                         IN THE UNITED STATES COURT OF APPEALS
                                  FOR THE FIFTH CIRCUIT



                                               No. 01-50943
                                            (Summary Calendar)



LUIS VARGAS,                                                                             Plaintiff-Appellant,



                                                      versus




VF JEANSWEAR INC.,                                                                       Defendant Appellee.


                               Appeal from the United States District Court
                                    for the Western District of Texas
                                         (No. EP-00-CV-351-E)

                                                  June 20, 2002



Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

        Appellant Luis Vargas (“Vargas”) appeals from the district court’s grant of summary

judgment in favor of appellee VF Jeanswear, Inc. (“Jeanswear”). For t he following reasons, we

AFFIRM.

                              FACTUAL AND PROCEDURAL HISTORY



* 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 R. 47.5, the court has determined that this opinion should not be published and is not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.
        Vargas, a Costa Rican male, began working at Jeanswear as a sewing machine operator in

October of 1992. On April 10, 1999, Vargas sustained a work-related wrist injury. A few days later,

Vargas submitted a note from his doctor stating that he was “released to modified duty, 50%.”

Accordingly, he requested that he be placed on light duty work. This request was denied at first and,

as a result, Vargas did not work for t hree months. During this time, he collected workers’

compensation benefits. Eventually, Vargas was placed back in his old position, but was allowed to

perform his work at a significantly slower pace. Vargas’s base pay was the same and he was allowed

to miss work to attend physical therapy sessions.

        On December 10, 1999, Vargas took a leave of absence so that he could undergo surgery.

He returned to work on March 13, 2000 and was placed on light duty work separating rivets and

matching UPC labels and size stickers. On April 3, 2000, he obtained a doctor’s release allowing him

to return to work as a sewing machine operator without any restrictions or modifications. He

resigned two days later.

        Vargas filed suit in state court alleging claims under the Texas Commission on Human Rights

Act (“TCHRA”), TEX. LAB. CODE ANN. § 21.051 (Vernon 1996). Specifically, he alleged national

origin, sex, and disability discrimination. He also claimed that Jeanswear unlawfully retaliated against

him for filing various charges of discrimination with the Equal Employment Opportunity Commission

and the Texas Human Rights Commission and for filing a workers’ compensation claim with the

Texas Workers’ Compensation Commission. Finally, he asserted a claim for intentional infliction of

emotional distress. Jeanswear asserted diversity jurisdiction and removed the case to federal court.

Vargas filed a motion to remand, which was denied. Subsequently, Jeanswear filed a motion for

summary judgment, which the court granted in its entirety. Vargas appeals.


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                                     STANDARD OF REVIEW

        A grant of summary judgment is reviewed de novo. Norman v. Apache Corp., 19 F.3d 1017,

1021 (5th Cir. 1994). Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

                                            DISCUSSION

        The TCHRA prohibits employment discrimination in connection with the compensation,

terms, conditions, or privileges of employment. TEX. LAB. CODE ANN. § 21.051 (Vernon 1996).

Because the TCHRA tracks Title VII , Texas courts consider analogous federal case law in the

interpretation and application of the TCHRA. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483,

285 (Tex. 1991); see also Graves v. Komet, 982 S.W.2d 551, 554 (Tex. App. 1998).

        Because Vargas offers no direct proof of discrimination, the framework set forth in

McDonnell Douglas Corp. v. Green is applicable.           411 U.S. 792, 802-04 (1973). Under this

framework, a plaintiff must first establish a prima facie case of discrimination. Id. at 802. To establish

a prima facie case, an individual must establish that (1) he was a member of a protected class, (2) he

was qualified for the position at issue, (3) he suffered an adverse employment action, and (4) that

others similarly situated were more favorably treated. Id. If a plaintiff succeeds in showing a prima

facie case, the defendant must then provide a legitimate, non-discriminatory reason for the adverse

employment action. Id. Lastly, if the employer meets this burden, the plaintiff must demonstrate, by

a preponderance of the evidence, that the proffered reason was a pretext for discrimination. Id. at

804.


