Grizzle v. Travelers Health Network, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________

No. 91-7062
__________________

ELLIE E. GRIZZLE Plaintiff-Appellant,

VERSUS

THE TRAVELERS HEALTH NETWORK, INC. Defendant-Appellee.

________________________________

Appeal from the United States District Court
for the Northern District of Texas
________________________________

(February 3, 1994)

Before JONES and DeMOSS, Circuit Judges, and SCHWARTZ*, District
Judge.

SCHWARTZ, District Judge:

Following Ellie Grizzle's ("Grizzle") termination from her

employment by Travelers Health Network, Inc. ("Travelers") her

former employer, she brought suit against it in the district court,

alleging age discrimination, retaliatory discharge for complaining

of age discrimination pursuant to the Age Discrimination in

Employment Act ("ADEA"),1 and intentional infliction of emotional

distress ("IIED") pursuant to Texas law. The jury trial on

*
District Judge of the Eastern District of Louisiana,
sitting by designation.
1
29 U.S.C. §§ 621-34.

1
Grizzle's claims lasted approximately two days, and on September 9,

1991, the jury returned a verdict in favor of Travelers on the age

discrimination and IIED claims, but found for Grizzle on the

retaliation claim, finding Travelers' conduct was "willful." On

September 19, 1990, the district court granted Travelers' motion

for judgment notwithstanding the verdict on the retaliation claim,2

and final judgment was thus entered in favor of Travelers on the

entire action dismissing all of Grizzle's claims against it.

On appeal, Grizzle seeks reinstatement of the jury's verdict

in her favor on the retaliation claim and a new trial on her state

law IIED claim, contending that the trial court erred in the

following respects: 1) by entering judgment notwithstanding the

verdict ("JNOV") on the retaliation claim; 2) by refusing to grant

a new trial on Grizzle's IIED claim because of improper statements

made by Travelers' counsel during closing argument; 3) by excluding

testimony and evidence concerning Grizzle's lost wages; 4) by

admitting the testimony of two Travelers' employees who were not

fully identified prior to trial; and 5) by excluding certain

testimony concerning Travelers' net worth. Finding no reversible

error, we affirm.

2
This case was tried before the effective date of the
December 1991 amendments to Federal Rule of Civil Procedure 50.
Rule 50 now uses the term "judgment as a matter of law" for both
a directed verdict and a judgment non obstante veredicto
("JNOV"). However, the commentary makes clear that the legal
standards for granting and reviewing such motions remain
unchanged. This opinion, for convenience, uses the term "JNOV."

2
I. FACTUAL AND PERTINENT PROCEDURAL BACKGROUND

A. Facts

Grizzle's challenge of the JNOV requires us to evaluate the

sufficiency of the evidence supporting the jury's verdict. We,

therefore recite the facts adduced at trial in the light most

favorable to that verdict.3 In any light, the facts of this case

are uncomplicated and straightforward.

In March of 1988, Grizzle was hired at age 42 as a general

ledger accountant by Travelers, a health maintenance organization

("HMO") "umbrella" company in Las Colinas, Texas. Although she did

not have bachelor's degree in accounting, Grizzle had twenty years

experience working as an accountant. For the initial period her

employment, March 1988 through March 1989, Grizzle achieved an

above average rating of "2" because the highest rating (i.e., "1")

was reserved for a perfect performance.4 Grizzle also won an

"Outstanding Achievement" award during this period.

In September of 1988, Grizzle applied for, but did not receive

a supervisory position. According to Grizzle, during an interview

with Finance Director Glen Marconcini ("Marconcini") she was

informed by him that, although she was qualified for the promotion,

she would not receive it because she rubbed him the wrong way, she

3
Wilson v. Monarch Paper Co., 939 F.2d 1138, 1139 (5th Cir.
1991).
4
Originally Grizzle's supervisor Len Nary gave her a
performance rating of "1" (the highest rating). It was later
reduced to a "2" (an above average rating) by Nary's superior,
Regional Vice President and Comptroller Dave Goltz, who explained
that a rating of "1" means perfect, and no one is perfect.

3
smoked and also, he was not wild about her age.5 Thereafter,

Grizzle complained to her immediate supervisor Len Nary ("Nary"),

who interceded on her behalf. As a result of her complaint to

Nary, Grizzle received a $2,000 a year raise and was given

supervisory authority within her department. No formal complaint

was made with respect to Marconcini's alleged comment and, in fact,

favorable employment action followed her informal "complaint" to

Nary as heretofore stated.

