UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 97-20118 Summary Calendar _______________________
JOANNE S. WATTERS,
Plaintiff-Appellant,
versus
MONTGOMERY COUNTY EMERGENCY COMMUNICATION DISTRICT; MARY LADORE MABBITT,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-96-CV-2916) _________________________________________________________________ (October 13, 1997)
Before JONES, DeMOSS, AND PARKER, Circuit Judges.
PER CURIAM:*
Appellant Joanne S. Watters appeals the district court’s
dismissal of her claims under the Americans With Disabilities Act
and the state law claim for intentional infliction of emotional
distress for failure to state a claim upon which relief can be
granted. Finding no error in the judgment, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND
According to her Second Amended Original Complaint,
Watters and appellee Mary LaDore Mabbitt were employed by appellee
Montgomery County Emergency Communication District (“MCECD”) as a
telecommunicator and coordinator in Conroe, Texas. Watters claims
that on the job, she was continually subject to improper and
unwanted actions and comments regarding her weight by employees of
MCECD. “Specifically, [appellee] Mary Mabbitt made comments about
[appellant’s] weight and her eating habits, consistently pointed
out [appellant] as an example of obesity, harassed [appellant]
about her manner of dress and physical appearance, and pressured
[her] and other employees to participate in an involuntary ‘weigh-
in.’” Second Amended Original Complaint at 2.
DISCUSSION
We review de novo a district court’s dismissal of a
plaintiff’s claim for failure to state a claim upon which relief
can be granted pursuant to FED. R. CIV. P. 12(b)(6). See Rolf v.
City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1997) (relying on
Blackburn v. City of Marshall, Tex., 42 F.3d 925 (5th Cir. 1995)).
“Dismissal is not proper unless it appears, based solely on the
pleadings, that the plaintiff can prove no set of facts in support
of the claim(s) warranting relief.” Id. (relying on Rankin v. City
of Wichita Falls, Tex., 762 F.2d 444 (5th Cir. 1985)).
1. ADA CLAIM
Watters filed suit claiming that the appellees had
discriminated against her in violation of the ADA. The ADA
2 prohibits an employer from discriminating against an employee on
the basis of the employee’s disability. See Bridges v. City of
Bossier, 92 F.3d 329, 332 (5th Cir. 1996) (citing 42 U.S.C. §
12112), cert. denied, ___ U.S. ___, 117 S.Ct. 770 (1997). Watters
alleges that she has been discriminated against because she is
perceived as having the disability of obesity.
“[E]xcept in rare circumstances, obesity is not
considered a disabling impairment.” 29 C.F.R. pt. 1630 app. §
1630.2(j). Even if an employer’s perception of an employee as
being obese might under certain circumstances qualify as an
impairment under the ADA, a physical impairment, standing alone, is
not necessarily a disability protected by the ADA. See Ellison v.
Software Spectrum, Inc., 85 F.3d 187, 191 n.3 (5th Cir. 1996)
(quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th
Cir. 1995)).
Watters claims that the appellees discriminated against
her based on the statutory definition of a disability as being
regarded as having a physical or mental impairment that
substantially limits one or more of the major life activities. See
42 U.S.C. § 12102(2)(C); see also Bridges, 92 F.3d at 332
(interpreting 42 U.S.C. § 12102(2)(C)).
One is regarded as having a substantially limiting impairment [pursuant to 42 U.S.C. § 12102(2)(C)] if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.
3 See id. (relying on Dutcher, 53 F.3d at 727-28 n.19).
We assume -- although she does not expressly state --
that Watters complains of being regarded as substantially limited
in the major life activity of working. See 29 C.F.R. § 1630.2(I)
(including working as a major life activity under the ADA). An
employer regards an employee as substantially limited in her
ability to perform the major life activity of working by “‘finding
the employee’s impairment to foreclose generally the type of
employment involved.’” Ellison, 85 F.3d at 192 (quoting Forrisi v.
Bowen, 794 F.2d 931, 935, (4th Cir. 1986)). “[I]n order for an
employer to have regarded an impairment as substantially limiting
in the activity of working, the employer must regard an individual
as significantly restricted in the ability to perform a class or a
broad range of jobs.” Burch v. Coca-Cola Co., --- F.3d ---, ---,
1997 WL 425943, *15 (5th Cir. 1997) (relying on Bridges, 92 F.3d at
332)).
In her Second Amended Original Complaint, Watters claims
that she was perceived “to be disabled because of her weight” and
that her weight was perceived as severely restricting her “ability
to perform various job related tasks.” Based on the pleadings,
there is no indication that the appellees found Watters’ weight to
foreclose her type of employment or that their alleged perception
of her obesity restricted her ability to perform a class or a broad
range of jobs. We agree with the district court’s conclusion that
Watters has failed to state a claim under the ADA for being
discriminated against for having a perceived disability.
4 2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
Under Texas law, to prevail on a claim for intentional
infliction of emotional distress, the claimant is required to prove
that “(1) the defendant acted intentionally or recklessly, (2) the
conduct was extreme or outrageous, (3) the actions of the defendant
caused the plaintiff’s emotional distress, and (4) the emotional
distress suffered by the plaintiff was severe.” Twyman v. Twyman,
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 97-20118 Summary Calendar _______________________
JOANNE S. WATTERS,
Plaintiff-Appellant,
versus
MONTGOMERY COUNTY EMERGENCY COMMUNICATION DISTRICT; MARY LADORE MABBITT,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-96-CV-2916) _________________________________________________________________ (October 13, 1997)
Before JONES, DeMOSS, AND PARKER, Circuit Judges.