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                                     I.    Sex Discrimination

       There is no dispute that Vargas satisfies the first two prongs of a prima facie case under the

McDonnell Douglas framework. As for the third prong, Vargas contends that he suffered an adverse

employment action when he was not immediately assigned to light duty work. With regard to the

fourth prong, Vargas asserts that a similarly situated female, Ms. Nadia Molinar (“Molinar”), was

treated more favorably because she was assigned to light duty work immediately following her injury.

       The district court concluded that Vargas could not establish a prima facie case of

discrimination because he could not show an adverse employment action or that Jeanswear treated

him differently than any female employee. We agree.

       Adverse employment actions include only ultimate employment decisions such as hiring,

granting leave, discharging, promoting, or compensating. Walker v. Thompson, 214 F.3d 615, 629

(5th Cir. 2000). Vargas complains that he was not reassigned immediately, and that when he was

reassigned, he did not receive the same position as Molinar. The record supports the view, however,

that Vargas was not immediately reassigned because Jeanswear sought clarification from Vargas’s

doctor as to what kinds of actions Vargas could perform. Vargas’s doctor did not respond despite

Jeanswear’s active attempts to contact him. Once a response was received, Vargas’s work duties

were modified to accommodate him.

       Moreover, Vargas cannot show that Molinar was similarly situated to him. There is no

evidence that Jeanswear was confused about Molinar’s medical restrictions or that her doctor failed

to immediately provide medical advice as to her limitations. Additionally, the fact that Molinar was

given different light duty work than Vargas is of no import. Jeanswear was not required to give

Molinar and Vargas the exact same position. There is no support in the case law for this proposition,


                                                 4
nor is there support in the record showing that Molinar and Vargas suffered from the same

impediments to performing their jobs.

                               II.          National Origin Discrimination

       Vargas must sat isfy the same burden of proof with respect to his claim for national origin

discrimination. We agree with the district court that this claim fails for the same reasons that

Vargas’s sex discrimination claim fails. Vargas alleges that a male Mexican-American employee, Mr.

Torres, was t reated more favorably than him.              Specifically, Vargas asserts that Torres was

immediately placed in light duty work after he was injured, whereas he was forced to wait for a light

duty position. He contends that the delay was due to his Costa Rican descent. Vargas again offers

no evidence to dispute Jeanswear’s contention that it took them longer to place Vargas in a position

because his do ctor failed to respond to requests for further information. Moreover, there is no

support in the record for Vargas’s contention that Mr. Torres was similarly situated to him. Further,

for the reasons already discussed, this claim also fails because Vargas has not shown that he suffered

an adverse employment action.

                                     III.      Disability Discrimination

       An employer commits an unlawful employment practice if, because of disability, the employer

discriminates against an individual in connection with employment. TEX. LAB. CODE ANN. § 21.051.

A plaintiff must show that his disability was a "motivating factor" for an employment practice,

regardless of how many factors influenced the decision. Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 480 (Tex. 2000) (“‘[A] motivating factor’ [is] the . . . standard of causation in a

TCHRA unlawful employment practice claim.”).




                                                       5
         To set up a prima facie case of discrimination, a plaintiff must make a threshold showing that

he has a disability. Garcia v. Allen, 28 S.W.3d 587, 596 (Tex. App. 2000). An individual can be

classified as disabled under any one of the three definitions of the term contained in the TCHRA. Id.

Under the statute, a person is defined as disabled if he either (1) is actually disabled, (2) is regarded

as being disabled, or (3) has a record of being disabled. TEX. LAB. CODE ANN. § 21.002(6) (Vernon

1996). For all three definitions, the word "disabled" is defined as having a mental or physical

impairment that substantially limits at least one major life activity. Id. A "major life activity" is

considered akin to "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." Garcia, 28 S.W.3d at 596 (quoting 29 C.F.R. § 1630.2(i)). When

the impaired major life activity is the ability to work, the statute requires the plaintiff to show a

substantial limitation by proving, at a minimum, that the plaintiff is unable to work in a broad class

of jobs. Kiser v. Original, Inc., 32 S.W.3d 449, 453 (Tex. App. 2000); Garcia, 28 S.W.3d at

599-600. The inability to perform a single, particular job does not constitute a substantial limitation

in the major life activity of working. Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 538 (Tex.

