UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 94-40302
FRANKLIN ATKINSON,
Plaintiff-Appellant,
VERSUS
DENTON PUBLISHING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court For the Eastern District of Texas
May 15, 1996 Before REYNALDO G. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
For 21 years Franklin Atkinson was the circulation manager for
the Denton Record-Chronicle, a paper owned by Denton Publishing
Company. On December 30, 1991, at age 58, Atkinson was terminated.
Atkinson filed this lawsuit, claiming that he was unlawfully
discharged in that (1) he was discharged because of his age, in
violation of the Age Discrimination in Employment Act, 29 U.S.C. §
623, (2) his discharge breached a written employment contract, (3)
the Paper's actions rose to the level of intentional infliction of
emotional distress, and (4) he was terminated because he refused to
commit an illegal act. The district court issued an order granting Denton Publishing's motion for summary judgment as to each of
Atkinson's claims, and denying Atkinson's cross-motion for summary
judgment. Atkinson appeals the district court's disposition of his
age discrimination, breach of contract and intentional infliction
of emotional distress claims, arguing that summary judgment was
inappropriate because genuine issues of material fact exist as to
each of those claims.1 Atkinson also appeals several rulings made
by the district court prior to summary judgment, which he claims
impermissibly prejudiced his ability to present probative summary
judgment evidence. We first address the propriety of the district
court's procedural rulings.
PROCEDURAL RULINGS
Atkinson argues that the district court abused its discretion
by (1) refusing to allow Atkinson to propound interrogatories in
excess of those allowed by the court's local rules; (2) refusing to
compel production of personnel files for many of Denton
Publishing's past and present employees; and (3) refusing to allow
Atkinson additional time to obtain his expert's report. Atkinson
further maintains that the district court abused its discretion by
(1) relying upon incompetent summary judgment evidence, and (2) by
quashing Atkinson's amended motion for summary judgement. The
district court's disposition of these contested discovery and
procedural matters is reviewed only for an abuse of discretion.
McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 (5th Cir. 1993),
1 Atkinson makes no argument on appeal related to his claim that Denton Publishing terminated him because he refused to commit an illegal act.
2 cert. denied, 114 S. Ct. 694 (1994); Mayo v. Tri-Bell Indus., Inc.,
787 F.2d 1007, 1012 (5th Cir. 1986) (discovery rulings are reversed
only if they are "arbitrary or clearly unreasonable"). After
careful consideration of the complete record, we find no abuse of
the considerable discretion afforded the district court as to these
matters. Only two of the issues raised merit further discussion.
1. Interrogatories
Atkinson initially filed this suit in the Northern District of
Texas because he believed both parties were residents of Tarrant
County. Because both parties were in fact residents of Denton
County, the district court sua sponte transferred the case to the
Eastern District of Texas. Once assigned to the Eastern District,
the case was placed on Track 3 pursuant to the Eastern District's
Civil Justice Expense and Delay Reduction Plan.2 Track 3 allows 15
interrogatories, in addition to the mandatory disclosures required
by the Federal Rules of Civil Procedure. Atkinson moved to expand
the allowed number of interrogatories from 15 to 31 in order to
accommodate two sets of interrogatories served on the defendant
with his complaint while the case was still pending in the Northern
District of Texas. The district court denied his motion.
On appeal, Atkinson claims that Denton Publishing's responses
to the required interrogatories was with reference to the mandatory
disclosure requirements, such that he received no additional
benefit from the defendant's limited responses. In addition,
2 The Civil Justice Expense and Delay Reduction Plan was adopted pursuant to the Civil Justice Reform Act of 1990, 28 U.S.C. § 471 et seq.
3 Atkinson claims that the district court abused its discretion by
not requiring Denton Publishing to answer the remaining
interrogatories, which addressed issues central to Denton
Publishing's defenses and would have helped Atkinson develop
competent summary judgment evidence.
Denton Publishing answered Atkinson's first set of
interrogatories with 18 responses. The 18 responses included a
total of 36 subparts. Only seven of those responses are framed
with any reference to the information disclosed as part of the
mandatory discovery requirements. Atkinson did not complain that
the district court lacked authority to limit discovery, or that
Denton Publishing had failed to comply with the requirement for 15
responses. Instead, Atkinson argued solely that Denton Publishing
should be compelled to respond to the remaining interrogatories.
Atkinson did not explain why additional interrogatories were
necessary, beyond stating that the information related to Denton
Publishing's defenses in some unspecified way. Moreover, the text
of the propounded but refused interrogatories does not appear in
the record.
Given the scope of Denton Publishing's multiple-part
responses, and the absence of a compelling reason to expand
discovery, it was not an abuse of the district court's discretion
to deny Atkinson's motion to expand the number of allowed
interrogatories.
