                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT

               _________________________________________

                              No. 92-8280
               _________________________________________

                                FRED McKETHAN,

                                                      Plaintiff-Appellant,

                                      VERSUS


                       TEXAS FARM BUREAU, and
                  Affiliated Companies, Including
            its Subsidiaries and Subdivisions, ET AL.,

                                                     Defendants-Appellees.

_________________________________________________________________

            Appeal from the United States District Court
                  for the Western District of Texas

_________________________________________________________________
                          July 19, 1993

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:


     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.

      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

managers1    and   career   agents      within     the      district,   and     the

recruitment and training of new agents.

      Employed by TFB in 1971 as a career agent, McKethan became a

district sales manager in 1973, and held that position throughout

his career.    He was often recognized for outstanding work.                In all

but one year, he won "the Top 10 jacket"; and, in his 20 years with

TFB, he never failed to win the "All-Star and Roundtable Trip"

awards.

      In May 1990, TFB held its annual statewide agents' meeting in

San   Antonio.     Approximately        700   people     were   in   attendance,

including    agents,   agency     managers,      all   14    district   managers

(including    McKethan),    the   two    regional      sales    managers,     (Paul

1
     Agency managers supervise career agents and also sell
insurance. Like the career agents, they are under contract with
the various insurance agencies on a commission basis.

                                        2
Lancaster and Don Grantham), two associate state sales managers,

and the state sales manager (Robert Peacock).

     The following represents McKethan's version of what transpired

during   the   awards   ceremony,    at   which   Lancaster   and   Grantham

introduced recipients.     McKethan had received positive recognition

at 17 consecutive banquets.         When his turn for recognition came,

Grantham told him to stand up, but then said, "[s]it down, you

don't have anything, you haven't done anything to be recognized

for"; that McKethan "never had a master agent and never would have

one".2    The remarks lasted approximately one to two minutes;

McKethan "felt like [he] had been poleaxed with a four-by-four".

For the remainder of the evening, he had a characteristic "red

stripe" in the middle of his forehead, which appears when he

becomes angry.     At the close of the program, Randy Grantham, an

employee in McKethan's district and Don Grantham's son, approached

McKethan and said, "I went to Dad and told him, `Congratulations,

Dad, you've just ruined my career with Farm Bureau Insurance

Company'".     McKethan then located Don Grantham, picked him up, and

stated, without laughter, "I ought to kill you".3

2
     A master agent is "a young man or woman that's done an
outstanding job".
3
     As stated, the foregoing represents McKethan's version, which
we accept as true in view of the procedural posture of this case.
See infra.   According to Grantham and Peacock, Grantham asked
McKethan to stand up, and, while he was nervously looking for
McKethan's listing (he had never addressed a crowd that large),
stated "Fred, it doesn't look like you did anything"?      He then
found McKethan's name, stated "Fred, I was just kidding", and
announced McKethan's accomplishments.      He testified that his
comments lasted two or three seconds, and that he said nothing
about master agents.     Regarding McKethan's confrontation with

                                      3
     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.

     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.

     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.

     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. §




Grantham, Peacock testified that McKethan put his arm around
Grantham's neck, and, with laughter, stated, "I loved it, you son
of a bitch, I ought to kill you".

                                       4
621, et. seq., claiming that the awards incident constituted

constructive discharge.   He was approximately 58 years old.

     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.

     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.

     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),



4
     His letter stated:

          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.

                                 5
and thanked him for "offering to introduce your replacement to the

people in your district prior to your retirement on July 1st".

      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 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".

      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".




5
     In January 1992, McKethan added supplemental claims                        for
intentional and negligent infliction of emotional distress.

                                         6
          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.

          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.

           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.


6
     As stated in Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 185 (5th Cir. 1990), "because the denial of a motion
for summary judgment is an interlocutory order, the trial court is
free to reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law".

                                              7
                                   II.

     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.

     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

     McKethan filed suit in the Western District of Texas, Austin

Division, on May 1, 1991.         That July, Judge James R. Nowlin

reassigned the case to Judge Walter S. 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,

7
     McKethan also maintains that the court abused its discretion
in refusing, prior to trial, to compel TFB to answer discovery
regarding its employment of blacks and females. McKethan asserts
that it was needed to impeach Peacock's deposition testimony,
likely to be reiterated at trial, regarding TFB's employment
practices, thus calling into question the credibility of TFB's
denial of age discrimination. Because we hold infra that the court
concluded properly that McKethan failed to raise a fact issue on
constructive   discharge,   irrespective  of   TFB's   intent   to
discriminate, we need not address this issue.

     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.

                                    8
1992, and, sua sponte, moved it to the Waco division of the

district.8

     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

8
     McKethan does not contest the court's discretion to transfer
the trial to a different division within the district. Instead, as
noted, he contends that the transfer and subsequent refusal to
grant a continuance constitute an abuse of discretion.

