                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT



                                 No. 01-60812
                               Summary Calendar




TENA MATTHEWS,

                                                      Plaintiff-Appellant,

versus

METHODIST HEALTHCARE, D/B/A CONSOLIDATED RECOVERY SYSTEMS,

                                                      Defendant-Appellee.


                            --------------------
               Appeal from the United States District Court
                 for the Southern District of Mississippi
                       USDC No. 3:00-CV-638BN
                            --------------------
                               July, 12, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant, Tena Matthews (“Matthews”), appeals from

the   district     court’s    grant   of       summary   judgment   in   favor   of

defendant-appellee,       Methodist            HealthCare   d/b/a   Consolidated

Recovery Systems (“Methodist”), concerning Matthews’ claims for

breach    of     contract,     tortious          interference   with     contract,


      *
      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this opinion should not be published and is not precedent except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.

                                           1
intentional    infliction   of    emotional    distress,   and   wrongful

discharge under Title VII.       For the following reasons, we AFFIRM.

I.   BACKGROUND

     In   March   1996,   Consolidated    Recovery   System   (“CRS”),   a

subsidiary of Methodist, hired Matthews, a white female,         as a debt

collector.     Matthews’ job involved manually calling debtors of

Methodist to make payment arrangements, or answer calls placed by

a computer-operated automatic dialer.         By all accounts, Matthews

was one of the top collectors during her tenure at CRS.          However,

in July 1999, Matthews began reporting to a new supervisor, Lance

Hafler.   From that point forward, she began to experience work-

related problems.

     Hafler was a stickler who strictly enforced the collection and

payment guidelines (the “Guidelines”) used by the collectors on a

daily basis.      Apparently, Hafler’s practice departed from the

methods of previous supervisors.         Matthews did not like Hafler’s

management style and claims that Hafler treated her in an “ugly”

fashion. She also contends that she complained to her supervisors,

Hafler included, that some of the practices required by Methodist

violated the Federal Debt Collection Practices Act (“FDCPA”).

     On September 9, 1999, Hafler issued a corrective action

against Matthews for insubordination. After Matthews complained to

Hafler’s immediate supervisor, Wayne Jackson, the insubordination

action was reduced to a verbal warning.           On February 4, 2000,



                                     2
Hafler   issued   another   correction   action   against   Matthews   for

inappropriate customer service that had a negative effect on the

department.   In other words, Matthews had bad-mouthed the company,

Hafler, and Night Supervisor Richard Beasley to other collectors.

Those collectors had then complained to Hafler.

     On February 11, 2000, CRS suspended Matthews without pay for

allegedly falsifying payroll records on the “Vowell” account.          CRS

claims that Matthews made an improper notation on the “Vowell”

account.   Hafler conducted a further review of Matthews’ work and

claims to have found at least nine instances in which Matthews made

inappropriate notations in the computer system in violation of the

Guidelines during the time period from January 4, 2000 until

February 10, 2000.    Subsequently, Matthews was terminated.1

     In August 2000, Matthews filed suit in federal district court.

After discovery closed, Methodist filed a motion for summary

judgment as to all Matthews’ claims.       The district court granted

summary judgment to Methodist on all of Matthews’ claims except her

state law McArn claim.2      The district court declined to exercise


     1
      Methodist contended Matthews was terminated for falsification
of payroll documents.      Matthews contended she was actually
terminated for opposing the collection practices made illegal by
the FDCPA and/or for discriminatory reasons in violation of Title
VII.
     2
      In McArn v. Allied Bruce-Terminix Co., Inc., 626 So.2d 603,
607 (Miss. 1993), the Mississippi Supreme Court created a narrow
public policy exception to the at-will employment doctrine in two
circumstances.   Under McArn, it is unlawful for an employer to
terminate an employee either (1) because the employee refused to

                                   3
supplemental jurisdiction over the remaining McArn claim pursuant

to 42 U.S.C. § 1367(c)(3) and entered final judgment dismissing all

of Matthews’ claims with prejudice except the McArn claim which was

dismissed without prejudice.      Matthews timely appeals the summary

judgment ruling.

II.   STANDARD OF REVIEW

      We review de novo the district court’s grant of summary

judgment. Walton v. Bisco Industries, Inc., 119 F.3d 369, 370 (5th

Cir. 1997).

III. DISCUSSION

      Matthews contends that genuine issues of material fact exist

which preclude the grant of summary judgment on her claims for

breach   of   contract,    tortious     interference   with    contract,

intentional   infliction   of    emotional   distress,   and   wrongful

discharge under Title VII.      We address each argument in turn.

A.    Breach of Contract and Tortious Interference with Contract

      Matthews argues that Methodist issued her a policies and

procedure manual (i.e., employee handbook) which created an implied

contract of employment.    She contends that this manual set forth


participate in an illegal act, or (2) because the employee reported
illegal acts of his employer to his employer. After considering
all the summary judgment evidence, the district court determined
that Matthews produced sufficient evidence to show that genuine
issues of material fact existed concerning whether she was
terminated for refusing to participate in acts made illegal under
the FDCPA, or for reporting to CRS that some of the company’s
collection methods violated the FDCPA. Neither party appeals this
ruling.

                                    4
procedures regarding progressive discipline which Methodist was

contractually obligated to follow, but that Methodist did not

follow these procedures in making the decision to terminate her.

     In Bobbitt v. The Orchard, Ltd., 603 So.2d 356, 361 (Miss.

1992), the Mississippi Supreme Court held that when an employer

furnishes it employees with a detailed manual stating its rules of

employment, and setting forth procedures that will be followed in

event of infraction of its rules of employment, the employer is

obligated to follow its provisions in reprimanding, suspending or

disciplining an employee for infractions specifically covered by

the manual.     However, both the Fifth Circuit and the Mississippi

Supreme Court have also ruled that an employment manual will not

modify   at-will   employment   status     when    the    employee    signs   an

employment application which contains an express employment at-will

disclaimer.     Solomon v. Walgreen Co., 975 F.2d 1086 (5th Cir.