App. 2001).

         The district court correctly concluded that Vargas’s disability discrimination claim is meritless.

Vargas introduced absolutely no evidence that he could not continue to work at another position.

Moreover, the record shows that Vargas returned to work at his original position after his surgery

and that he no longer required any accommodations. As such, Vargas is not disabled as a matter of

law and the dist rict court properly granted summary judgment on this claim. Kiser, 32 S.W.3d at

453.1


  1
      Vargas makes no argument that he was “regarded as” disabled within the meaning of the statute.

                                                     6
                          IV.     Retaliation Under § 21.055 of the TCHRA

          The elements of a TCHRA retaliation claim are: (1) the employee engaged in a protected

activity, (2) the employer took an adverse employment action against the employee, and (3) the

employer took the adverse action based on the employee’s engagement in the protected activity.

Mayberry v. Tex. Dep’t of Agriculture, 948 S.W.2d 312, 315 (Tex. App. 1997). The TCHRA

protects an employee from retaliation or discrimination by an employer because the employee

“opposed a discriminatory practice.” TEX. LAB. CODE ANN. § 21.055(1) (Vernon 1996).

          We agree with the district court that for the reasons already elaborated on, Vargas cannot

establish a retaliation claim because he cannot show that he has suffered an adverse employment

action.

                     V.     Retaliation Under § 451.001 of the Texas Labor Code

          Section 451.001 provides that it is unlawful to “discharge or in any other manner discriminate

against an employee because the employee has . . . filed a workers’ compensation claim in good

faith.” TEX. LAB. CODE ANN. § 451.001 (Vernon 1996). It is incumbent upon the plaintiff to put

forth evidence establishing a causal connection between the filing of a workers’ compensation claim

and the complained of employment action. Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d

559, 563 (5th Cir. 1992). There is very little in the summary judgment record establishing a causal

link between Vargas’s filing of a workers’ compensation claim and the actions taken by Jeanswear.

Moreover, there is no support in the record for the contention that Vargas suffered from

discrimination. However, even if we assume that Vargas has established a causal link, and that

Vargas was discriminated against, Jeanswear may rebut the claim of retaliation by showing that there

was a legitimate, non-discriminatory reason for its action. Id.


                                                    7
        Jeanswear asserts that it did not immediately place Vargas in a modified position because it

was awaiting further instruction from Vargas’s doctor. The record supports this view and Vargas

has not introduced any evidence tending to disprove the sincerity of Jeanswear’s actions. As such,

we agree with the district court that there is no genuine issue of material fact. The district court

correctly granted Jeanswear summary judgment on this claim.

                         VI.      Intentional Infliction of Emotional Distress

        Under Texas law, to prevail on a claim for intentional infliction of emotional distress, a

plaintiff must show that (1) the defendant acted intentionally or recklessly, (2) the conduct was

extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress; and

(4) the resulting emotional distress was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611

(Tex. 1999).

        Vargas contends that his supervisor, Carlos Betancourt (“Betancourt”) (1) threatened Vargas

with disciplinary action if he refused to accompany him to the bathroom, (2) told Vargas he had a

“sucker’s mouth,” (3) accused Vargas of being homosexual, and (4) threatened to “blackball” Vargas.

In addition, he claims that Betancourt grabbed him inappropriately between his legs. Vargas also

alleges that another supervisor, Sylvia Reyes, mocked him about his injury and accused him of theft.

        To be extreme and outrageous, conduct must be “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.” Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)

(quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Generally, insensitive or even

rude behavior does not constitute extreme and outrageous conduct. Natividad, 875 S.W.2d at 699.

Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not


                                                    8
rise to the level of extreme and outrageous conduct. Porterfield v. Galen Hosp. Corp., 948 S.W.2d

916, 920 (Tex. App. 1997).

