              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       _____________________

                            No. 93-5570
                       _____________________



CASSANDRA MacARTHUR,

                                                Plaintiff-Appellant,

                                  versus

UNIVERSITY OF TEXAS HEALTH CENTER AT
TYLER and MICHAEL WILSON, sued in
his individual and official capacities,

                                               Defendants-Appellees,

                                   and

RICHARD PAINTER, sued in his individual
and official capacities,

                                              Defendant-Appellee-
                                                 Cross-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Eastern District of Texas

_________________________________________________________________
                        (February 8, 1995)

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Cassandra MacArthur, a research laboratory technician, filed

this employment discrimination action against University of Texas

Health Center at Tyler, and against Dr. Richard Painter and Dr.

Michael Wilson, who worked with her at the Health Center.         The

district court submitted to the jury special interrogatories on

MacArthur's   claims   of   sex    discrimination,   First   Amendment
retaliation and intentional infliction of emotional distress.                The

jury refused to award her damages on her claims of First Amendment

retaliation or sex discrimination, but found in her favor and

against       Dr.   Painter   on   the   state   law   claim   of   intentional

infliction of emotional distress.              On appeal, she raises several

evidentiary rulings related to the Title VII retaliation claim,

which she pleaded, but which she failed to present to the jury for

determination.         Dr.    Painter    cross-appeals   and    challenges   the

sufficiency of the evidence to support the jury's award of damages

to MacArthur for intentional infliction of emotional distress.

Upon review of the record, we dismiss the appeal of MacArthur's

Title VII retaliation claim and reverse judgment against Painter on

intentional infliction of emotional distress.

                                          I

     Cassandra MacArthur worked for University of Texas Health

Center at Tyler ("UTHC") as a research lab technician in the

biochemistry department for approximately six years.                 During her

employment with UTHC, MacArthur's direct supervisor was Dr. Alan

Cohen,    a    biochemistry    faculty    member   and   Executive    Associate

Director of UTHC.       Dr. Richard Painter was the department chair of

biochemistry and Dr. Michael Wilson was the Assistant Director of

Human Resources while MacArthur worked for UTHC.               This case arises

out of alleged events occurring between MacArthur and Dr. Painter.

Many of the details of these events are disputed among the parties.




                                         -2-
       Problems began between MacArthur and Painter in October 1988,

when MacArthur reported to Cohen an incident in which Painter

yelled and screamed at a female employee, Ferdicia Carr. MacArthur

testified that she complained to Cohen that Painter "can't continue

to abuse women in this manner."               Cohen--a witness friendly to

MacArthur--testified, however, that he did not remember whether

MacArthur    complained      of   Painter's   alleged   sex   discrimination.

MacArthur, nevertheless, argues that Painter began to retaliate

against her after she reported this single incident.               The most

serious of these alleged retaliatory events by Painter and Wilson

against MacArthur occurred in August 1989 when MacArthur admittedly

and erroneously disposed of radiation in the regular wastebasket,

rather than in the radioactive materials wastebasket.             As a result

of    this   error,   the    Radiation   Safety    Committee    first   placed

MacArthur on probation, allowing her to use radiation only under

supervision.     The committee ultimately indefinitely revoked her

privilege to use radiation when it found her incompetent not only

in disposal, but also in use of the radioactive materials.               This

sanction resulted in MacArthur's demotion and salary reduction.

Cohen warned MacArthur in a memorandum dated June 19, 1990, that if

she    failed   to    have   her    radiation    privileges    reinstated   by

December 6, 1990, she would be terminated.               MacArthur resigned

approximately one week after receiving this memorandum.             MacArthur

argues that UTHC imposed an exaggerated discipline on her as

compared to that resulting from other more serious radiation




                                       -3-
problems by co-workers.    She contends that this was the result of

Painter's involvement and control of the committee that ultimately

imposed the punishment.1

     Additionally, MacArthur argued that an incident involving

Painter's   laboratory    technician,   Izola   Williams,   constituted

further unlawful retaliation.    Williams asked MacArthur to assist

her with using an incubator.    Over the weekend, MacArthur adjusted

a switch on the incubator in an attempt to correct the pace of the

machine.    She reported this fact later to Williams who in turn

informed Painter.     On Monday, Painter found the cells in the

incubator dead and blamed MacArthur. He then wrote a memorandum to

Cohen, recommending   that MacArthur be restricted from the tissue

culture facility.   He also yelled at MacArthur to stay out of his

laboratory. MacArthur argues that Painter, thus, "threatened [her]

career when he made public, trumped-up charges of sabotage against

[her]."2

     With respect to Dr. Wilson's retaliation, MacArthur points to

the internal grievance she filed with Wilson's department after the

incubator incident occurring in Dr. Painter's laboratory against


       1
        Dr. Painter supervised, and performed routine employee
evaluations for all but one member of the Committee. Additionally,
Painter was a member of this Committee.
       2
       MacArthur argues that Painter retaliated against her in
several additional incidents, including threatening her with
scientific misconduct for using her own blood in an experiment,
writing her up for receiving personal mail at work, and reporting
her for ordering mice from another technician's protocol.