In March of 1989 Travelers' Las Colinas and Atlanta offices

merged. The following month, Kent Latiolais ("Latiolais"), a

transferee from Travelers' Atlanta office, was made Grizzle's

supervisor. The appointment of Latiolais was in effect a demotion

for plaintiff. Grizzle testified that she met with Traveler's

Regional Vice-President and Comptroller Dave Goltz ("Goltz") and

expressed concern that she had been passed over for Latiolais' job

because of her age and that he "kind of lost his composure for a

second," then assured her that he would never discriminate against

5
As Marconcini did not testify, the only evidence of this
conversation was plaintiff's own testimony, which is reiterated
verbatim below:
"I don't need to look at your background or your
qualifications. . . . Anyone out there will tell you
that you can analyze an account without any problems;
that there is nothing wrong with you as far as an
accountant. You are very capable. . . . However, you
rub me the wrong way. I don't like you because you
smoke and I am not real crazy about your age."

"[The next day] I told [Nary] I wouldn't even venture a
guess as to me getting the position because of the
interview that had gone on between Mr. Marconcini and
myself the night before." Tr. Vol. I, p. 31-32.

4
anyone, including Grizzle, on the basis of age.6 No formal

complaint was registered by Grizzle following the appointment of

Latiolais addressing her speculation that perhaps the factor of her

age figured into the decision to appoint transferee Latiolais as

her supervisor.

From approximately April of 1989 until February of 1990,

Grizzle, Latiolais and Loretta Scott ("Scott"), a younger co-worker

who performed the same function at Travelers as plaintiff, all

shared the same small office. In July 1989, Travelers switched to

a new computer system on which plaintiff lacked proficiency, with

the result that she made many ledger entry errors. In the summer

of 1989, Grizzle complained to Travelers' Director of Internal

Accounting, Beverly Snyder ("Snyder"),7 that she was subjected to

increased surveillance and scrutiny of her work by Latiolais, while

Scott was not. She also complained that Latiolais and Scott were

not speaking to her, and that she was given insufficient computer

training for the new system, and further speculated that her co-

6
Grizzle's precise testimony regarding her conversation with
Goltz follows:
"Mr. Goltz was telling me that he made Kent
supervisor due to the fact when he was finance
director and he went to New Orleans, Kent had all
of his account balances analyzed and I told him
that I didn't think that I would ever move on with
the company as I hadn't in the past because of my
age."

"He [Goltz] lost his composure for a second, and then
he assured me that he would never treat me or promote
or not promote anyone on the basis of age." Tr. Vol. I,
p. 47-48.
7
The hierarchy at Travelers was as follows: Latiolais
reported to Snyder, who reported to Goltz.

5
workers disliked her because of her age. According to Grizzle,

Snyder responded there was nothing that Grizzle could do about it

because she was not over the age of 55.8 Snyder denied making that

statement and also testified she did not know that the ADEA

prohibits age discrimination against people aged 40 and above.

In July 1989, Grizzle received her first written warning from

Latiolais regarding her lack of productivity and her ledger entry

mistakes. Travelers maintained two personnel files on Grizzle, and

Latiolais eventually compiled a "four-inch-thick" binder

documenting her errors. At trial Grizzle admitted that, like

everyone else in the department, she made errors. She further

acknowledged that her performance was sub par. Grizzle explained

8
The entirety of Grizzle's trial testimony regarding her
discussion with Snyder, follows:

"I had gone to her [Snyder] and I told her that I
did not think that it was fair the way I was
treated in the Department -- that I was not spoken
to, that I was not given training, that I was not
included in what was going on in the books and so
forth of the company, the attitude that was well
known among all the supervisors and officers in
the company, and that I felt like, you know,
something should be done to help remedy the
situation where we could work together as
professional human beings."

". . . she told me that I was a bad fit; that Kent
and I mixed like oil and water; Loretta didn't
like me; and since I just live in an apartment,
why didn't I just find me another job. . . .
During the course of the conversation, I told her
that I didn't think it was fair the way that I was
being treated, and that I thought that I was being
treated that way to a great extent due to my age.
And she told me that there was nothing that I
could do about it because I was not over the age
of 55.
Tr. Vol. I, pp. 71-72.

