IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-5570
_____________________
CASSANDRA MacARTHUR,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS HEALTH CENTER AT
TYLER and MICHAEL WILSON, sued in
his individual and official capacities,
Defendants-Appellees,
and
RICHARD PAINTER, sued in his individual
and official capacities,
Defendant-Appellee-
Cross-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
_________________________________________________________________
(February 8, 1995)
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Cassandra MacArthur, a research laboratory technician, filed
this employment discrimination action against University of Texas
Health Center at Tyler, and against Dr. Richard Painter and Dr.
Michael Wilson, who worked with her at the Health Center. The
district court submitted to the jury special interrogatories on
MacArthur's claims of sex discrimination, First Amendment
retaliation and intentional infliction of emotional distress. The
jury refused to award her damages on her claims of First Amendment
retaliation or sex discrimination, but found in her favor and
against Dr. Painter on the state law claim of intentional
infliction of emotional distress. On appeal, she raises several
evidentiary rulings related to the Title VII retaliation claim,
which she pleaded, but which she failed to present to the jury for
determination. Dr. Painter cross-appeals and challenges the
sufficiency of the evidence to support the jury's award of damages
to MacArthur for intentional infliction of emotional distress.
Upon review of the record, we dismiss the appeal of MacArthur's
Title VII retaliation claim and reverse judgment against Painter on
intentional infliction of emotional distress.
I
Cassandra MacArthur worked for University of Texas Health
Center at Tyler ("UTHC") as a research lab technician in the
biochemistry department for approximately six years. During her
employment with UTHC, MacArthur's direct supervisor was Dr. Alan
Cohen, a biochemistry faculty member and Executive Associate
Director of UTHC. Dr. Richard Painter was the department chair of
biochemistry and Dr. Michael Wilson was the Assistant Director of
Human Resources while MacArthur worked for UTHC. This case arises
out of alleged events occurring between MacArthur and Dr. Painter.
Many of the details of these events are disputed among the parties.
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Problems began between MacArthur and Painter in October 1988,
when MacArthur reported to Cohen an incident in which Painter
yelled and screamed at a female employee, Ferdicia Carr. MacArthur
testified that she complained to Cohen that Painter "can't continue
to abuse women in this manner." Cohen--a witness friendly to
MacArthur--testified, however, that he did not remember whether
MacArthur complained of Painter's alleged sex discrimination.
MacArthur, nevertheless, argues that Painter began to retaliate
against her after she reported this single incident. The most
serious of these alleged retaliatory events by Painter and Wilson
against MacArthur occurred in August 1989 when MacArthur admittedly
and erroneously disposed of radiation in the regular wastebasket,
rather than in the radioactive materials wastebasket. As a result
of this error, the Radiation Safety Committee first placed
MacArthur on probation, allowing her to use radiation only under
supervision. The committee ultimately indefinitely revoked her
privilege to use radiation when it found her incompetent not only
in disposal, but also in use of the radioactive materials. This
sanction resulted in MacArthur's demotion and salary reduction.
Cohen warned MacArthur in a memorandum dated June 19, 1990, that if
she failed to have her radiation privileges reinstated by
December 6, 1990, she would be terminated. MacArthur resigned
approximately one week after receiving this memorandum. MacArthur
argues that UTHC imposed an exaggerated discipline on her as
compared to that resulting from other more serious radiation
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problems by co-workers. She contends that this was the result of
Painter's involvement and control of the committee that ultimately
imposed the punishment.1
Additionally, MacArthur argued that an incident involving
Painter's laboratory technician, Izola Williams, constituted
further unlawful retaliation. Williams asked MacArthur to assist
her with using an incubator. Over the weekend, MacArthur adjusted
a switch on the incubator in an attempt to correct the pace of the
machine. She reported this fact later to Williams who in turn
informed Painter. On Monday, Painter found the cells in the
incubator dead and blamed MacArthur. He then wrote a memorandum to
Cohen, recommending that MacArthur be restricted from the tissue
culture facility. He also yelled at MacArthur to stay out of his
laboratory. MacArthur argues that Painter, thus, "threatened [her]
career when he made public, trumped-up charges of sabotage against
[her]."2
With respect to Dr. Wilson's retaliation, MacArthur points to
the internal grievance she filed with Wilson's department after the
incubator incident occurring in Dr. Painter's laboratory against
1
Dr. Painter supervised, and performed routine employee
evaluations for all but one member of the Committee. Additionally,
Painter was a member of this Committee.
