                    UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                     No. 01-60811
                                   Summary Calendar



EMMA RUSH,
                                                               Plaintiff - Appellant,

                                          versus

MISSISSIPPI PRESS,
                                                               Defendant - Appellee.



                     Appeal from the United States District Court
                    for the Southern District of Mississippi, Biloxi
                             USDC No. 1:00-CV-312-GR

                                      April 3, 2002


Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
POLITZ, Circuit Judge:*
       Emma Rush appeals an adverse summary judgment dismissing her Title VII

claims against her employer, The Mississippi Press, for failure to promote and


   *
    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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
retaliation. Rush also appeals the dismissal of her state law claims for intentional

infliction of emotional distress, negligence per se, and wrongful termination.

Concluding that Rush failed to establish a prima facie case of Title VII discrimination

and that her state law claims are either barred or lack merit, we affirm.

                                  BACKGROUND

      Rush, an African American, began working for The Mississippi Press in

September 1993. She initially worked part-time as an “Inserter,” which required her

to insert manually advertisements into newspapers. In November 1994 she was

promoted to Dispatch Clerk, a full-time position with higher pay and more important

job duties. Tommy Chelette, the Advertising Department Head and a Caucasian, was

the supervisor who promoted Rush. Chelette reported to Wanda Jacobs, an African

American, the publisher of The Mississippi Press.

      After her elevation to Dispatch Clerk Chelette again promoted Rush to

Advertising Clerk, a position involving more pay and more responsibilities. In 1999

Rush sought another promotion to Classified Supervisor, a supervisory position

involving duties such as directing classified sales, overseeing classified advertising,

evaluating employee performance, training new employees, in-person contact with

customers, and solicitation of new business. Rush was not selected for the promotion.

Instead, Jacobs and Chelette selected Gayle Buck, a Caucasion. On June 18, 1999

                                           2
Rush filed a charge of discrimination with the Equal Employment Opportunity

Commission, charging that she was denied the promotion to Classified Supervisor

because of her race.

      On January 25, 2000, Chelette communicated two policies to all Display

Advertising employees, including Rush. The first policy concerned working hours.

The second policy concerned The Mississippi Press’ vacation policy. Chelette

perceived that Rush was unhappy about the vacation policy and arranged a meeting

between Rush, Jacobs, and himself. During the meeting, Rush conducted herself in an

abrasive and insubordinate fashion. The next morning Rush was asked to meet again

with Jacobs and Chelette, as well as Roy May, Rush’s direct supervisor. Jacobs began

the meeting by informing Rush that she had been out of line with her comments and

tone the day before. Rush responded with continued abrasive and insubordinate

behavior. Following the meeting Rush was discharged.

      On February 1, 2000, Rush am ended her EEOC charge to allege that she had

been discharged in retaliation for having previously filed her EEOC failure-to- promote

charge. On March 27, 2000, the EEOC issued its determination that Rush had failed

to establish a violation to support either allegation.

                                      ANALYSIS



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        We review the district court's grant of summary judgment de novo.1 Summary

judgment is proper when there is no genuine issue as to any material fact.2 A factual

issue is material if its resolution could affect the outcome of the action.3 In determining

whether there is a genuine issue as to any material fact, all justifiable inferences will

be made in the nonmoving party’s favor, and we will “not weigh the evidence or

evaluate the credibility of witnesses . . . .”4 A “dispute about a material fact is

'genuine'. . . if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.”5 Therefore, summary judgment is appropriate if the nonmovant fails

to establish facts supporting an essential element of his prima facie claim.6

Title VII

         Rush asserts that she was the victim of racial discrimination in that she was not

promoted because of her race and was terminated in retaliation for having filed the

previous EEOC charge against The Mississippi Press. To establish a prima facie case

of racial discrimination to support her failure-to-promote claim, Rush was required to

   1
       Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
   2
       FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
   3
       Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
   4
       Id.
   5
       Id.
   6
       Celotex Corp., 477 U.S. at 322-23.
                                              4
show that: (a) she is a member of a protected class; (b) she was qualified for the

position sought; (c) she was not promoted; and (d) the position was filled by someone

outside the protected class.7 Once a prima facie case is established, the burden shifts

to The Mississippi Press to demonstrate a legitimate nondiscriminatory reason for not

promoting her.8 The district court found that Rush established a prima facie case, but

determined that she failed to show that the appellee’s asserted nondiscriminatory

reason for not promoting her was pretextual. The appellee maintains that Buck was

more qualified for the position than Rush. Rush has failed to show that the appellee’s

articulated reason is pretextual.9

         To establish her prima facie claim of retaliation, Rush must show that she

engaged in protected behavior, The Mississippi Press took an adverse employment

action against her, and there is a causal connection between her protected activity and

the adverse employment action.10 The district court found that Rush established the



   7
     Oden v. Oktibbeha County, Miss., 246 F.3d 458, 468 (5th Cir. 2001), cert. denied, 122
S.Ct. 341-42 (2001).
   8
        Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
   9
      Deines v. Texas Dep’t of Protective and Regulatory Servs., 164 F.3d 277, 282 (5th Cir.
1999) (holding that “the employer’s judgment as to qualifications will not be probative of
the issue of a discriminatory motive unless the qualifications are so widely disparate that no
reasonable employer would have made the same decision.”).
   10
        Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000).
                                              5
first two requirements, but failed to show a causal connection between her EEOC

charge and her termination. The record establishes that Jacobs and Chelette were

aware of Rush’s EEOC filing for nearly six months prior to her termination and took

no action against her, making it highly unlikely that the EEOC charge was a motivating

factor in their discharge decision. In addition, even if Rush was able to establish a

prima facie case of retaliation, her actions during the January meetings with her

supervisors were a sufficient non-pretextual reason for her termination.

State Law Claims

        Rush asserts that The Mississippi Press is liable for intentional infliction of

emotional distress stemming from its failure to promote her and for her termination. To

establish a prima facie case of intentional infliction of emotional distress, Rush was

required to show intentional or reckless conduct by the defendant which was extreme

and outrageous, and which caused the plaintiff severe emotional distress.11 The district

court found that Rush failed to demonstrate that the appellee’s conduct was reckless,

extreme, or outrageous, and that her reaction to not being promoted and to being

terminated was not indicative of severe emotional distress. We are likewise persuaded.

The record reflects that The Mississippi Press dealt with Rush as any business would



   11
      Parikh v. United Artists Theatre Circuit, Inc., 934 F.Supp. 760, 765 (S.D. Miss. 1996),
citing First Nat. Bank v. Langley, 314 So.2d 324 (Miss. 1975).
                                             6
in promoting a more qualified person and in discharging her for insubordination.

Rush’s claim for wrongful termination, which essentially is a restatement of her Title

VII claims, is totally without merit.

        Finally, Rush’s negligence per se action is barred by the Mississippi Workers

Compensation Law as a claim grounded in negligence. That statute provides the

exclusive remedy for employee actions against employers based in negligence.12

        For the foregoing reasons, the judgment of the district court is AFFIRMED.




   12
      See MISS. CODE § 71-3-9; see also Campbell v. Jackson Bus. Forms Co., 841 F.Supp.
772, 774-75 (S.D. Miss. 1994).
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