6
the plethora of documentation as to her admittedly sub par

performance by stating that Latiolais and Scott had augmented their

evidence of her errors by taking copies of her ledger printouts

directly from the printer before she had a chance to proofread

them. She further testified that she received inadequate training

on the new computer system and that the system had "bugs." It was

Grizzle's impression that the problems she encountered in relating

to her co-workers justified her admittedly poor performance.

Grizzle further complained she was not advised of several memos

documenting her errors and poor performance, which were placed in

her personnel file by Latiolais.

The evidence was, however, to the effect that: (1) Grizzle had

sufficient computer skills to complete the task of entering journal

entries into the computer and checking them against the general

account ledger; and (2) as to the computer system itself, all

employees of Travelers worked on the same system, and all, but

Grizzle, managed to perform their assigned tasks adequately.

Moreover, Grizzle admitted, that upon her request, Latiolais

reallocated plan assignments between herself and her co-worker

Scott. Further, Grizzle acknowledged that Latiolais did his level

best to help both herself and Scott with bank reconciliations and

that he in fact did Grizzle's because she was so far behind in her

accounting work.

In December of 1989, Grizzle was given another written warning

by Latiolais and in January 1990 was placed on "final warning."

Documentation of her errors continued throughout this period. On

7
February 16, 1990, Latiolais told Grizzle that her performance had

not improved and that she was discharged. Grizzle was only 44

years old on the date of her discharge and simple math admits that

at the time discharge, Grizzle was only two years older than she

was at the time Travelers' made the decision to hire her.

Latiolais, Goltz, and Snyder, each of whom are approximately

10 years younger than Grizzle, participated in making the decision

to fire her. She was replaced by a 23-year-old recent college

graduate. On March 16, 1990, she filed a complaint with the Equal

Employment Opportunity Commission ("EEOC") alleging Travelers

discriminated and retaliated against her on the basis of her age.

That was the first formal complaint made by Grizzle referencing age

discrimination in the employment context. During the six-month

period of Grizzle's documented and admittedly sub par performance

of her job with Travelers (i.e., July 1989 through February 16,

1990), Grizzle registered no formal complaint with respect to any

age discrimination on the job.

B. Evidentiary Rulings at Issue

The trial judge excluded the testimony of Grizzle's witness,

Sandra Clark ("Clark"), a former employee of the EEOC, who was also

employed as plaintiff's counsel's paralegal. Clark would have

testified as to plaintiff's lost earnings. The trial judge also

excluded evidence of Travelers' net worth. Two of Grizzle's co-

workers, defense witnesses Natalie Decker ("Decker") and Cary

Burton ("Burton"), whose addresses were not disclosed in the pre-

trial order, were permitted to testify notwithstanding the

8
objection of plaintiff's counsel. Decker and Burton testified

generally that Grizzle was a gossip, had criticized Latiolais'

abilities as a supervisor, and had called one co-worker a "sex

maniac." However, the judge prevented these witnesses from

answering questions about racist and homophobic comments allegedly

made by Grizzle. The sum and substance of her co-workers

testimony, which testimony was corroborated by her supervisor

Latiolais, was that Grizzle did not pay sufficient attention to her

work on account of her frequent breaks, which time was spent

engaged in activity (i.e., "gossiping") which was counter-

productive.

C. Traveler's Closing Argument

During his part of Travelers' shared closing argument,

Travelers' counsel David Kitner ("Kitner") repeatedly personalized

it employing language such as:

"I am asking myself questions";
"I hope that you came to the same conclusion I did";
"I agree with that and I think that everyone here ought to".

"Now, I have been sitting here with Paula, and . . . I kind of
felt like I am the seventh juror right over here in this chair
over here, because I am hearing the evidence; I am able to
listen to it because I am not caught up on the trial so much,
objecting and things like that. And I am asking myself
questions."

"You need to send a message to people like Ms. Grizzle that
you don't come into the courthouse and take up this court's
time and the jury's time in cases like this."

Grizzle's counsel made a request to approach the bench during the

middle of Travelers' close, but did not apprise the trial judge of

the reason for her request, and the request was denied. There was

no timely objection to Kitner's closing argument. Only at the

9
conclusion of Travelers' closing argument did plaintiff's counsel

formally object to Kitner's remarks and request for a specific

curative instruction, which request the trial judge denied.