     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.
9
     Judge Sparks on January 16 granted McKethan leave to file an
amended complaint. McKethan maintains that the court reversibly
erred by reassigning the case to its docket after Judge Sparks had
exercised "jurisdiction" over it. Even assuming this contention
has any merit, McKethan failed to sufficiently brief it;
accordingly, we consider it waived. See Fed. R. App. P. 28(a)(5)
("[t]he argument shall contain the contentions of the appellant

                                   9
     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".

     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


with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes, and parts of the
record relied on"); Marple v. Kurzweg, 902 F.2d 397, 399 n.2 (5th
Cir. 1990).
10
     He added in his subsequent motion for a new trial that when
Judge Smith first set the case for trial in Waco, he "immediately
contacted Judge Smith's law clerk who advised a motion to have the
matter returned to Austin for trial would not be needed because the
case was being reassigned for trial in Austin to the docket of
Judge Sam Sparks".

     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.
11
     For purposes of this case, we treat McKethan's motion to reset
as a request to transfer venue, pursuant to 28 U.S.C. § 1404(a).
See supra note 8.     As discussed in note 8, McKethan does not
maintain that the court lacked discretion to transfer the trial to

                                  10
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.

       First, and most important, Judge Smith's December 17 order set

the trial's location and date.        Counsel received no notice that

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.

       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,


Waco.
12
     Of course, we refuse to consider his claimed reliance on a
conversation with a law clerk. See note 10, supra.
13
     TFB's counsel signed the motion and certified that McKethan's
counsel desired to join. In addition, the certificate of service

                                     11
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.

     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.

     Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law".                      Fed.

R. Civ. P. 56(c).         We apply the same standard of review as did the

district court, Hamilton v. Grocers Supply Co., 986 F.2d 97, 98

(5th Cir. 1993), drawing all inferences most favorable to the non-

moving party.       Id.   "The mere existence of a scintilla of evidence


stated that a copy had been sent by certified mail to McKethan's
counsel.
14
     Counsel's contention in his reply brief that the pretrial
order did not so inform, because it "was submitted by [his]
associate" is totally without merit. In fact, it is almost, if not
completely, astonishing that such an assertion would be made.
Needless to say, that another lawyer in counsel's firm may have
prepared and submitted the pretrial order is immaterial; obviously,
that knowledge is imputed to him.
15
     In his reply brief, McKethan withdrew his negligent infliction
of emotional distress claim in light of Boyles v. Kerr, 1993 Tex.
LEXIS 58, 36 Tex. Sup. Ct. J. 874 (Tex. May 5, 1993), which held
that Texas does not recognize that tort.

                                          12
in support of the plaintiff's position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff".    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).   The foregoing standard also applies to our review of

judgments as a matter of law.     Fed. R. Civ. P. 50(a)(1); Barnett v.

I.R.S., 988 F.2d 1449, 1452 n.5, 1453 (5th Cir. 1993).16

                                    1.

     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

employee."    Bozé 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



16
     The Rule provides in part:

               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).

                                    13
have felt compelled to resign".        Ugalde v. W.A. McKenzie Asphalt

Co., 990 F.2d 239, 242 (5th Cir. 1993).

     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.

     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


17
     Rather, in the three years preceding his departure, his income
increased from $69,346.40 in 1988 to $83,956.96 in 1990.
18
     As stated supra, Lancaster, McKethan's direct supervisor,
apologized a day or two after the incident; but, according to
McKethan, Lancaster's message "[did] not constitute an apology".

                                  14
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.

     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.




19
     In Ugalde, one supervisor referred to Ugalde and other
Hispanic employees as "Mexicans" and "wetbacks". When Ugalde was
not immediately given a chance to meet with the head of the company
to voice his complaints, he walked off the job. We affirmed the
summary judgment because, under the circumstances presented in the
case, "a reasonable employee instead of resigning would first have
pursued either or both of two courses - completed the internal
grievance procedure, or filed a complaint with the EEOC".       Id.
(quoting Bozé, 912 F.2d at 805).
20
     For example, Peacock testified that in June 1990, following
the incident in May, he and McKethan played golf together and
socialized for over four hours; during that time, McKethan did not
express bitterness about either his decision to retire or the
incident. According to Peacock, the same occurred when they played
golf together in October of that year. McKethan does not dispute
this testimony.

                                     15
                                2.

     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).

     The Texas Supreme Court has recently adopted the tort of

intentional infliction of emotional distress, as stated in § 46(1)

of the Restatement (Second) of Torts (1965). See Twyman v. Twyman,

1993 Tex. LEXIS 59, 36 Tex. Sup. Ct. J. 827 (Tex. May 5, 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


21
     The court explained:

          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 ** 5-6.