       In determining whether certain conduct is extreme and outrageous, courts consider the

context and the relationship between the parties. GTE Southwest, 998 S.W.2d at 612. The extreme

and outrageous character of the conduct may arise from an abuse by the actor of a position, or a

relation with the other, which gives him actual or apparent authority over the other, or power to

affect his interests. Id. Texas courts have adopted a strict approach to intentional infliction of

emotional distress claims arising in the workplace. See, e.g., Miller v. Galveston/Houston Diocese,

911 S.W.2d 897, 900-01 (Tex. App. 1995); Amador v. Tan, 855 S.W.2d 131, 135 (Tex. App. 1993);

Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App. 1992) ("Incidents in which

a Texas court has determined the conduct to be extreme and outrageous in the employer/employee

setting are few."). The Texas courts rely on the fact that, to properly manage its business, an

employer must be able to supervise, review, criticize, demote, transfer, and discipline employees.

Johnson v. Merrell Dow Pharms.,Inc., 965 F.2d 31, 34 (5th Cir. 1992). Given these considerations,

Texas courts have held that a claim for intentional infliction of emotional distress does not lie for

ordinary employment disputes. Miller, 911 S.W.2d at 900-01. The range of behavior encompassed

in "emplo yment disputes" is broad, and includes at a minimum such things as criticism, lack of

recognition, and low evaluations. See, e.g., Ulrich v. Exxon Co., U.S.A., 824 F. Supp. 677, 687

(S.D. Tex. 1993). Thus, to establish a cause of action for intentional infliction of emotional distress

in the workplace, an employee must prove the existence of some conduct that brings the dispute

outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous

conduct. Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir. 1992) (requiring


                                                  9
employee to show conduct "elevating [the employer's] actions above those involved in an 'ordinary

employment dispute' "); see also Porterfield, 948 S.W.2d at 920-21 ("Only in the most unusual of

employment cases does the conduct move out of the 'realm of an ordinary employment dispute' and

into the classification of extreme and outrageous.").

        Based on these principles, the district court concluded that Vargas’s allegations did not rise

to the level of extreme and outrageous conduct required under Texas law. We agree.

        In Foye v. Montes, 9 S.W.3d 436 (Tex. App. 1999), Montes’s boss, Foye, called her at

home repeatedly. During one call, he allegedly asked her on a date. During another call, he asked

her if she slept with a bra on. Other incidents that Montes complained about included Foye's

recommendation of two movies to her. One was The Bounty and the other was Like Water for

Chocolate. According to Montes, watching the latter movie caused her severe emotional distress

because it depicted sex and nudity. Also, on a couple of occasions, Foye asked Montes to put gas

in his car. She testified there were love notes left in the car for her to see. One such note said "you

drive me crazy," and another had the word "sex" or "sexual" in it. Id. at 439. Foye asked Montes

not to wear lipstick because he "didn't l ike the taste" of it. Id. On another occasion, Foye told

Montes that she had a "heart-shaped ass." Id. On still another occasion, Foye slapped Montes “on

the rear end.” Id. At a Christmas party, Montes claimed that Foye, while sitting next to her, "reached

over and put his hand on [her] thigh and said, 'would you like to go have a drink or something.' " and

said, “'a lot can be done in an hour and a half.' " Id. Montes testified that she was very upset and felt

"violated." Id. Subsequently, Montes was terminated. Later, she was diagnosed as suffering from

“severe emotional distress.” Id. at 440.




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        The court noted that “[o]nly in the most unusual of employment cases does the conduct move

out of the realm of an ordinary employment dispute into the classification of extreme and

outrageous.” Id. The court concluded that, “we fail to see the extreme and outrageous nature of

Foye's behavior. Without a doubt, his behavior could be described as rude, offensive, and annoying.

However, it falls short of the necessarily high standard for intentional infliction of emotional distress.”

Id.

        Vargas has not cited any cases that support his position, or that tend to show that conduct

similar to that which Vargas endured is actionable under Texas law. We do not doubt that Vargas

may have experienced some indecencies or rudeness, but given the strict standard for liability under

Texas law, we are unable to find that a genuine issue of material facts exists on Vargas’s claim of

intentional infliction distress.

                                            CONCLUSION

        Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of

Jeanswear.

        AFFIRMED.




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