No. 92-8280.United States Court of Appeals, Fifth Circuit.
July 19, 1993. Rehearing and Rehearing En Banc Denied August 16, 1993.
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Hal K. Gillespie, Gillespie, Rozen Tanner, Dallas, TX, for plaintiff-appellant.
John A. Stephens, Sherwin A. Winniford, Fulbright, Winniford, Bice
Marable, P.C., Waco, TX, for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
[1] 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.
[2] 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 managers[1] and career agents within the district, and the recruitment and training of new agents.
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with Farm Bureau Insurance Company'”. McKethan then located Don Grantham, picked him up, and stated, without laughter, “I ought to kill you”.[3]
[6] 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. [7] 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. [8] 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. [9] 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. § 621, et seq.,claiming that the awards incident constituted constructive discharge. He was approximately 58 years old. [10] 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. [11] 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. [12] 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), and thanked him for “offering to introduce your replacement to the people in your district prior to your retirement on July 1st”. [13] 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
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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”.
[14] 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”. [15] 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. [16] 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. [17] 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.II.
[18] 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.
[19] 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]
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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, 1992, and, sua sponte, moved it to the Waco division of the district.[8]
[21] 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] [22] 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”. [23] 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 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. [24] First, and most important, Judge Smith’s December 17 order set the trial’s location and date. Counsel received no notice that
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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.
[25] 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, 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.
[26] 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.
1.
[28] 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
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employee.” Boze 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 have felt compelled to resign”. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993).
[29] 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. [30] 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 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. [31] 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.
2.
[32] 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).
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855 S.W.2d 619 (Tex. 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 extreme and outrageous; (3) the defendant’s actions caused him emotional distress; and (4) the emotional distress was severe. Id. at 622. “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, 856 S.W.2d 732, 734 (Tex. June 30, 1993) (internal quotations omitted).
[34] 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 734. [35] 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 735. The court emphasized that to hold otherwise would wholly undermine the employment at will doctrine by subjecting employers to “a potential jury trial in connection with virtually every discharge”.[22] Id. at 736. [36] 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 i 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] [37] 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, 118 L.Ed.2d 564 (1992). McKethan failed to 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. [38] In view of the foregoing, the district court correctly refused to allow the jury to consider
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McKethan’s claim for intentional infliction of emotional distress.
3.
[39] 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.).
C.
[43] 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
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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 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.
[44] 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] [45] 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.
[46] 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 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.
[47] 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 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.
[48] For the foregoing reasons, the judgment is
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.
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.
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.
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.
(Tex. 1993), which held that Texas does not recognize that tort.
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).
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 622.
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.
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.
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