                                  -4-
Painter concerning his "intimidation of women."                  MacArthur argues

that Wilson then retaliated against her for complaining about

management by "torpedoing her grievance" and by "losing" critical

records.    Henry Jackson, Director of Affirmative Action and Equal

Employment for UTHC, conducted the investigation into MacArthur's

allegations.      MacArthur argues that during the investigation into

her grievance      Wilson     stated      to    Jackson   not   "to    worry"       about

Painter's concerns that he was receiving no "managerial support,"3

because    UTHC   still    had    MacArthur's       performance       and     radiation

problems to resolve.        She contends that this statement indicated

that Wilson was going to use her problems with radiation as a means

to fire her.      Jackson testified that he understood this statement

to mean that UTHC would be forced to terminate her employment

because    the    Radiation      Safety    Committee      was   going    to     suspend

indefinitely      MacArthur's       radiation       privileges        based    on     her

substandard performance and problems with radiation.

     On    October    1,   1992,    following       her   resignation         in    June,

MacArthur filed this suit in the United States District Court for

the Eastern District of Texas against UTHC, and Wilson and Painter

in both their individual and official capacities.                        She alleged

discrimination because of her sex, and retaliation because of her

    3
     Wilson and Ron Dodson, the head of Research, were, according
to Wilson, concerned that Jackson was asking too many questions
during his investigation of Painter and not giving Painter enough
support. Wilson, however, informed Dodson that Jackson was only
doing his job and told Jackson "don't worry, we still have the
performance and radiation issue."




                                          -5-
opposition to sex discrimination pursuant to Title VII of the Civil

Rights Act of 1964.          MacArthur further alleged a cause of action

under 42 U.S.C. § 1983 based on retaliation for her exercise of

protected First Amendment speech concerning sex discrimination.

She additionally          asserted    a       cause    of   action    under    the   Equal

Protection Clause of the Fourteenth Amendment to the United States

Constitution       and,    finally,       a    state    law   claim    of     intentional

infliction of emotional distress.4

      Prior to trial, the defendants submitted to the district court

a motion in limine asking the court to exclude all evidence of

retaliation by UTHC against employees other than MacArthur.                            The

court granted the defendants' motion and assigned the case to a

different district court judge for trial.                         During trial, the

district court excluded certain other evidence offered by MacArthur

to   prove   her     retaliation      claims.          MacArthur      argues    that   the

district     court    erroneously         granted      the    motion   in     limine   and

erroneously excluded critical evidence that Wilson had previously

retaliated against other employees who complained about management.

She also argues that the district court erred by excluding evidence

that the Radiation Safety Committee disciplined other radiation

problems more leniently than it disciplined her.



      4
     On July 1993, the district court dismissed MacArthur's state
law claims against Wilson and Painter in their official capacities
and dismissed her Title VII claims against Wilson and Painter in
their individual capacities. This decision is not appealed.




                                              -6-
        The district court, without objection and with approval of the

parties, submitted to the jury special interrogatories only on

three issues:       Title VII sex discrimination, First Amendment

retaliation, and intentional infliction of emotional distress.

MacArthur submitted no interrogatory to the jury on a Title VII

retaliation claim, nor was the jury so instructed, nor did she

argue to the jury retaliation based on Title VII.    The jury awarded

MacArthur $65,000 for intentional infliction of emotional distress

against Dr. Painter.     The jury found in favor of the defendants,

however, on the Title VII sex discrimination claim and on the First

Amendment retaliation claim.     The district court entered judgment

based on this verdict, dismissing all claims against the defendants

and awarding the plaintiff judgment of $65,000 on the intentional

infliction of emotional distress claim.     Pursuant to Rule 59(e) of

the Federal Rules of Civil Procedure, MacArthur made a timely

motion for a partial new trial, arguing that the district court

erroneously excluded certain evidence of retaliatory treatment of

"comparatively situated employees," offered to prove her claims of

"discrimination/retaliation."5 The district court, without comment


    5
     In her reply brief filed with this court, MacArthur explained
that "discrimination/retaliation" should be deciphered, consistent
with her intent, to mean retaliation in violation of Title VII of
the Civil Rights Act of 1964. She explained that she used this
mixed generic term "because the anti-retaliatory provision of Title
VII refers to retaliation as another prohibited form of
discrimination." MacArthur did not argue that the district court
erred in failing to submit an interrogatory to the jury related to
discrimination/retaliation under Title VII.