4 2. Personnel Files
Atkinson also moved to compel production of the Denton
Publishing personnel files for 12 designated past or present
employees of Denton Publishing, plus personnel files for an
additional 47 former employees who were voluntarily or
involuntarily separated from the company at the age of 40 or older.
The district court ordered production of the requested personnel
files for in camera inspection. After examining many of the
requested files, the court ordered production of one file in its
entirety and excerpts from a second file.
Atkinson argues generally that the files had the potential for
establishing a pattern and practice of age discrimination, which
would be admissible circumstantial evidence of discrimination. But
Atkinson's complaint alleges that he was terminated because his
general manager, who valued his performance, was replaced by Bill
Patterson, a younger man who discriminated against Atkinson and
other employees on the basis of age. Many of the personnel files
requested related to employees who left Denton Publishing long
before Bill Patterson became general manager. In light of the
district court's in camera review, and the lack of any nexus
between Atkinson's complaint and the employees terminated prior to
Bill Patterson's promotion, the district court did not abuse its
discretion by denying Atkinson's motion to compel production of the
remaining files.
5 SUMMARY JUDGMENT
This Court reviews the grant of summary judgment de novo,
applying the same standard as the district court. Bodenheimer v.
PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993). Summary
judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(C). There is no genuine issue of material
fact if the evidence is such that, drawing all reasonable
inferences in favor of the non-movant, Atkinson, a reasonable jury
could not return a verdict in his favor. Anderson v. Liberty
Lobby, Inc., 106 S. Ct. 2505, 2510-11 (1986).
1. Age Discrimination Claim
In reviewing summary judgment, this Court must decide whether
Atkinson produced facts which, if believed, would lead a reasonable
jury to conclude that it was more likely than not that Denton
Publishing terminated Atkinson because of his age. Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc);
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 n.8 (5th Cir.
1993). To conduct that review, we have historically employed the
familiar McDonnell Douglas framework. McDonnell Douglas v. Green,
93 S. Ct. 1817, 1824 (1973); but see O'Connor v. Consolidated Coin
Caterers Corp., 116 S. Ct. 1307, 1309 (1996) (leaving open the
question of whether McDonnell Douglas applies in ADEA cases).
Under McDonnell Douglas, the plaintiff bears the initial
burden to demonstrate a prima facie case by a preponderance of the
evidence. Rhodes, 75 F.3d at 992. Once established, the prima
6 facie case serves to create a rebuttable presumption of unlawful
discrimination. Id. at 993. The employer can rebut that
presumption with evidence that, if believed by the trier of fact,
would support a finding that unlawful discrimination did not
motivate the employer's action. Id. At that point, a plaintiff
can avoid summary judgment if "the evidence taken as a whole (1)
creates a fact issue as to whether each of the employer's stated
reasons was what actually motivated the employer and (2) creates a
reasonable inference that age was a determinative factor in the
actions of which plaintiff complains. The employer, of course,
will be entitled to summary judgment if the evidence taken as a
whole would not allow a jury to infer that the actual reason for
the discharge was discriminatory." Id. at 994.
The district court concluded and it is not seriously disputed
that Atkinson demonstrated a prima facie case of unlawful
discrimination: (1) he was discharged; (2) he was qualified for the
position; (3) at age 58, he was within the protected class; and (4)
he was replaced by someone outside of the protected class -- a 38-
year-old worker. Denton Publishing effectively rebutted the
presumption of discrimination with evidence that Atkinson was
terminated for insubordination after he refused to accept a
transfer to the Lewisville News and the Grapevine Sun, two smaller
newspapers also owned by Denton Publishing. Denton Publishing
further responded with evidence that the decision to transfer
Atkinson was made because Atkinson failed to complete specific
assignments delegated to him within the time period proscribed, and
7 because the paper was experiencing increasing competition for
subscribers after the demise of a large daily paper in its market.
Atkinson produced controverting evidence which created genuine
issues of fact as to whether each of Denton Publishing's asserted
reasons for his discharge were in fact pretextual. Denton's
primary reason for the discharge, Atkinson's refusal to accept a
transfer, was disputed by Atkinson's evidence that he was
terminated before he was offered any transfer, and evidence that
Denton Publishing immediately withdrew the transfer offer when
Atkinson attempted to accept it. Denton Publishing claimed that
the transfer was motivated by Atkinson's failure to complete
assignments and increasing competition for subscribers. Atkinson
responded with summary judgment evidence that all assignments had
been completed on a timely basis, or would have been, if he had not
been terminated. Moreover, Atkinson was never given any negative
performance evaluations or warnings abut his performance, although
it was the company's policy to do so before termination. In fact,
in the month prior to his termination, Atkinson was told that he
was "doing a good job." Atkinson also offered evidence that the
demise of the large daily Dallas paper did not significantly impact
Denton Publishing's market in a negative way, and that he had
offered numerous ideas to counter any competitive effect, which had
all been refused by his employer.
