     Case: 15-51020      Document: 00513511853         Page: 1    Date Filed: 05/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 15-51020                            FILED
                                  Summary Calendar                      May 18, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
CRISTINA CRUZ GROST, M.D.,

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:13-cv-158


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Cristina Cruz Grost appeals the district court’s summary judgment
dismissal of her claim for intentional infliction of emotional distress. For the
reasons that follow, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-51020
                                        I.
      From 2006 to 2012, Grost worked as a contract psychiatrist for Spectrum
Healthcare Resources at the inpatient unit of William Beaumont Army
Medical Center in El Paso. The United States owned and operated the Medical
Center, but it did not employ Grost directly.
      Grost claims that beginning in May 2011, Major Artin Terhakopian and
Colonel Ron Moruzzi, two employees at the Medical Center, subjected her to
extreme and outrageous behavior designed to inflict emotional distress and
anxiety and cause her to quit her job.       Examples of the alleged behavior
include: excluding Grost from social gatherings; interfering with her care for
her patients; deliberately reducing her patient load and then complaining that
she was avoiding work; increasing her work load while assigning fewer cases
to others; needlessly questioning her credentials; calling her “neurotic”; and
telling her to “park [her] ethics and [her] morals outside of the door”. Grost
claims these actions were intentional, reckless, extreme and outrageous,
resulted in severe emotional distress to her and harm to her patients, and
ultimately caused her to resign.
      Grost then filed suit against the United States, asserting multiple causes
of action under the Federal Tort Claims Act (FTCA), including a claim for
intentional infliction of emotional distress. In response to the government’s
motion to dismiss, the district court dismissed most of the claims with
prejudice. The court dismissed without prejudice a few of the claims including
Grost’s claim for intentional infliction of emotional distress. It allowed her to
replead the intentional infliction claim so long as it did not arise out of conduct


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                                         No. 15-51020
that would constitute libel or slander as the FTCA preserves sovereign
immunity for those intentional torts. 1
       Grost filed an amended complaint. Noting that the changes to Grost’s
complaint only related to her intentional infliction of emotional distress claim,
the district court determined that she sought to pursue only that claim. It later
granted summary judgment on that claim in the government’s favor, finding
that Grost failed to demonstrate a fact issue on at least two elements of that
claim.
                                                II.
       We review a grant of summary judgment de novo. Love v. Nat’l Med.
Enters., 230 F.3d 765, 770 (5th Cir. 2000). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A genuine dispute of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       Under Texas law, 2 a plaintiff claiming intentional infliction of emotional
distress must prove that: (1) the defendant acted intentionally or recklessly;
(2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s


       1  Intentional infliction of emotional distress is not one of the intentional torts listed in
section 2680(h) for which the United States retained its sovereign immunity. See 28 U.S.C.
§ 2680(h). The FTCA thus bars Grost’s intentional infliction of emotional distress claim only
to the extent it arises out of conduct that would establish an excepted cause of action like
libel or slander. Truman v. United States, 26 F.3d 592, 594–95 (5th Cir. 1994).

       2 The FTCA incorporates the law of the state where the alleged tort took place. 28
U.S.C. § 1346(b)(1).
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                                  No. 15-51020
actions caused the plaintiff emotional distress; and (4) the emotional distress
suffered by the plaintiff was severe. Wal-Mart Stores, Inc. v. Canchola, 121
S.W.3d 735, 740 (Tex. 2003). The district court held that Grost could establish
neither extreme and outrageous conduct nor that she suffered severe emotional
distress. Because we agree that the challenged conduct does not satisfy the
tort’s high threshold for extreme and outrageous behavior, we address only
that element.
      A defendant’s conduct is “extreme and outrageous” if it is “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.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). Conduct that is merely
rude or insensitive or that amounts to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” does not rise to the level of
“extreme or outrageous conduct.” GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612
(Tex. 1999). Tortious, malicious, or even criminal intent is not sufficient to
establish the tort if the conduct is not objectively outrageous. Id. at 616.
      Texas cases illustrate how demanding this standard is. In one, a Texas
Court of Appeals affirmed a grant of summary judgment when fellow
employees told the plaintiff to “shut up” and not speak unless given permission,
beckoned her “like a dog,” and refused to acknowledge her in the hallway.
Williams v. Shell Expl. and Prod. Co.-Americas, No. 14-13-00309-CV, 2014 WL
3555741, at *4–*5 (Tex. App.—Houston [14th Dist.], July 17, 2014, no pet.)
(mem. op.) (explaining that although the complained of remarks might be
construed as rude and insulting, they did not rise to the level of terrorizing,
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                                 No. 15-51020
threatening, and assaultive). In another, the court found that the supervisor’s
alleged rudeness, anger, name-calling, and criticism directed at the employee
was not extreme and outrageous. Wal-Mart Stores, Inc. v. Bertrand, 37 S.W.3d
1, 13–15 (Tex. App.—Tyler 2000, pet. denied) (holding that the alleged
activities constituted part of the ordinary employment relationship and were
not actionable as a matter of law under the tort). Finally, the Supreme Court
of Texas held that a plaintiff failed to establish extreme and outrageous
conduct even though the defendants made negative comments that were
reflected in plaintiff’s tenure file, repeatedly recommended that plaintiff
should not be allowed to continue on tenure track, restricted plaintiff’s speech
regarding his tenure folder, and allegedly assigned him an excessive case load.
Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999).
      In contrast, Texas’s highest court found conduct that met the “extreme
and outrageous” standard in GTE Southwest. In that case, the supervisor
engaged in a pattern of abusive and harassing conduct, which included daily
use of “the harshest vulgarity,” frequent physical and verbal assaults, and
repeatedly calling one employee into his office to stare at her for extended
periods of time. GTE Sw., 998 S.W.2d at 613–614. The court found that the
supervisor created a “den of terror” for the employees and thus supported the
jury’s finding that the conduct was extreme and outrageous. Id. at 617.
      This case is much more akin to those in which Texas courts found that
the conduct could not be viewed as extreme and outrageous. Grost contends
that a long list of incidents involving Moruzzi and Terhakopian—when
considered as a whole—amounts to extreme and outrageous behavior. The
most notable incidents include the following: trying to take away her office and
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                                 No. 15-51020
change her job; chastising her; forcing her to justify her job; making her defend
her treatment of patients; calling her names; and refusing to shake her hand.
Even when viewing the evidence in a light most favorable to Grost, we do not
find that these incidents, though they could certainly be considered rude or
even insulting, rise to the level of extreme and outrageous conduct as Texas
courts have defined those terms.
                                      III.
      Because Grost failed to produce evidence creating a fact issue as to
whether Defendant’s conduct was extreme and outrageous, the district court
properly granted summary judgment. The judgment is AFFIRMED.




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