II. ANALYSIS

A. JNOV

The jury found that Travelers terminated Grizzle's employment

in retaliation for her opposition to and complaints about alleged

age discrimination, in violation of the ADEA.9 The trial court set

aside this verdict in a one-page order without detailing the

reasons for its ruling.

The standard of review for motions for directed verdict and

for JNOV was succinctly set out in Boeing Co. v. Shipman, to wit:

[T]he court should consider all of the evidence--
not just that evidence which supports the non-
mover's case--but in the light and with all
reasonable inferences most favorable to the party
opposed to the motion. If the facts and inferences
point so strongly and overwhelmingly in favor of
one party that the Court believes that reasonable
men could not arrive at a contrary verdict,

9
The ADEA section dealing with retaliatory discharge
provides: "(d) Opposition to unlawful practices . . . It shall be
unlawful for an employer to discriminate against any of his
employees . . . because such individual . . . has opposed any
practice made unlawful by this section, or . . . has made a
charge . . . under this chapter." 29 U.S.C. § 623(d) (1988).
Section 623 of the ADEA defines the following employer
practices as "unlawful":
(1) to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to
comply with this chapter.

10
 granting [JNOV] is proper. On the other hand, if
there is substantial evidence opposed to the
motion[], that is, evidence of such quality and
weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach
different conclusions, [JNOV] should be denied. .
. . [I]t is the function of the jury as the
traditional finder of facts, and not the court, to
weigh conflicting evidence and inferences, and
determine the credibility of witnesses.

411 F.2d 365, 374-75 (5th Cir. 1969)(en banc).

Grizzle challenges the JNOV, asserting that although her job

performance was poor, there was other evidence from which the jury

could find a retaliatory motive for her discharge. Travelers

contends that Grizzle has failed to produce any evidence from which

a reasonable jury could conclude that her termination was more

likely caused by a retaliatory motive, rather than by her

admittedly poor performance.

Thus we must determine whether Grizzle failed as a matter of

law to prove retaliation. A plaintiff establishes a prima facie

case of ADEA retaliation by demonstrating that: (1) she engaged in

activity protected by the ADEA; (2) an adverse employment decision

occurred; and (3) there was a causal connection between the

protected act and the adverse employment decision.10 Once the prima

facie case is established, the burden of producing some non-

discriminatory reason falls upon the defendant.11 If the defendant

10
Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.
1992); see also, Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th
Cir. 1986)(similarly worded and interpreted Title VII retaliation
provision), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93
L.Ed.2d 1001 (1987).
11
Shirley, 970 F.2d at 42.

11
demonstrates such, the employee then assumes the burden of showing

that the reasons given by the defendant were a pretext for

retaliation.12 However, when a case has been fully tried on the

merits, as this one has, the adequacy of a party's showing at any

particular stage of the burden-shifting process is not the primary

issue.13 Rather, the appellate court reviewing a JNOV looks to see

if the overall record contains evidence upon which a reasonable

trier of fact could have concluded as the jury actually did.14 In

summary, the ultimate issue is whether the there was sufficient

evidence for a reasonable finder of fact to conclude that the

official reason for Grizzle's discharge was "pretextual", and that

the true reason therefor was retaliation for her complaints of age

discrimination.

The burden of proof herein was on Grizzle to demonstrate that

her discharge was more likely based on retaliation for her

complaints of illegal discrimination, and not caused by her

inability to perform her assigned work or her co-workers' dislike

of her.15 Further, in order to prove her claim for retaliatory

12
Id.
13
Molnar v. Ebasco Const., Inc., 986 F.2d 115, 118 (5th Cir.
1993)(citing Walther v. Lone Star Gas Co., 952 F.2d 119, 122-23
(5th Cir. 1992)).
14
Id. (citing Elliot v. Group Medical & Surgical Service,
714 F.2d 556, 564 (5th Cir. 1983), cert. denied, 467 U.S. 1215,
104 S.Ct. 2658, 81 L.Ed.2d 364 (1984)).
15
See, e.g., Little v. Republic Refining Co., 924 F.2d 93,
96 (5th Cir. 1991)(discharge based on jealousy not actionable
under the ADEA); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568,
1571 (7th Cir. 1989)(evidence that employer "hard-hearted" in
being unsympathetic to adjustment problems of employee failed to

12
discharge, Grizzle was required to demonstrate that "but for" the

protected activity, she would not have been discharged.16

According to Grizzle, her immediate supervisor Latiolais was

largely responsible for the decision to discharge her. Although

Goltz, Snyder and Latiolais participated in the decision to

terminate her, it was Latiolais her direct supervisor who had the

final authority to terminate her employment and did so, in fact, on

February 16, 1990. Yet, Grizzle made no complaints of

discrimination to Latiolais.