Atkinson also offered additional evidence of age
discrimination, based upon which a reasonable jury could conclude
8 that he was more likely than not discharged because of his age.
See Rhodes, 75 F.3d at 994-95; Moore v. Eli Lilly & Co., 990 F.2d
812, 816 (5th Cir. 1993), cert. denied, 114 S. Ct. 467 (1993).
Atkinson offered evidence that general manager Bill Patterson
preferred to deal directly with Atkinson's younger, less
experienced subordinates. Atkinson also offered evidence that
Patterson told another Denton Publishing employee that he preferred
to solve problems directly with the younger employees because
Atkinson had "old ideas and old ways." Atkinson also offered
evidence that Patterson gave younger employees pay raises, when
equally entitled older employees were denied raises. Finally,
Atkinson's deposition identifies other employees in the protected
age class who were terminated and replaced by younger workers after
Bill Patterson was promoted to general manager.
Taken as a whole, Atkinson's summary judgment evidence creates
a fact issue on the issue of whether age was a determinative factor
in Denton Publishing's decision to terminate Atkinson. Although we
express no opinion on the ultimate merits of Atkinson's claim,
summary judgment at this stage was therefore improper.
2. Breach of Contract
In August 1991, Atkinson and Denton Publishing entered into a
"Profit Sharing Bonus Agreement." Under the terms of that
agreement, Atkinson agreed to function as a circulation manager for
Denton Publishing from August 1, 1991, until June 30, 1992. Denton
Publishing agreed that Atkinson would be compensated $720 per week,
9 and in addition, would receive a profit sharing bonus calculated
according to the terms of the agreement.
The district court found that the profit sharing agreement was
an employment contract for the stated period. We agree that there
is at least a fact question about whether the agreement formed a
binding employment contract. The district court nonetheless
concluded that summary judgment was appropriate because Atkinson
committed the first material breach of the agreement by refusing
the offer of transfer on the day of termination. The court
reasoned that because the agreement did not limit Atkinson's
service to a particular newspaper owned by Denton Publishing,
Atkinson could not refuse the transfer without breaching the
agreement. However, the position offered to Atkinson paid
significantly less and did not include a profit sharing bonus.
Perhaps more important is the fact that Atkinson contends he was
terminated before any offer of transfer was made. Viewing the
facts in a light most favorable to Atkinson, Denton Publishing's
unilateral decision to terminate the agreement six months early, or
alternatively, its unilateral attempt to modify the financial terms
of the agreement without new consideration was a material breach
that preceded Atkinson's alleged refusal of the transfer.
Atkinson's summary judgment evidence demonstrated that there remain
genuine issues of material fact relating to his claim for breach of
contract, and summary judgment was improper.
Nor do we agree, as the district court found in the
alternative, that collateral estoppel bars Atkinson's claim for
10 breach of contract. Shortly after he was terminated, Atkinson
filed a claim before the Texas Employment Commission (TEC) under
the Texas Payday Law3 claiming his entitlement to a bonus according
to the terms of the agreement. See TEX. REV. STAT. ANN. art. 5155 §
5(f) (rules and procedures used by TEC in benefit determinations
are used to make preliminary wage determinations under the Texas
Payday Law). While this action was pending, the TEC issued a final
determination that Atkinson was not entitled to a bonus under the
agreement. Denton Publishing argues that the final TEC wage
determination collaterally estops Atkinson from litigating his
breach of contract claim, which is based upon the agreement.
Atkinson argues that TEC decisions do not have preclusive
effect, citing TEX. REV. STAT. ANN. art. 5221b-9(r), which states
that findings made in a claim for benefits under the Texas
Unemployment Compensation Act cannot be used as evidence in another
proceeding not brought under the Act.4 Denton Publishing responds
that although article 5221b-9(r) prohibits the use of benefit
determinations as collateral estoppel, it does not apply to
preclude the use of wage determinations made by the TEC in
subsequent litigation.
3 TEX. REV. CIV. STAT. ANN. art. 5155. The Texas Payday Law has been repealed and codified at TEX. LABOR CODE § 61.011 et seq. This opinion refers to that version of the Texas Payday Law applicable to Atkinson's claims. 4 TEX. REV. STAT. ANN. art. 5221b-9(r) was repealed and is now codified at TEX. LABOR CODE § 213.007. This opinion refers to the version of that statute applicable to Atkinson's claims.