                                16
extreme and outrageous; (3) the defendant's actions caused him

emotional distress; and (4) the emotional distress was severe. Id.

at ** 3-4.      "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, 1993 Tex. LEXIS 102, * 7 (Tex. June 30, 1993)

(internal quotations omitted).

     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 ** 2-5.

     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 * 8.      The court

emphasized that to hold otherwise would wholly undermine the

employment at will doctrine by subjecting employers to "a potential




                                    17
jury trial in connection with virtually every discharge".22          Id. at

* 12.

       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 in 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

       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 (1992).           McKethan failed to


22
     Our decisions prior to the recent Texas Supreme Court
decisions compel the same result.     We held that an "ordinary
employment dispute" rises to the level of "outrageous" conduct
under Texas law where there is evidence of intentional and
systematic degradation and humiliation, Wilson, 939 F.2d at 1145,
or reprehensible conduct that is "utterly intolerable in a
civilized community". Dean v. Ford Motor Credit Co., 885 F.2d 300,
306-07 (5th Cir. 1989).
23
     Accordingly, we need not consider TFB's assertion that
litigants' allegations are absolutely privileged in infliction of
emotional distress cases.

                                        18
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.

     In view of the foregoing, the district court correctly refused

to allow the jury to consider McKethan's claim for intentional

infliction of emotional distress.

                                  3.

     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.).

     "Whether the words are reasonably capable of the defamatory

meaning the plaintiff attributes to them is a question of law for

the trial court".    Kelly v. Diocese of Corpus Christi, 832 S.W.2d

88, 91 (Tex. App.-Corpus Christi 1992, writ dism'd w.o.j.).      To

that end, "[t]he allegedly slanderous statements must be construed

as a whole, in light of the surrounding circumstances or context in

which a person of ordinary intelligence would understand the

statements".   Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d

914, 920-21 (Tex. App.-Corpus Christi 1991, writ dism'd w.o.j.).


                                  19
The   district      court     concluded:       "[a]ssuming    that       [McKethan's]

testimony as to the statements made by Don Grantham is true, those

statements, taken in the undisputed context of their making are not

slanderous, and no reasonable jury could so find".                       (Emphasis in

original.)    We agree.

      As   noted,     Grantham's     remarks       were   made      at    a   ceremony

recognizing top performance.         McKethan agreed that "traditionally

and over the years, there had always been at least teasing and

laughter".    Grantham and Lancaster were at the podium to announce

the "top ten in the company" for region one and two.                       McKethan's

name was ninth on the list for region two.                       Rather than read

McKethan's accomplishments, Grantham stated (McKethan's version):

"Sit down, you don't have anything, you haven't done anything to be

recognized for ... [you] never had a master agent and never will

have one".    According to all witnesses at trial, except McKethan,

at least part of the crowd reacted with laughter.24

      McKethan's name was listed prominently in the program as a

moderator for two panel discussions earlier that day.                     He had been

recognized    at     17     consecutive    banquets.         And,    according     to

testimony, he was widely regarded as one of the best district sales

managers in the state.             Considering the context of a jovial

recognition ceremony, the nature of the remarks, and McKethan's

prominence as an exceptional district sales manager, we conclude

that a person of ordinary intelligence would not have attributed a

defamatory meaning to the remarks.

24
      McKethan does not dispute this testimony.

                                          20
                                C.

     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 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




25
     As McKethan agrees, because the motion was filed more than ten
days after judgment, we consider it a Rule 60(b) motion.        See
Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th
Cir.), cert. denied sub nom., Southern Pacific Transp. Co. v.
Harcon Barge Co., 479 U.S. 930 (1986).
26
     Section 144 provides:

               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.

                                21
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.

     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

      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.

     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


27
     The conversation was one of the time entries in fee statements
attached to TFB's motion.
28
     The order transferring the case back to Judge Smith was, in
fact, signed on January 16, the day before the conversation,
although it was not filed until January 21.

                                 22
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.

     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


29
     This court focused on the fact that denial of a Rule 60(b)
motion is separately appealable, even where, as here, appeal from
the underlying judgment is pending.
30
     According to McKethan, Judge Smith's ex parte conversation,
along with his conduct at trial, severely comprised his appearance
of impartiality.
31
     This circuit has not yet clearly defined the scope of our
review of § 455 issues raised for the first time on appeal. In
United States v. York, 888 F.2d 1050, 1055-56 (5th Cir. 1989), we
suggested that the Supreme Court has at least implicitly rejected
a per se rule deeming untimely all § 455 motions raised for the
first time on appeal. Id. 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.

                                  23
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.

     For the foregoing reasons, the judgment is

                           AFFIRMED.




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