Dean v. Ford Motor Credit Co., 885 F.2d 300,
306-07 (5th Cir. 1989).
23
Accordingly, we need not consider TFB's assertion that
litigants' allegations are absolutely privileged in infliction of
emotional distress cases.
18
meet this burden. Aside from his testimony about stomach problems
on the day of, and after, the incident, the only other possible
evidence of severe distress is his conclusory testimony regarding
his self-diagnosed depression.
In view of the foregoing, the district court correctly refused
to allow the jury to consider McKethan's claim for intentional
infliction of emotional distress.
3.
McKethan maintains that the court erred in disposing of his
slander claim by sua sponte granting, on reconsideration, TFB's
summary judgment motion. "Slander is a defamatory statement orally
communicated or published to a third person without legal excuse".
Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 333 (Tex. App.-Dallas
1986, no writ). "A statement is defamatory if the words tend to
injure a person's reputation, exposing the person to public hatred,
contempt, ridicule, or financial injury." Einhorn v. LaChance, 823
S.W.2d 405, 410-11 (Tex. App.-Houston 1992, writ dism'd w.o.j.).
"Whether the words are reasonably capable of the defamatory
meaning the plaintiff attributes to them is a question of law for
the trial court". Kelly v. Diocese of Corpus Christi, 832 S.W.2d
88, 91 (Tex. App.-Corpus Christi 1992, writ dism'd w.o.j.). To
that end, "[t]he allegedly slanderous statements must be construed
as a whole, in light of the surrounding circumstances or context in
which a person of ordinary intelligence would understand the
statements". Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d
914, 920-21 (Tex. App.-Corpus Christi 1991, writ dism'd w.o.j.).
19
The district court concluded: "[a]ssuming that [McKethan's]
testimony as to the statements made by Don Grantham is true, those
statements, taken in the undisputed context of their making are not
slanderous, and no reasonable jury could so find". (Emphasis in
original.) We agree.
As noted, Grantham's remarks were made at a ceremony
recognizing top performance. McKethan agreed that "traditionally
and over the years, there had always been at least teasing and
laughter". Grantham and Lancaster were at the podium to announce
the "top ten in the company" for region one and two. McKethan's
name was ninth on the list for region two. Rather than read
McKethan's accomplishments, Grantham stated (McKethan's version):
"Sit down, you don't have anything, you haven't done anything to be
recognized for ... [you] never had a master agent and never will
have one". According to all witnesses at trial, except McKethan,
at least part of the crowd reacted with laughter.24
McKethan's name was listed prominently in the program as a
moderator for two panel discussions earlier that day. He had been
recognized at 17 consecutive banquets. And, according to
testimony, he was widely regarded as one of the best district sales
managers in the state. Considering the context of a jovial
recognition ceremony, the nature of the remarks, and McKethan's
prominence as an exceptional district sales manager, we conclude
that a person of ordinary intelligence would not have attributed a
defamatory meaning to the remarks.
24
McKethan does not dispute this testimony.
20
C.
McKethan maintains that the court erred in denying his Rule
60(b) motion for recusal, disqualification and a new trial,25
pursuant to 28 U.S.C. §§ 144, 455.26 The motion was triggered by
TFB's disclosure in its motion for attorney's fees, subsequent to
entry of judgment, of an ex parte telephone conversation between
Judge Smith and a lawyer with the firm representing TFB (Judge
25
As McKethan agrees, because the motion was filed more than ten
days after judgment, we consider it a Rule 60(b) motion. See
Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th
Cir.), cert. denied sub nom., Southern Pacific Transp. Co. v.
Harcon Barge Co., 479 U.S. 930 (1986).
26
Section 144 provides:
Whenever a party to any proceeding in a
district court makes and files a timely and
sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice
either against him or in favor of any adverse
party, such judge shall proceed no further therein,
but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the
reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days
before the beginning of the term at which the
proceeding is to be heard, or good cause shall be
shown for failure to file it within such time. A
party may file only one such affidavit in any case.
It shall be accompanied by a certificate of counsel
of record stating that it is made in good faith.
Section 455(a) provides:
Any justice, judge, or magistrate of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
21
Smith's former firm).27 That lawyer, in response to McKethan's
motion, confirmed by affidavit that he contacted Judge Smith on
January 17, 1992, to alert him that Judge Sparks, to whom the case
had been transferred on January 14, would be biased in TFB's favor
because he formerly represented it.
Judge Smith transferred the motion to Judge H. F. Garcia. In
the transfer order, Judge Smith explained that he took the call
because it was from a friend of many years and that he responded to
the inquiry by stating that he had not intended to transfer the
case, and that an amended order had already been filed.28
Judge Garcia allowed McKethan additional time to file an
extended reply to Judge Smith's order and TFB's response to the
motion. He subsequently denied the motion. McKethan did not file
a notice of appeal from that ruling.
1.
McKethan urges that we review the denial of his Rule 60(b)
motion, even though he failed to file a notice of appeal from it.
We disagree. McKethan failed to preserve for appellate review the
recusal issue raised in his Rule 60(b) motion, because he did not
separately appeal from the ruling on it. See Ingraham v. United
States, 808 F.2d 1075, 1081 (5th Cir. 1987) ("where a 60(b) motion
is filed after the appeal is noticed, an appeal from the ruling on
27
The conversation was one of the time entries in fee statements
attached to TFB's motion.
28
The order transferring the case back to Judge Smith was, in
fact, signed on January 16, the day before the conversation,
although it was not filed until January 21.
22
that motion must be separately taken if the issue raised in that
motion is to be preserved for appeal").29 Accordingly, the Rule
60(b) motion is not before us.
2.
In the alternative, McKethan asserts that, because he filed a
notice of appeal from the underlying judgment, we should review, as
if presented for the first time on appeal, Judge Smith's failure to
recuse or disqualify himself.30 Although it may indeed be within
our power to do so, we refuse to countenance this attempt to
circumvent the requirements discussed supra.31 This issue was not
raised for the first time on appeal -- far from it. McKethan fully
presented it in his Rule 60(b) motion; both parties extensively
briefed and otherwise presented it; and the district court gave it
careful consideration, concluding it was without merit. We will
29
This court focused on the fact that denial of a Rule 60(b)
motion is separately appealable, even where, as here, appeal from
the underlying judgment is pending.
30
According to McKethan, Judge Smith's ex parte conversation,
along with his conduct at trial, severely comprised his appearance
of impartiality.
31
This circuit has not yet clearly defined the scope of our
review of § 455 issues raised for the first time on appeal. In
United States v. York, 888 F.2d 1050, 1055-56 (5th Cir. 1989), we
suggested that the Supreme Court has at least implicitly rejected
a per se rule deeming untimely all § 455 motions raised for the
first time on appeal. Id. The York panel therefore refused to
apply "an inflexible rule", but concluded that the motion was
untimely based upon the facts and circumstances. Id. In addition,
we noted that regardless of timeliness, some courts apply the
plain-error rule, which requires a showing of "particularly
egregious errors" resulting in a "miscarriage of justice". Id.
(internal quotations omitted). Without deciding whether
untimeliness may be disregarded where there is plain error, we held
that appellant failed to establish plain error. Id.
23
not participate in the fiction that the issue was not raised in
district court simply because McKethan failed to comply with the
prerequisites to review. Accordingly, we reiterate that the issue
is not properly before us.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
24