PER CURIAM:*
Appellant Joanne S. Watters appeals the district court’s
dismissal of her claims under the Americans With Disabilities Act
and the state law claim for intentional infliction of emotional
distress for failure to state a claim upon which relief can be
granted. Finding no error in the judgment, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND
According to her Second Amended Original Complaint,
Watters and appellee Mary LaDore Mabbitt were employed by appellee
Montgomery County Emergency Communication District (“MCECD”) as a
telecommunicator and coordinator in Conroe, Texas. Watters claims
that on the job, she was continually subject to improper and
unwanted actions and comments regarding her weight by employees of
MCECD. “Specifically, [appellee] Mary Mabbitt made comments about
[appellant’s] weight and her eating habits, consistently pointed
out [appellant] as an example of obesity, harassed [appellant]
about her manner of dress and physical appearance, and pressured
[her] and other employees to participate in an involuntary ‘weigh-
in.’” Second Amended Original Complaint at 2.
DISCUSSION
We review de novo a district court’s dismissal of a
plaintiff’s claim for failure to state a claim upon which relief
can be granted pursuant to FED. R. CIV. P. 12(b)(6). See Rolf v.
City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1997) (relying on
Blackburn v. City of Marshall, Tex., 42 F.3d 925 (5th Cir. 1995)).
“Dismissal is not proper unless it appears, based solely on the
pleadings, that the plaintiff can prove no set of facts in support
of the claim(s) warranting relief.” Id. (relying on Rankin v. City
of Wichita Falls, Tex., 762 F.2d 444 (5th Cir. 1985)).
1. ADA CLAIM
Watters filed suit claiming that the appellees had
discriminated against her in violation of the ADA. The ADA
2 prohibits an employer from discriminating against an employee on
the basis of the employee’s disability. See Bridges v. City of
Bossier, 92 F.3d 329, 332 (5th Cir. 1996) (citing 42 U.S.C. §
12112), cert. denied, ___ U.S. ___, 117 S.Ct. 770 (1997). Watters
alleges that she has been discriminated against because she is
perceived as having the disability of obesity.
“[E]xcept in rare circumstances, obesity is not
considered a disabling impairment.” 29 C.F.R. pt. 1630 app. §
1630.2(j). Even if an employer’s perception of an employee as
being obese might under certain circumstances qualify as an
impairment under the ADA, a physical impairment, standing alone, is
not necessarily a disability protected by the ADA. See Ellison v.
Software Spectrum, Inc., 85 F.3d 187, 191 n.3 (5th Cir. 1996)
(quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th
Cir. 1995)).
Watters claims that the appellees discriminated against
her based on the statutory definition of a disability as being
regarded as having a physical or mental impairment that
substantially limits one or more of the major life activities. See
42 U.S.C. § 12102(2)(C); see also Bridges, 92 F.3d at 332
(interpreting 42 U.S.C. § 12102(2)(C)).
One is regarded as having a substantially limiting impairment [pursuant to 42 U.S.C. § 12102(2)(C)] if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.
3 See id. (relying on Dutcher, 53 F.3d at 727-28 n.19).
We assume -- although she does not expressly state --
that Watters complains of being regarded as substantially limited
in the major life activity of working. See 29 C.F.R. § 1630.2(I)
(including working as a major life activity under the ADA). An
employer regards an employee as substantially limited in her
ability to perform the major life activity of working by “‘finding
the employee’s impairment to foreclose generally the type of
employment involved.’” Ellison, 85 F.3d at 192 (quoting Forrisi v.
Bowen, 794 F.2d 931, 935, (4th Cir. 1986)). “[I]n order for an
employer to have regarded an impairment as substantially limiting
in the activity of working, the employer must regard an individual
as significantly restricted in the ability to perform a class or a
broad range of jobs.” Burch v. Coca-Cola Co., --- F.3d ---, ---,
1997 WL 425943, *15 (5th Cir. 1997) (relying on Bridges, 92 F.3d at
332)).
In her Second Amended Original Complaint, Watters claims
that she was perceived “to be disabled because of her weight” and
that her weight was perceived as severely restricting her “ability
to perform various job related tasks.” Based on the pleadings,
there is no indication that the appellees found Watters’ weight to
foreclose her type of employment or that their alleged perception
of her obesity restricted her ability to perform a class or a broad
range of jobs. We agree with the district court’s conclusion that
Watters has failed to state a claim under the ADA for being
discriminated against for having a perceived disability.
4 2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
Under Texas law, to prevail on a claim for intentional
infliction of emotional distress, the claimant is required to prove
that “(1) the defendant acted intentionally or recklessly, (2) the
conduct was extreme or outrageous, (3) the actions of the defendant
caused the plaintiff’s emotional distress, and (4) the emotional
distress suffered by the plaintiff was severe.” Twyman v. Twyman,
855 S.W.2d 619, 621 (Tex. 1993). Liability for intentional
infliction of emotional distress is to be 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.’” Id. (quoting Restatement (Second) of torts § 46 cmt.
d (1965)). Liability “‘does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities.’” Johnson v. Merrell Dow Pharmaceuticals, Inc., 965
F.2d 31, 33 (5th Cir. 1992)(quoting Restatement (Second) of Torts
§ 46).
Although we may agree with Watters that the complained of
conduct -- repeated comments about her weight, changes in her
responsibilities on the job, and being compelled to participate in
a mandatory “weigh-in” -- could be considered to be rude and
insensitive, we must also agree with the district court that this
behavior does not rise to the level of outrageous conduct needed to
support an intentional infliction of emotional distress claim under
Texas law. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.
5 1993) (“‘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.’” (quoting
Restatement (Second) of Torts § 46, cmt. h)).
CONCLUSION
For the foregoing reasons, the judgment of the district
court dismissing Watters claims pursuant to Fed. R. Civ. P.
12(b)(6) is affirmed. AFFIRMED.