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).