In this vein, Grizzle produced no direct evidence of

retaliation. The "protected activity" asserted by Grizzle

consisted of three "complaints" of age discrimination, to wit: (1)

her discussion with Nary regarding Marconcini's remarks in the fall

of 1988;17 (2) her discussion with Goltz regarding his decision to

appoint Latiolais as her supervisor in approximately April of

1989;18 and (3) her discussion with Snyder during the summer of

1989.19 Grizzle introduced no evidence which would suggest that

either Goltz or Snyder advised Latiolais of the precise nature of

her "complaints" to them. Only impermissible speculation could

establish pretext that firing not due to performance problems).
16
Shirley, 970 F.2d at 43 (citing Jack v. Texaco Research
Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984)(interpreting similarly
worded Title VII retaliation provision).
17
See supra note 5.

18
See supra note 6.
19
See supra note 8.

13
account for a finding that Latiolais' decision to terminate Grizzle

was causally connected to her "complaints."

Reviewing the entire record, we find that Grizzle has

introduced no evidence which would support a reasonable jury

finding of retaliatory motive without engaging in impermissible

speculation. There was no evidence of a hostile reaction to any of

her alleged complaints. As heretofore noted, Grizzle's initial

complaint to Nary about Marconcini's remarks resulted in her being

given a raise and promotion. This certainly does not constitute

retaliation.

The only evidence supporting Grizzle's claim regarding her

second complaint, the April 1989 conversation with Goltz, was

Grizzle's own self-serving generalized testimony stating her

subjective belief that discrimination occurred. Such is simply

insufficient to support a jury verdict in plaintiff's favor.20

Moreover, approximately ten months elapsed between Grizzle's

complaint to Goltz and her discharge. Although this lapse of time

is, by itself, insufficient to prove there was no retaliation,21 in

the context of this case it does not support an inference of

retaliation, and rather, suggests that a retaliatory motive was

highly unlikely.

The focus of Grizzle's discussion with Snyder during the

summer of 1989, when plaintiff was "in the throes" of attempting to

20
Elliot, 714 F.2d at 564; Little, 924 F.2d at 96.
21
See Shirley, 970 F.2d at 43-44 (fourteen months between
filing of EEOC complaint and discharge "not conclusive" as to
finding of no retaliation).

14
adjust to Travelers' new computer system, was that she was being

unfairly treated by co-workers. The "unfair treatment" was

essentially enhanced supervision of her work, with which she

admittedly was experiencing great difficulty. In light of such

evidence, only rank speculation could account for a verdict in

favor of Grizzle on her retaliatory discharge claim. In order to

find as the jury did in the case at bar, the evidence of the

coincidence of the installation of Traveler's new computer system,

Grizzle's drop in productivity and the onset of her poor

performance, and enhanced supervision of Grizzle on the job, had to

be viewed as pure happenstance. Even Grizzle herself admitted some

causal connection between the installation of a new computer system

with her poor performance on the job.

The record is devoid of evidence which would support a finding

of causal connection between an isolated comment expressing

Grizzle's "perceptions" in the summer of 1989 and her discharge

over five months later in mid-February of 1990 based upon a

mountain of paper in her personnel file documenting her poor work

performance throughout that entire period. Again, Grizzle herself

acknowledged such poor performance as the true state of affairs.

Even assuming as true, Grizzle's allegation that her mistakes were

caused by the oppressive conduct of Latiolais and Scott, such is

not actionable under ADEA unless it can be proven to be the result

of illegal discrimination or, in this case retaliation for engaging

in protected conduct. There is no evidence of such in this case,

and thus, no evidence of "but for" causation of retaliation.