2
MacArthur argues that Painter retaliated against her in
several additional incidents, including threatening her with
scientific misconduct for using her own blood in an experiment,
writing her up for receiving personal mail at work, and reporting
her for ordering mice from another technician's protocol.
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Painter concerning his "intimidation of women." MacArthur argues
that Wilson then retaliated against her for complaining about
management by "torpedoing her grievance" and by "losing" critical
records. Henry Jackson, Director of Affirmative Action and Equal
Employment for UTHC, conducted the investigation into MacArthur's
allegations. MacArthur argues that during the investigation into
her grievance Wilson stated to Jackson not "to worry" about
Painter's concerns that he was receiving no "managerial support,"3
because UTHC still had MacArthur's performance and radiation
problems to resolve. She contends that this statement indicated
that Wilson was going to use her problems with radiation as a means
to fire her. Jackson testified that he understood this statement
to mean that UTHC would be forced to terminate her employment
because the Radiation Safety Committee was going to suspend
indefinitely MacArthur's radiation privileges based on her
substandard performance and problems with radiation.
On October 1, 1992, following her resignation in June,
MacArthur filed this suit in the United States District Court for
the Eastern District of Texas against UTHC, and Wilson and Painter
in both their individual and official capacities. She alleged
discrimination because of her sex, and retaliation because of her
3
Wilson and Ron Dodson, the head of Research, were, according
to Wilson, concerned that Jackson was asking too many questions
during his investigation of Painter and not giving Painter enough
support. Wilson, however, informed Dodson that Jackson was only
doing his job and told Jackson "don't worry, we still have the
performance and radiation issue."
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opposition to sex discrimination pursuant to Title VII of the Civil
Rights Act of 1964. MacArthur further alleged a cause of action
under 42 U.S.C. § 1983 based on retaliation for her exercise of
protected First Amendment speech concerning sex discrimination.
She additionally asserted a cause of action under the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution and, finally, a state law claim of intentional
infliction of emotional distress.4
Prior to trial, the defendants submitted to the district court
a motion in limine asking the court to exclude all evidence of
retaliation by UTHC against employees other than MacArthur. The
court granted the defendants' motion and assigned the case to a
different district court judge for trial. During trial, the
district court excluded certain other evidence offered by MacArthur
to prove her retaliation claims. MacArthur argues that the
district court erroneously granted the motion in limine and
erroneously excluded critical evidence that Wilson had previously
retaliated against other employees who complained about management.
She also argues that the district court erred by excluding evidence
that the Radiation Safety Committee disciplined other radiation
problems more leniently than it disciplined her.
4
On July 1993, the district court dismissed MacArthur's state
law claims against Wilson and Painter in their official capacities
and dismissed her Title VII claims against Wilson and Painter in
their individual capacities. This decision is not appealed.
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The district court, without objection and with approval of the
parties, submitted to the jury special interrogatories only on
three issues: Title VII sex discrimination, First Amendment
retaliation, and intentional infliction of emotional distress.
MacArthur submitted no interrogatory to the jury on a Title VII
retaliation claim, nor was the jury so instructed, nor did she
argue to the jury retaliation based on Title VII. The jury awarded
MacArthur $65,000 for intentional infliction of emotional distress
against Dr. Painter. The jury found in favor of the defendants,
however, on the Title VII sex discrimination claim and on the First
Amendment retaliation claim. The district court entered judgment
based on this verdict, dismissing all claims against the defendants
and awarding the plaintiff judgment of $65,000 on the intentional
infliction of emotional distress claim. Pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure, MacArthur made a timely
motion for a partial new trial, arguing that the district court
erroneously excluded certain evidence of retaliatory treatment of
"comparatively situated employees," offered to prove her claims of
"discrimination/retaliation."5 The district court, without comment
5
In her reply brief filed with this court, MacArthur explained
that "discrimination/retaliation" should be deciphered, consistent
with her intent, to mean retaliation in violation of Title VII of
the Civil Rights Act of 1964. She explained that she used this
mixed generic term "because the anti-retaliatory provision of Title
VII refers to retaliation as another prohibited form of
discrimination." MacArthur did not argue that the district court
erred in failing to submit an interrogatory to the jury related to
discrimination/retaliation under Title VII.