1992); Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088-89

(Miss. 1987).

     Here,    Matthews    signed    an    employment      application     which

specifically stated that Methodist had the option to terminate her

employment “with or without cause and with or without notice, at

any time.”    Moreover, the employee handbook at issue specifically

states that (1) the handbook is not intended to constitute a legal

contract   with    any   employee   and   (2)     the    handbook    provisions

regarding discipline and discharge “do not waive or affect MHS’


                                     5
rights as an employer to terminate employment for any reason or no

reason without notice.”   Thus, the legal precedent in Mississippi

and this Circuit establish that the employee manual did not modify

Matthews’ status as an at-will employee.       Matthews’ breach of

contract argument therefore fails.3

B.   Intentional Infliction of Emotional Distress

     Matthews contends that the district court erred in granting

summary judgment to Methodist on the intentional infliction of

emotional distress (“IIED”) claim.      To prevail on an IIED claim

under Mississippi law, a plaintiff must prove that the defendant’s

conduct was “so outrageous in character, and so extreme in degree,

as to go beyond all bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Brown v. Inter City Federal Bank for Savings, 738 So.2d 262, 264

(Miss. 1999).

     In this Circuit, we have often stated that plaintiffs face a

heavy burden when trying to show that a defendant’s conduct falls

into this category, especially when the IIED allegation arises in

the context of an employment dispute.    Conduct of an employer that

is illegal does not necessarily qualify as “outrageous.”        See

Ugalde v. W.A. McKenzie Ashphalt Co., 990 F.2d 239, 243 (5th Cir.

1993)(“[e]ven conduct which may be illegal in an employment context


     3
      Because no employment contract existed between Matthews and
Methodist, it is axiomatic that Matthews cannot recover on any
claim for tortious interference with contract.

                                 6
may not be the sort of conduct constituting extreme and outrageous

conduct.”); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th

Cir. 1991)(“although [the employer’s] conduct often rises to the

level of illegality, except in the most unusual cases it is not the

sort of conduct, as deplorable as it may sometimes be, that

constitutes ‘extreme and outrageous’ conduct”). Proving the point,

we recently concluded that even where sufficient evidence existed

from which a reasonable juror could conclude that an employer

racially harassed its employee in violation of Title VII the

alleged harassment could not rise to the level of extreme and

outrageous conduct as a matter of law.       Walker v. Thompson, 214

F.3d 615, 628 (5th Cir. 2000).

      In the case sub judice, the district court determined that

Matthews’ claims that she was once “hollered” at by Manager Wayne

Jackson during a meeting between the two of them and that Assistant

Manager Hafler intimidated her did not rise to the level of extreme

and outrageous conduct.   We agree.       Although Matthews may have

been “hollered” at, there is no evidence to suggest that either

Jackson or Hafler called Matthews names or used obscene language in

her   presence.   Moreover,   Matthews’   allegation   that   she   was

“intimidated” only reflected her perception that Hafler was a very

controlling manager.   In short, the behavior alleged to have been

engaged in by the supervisors does not rise to the level of

“outrageous conduct” necessary to support an intentional infliction


                                 7
of emotional distress claim.          See Walker, 214 F.3d at 628 (citing

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)) (“Insults,

indignities, threats, annoyances, or petty oppressions, without

more, do not rise to the level of intentional infliction of

emotional distress”).4

C.   Wrongful Discharge Under Title VII

     Matthews had the initial burden of establishing a prima facie

case of discrimination in violation of Title VII. To establish her

prima facie case, she must show that: (1) she is a member of a

protected    class:   (2)    she    was   qualified    for   her   position   as

collector;    (3)   she     was    discharged   from   employment;    and     (4)

Methodist sought to replace her with a similarly qualified male or

African-American.     Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th

Cir. 1997).


     4
       Although Matthews has not specifically raised the issue, we
also reject the notion that Methodist’s alleged violation of McArn
could in and of itself rise to the level of extreme and outrageous
conduct. See Rescar, Inc. v. Ward, 60 S.W.3d 169, 179 (Tex. App. -
Houston [1st Dist.] 2001, pet. filed)(terminating employee for
failing to perform illegal acts does not constitute extreme and
outrageous conduct as a matter of law); Beiser v. Tomball Hosp.
Auth., 902 S.W.2d 721, 725 (Tex. App. - Houston [1st Dist.] 1995,
no writ) (employer hospital who allegedly fired employee lab
technician for notifying the FDA that the hospital was storing
patient blood samples and donor blood units in violation of FDA
regulations did not engage in conduct which constituted extreme and
outrageous conduct as a matter of law); Hockaday v. Texas Dept. of
Criminal Justice, 914 F. Supp. 1439, 1448 (S.D. Tex. 1996)
(allegation that TDCJ employee was fired by TDCJ in violation of
the Texas Whistleblower Act for voicing concerns over TDCJ’s method
of alleviating crowded jail cells was not “outrageous”).


                                          8
      The district court found that Matthews had not presented any

evidence to show that the position from which she was terminated

was filled by a black or male collector. Accordingly, the district

court ruled that Matthews had not satisfied her prima facie case

and   granted    summary   judgment   to   Methodist     on   the   Title   VII

discrimination claim. We agree with the district court’s decision.

On appeal, Matthews has not presented any evidence to show that she

was   replaced    by   a   person   outside   of   her    protected    class.

Therefore, her Title VII claim also fails.

IV. CONCLUSION

      For the reasons stated above, we AFFIRM the district court’s

summary judgment ruling.




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