15
 As we observed in Elliot:

[e]ven had the reasons articulated here been frivolous or
capricious, had they been the genuine cause[] of [this]
discharge[] they would have defeated liability under the
ADEA. . . . [T]hat statute proscribes only one reason
for discharge: age. One who offers a frivolous or
capricious reason, however, does so at heavy risk that it
will be discounted. Conversely where, as here, the
reasons articulated are rational ones, the objective
truth of which is not seriously disputed, the burden of
establishing them as pretextual is a heavy one indeed.
. . . [I]t is not discharged by general avowals of
belief, however, sincere, that age--rather than an
established adequate reason--was the real reason for the
termination. More is required, perhaps a successful
statistical demonstration by expert testimony, perhaps
proof that others similarly situated were not
discharged.22

We observe that judgment notwithstanding the verdict is

appropriate in the employment retaliation context when the

circumstantial evidence is such that the jury could improperly draw

inferences that are mere speculation.23 We find such to have

occurred in this case, and thus, that the district court correctly

applied Boeing.

B. Traveler's Closing Argument

Grizzle contends Travelers' counsel made improper statements

of personal opinion during closing argument, and that the court's

refusal to provide a specific curative instruction entitles her to

a new trial on her intentional infliction of emotional distress

claim. Travelers contends that the remarks were innocuous, and

that the judge's failure to provide a specific curative instruction

22
Elliot, 714 F.2d at 567.
23
Williams v. Cerberonics, Inc., 871 F.2d 452, 458-59 (4th
Cir. 1989).

16
was, at most, harmless error. Although injecting personal belief

into argument is improper, verdicts have been upheld despite the

presence of similar remarks by counsel.24 Even experienced trial

lawyers have been known to occasionally and inadvertently use the

word "I" during closing arguments. A review of closing argument on

behalf of Grizzle reveals that plaintiff's counsel, likewise,

improperly injected personal feeling, although to a lesser extent.25

In reviewing a closing argument that has been challenged for

impropriety, the appellate court must consider the jury charge and

any corrective measures taken by the trial court.26 Whereas some

of the remarks of counsel should more appropriately have been

phrased "the evidence shows" rather than "I believe", taking the

argument as a whole, the trial judge's failure to admonish counsel

during his part of the closing argument does not in this case

24
See, e.g., Canada Dry Corp. v. Nehi Beverage Co., 723 F.2d
512, 526-27 (7th Cir. 1983)(vouching for honesty of president of
company based on personal friendship with counsel and counsel's
statement of his own belief in the correctness of his client's
case not reversible error when comments were a very brief portion
of argument and trial court charged jury that statements of
counsel were not evidence); see also Bankers Trust Co. v.
Publicker Indus., Inc., 641 F.2d 1361, 1366 (2nd Cir. 1981)(use
of the word "you" ten times in six sentences was not
impermissible personal appeal to jury, but was appeal to juror's
common sense).
25
For example, Grizzle's counsel made both "send a message"
and "conscience of the community" arguments and referred to size
of the corporate defendant, suggesting five million would get
Travelers' attention.
26
Westbrook v. General Tire and Rubber Co., 754 F.2d 1233,
1238 (5th Cir. 1985).

17
amount to plain error.27

Grizzle challenges only the part of the jury's verdict denying

her intentional infliction of emotional distress claim, and yet,

Grizzle's proof of intentional infliction of emotional distress

falls far short of that required to state a claim for such under

our prior cases.

To prevail on a claim for intentional infliction of emotional

distress, Texas law requires that the following four elements be

established: (1) that the defendant acted intentionally or

recklessly; (2) that the conduct was 'extreme and outrageous'; (3)

that the actions of the defendant caused the plaintiff emotional

distress; (4) that the emotional distress suffered by the plaintiff

was severe.28

27
Moreover, both at the beginning of the trial and in the
jury charge, the trial judge instructed that statements and
arguments of counsel are not evidence.
28
Wilson v. Monarch Paper Co., 939 F.2d 1138, 1142 (5th Cir.
1991). In Wilson we stated:

'Extreme and outrageous conduct' is an amorphous phrase that
escapes precise definition.' In Dean v. Ford Motor Credit
Co., supra, however, we stated that
[l]iability [for outrageous conduct] 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 a recitation
of the facts to an average member of the community
would lead him to exclaim, 'Outrageous.'
. . . [L]iability 'does not extend to mere insults,
indignities, threats, annoyances, petty oppression, or
other trivialities . . . . There is no occasion for
the law to intervene in every case where someone's
feelings are hurt.'
Id. (citations omitted).

18
 The conduct at issue in the case at bar can hardly be regarded

as "extreme and outrageous." Without question, the evidence

regarding the conduct of Grizzle's co-workers at Travelers defies

characterization as conduct "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."29

Upon reviewing Travelers' closing argument in its entirety, we

conclude that the comments by Travelers' counsel were unlikely to

have affected the verdict, and do not justify grant of a new trial.