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on the merits, denied in whole MacArthur's motion for a partial new
trial. MacArthur filed a timely notice of appeal from the district
court's final judgment and denial of a partial new trial. Her
appeal, however, only raises error with respect to a Title VII
retaliation claim. Furthermore, on appeal, she raises only one
issue--that the district court committed reversible error by
excluding evidence that would have proved the defendants'
discriminatory intent in support of her Title VII retaliation
claim. The defendants cross-appealed arguing that the evidence was
insufficient to support the jury's verdict for intentional
infliction of emotional distress.
II
A
MacArthur argues that the district court abused its discretion
by excluding certain evidence that she attempted to present to
establish the defendants' retaliatory intent required with respect
to her Title VII retaliation claim.6 This evidence consisted of
incidents of the defendants' pattern and practice of retaliation
against other employees who complained about management.
6
Although the district court did not give specific rationale
for excluding the evidence in the motion in limine and during
trial, it should be noted that given the state of the record, we
cannot say the district court abused its discretion in excluding
this evidence. See EEOC v. Manville Sales Corp., 27 F.3d 1089,
1092-93 (5th Cir. 1994) (stating that we review evidentiary rulings
only for abuse of discretion). As suggested at oral argument,
MacArthur failed to demonstrate that the excluded evidence was
probative to the question of discrimination in this case.
-8-
In order to resolve this question, we must examine what claims
are actually before this court on appeal. In her notice of appeal,
MacArthur states that she appeals both the district court's final
judgment entered in this case and order denying her motion for
partial new trial. She does not even mention denial of this motion
in her briefs on appeal. Consequently, she has abandoned any issue
or claim that arises from the denial of her new trial motion that
is independent of the underlying judgment, which she also appeals.
See FED. R. APP. P. 28(a)(5) ("The argument must contain the
contentions of the appellant on the issues presented, and the
reasons therefor"); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993) (holding that appellant abandoned argument by failing to
argue it in body of brief).
We now turn to examine the underlying judgment to determine
what claims and issues are before us--especially focusing on
MacArthur's Title VII retaliation claim. The procedural facts
concerning this claim are simple. MacArthur pleaded in her
complaint a cause of action for retaliation under Title VII,
together with First Amendment retaliation, sex discrimination,
intentional infliction of emotional distress, and a violation of
the Equal Protection Clause. Each of these claims appeared in the
pretrial order. It is clear, however, that MacArthur ultimately
argued and presented for the jury's determination only three
claims: the First Amendment retaliation claim, the sex
discrimination claim, and the intentional infliction of emotional
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distress claim. In her closing argument, MacArthur argued evidence
that she contended supported retaliation generally; she did not
refer to retaliation based on Title VII at any point during this
argument. It is further clear that the district court did not
instruct the jury on Title VII retaliation; the court instructed
the jury extensively on the law concerning First Amendment
retaliation, as well as on the other two claims, but did not say a
single word with respect to Title VII retaliation. At the close of
the instructions, when given an opportunity to object, MacArthur
did not object to the court's failure to instruct on Title VII
retaliation. Neither did she object to the omission of any
interrogatory to the jury with respect to her Title VII retaliation
claim.7 Her failure to lodge an objection to these omissions of
Title VII retaliation is all the more indicative of her intent to
abandon the claim because she specifically objected to the omission
of an Equal Protection Clause claim, which the court overruled; in
other words, her failure to object was not inadvertent as though
she were asleep at the switch. In sum, MacArthur failed to argue
this claim, failed to have the jury instructed on this claim and
failed to submit this claim for the jury's determination and
verdict. Under these circumstances, the jury failed to return any
verdict with respect to her Title VII retaliation claim. The
court, specifically stated in the final judgment "pursuant to the
7
The jury verdict form is produced and attached to this
opinion as Appendix A.
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verdict returned by the jury, the Court enters the following
judgment." The court then dismissed, with prejudice, all claims
against the defendants, except the claim for intentional infliction
of emotional distress, with respect to which it entered judgment
for MacArthur. Neither in post-trial motions, nor on appeal, does
MacArthur raise as error the district court's failure to instruct
the jury or submit an interrogatory on Title VII retaliation. Our
review of the record, therefore, demonstrates that MacArthur
abandoned her Title VII claim and choose to travel with her First
Amendment claim for retaliation based on the exercise of her right
to speak freely.
B
In appealing the final judgment, MacArthur effectively raised
her claims of sex discrimination and First Amendment retaliation.