11 The Texas legislature denied TEC benefit determinations
preclusive effect because "[t]he adjudication process under the
Texas Employment Compensation Act is geared to the disposal of a
large number of cases in an expeditious manner." REPORT BY THE TEXAS
HOUSE COMM. ON LABOR AND EMPLOYMENT RELATIONS, H.B. 813 (Mar. 26, 1991).
Further, "[t]he mere possibility that collateral estoppel will be
applied has the potential for bogging down the appeals process
under the Texas Unemployment Compensation Act by protracted
litigation where further litigation is contemplated in other forums
involving the same facts and parties." Id. Both of those
justifications for denying TEC findings preclusive effect apply
equally when the TEC is making wage, rather than benefit,
determinations. There are, however, no Texas cases addressing the
issue of whether the statute prohibits the assertion of TEC wage
determinations as collateral estoppel, and it is not necessary that
we decide that issue in this case. If the statute is applicable,
the TEC determination as to Atkinson's claim would not bar
relitigation in this action. If the statute is not applicable,
then the preclusive effect of the TEC determination is governed by
Texas collateral estoppel principles. Migra v. Warren City School
District Bd. of Educ., 104 S. Ct. 892, 896 (1984). Under Texas
law, collateral estoppel precludes relitigation of identical issues
actually litigated in a prior action if: (1) the issue was fully
and fairly litigated in the prior action; (2) the issue was
essential to the decision in the prior case; and (3) the parties
were cast as adversaries in the prior action. J.M. Muniz, Inc. v.
12 Mercantile Texas Credit Corp., 833 F.2d 541, 544 (5th Cir. 1987)
(citing Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818
(Tex. 1984)). Even if article 5221b-9(r) does not preclude
relitigation of Atkinson's breach of contract claim, Atkinson's
claim for breach of contract is not identical to the Texas Payday
Law claim he filed with the TEC. Moreover, the adjudicative
process afforded by the Texas Unemployment Compensation Act did not
provide Atkinson with the opportunity to fully and fairly litigate
all aspects of his claim. We therefore decline to give preclusive
effect to the TEC determination.
3. Intentional Infliction of Emotional Distress
Under Texas law, the tort of intentional infliction of
emotional distress has four elements: (1) intentional or reckless
conduct; (2) that was extreme or outrageous; (3) that caused
emotional distress; (4) that was severe. Wornick Co. v. Casas, 856
S.W.2d 732, 734 (Tex. 1993). Only conduct that is "so outrageous
in character and so extreme in degree as to go beyond all possible
bounds of human decency, and to be regarded as atrocious and
utterly intolerable in a civilized community" will satisfy the
second element of the tort of intentional infliction of emotional
distress. Dean v. Ford Motor Credit, 885 F.2d 300, 306 (5th Cir.
1989); see also Wornick, 856 S.W.2d at 735. Further, it is the
province of the court to determine whether a defendant's conduct
may reasonably be regarded as extreme and outrageous enough to
permit recovery. Wornick, 856 S.W.2d at 734.
13 Atkinson alleges that he was terminated without warning after
long-service, that the company published false and defamatory
reasons for his termination to people inside the company, that his
superiors were disrespectful or rude to him during his employment
and in the termination meeting, and that as a result he experienced
"grief, shame, humiliation, anger, depression and nausea."
Virtually all of Atkinson's allegations fall within the realm of an
ordinary employment dispute, which is not actionable as an
intentional infliction of emotional distress. As a matter of law,
the alleged conduct is not extreme and outrageous. See Ugalde v.
W.A. McKenzie Asphalt Co., 990 F.2d 239 (5th Cir. 1993); Johnson v.
Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33-34 (5th Cir.
1992); Wornick, 856 S.W.2d at 735. The district court's grant of
summary judgment as to Atkinson's intentional infliction of
emotional distress claim was appropriate.
CONCLUSION
For the foregoing reasons, the district court's orders (1)
denying Atkinson's motion to expand the number of interrogatories;
(2) denying, in part, Atkinson's motion to compel production of
certain Denton Publishing personnel files; (3) denying, in part,
Atkinson's motion to strike portions of Denton Publishing's summary
judgment evidence; (4) quashing Atkinson's amended motion for
summary judgement; and (5) denying Atkinson's motion to expand the
time required to obtain a report from his expert on damages, are
affirmed. The district court's grant of summary judgment in favor
of the defendant, Denton Publishing, is AFFIRMED as to Atkinson's
14 intentional infliction of emotional distress claim. As to
Atkinson's age discrimination and breach of contract claims, the
district court's grant of summary judgment is VACATED, and the
cause is REMANDED to the district court for further proceedings
consistent with this opinion.
The district court's summary judgment is AFFIRMED in part, and
VACATED AND REMANDED in part.