                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                  In the                                   April 17, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                      for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 06-10320
                                            _______________




                                       GARLAN CUNNINGHAM,

                                                               Plaintiff-Appellee,

                                                 VERSUS

                            RICHESON MANAGEMENT CORPORATION,

                                                               Defendant-Appellant.


                                     _________________________

                             Appeal from the United States District Court
                                 for the Northern District of Texas
                                          m 3:04-CV-385
                               ______________________________



Before SMITH, BARKSDALE, and DENNIS,                   (“RMC”), for age discrimination under the
  Circuit Judges.                                      Age Discrimination in Employment Act, 29
                                                       U.S.C. § 621 et seq., and for intentional inflic-
JERRY E. SMITH, Circuit Judge:*                        tion of emotional distress (“i.i.e.d.”) under
                                                       Texas law. A jury gave Cunningham damages
   Garlan Cunningham sued her former em-               on both claims; the district court denied
ployer, Richeson Management Corporation                RMC’s motion for judgment as a matter of law
                                                       (“j.m.l.”) on the portion of the award based on
                                                       i.i.e.d. RMC appeals only in regard to the
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    denial of j.m.l. on the i.i.e.d. claim. We vacate
termined that this opinion should not be published     and remand.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                      I.                                 He looked at the stock tank every day as
    Cunningham worked for RMC in various                 DQ strode across the pastures; it was al-
management positions, including, during the              most dry, just a little murky water left in it.
time in question, as district manager of the             But the cows didn’t get sick too often, and
area that included the Dairy Queen store in              when they did, he’d just call the vet. After
Gorman, Texas. A month before Cunning-                   all, it didn’t cost him anything, and the boss
ham’s employment with RMC was terminated,                probably would never know Gorman had
RMC’s owner and Chairman of the Board,                   spent the money.
Doris Richeson, sent a memorandum to Cun-
ningham and a copy to all of RMC’s other su-             Gorman thought Pumper Daddy used to be
pervisors. This memo, which serves as the on-            a pumper in the oil field, but these days he
ly basis for Cunningham’s i.i.e.d. claim,1 states        just sold a few tools now and then. Gor-
in full as follows:                                      man never knew exactly where Pamper
                                                         Daddy got the tools, but the boss didn’t
   Lazy cowboy left in saddle too long                   seem to mind if he got a few now and then.
                                                         Of course, some of them were just a-layin’
   (GRAHAM, TEXAS) SS You could tell he                  out there in the cowshed.
   was a little lazy, just the way he slumped
   and rocked along in the saddle. His clothes           There were rumors, too, about Gorman’s
   were dirty too, but we wondered whether it            family problems. Or maybe they weren’t
   was hard work, or just not caring how he              even a family, just a society of fair weather
   looked.                                               friends.

   His name was Gorman something-or-other,               But nobody did anything about Gorman.
   and years back someone had named the                  Probably didn’t want to have to go out and
   horse he called his nag DQ.                           fix the problem. Just let Gorman’s nag go
                                                         wherever he wanted to slog along.
   One thing, he just couldn’t seem to round
   up enough cows to make a difference.                  Everyone was so nice. Finally even Gor-
   Then the boss started noticing there were             man got tired of being petted and coddled,
   no checks coming in when Gorman should                and having his chuck wagon meals regular,
   have been taking cows to market. And                  with plenty of hay and soft feed for poor
   items were missing without explanation.               old DQ. But he didn’t really want to go to
   And sometimes the other cowboys didn’t                work and earn his keep.
   seem to be working when they were paid to
   work.                                                 So Gorman cooked up a scheme with one
                                                         of his fair weather friends, and just left.
                                                         Course he knew his paycheck would be
   1
     To find that RMC intentionally inflicted emo-       coming anyway. But he could go ahead
tional distress on Cunningham, the jury considered       and get that and maybe no work would fall
the memo as the sole evidence. The jury was              into his life.
asked, “By issuing the ‘Lazy Cowboy’ memo, did
Richeson Management intentionally inflict emo-           Gorman hadn’t kept the cows fed and
tional distress on Cunningham?”