She also effectively raised in her notice of appeal, the denial of
her motion for a partial new trial. She has abandoned each of
these claims on appeal, however, by her failure to argue any of
these claims to this court--her brief arguing only error with
respect to the Title VII retaliation claim. Although some
confusion arose between the parties as to whether MacArthur was
appealing her sex discrimination claim, MacArthur clarified this
point in her reply brief when she stated that the sole issue on
appeal was that of retaliation. Throughout her briefs, this claim
of retaliation was consistently referred to as "a discrimination/
retaliation case." She explained that she used this label "because
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the anti-retaliatory provision of Title VII refers to retaliation
as another prohibited form of discrimination." Furthermore,
MacArthur's sole argument for admissibility of the evidence at the
center of this appeal is that its exclusion prevented her from
proving pretext as required under Title VII. In her briefs,
MacArthur does not refer to her First Amendment retaliation claim
a single time. In sum, the only conclusion that can be drawn from
the foregoing facts is that MacArthur does not appeal her claim
that the retaliation at issue was for exercising her First
Amendment rights. See FED. R. APP. P. 28(a)(5) ("The argument must
contain the contentions of the appellant on the issues presented,
and the reasons therefor"); Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993) (holding that appellant abandoned argument by
failing to argue it in body of brief). Instead, on appeal
MacArthur apparently made a strategic determination that in
retrospect a Title VII retaliation claim was a stronger basis for
her sole argument on appeal that the district court erred in
excluding comparative evidence to establish disparate treatment.
Thus, in conclusion, we must dismiss this appeal. We do so on
the basis that the one claim that she raises--Title VII
retaliation--was abandoned at the district court, thus is not
embodied in the district court judgment, and consequently is not
before this court on appeal. With respect to the claims that were
presented to the jury and that are embodied in the district court's
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final judgment, she has abandoned these claims on appeal by failure
to brief and argue. MacArthur's appeal is therefore dismissed.
III
A
Finally we turn to Dr. Painter's appeal and consider whether
the evidence presented supports the jury's verdict in favor of
MacArthur on intentional infliction of emotional distress. We
review a challenge to the sufficiency of the evidence supporting a
jury verdict to determine whether
reasonable and fair-minded [jurors] in the exercise of
impartial judgment might reach different conclusions....
A mere scintilla is insufficient to present a question
for the jury.... However, it 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.
Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).
Before addressing the question of the sufficiency of the
evidence, however, we must address the procedural question of
whether Painter waived his right to challenge the evidentiary
support for the verdict when he failed to renew his motion for
judgment as a matter of law at the close of all evidence presented
in this trial. In accordance with Rule 50(b) of the Federal Rules
of Civil Procedure, it is well-settled that a motion for judgment
as a matter of law must be renewed at the conclusion of trial in
order to preserve the review of the sufficiency of the evidence on
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appeal.8 McCann v. Texas City Refining, Inc., 984 F.2d 667, 671
(5th Cir. 1993). In certain limited situations, however, we have
excused technical non-compliance with Rule 50(b). See, e.g., Davis
v. First Nat. Bank, 976 F.2d 944, 948 (5th Cir. 1992), cert.
denied, 113 S.Ct. 2341 (1993) (Wiener, J.); Merwine v. Board of
Trustees for State Institutions, 754 F.2d 631, 635 (5th Cir. 1985),
cert. denied, 474 U.S. 823 (1985). Whether technical noncompliance
with Rule 50(b) precludes a challenge to the sufficiency of the
evidence on appeal "should be examined in the light of the
accomplishment of its particular purposes as well as in the general
context of securing a fair trial for all concerned in the quest for
truth." Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir. 1983),
cert. denied, 465 U.S. 1026 (1984). This rule serves two basic
purposes: to enable the trial court to re-examine the sufficiency
of the evidence as a matter of law if, after verdict, the court
must address a motion for judgment as a matter of law, and to alert
the opposing party to the insufficiency of his case before being
submitted to the jury. Bohrer, 715 F.2d at 216. In Bohrer, like
here, the court reserved ruling on a motion for directed verdict
8
When the defendant fails to renew the motion for judgment as
a matter of law at the close of all the evidence, our inquiry is
limited to "whether there was any evidence to support the jury's
verdict, irrespective of its sufficiency, or whether plain error
was committed which, if not noticed, would result in a 'manifest
miscarriage of justice.'" Coughlin v. Capitol Cement Co., 571 F.2d
290, 297 (5th Cir. 1978). Even if no evidence supports the
verdict, we cannot render judgment in favor of Painter, but rather
must order a new trial. McCann, 984 F.2d at 673.