                                  -7-
on the merits, denied in whole MacArthur's motion for a partial new

trial. MacArthur filed a timely notice of appeal from the district

court's final judgment and denial of a partial new trial.                    Her

appeal, however, only raises error with respect to a Title VII

retaliation claim.       Furthermore, on appeal, she raises only one

issue--that    the   district   court      committed   reversible    error   by

excluding     evidence   that   would       have   proved    the   defendants'

discriminatory intent in support of her Title VII retaliation

claim. The defendants cross-appealed arguing that the evidence was

insufficient    to   support    the    jury's      verdict   for   intentional

infliction of emotional distress.

                                      II

                                       A

     MacArthur argues that the district court abused its discretion

by excluding certain evidence that she attempted to present to

establish the defendants' retaliatory intent required with respect

to her Title VII retaliation claim.6            This evidence consisted of

incidents of the defendants' pattern and practice of retaliation

against other employees who complained about management.


     6
      Although the district court did not give specific rationale
for excluding the evidence in the motion in limine and during
trial, it should be noted that given the state of the record, we
cannot say the district court abused its discretion in excluding
this evidence. See EEOC v. Manville Sales Corp., 27 F.3d 1089,
1092-93 (5th Cir. 1994) (stating that we review evidentiary rulings
only for abuse of discretion).     As suggested at oral argument,
MacArthur failed to demonstrate that the excluded evidence was
probative to the question of discrimination in this case.




                                      -8-
     In order to resolve this question, we must examine what claims

are actually before this court on appeal.       In her notice of appeal,

MacArthur states that she appeals both the district court's final

judgment entered in this case and order denying her motion for

partial new trial.    She does not even mention denial of this motion

in her briefs on appeal.    Consequently, she has abandoned any issue

or claim that arises from the denial of her new trial motion that

is independent of the underlying judgment, which she also appeals.

See FED. R. APP. P. 28(a)(5) ("The argument must contain the

contentions of the appellant on the issues presented, and the

reasons therefor"); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.

1993) (holding that appellant abandoned argument by failing to

argue it in body of brief).