                                                     2
   worked. He couldn’t even remember that                  beyond all possible bounds of decency, and to
   a cow needed help to produce offspring,                 be regarded as atrocious, and utterly intolera-
   and without offspring, it would be a long               ble in a civilized community.’” Id. (quoting
   winter indeedSSmaybe a couple of them,                  Twyman v. Twyman, 855 S.W.2d 619, 621
   since the herd had been damaged irrepara-               (Tex. 1993) (quotation omitted)).
   bly. The hay and the feed had to come
   from somewhere. But Gorman would suf-                      The Texas Supreme Court has held that a
   fer no ill; he’d just be on his way.                    supervisor’s constant humiliating and abusive
                                                           behavior toward an employee constituted ex-
   This lazy cowboy was left in the saddle too             treme and outrageous conduct. In GTE
long. Wonder why? Was no one ready to roll                 Southwest, Inc. v. Bruce, 998 S.W.2d 605,
up their sleeves and handle the situation? ##              613-17 (Tex. 1999), an employer engaged in
                                                           “constant humiliating and abusive behavior”
        SSDoris Richeson                                   and “constantly harassed and intimidated” his
                                                           employees. Id. at 608. “The employees com-
RMC argues that this memorandum is not ex-                 plained about [the supervisor’s] daily use of
treme and outrageous and thus is insufficient              profanity, short temper, and his abusive and
to constitute i.i.e.d. under Texas law, so the             vulgar dictatorial manner. The employees
district court should have granted j.m.l.                  complained that, among other offensive acts,
                                                           [he] repeatedly yelled, screamed, cursed, and
                       II.                                 even ‘charged’ at them. In addition, he inten-
    We review de novo the denial of j.m.l., ap-            tionally humiliated and embarrassed the em-
plying the same legal standard used by the dis-            ployees.” Id. at 608-09. In holding that this
trict court. Lubke v. City of Arlington, 455               conduct was extreme and outrageous, the
F.3d 489, 494 (5th Cir. 2006). A j.m.l. should             court relied on the regular pattern of abuse.
be granted only if “there is no legally sufficient         Id. at 617. “Occasional malicious and abusive
evidentiary basis for a reasonable jury to have            incidents,” on the other hand, “must often be
found for that party with respect to that issue.”          tolerated in our society.” Id.
Id. (quotation omitted).
                                                              In addition to GTE Southwest, the other
    In Texas, “[t]o recover damages for                    two cases that Cunningham relies on as au-
[i.i.e.d.], a plaintiff must establish that: (1) the       thority for the claim that RMC’s conduct was
defendant acted intentionally or recklessly;               extreme and outrageous also involved sus-
(2) the defendant’s conduct was extreme and                tained conduct, not one-time incidents. In
outrageous; (3) the defendant’s actions caused             Skidmore v. Precision Printing & Packaging,
the plaintiff emotional distress; and (4) the re-          Inc., 188 F.3d 606, 613 (5th Cir. 1999), we
sulting emotional distress was severe.” Hoff-              reasoned that conduct was extreme and outra-
mann-La Roche Inc. v. Zeltwanger, 144                      geous in part because the “improper conduct
S.W.3d 438, 445 (Tex. 2004). RMC appeals                   was persistent and long-standing.” In Wilson
only on the basis that its conduct was not ex-             v. Monarch Paper Co., 939 F.2d 1138, 1144-
treme and outrageous. “Extreme and outra-                  45 (5th Cir. 1991), we stated that a substantial
geous conduct is conduct ‘so outrageous in                 demotion following on the heels of “a year-
character, and so extreme in degree, as to go              long campaign of harassment and abuse” was


                                                       3
extreme and outrageous. Cunningham argues                     guish damages under more established tort
that in Wilson we held specifically that the sin-             doctrines.”
gle incident of demotion was extreme and
outrageous. Though our opinion does state
that the year of abusive conduct by itself was                                  * * *
insufficient under the standard, we did not say
that the single act of demoting the plaintiff was               We certainly understand judicial reticence
sufficient on its own to constitute extreme and               to dismiss claims like this one stemming
outrageous conduct. Our conclusion that the                   from heinous acts. But except in circum-
demotion was extreme and outrageous was                       stances bordering on serious criminal acts,
linked to the year-long campaign of humilia-                  we repeat that such acts will rarely have
tion: With the demotion, “the steep downhill                  merit as intentional infliction claims.
push to total humiliation was complete.” Id. at
1145.2                                                     Id. at 817-18 (footnotes containing citations
                                                           omitted).
   Especially instructive is the recent, unani-
mous decision in Creditwatch, Inc. v. Jackson,                 The memorandum sent to Cunningham was
157 S.W.3d 814 (Tex. 2005). The court ad-                  a lone incident that is not actionable for i.i.e.d.
dressed, inter alia, a claim of i.i.e.d. stemming          under Texas law. Cunningham provides no
from a post-termination eviction of the plaintiff          authority that suggests this single memo meets
from the house where she was living, allegedly             the required exacting standard under Texas
orchestrated by the defendant employer. The                law, which supplies the rule of decision in this
court denied the i.i.e.d. claim with the fol-              case.
lowing explanation:
                                                               The judgment is VACATED, and this mat-
   Assuming all this was true, it was callous,             ter is REMANDED for further proceedings as
   meddlesome, mean-spirited, officious, over-             appropriate.
   bearing, and vindictiveSSbut not “so outra-
   geous in character, and so extreme in de-
   gree, as to go beyond all possible bounds of
   decency, and to be regarded as atrocious,
   and utterly intolerable in a civilized com-
   munity.” . . . Intentional infliction claims
   cannot be used “to circumvent the limita-
   tions placed on the recovery of mental an-


   2
     We are not declaring that a single incident can
never constitute extreme and outrageous conduct,
but only that the single memorandum in this case
does not resemble the lengthy patterns of reprehen-
sible conduct evident in GTE Southwest, Skidmore,
and Wilson. Those cases do not support Cunning-
ham’s position.

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