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made at the close of the plaintiff's evidence. Id. at 217. The
defendants then presented substantial evidence, to which the
plaintiffs presented no rebuttal testimony. Id. We excused the
defendants' failure to make a motion at the conclusion of all the
evidence because the purposes of the rule were satisfied. Id. We
concluded that
[t]o demand a slavish adherence to the procedural
sequence and to require these defendants, in this case,
to articulate the words of renewal once the motion had
been taken under advisement, would be 'to succumb to a
nominalism and a rigid trial scenario as equally at
variance as ambush with the spirit of our rules.'
Bohrer, 715 F.2d at 217 (quoting Quinn v. Southwest Wood Prods.,
Inc., 597 F.2d 1018, 1025 (5th Cir. 1979)).
Even though Painter failed to comply with the strict terms of
the rule, we conclude that this case is one in which his failure
can be excused. At the close of MacArthur's case-in-chief, Painter
moved for judgment as a matter of law on all claims, including the
intentional infliction of emotional distress claim. With respect
to this claim, the district court judge reserved ruling on the
motion, saying that he was going to "carry that motion along...for
the time being." The defendants, including Painter, introduced
numerous witnesses. At the close of the defendants' evidence,
MacArthur presented two witnesses in rebuttal. At the close of
this rebuttal testimony, Painter renewed his motion for judgment as
a matter of law on all claims except intentional infliction of
emotional distress. MacArthur sought to reintroduce no evidence.
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The district court denied all motions. Following entry of
judgment, Painter moved for judgment notwithstanding the verdict on
the only claim decided against him--intentional infliction of
emotional distress. The judge denied this motion.
The record reflects that the purposes of the rule were
satisfied. We can discern no prejudice to MacArthur by Painter's
failure technically to comply by renewing his motion on the
intentional infliction of emotional distress claim. MacArthur was
not blind-sided by Painter's failure to call to her attention at
the close of trial to the insufficiency of her evidence. When
Painter suggested the deficiency in her proof on the intentional
infliction of emotional distress claim at the close of her case,
she put on no further evidence directed to this claim. At the
close of all the evidence, Painter made the motion on all other
claims except the intentional infliction of emotional distress
claim, which actually was still pending before the court.
Furthermore, MacArthur acknowledges on appeal that the same
evidence that supports her discrimination and retaliation claims is
the sole evidence that supports her intentional infliction of
emotional distress claim. Thus, for all practical purposes,
MacArthur was afforded an opportunity at the close of all evidence
to introduce other evidence on the intentional infliction of
emotional distress claim, but did not do so. Moreover, she does
not suggest any additional evidence tending to prove that Painter
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acted outrageously.9 This case thus falls in the category with
those cases in which we have excused technical compliance with Rule
50(b). Accordingly, we review this issue under the reasonable
juror standard noted above in Boeing v. Shipman. We now turn to
address the question of the sufficiency of the evidence.
B
(1)
Under Texas law, the tort of intentional infliction of
emotional distress requires that MacArthur must prove 1) Painter
acted intentionally or recklessly, 2) the conduct was extreme and
outrageous, 3) the actions of Painter caused MacArthur emotional
distress, and 4) the resulting emotional distress was severe.
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). The sole issue
that Painter raises on appeal is whether his conduct toward's
MacArthur was "extreme and outrageous."
Liability under this cause of action is imposed only "where
the conduct has been so outrageous in character, and so extreme in
9
Even if we did not excuse Painter's failure to comply with
Rule 50(b) and thus reviewed this case under the plain error
standard, our conclusion would be no different than that which we
reach here, except we would be required to go through the futile
exercise of remanding this case for a new trial. See Purcell v.
Seguin State Bank and Trust Co., 999 F.2d 950 (5th Cir. 1993)
(holding unexcusable failure to make motion for judgment as matter
of law results in review under plain error standard and relief
limited to ordering new trial). We find the record devoid of any
evidence establishing that Painter acted "outrageously"--as this
term of art is used in the relevant cases--towards MacArthur. Thus
no evidence supports the jury's verdict against Painter for
intentional infliction of emotional distress.
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degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community." Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.