     We now turn to examine the underlying judgment to determine

what claims and issues are before us--especially focusing on

MacArthur's Title VII retaliation claim.          The procedural facts

concerning   this   claim   are   simple.    MacArthur    pleaded    in   her

complaint a cause of action for retaliation under Title VII,

together with First Amendment retaliation, sex discrimination,

intentional infliction of emotional distress, and a violation of

the Equal Protection Clause.      Each of these claims appeared in the

pretrial order.     It is clear, however, that MacArthur ultimately

argued and presented for the jury's determination only three

claims:      the    First   Amendment     retaliation    claim,     the   sex

discrimination claim, and the intentional infliction of emotional




                                    -9-
distress claim. In her closing argument, MacArthur argued evidence

that she contended supported retaliation generally; she did not

refer to retaliation based on Title VII at any point during this

argument.       It is further clear that the district court did not

instruct the jury on Title VII retaliation; the court instructed

the   jury     extensively   on   the    law   concerning   First   Amendment

retaliation, as well as on the other two claims, but did not say a

single word with respect to Title VII retaliation.           At the close of

the instructions, when given an opportunity to object, MacArthur

did not object to the court's failure to instruct on Title VII

retaliation.        Neither did she object to the omission of any

interrogatory to the jury with respect to her Title VII retaliation

claim.7       Her failure to lodge an objection to these omissions of

Title VII retaliation is all the more indicative of her intent to

abandon the claim because she specifically objected to the omission

of an Equal Protection Clause claim, which the court overruled; in

other words, her failure to object was not inadvertent as though

she were asleep at the switch.           In sum, MacArthur failed to argue

this claim, failed to have the jury instructed on this claim and

failed to submit this claim for the jury's determination and

verdict.      Under these circumstances, the jury failed to return any

verdict with respect to her Title VII retaliation claim.                  The

court, specifically stated in the final judgment "pursuant to the

          7
       The jury verdict form is produced and attached to this
opinion as Appendix A.




                                        -10-
verdict returned by the jury, the Court enters the following

judgment."      The court then dismissed, with prejudice, all claims

against the defendants, except the claim for intentional infliction

of emotional distress, with respect to which it entered judgment

for MacArthur.         Neither in post-trial motions, nor on appeal, does

MacArthur raise as error the district court's failure to instruct

the jury or submit an interrogatory on Title VII retaliation.              Our

review    of    the    record,   therefore,    demonstrates   that   MacArthur

abandoned her Title VII claim and choose to travel with her First

Amendment claim for retaliation based on the exercise of her right

to speak freely.

                                          B

     In appealing the final judgment, MacArthur effectively raised

her claims of sex discrimination and First Amendment retaliation.

She also effectively raised in her notice of appeal, the denial of

her motion for a partial new trial.              She has abandoned each of

these claims on appeal, however, by her failure to argue any of

these claims to this court--her brief arguing only error with

respect    to    the    Title    VII   retaliation   claim.   Although    some

confusion arose between the parties as to whether MacArthur was

appealing her sex discrimination claim, MacArthur clarified this

point in her reply brief when she stated that the sole issue on

appeal was that of retaliation.           Throughout her briefs, this claim

of retaliation was consistently referred to as "a discrimination/

retaliation case." She explained that she used this label "because




                                        -11-
the anti-retaliatory provision of Title VII refers to retaliation

as    another    prohibited    form       of   discrimination."         Furthermore,

MacArthur's sole argument for admissibility of the evidence at the

center of this appeal is that its exclusion prevented her from

proving pretext as required under Title VII.                         In her briefs,

MacArthur does not refer to her First Amendment retaliation claim

a single time.      In sum, the only conclusion that can be drawn from

the foregoing facts is that MacArthur does not appeal her claim

that    the    retaliation    at     issue     was   for    exercising    her     First

Amendment rights.       See FED. R. APP. P. 28(a)(5) ("The argument must

contain the contentions of the appellant on the issues presented,

and the reasons therefor"); Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993) (holding that appellant abandoned argument by

failing to argue it           in body of brief).                 Instead, on appeal

MacArthur       apparently    made    a    strategic       determination    that    in

retrospect a Title VII retaliation claim was a stronger basis for

her sole argument on appeal that the district court erred in

excluding comparative evidence to establish disparate treatment.

       Thus, in conclusion, we must dismiss this appeal.                 We do so on

the    basis     that   the   one     claim      that      she    raises--Title    VII

retaliation--was abandoned at the district court, thus is not

embodied in the district court judgment, and consequently is not

before this court on appeal.           With respect to the claims that were

presented to the jury and that are embodied in the district court's




                                          -12-
final judgment, she has abandoned these claims on appeal by failure

to brief and argue.   MacArthur's appeal is therefore dismissed.

                                III

                                 A

     Finally we turn to Dr. Painter's appeal and consider whether

the evidence presented supports the jury's verdict in favor of

MacArthur on intentional infliction of emotional distress.       We

review a challenge to the sufficiency of the evidence supporting a

jury verdict to determine whether

     reasonable and fair-minded [jurors] in the exercise of
     impartial judgment might reach different conclusions....
     A mere scintilla is insufficient to present a question
     for the jury.... However, it is the function of the jury
     as the traditional finder of facts, and not the Court, to
     weigh conflicting evidence and inferences, and determine
     the credibility of witnesses.

Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).

     Before addressing the question     of the sufficiency of the

evidence, however, we must address the procedural question of

whether Painter waived his right to challenge the evidentiary

support for the verdict when he failed to renew his motion for

judgment as a matter of law at the close of all evidence presented

in this trial.   In accordance with Rule 50(b) of the Federal Rules

of Civil Procedure, it is well-settled that a motion for judgment

as a matter of law must be renewed at the conclusion of trial in

order to preserve the review of the sufficiency of the evidence on




                                -13-
appeal.8    McCann v. Texas City Refining, Inc., 984 F.2d 667, 671

(5th Cir. 1993).     In certain limited situations, however, we have

excused technical non-compliance with Rule 50(b). See, e.g., Davis

v. First Nat. Bank, 976 F.2d 944, 948 (5th Cir. 1992), cert.