Travelers' closing remarks have not affected any substantial right

of Grizzle's, and could not have had an effect on the jury verdict

considering the complete failure of proof of "extreme and

outrageous" conduct, an essential element of Grizzle's IIED claim.

C. Evidentiary Rulings

Now turning the to the evidentiary rulings of the trial court,

Grizzle raises as error the district court's failure to permit

Clark, a paralegal employed by plaintiff's counsel, to testify as

to plaintiff's lost wages as derived from the EEOC's "pay calc"

computer program. Clark was listed in the pre-trial order as a

"fact witness," was not designated as an "expert witness", and was

not deposed by Travelers. The trial court's reason for excluding

Clark's testimony included that: such testimony would invade the

province of the jury; that an expert was required to present

evidence as to back pay; and that it would be difficult to test the

29
Id.

19
credibility of an employee of plaintiff's counsel. However,

plaintiff's counsel was permitted during closing argument to

present these backpay calculations and Grizzle also testified

regarding her damages during her direct examination.

Essentially, Grizzle contends that in cases filed by low to

medium income persons, involving a small amount of lost wages and

no front pay, expert testimony is unnecessary and not economically

feasible, and thus testimony by an employee of counsel should be

permitted. This is a non-sequitur. It may be that in such cases

expert testimony is unnecessary to apprise the jury of plaintiff's

lost wages. A plaintiff may be able to testify to such amounts in

simple cases. Of course, excessive cost should be no excuse for

failure to hire an expert in a difficult case where a fee shifting

statute, such as the one before us, permits the prevailing party to

obtain certain of its costs from the loser. But none of this

concern about whether to introduce plaintiff's or an expert's

testimony translates, however, into the rule advocated by Grizzle:

that testimony by an employee of counsel should be permitted.

Permitting testimony by an employee of an attorney who is assisting

in the preparation and prosecution of the case is tantamount to

permitting testimony by one's attorney. For that reason, we find

no error.

Grizzle asserts it was error for the trial judge to permit

testimony of two defense witnesses, Decker and Burton, who were

Grizzle's co-workers during her tenure at Travelers. Grizzle

argues "unfair surprise" in that these witnesses' addresses were

20
not disclosed in the pre-trial order and counsel was without

sufficient information required to locate and depose them. We

disagree.

The trial court did not abuse its discretion admitting the

testimony of Grizzle's co-workers. Defense witnesses, Burton and

Decker were disclosed in the pre-trial order, albeit sans

addresses. Both were employees of Travelers up to and including

the time of trial, and yet, Grizzle's counsel made no attempt to

contact Travelers' counsel for the purpose of setting their

discovery depositions. The circumstances are such that their

testimony at trial cannot be aptly characterized as "unfair

surprise." It is undisputed that both Decker and Burton were

identified as Travelers' employees and potential witnesses months

prior to trial.

Finally, Grizzle contends that it was error to exclude

evidence of Travelers net worth,30 which she argues was relevant to

her punitive damages claim. Travelers counters that any error,

with respect to the two aforesaid evidentiary rulings, was

harmless.

Failure to permit evidence of Travelers' net worth in the

aforesaid proffered form was not an abuse of discretion,

particularly in light of the fact that the jury found for the

30
Plaintiff's Proposed Exhibit 38 which included, inter
alia, Forbes Directory of America's Largest Corporations,
Standard & Poors listing for Travelers Corp., New York Stock
Exchange Stock Report for Travelers Corp., pertained to Travelers
Corp., and not to the defendant in this case, Travelers Health
Network, Inc.

21
Travelers on the intentional infliction of emotional distress claim

to which such punitive damages were applicable.

In summary, the aforesaid evidentiary rulings are matters

which are properly left to the sound discretion of the trial judge.

Absent any indication of undue prejudice, which we do not find

here, the trial court's rulings should not be disturbed.

Considerable deference is to be accorded to the district court's

evidentiary rulings and a ruling which admits or excludes evidence

does not require reversal unless a substantial right of a party is

affected.31 Judged against this standard, the aforesaid evidentiary

rulings do not require reversal.

For the foregoing reasons, we AFFIRM the judgment of the

district court.

31
Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758, 762
(5th Cir. 1989).

22