1993)(quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. (1965)). The
cause of action does not protect against mere insults, indignities,
and threats. Johnson v. Merrell Dow Pharmaceuticals, Inc., 965
F.2d 31, 33 (5th Cir. 1992). In the employment context, a claim
for intentional infliction of emotional distress will not be
supported by the broad range of conduct labeled as "mere employment
disputes." Johnson, 965 F.2d at 33. "In order to properly manage
its business, an employer must be able to supervise, review,
criticize, demote, transfer and discipline employees." Johnson,
965 F.2d at 34.
Our decision in Dean v. Ford Motor Credit Co., 885 F.2d 300
(5th Cir. 1989) is instructive as to the type of conduct that rises
to the level of "extreme and outrageous" in the employment context.
In Dean, the plaintiff presented evidence that her supervisor
intentionally placed checks in her purse to make it appear that the
plaintiff was a thief, or to put her in fear of criminal charges
for theft of the checks. Dean, 885 F.2d at 307. We held that the
"check incidents...[were] precisely what [took] this case beyond
the realm of an ordinary employment dispute and into the realm of
an outrageous one." Id. Similarly, in Wilson v. Monarch Paper
Co., 939 F.2d 1138 (5th Cir. 1991), the plaintiff presented
evidence of the defendant's outrageous conduct by showing that he
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was a former executive whom defendant company sought to humiliate
into resigning because of his age by forcing him to perform routine
janitorial duties before and in behalf of his fellow employees.
Wilson, 939 F.2d at 1145. We noted that various other conduct
complained of by the plaintiff, as offensive as it may have been,
was within the "realm of an ordinary employment dispute." Id. at
1144-45. We held, however, that in attempting to totally humiliate
the former executive by requiring him to perform janitorial
services and to clean up after lower level employees was the
outrageous conduct that took this case "out of the realm of an
ordinary employment dispute." Id. at 1145.
(2)
We turn now to examine the evidence to determine whether a
reasonable juror could conclude that Painter's conduct was
outrageous. MacArthur argues exactly the same evidence supporting
her Title VII retaliation claim to support her claim for
intentional infliction of emotional distress. MacArthur contends
that Painter acted outrageously by making unfounded accusations
that she had sabotaged one of his experiments conducted in an
incubator. See supra p. 4. Furthermore, she argues that he
threatened to charge her with scientific misconduct after finding
that she had used her own blood in an experiment she was
performing, when she may have been infected with hepatitis. See
supra p. 4 n.2. Finally, she argues that Painter exercised
substantial control over the committee that suspended her radiation
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privileges, a disciplinary response that MacArthur argues was
greatly exaggerated as compared that imposed for other radiation
errors. See supra p. 3. In sum, she contends that evidence of
Painter's "prolonged intentional, malicious and vindictive career
threats" proved not only the "discriminatory intent" needed to
prevail on her Title VII retaliation claim, but also the
"outrageous conduct" necessary to support her intentional
infliction of emotional distress claim. See supra, pp. 3-5.
In connection with each of these individual incidents--the
incubator incident, the blood incident, and the radiation disposal
incident--MacArthur carelessly or incompetently performed her task.
For example, with regard to the incubator incident, MacArthur
adjusted the pace on the machine, which ultimately ruined Painter's
experiment. Again, MacArthur was careless, if not reckless, in
using her own blood for an experiment when she was concerned that
she may be infected with hepatitis. Finally with regard to the
radiation disposal incident, she erroneously disposed of the
radiation, and incompetently performed experiments using the
radiation, resulting in the indefinite suspension of her radiation
privileges. MacArthur hardly contends that she was without fault
in each of these incidents; instead, she argues that Painter's
manner of reprimand constituted outrageous conduct. In response to
each incident involving MacArthur's carelessness or incompetence,
Painter had a plausible basis to become upset with MacArthur's
conduct. Painter may have lost control, behaved intemperately,
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rudely reprimanded her or overreacted in reporting her mistake to
her supervisor, but the evidence does not demonstrate conduct and
actions so unjustifiable, so uncivilized, so based on malice, or so
senselessly destructive of another that it rises to the level of
"outrageous conduct" as that term relates to and describes the
cause of action for intentional infliction of emotional distress.
Accordingly, we reverse and render judgment in favor of defendant
Painter.
IV
In sum, we hold that MacArthur abandoned her Title VII
retaliation claim by failing to argue or present it to the jury.
As to the jury's verdict on the claim of intentional infliction of
emotional distress, we REVERSE and RENDER judgment in favor of
defendant Painter. For the foregoing reasons, the judgment of the
district court is
DISMISSED in part and REVERSED and RENDERED in part.
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