denied, 113 S.Ct. 2341 (1993) (Wiener, J.); Merwine v. Board of

Trustees for State Institutions, 754 F.2d 631, 635 (5th Cir. 1985),

cert. denied, 474 U.S. 823 (1985). Whether technical noncompliance

with Rule 50(b) precludes a challenge to the sufficiency of the

evidence    on   appeal   "should   be   examined   in   the    light   of   the

accomplishment of its particular purposes as well as in the general

context of securing a fair trial for all concerned in the quest for

truth."    Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir. 1983),

cert. denied, 465 U.S. 1026 (1984).          This rule serves two basic

purposes:    to enable the trial court to re-examine the sufficiency

of the evidence as a matter of law if, after verdict, the court

must address a motion for judgment as a matter of law, and to alert

the opposing party to the insufficiency of his case before being

submitted to the jury.      Bohrer, 715 F.2d at 216.           In Bohrer, like

here, the court reserved ruling on a motion for directed verdict


     8
     When the defendant fails to renew the motion for judgment as
a matter of law at the close of all the evidence, our inquiry is
limited to "whether there was any evidence to support the jury's
verdict, irrespective of its sufficiency, or whether plain error
was committed which, if not noticed, would result in a 'manifest
miscarriage of justice.'" Coughlin v. Capitol Cement Co., 571 F.2d
290, 297 (5th Cir. 1978).      Even if no evidence supports the
verdict, we cannot render judgment in favor of Painter, but rather
must order a new trial. McCann, 984 F.2d at 673.




                                    -14-
made at the close of the plaintiff's evidence.       Id. at 217.       The

defendants   then   presented   substantial   evidence,   to   which   the

plaintiffs presented no rebuttal testimony.       Id.     We excused the

defendants' failure to make a motion at the conclusion of all the

evidence because the purposes of the rule were satisfied.        Id.    We

concluded that

     [t]o demand a slavish adherence to the procedural
     sequence and to require these defendants, in this case,
     to articulate the words of renewal once the motion had
     been taken under advisement, would be 'to succumb to a
     nominalism and a rigid trial scenario as equally at
     variance as ambush with the spirit of our rules.'

Bohrer, 715 F.2d at 217 (quoting Quinn v. Southwest Wood Prods.,

Inc., 597 F.2d 1018, 1025 (5th Cir. 1979)).

     Even though Painter failed to comply with the strict terms of

the rule, we conclude that this case is one in which his failure

can be excused. At the close of MacArthur's case-in-chief, Painter

moved for judgment as a matter of law on all claims, including the

intentional infliction of emotional distress claim.         With respect

to this claim, the district court judge reserved ruling on the

motion, saying that he was going to "carry that motion along...for

the time being."     The defendants, including Painter, introduced

numerous witnesses.     At the close of the defendants' evidence,

MacArthur presented two witnesses in rebuttal.          At the close of

this rebuttal testimony, Painter renewed his motion for judgment as

a matter of law on all claims except intentional infliction of

emotional distress.    MacArthur sought to reintroduce no evidence.




                                  -15-
The   district   court   denied     all    motions.         Following     entry      of

judgment, Painter moved for judgment notwithstanding the verdict on

the only claim decided against him--intentional infliction of

emotional distress.      The judge denied this motion.

      The   record   reflects   that      the    purposes    of   the    rule      were

satisfied.    We can discern no prejudice to MacArthur by Painter's

failure technically      to   comply      by    renewing    his   motion      on    the

intentional infliction of emotional distress claim.                  MacArthur was

not blind-sided by Painter's failure to call to her attention at

the close of trial to the insufficiency of her evidence.                           When

Painter suggested the deficiency in her proof on the intentional

infliction of emotional distress claim at the close of her case,

she put on no further evidence directed to this claim.                        At the

close of all the evidence, Painter made the motion on all other

claims except the intentional infliction of emotional distress

claim,   which    actually    was   still       pending     before      the   court.

Furthermore,     MacArthur    acknowledges        on   appeal     that    the      same

evidence that supports her discrimination and retaliation claims is

the sole evidence that supports her intentional infliction of

emotional distress claim.           Thus, for all practical purposes,

MacArthur was afforded an opportunity at the close of all evidence

to introduce other evidence on the intentional infliction of

emotional distress claim, but did not do so.                 Moreover, she does

not suggest any additional evidence tending to prove that Painter




                                     -16-
acted outrageously.9    This case thus falls in the category with

those cases in which we have excused technical compliance with Rule

50(b).   Accordingly, we review this issue under the reasonable

juror standard noted above in Boeing v. Shipman.             We now turn to

address the question of the sufficiency of the evidence.

                                     B

                                    (1)

     Under   Texas   law,   the   tort    of   intentional   infliction   of

emotional distress requires that MacArthur must prove 1) Painter

acted intentionally or recklessly, 2) the conduct was extreme and

outrageous, 3) the actions of Painter caused MacArthur emotional

distress, and 4) the resulting emotional distress was severe.

Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).           The sole issue

that Painter raises on appeal is whether his conduct toward's

MacArthur was "extreme and outrageous."

     Liability under this cause of action is imposed only "where

the conduct has been so outrageous in character, and so extreme in


     9
      Even if we did not excuse Painter's failure to comply with
Rule 50(b) and thus reviewed this case under the plain error
standard, our conclusion would be no different than that which we
reach here, except we would be required to go through the futile
exercise of remanding this case for a new trial. See Purcell v.
Seguin State Bank and Trust Co., 999 F.2d 950 (5th Cir. 1993)
(holding unexcusable failure to make motion for judgment as matter
of law results in review under plain error standard and relief
limited to ordering new trial). We find the record devoid of any
evidence establishing that Painter acted "outrageously"--as this
term of art is used in the relevant cases--towards MacArthur. Thus
no evidence supports the jury's verdict against Painter for
intentional infliction of emotional distress.




                                   -17-
degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community."     Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.

1993)(quoting RESTATEMENT (SECOND)        OF   TORTS § 46 cmt. d. (1965)).   The

cause of action does not protect against mere insults, indignities,

and threats.        Johnson v. Merrell Dow Pharmaceuticals, Inc., 965

F.2d 31, 33 (5th Cir. 1992).          In the employment context, a claim

for intentional infliction of emotional distress will not be

supported by the broad range of conduct labeled as "mere employment

disputes."    Johnson, 965 F.2d at 33.            "In order to properly manage

its business, an employer must be able to supervise, review,

criticize, demote, transfer and discipline employees."                 Johnson,

965 F.2d at 34.

       Our decision in Dean v. Ford Motor Credit Co., 885 F.2d 300

(5th Cir. 1989) is instructive as to the type of conduct that rises

to the level of "extreme and outrageous" in the employment context.

In Dean, the plaintiff presented evidence that her supervisor

intentionally placed checks in her purse to make it appear that the

plaintiff was a thief, or to put her in fear of criminal charges

for theft of the checks.          Dean, 885 F.2d at 307.      We held that the

"check incidents...[were] precisely what [took] this case beyond

the realm of an ordinary employment dispute and into the realm of

an outrageous one."         Id.    Similarly, in Wilson v. Monarch Paper

Co.,   939   F.2d    1138   (5th   Cir.    1991),    the   plaintiff   presented

evidence of the defendant's outrageous conduct by showing that he




                                      -18-
was a former executive whom defendant company sought to humiliate

into resigning because of his age by forcing him to perform routine

janitorial duties before and in behalf of his fellow employees.

Wilson, 939 F.2d at 1145.              We noted that various other conduct

complained of by the plaintiff, as offensive as it may have been,

was within the "realm of an ordinary employment dispute."                       Id. at

1144-45. We held, however, that in attempting to totally humiliate

the    former   executive       by   requiring      him    to   perform    janitorial

services and to clean up after lower level employees was the

outrageous conduct that took this case "out of the realm of an

ordinary employment dispute."               Id. at 1145.

                                           (2)

       We turn now to examine the evidence to determine whether a

reasonable      juror     could      conclude      that    Painter's      conduct   was

outrageous.      MacArthur argues exactly the same evidence supporting

her    Title    VII     retaliation        claim    to    support   her     claim   for

intentional infliction of emotional distress.                    MacArthur contends

that Painter acted outrageously by making unfounded accusations

that she had sabotaged one of his experiments conducted in an

incubator.       See supra p. 4.             Furthermore, she argues that he

threatened to charge her with scientific misconduct after finding

that    she    had    used    her    own   blood    in    an    experiment    she   was

performing, when she may have been infected with hepatitis.                         See

supra p. 4 n.2.              Finally, she argues that Painter exercised

substantial control over the committee that suspended her radiation




                                           -19-
privileges, a disciplinary response that MacArthur argues was

greatly exaggerated as compared that imposed for other radiation

errors.     See supra p. 3.        In sum, she contends that evidence of

Painter's "prolonged intentional, malicious and vindictive career

threats" proved not only the "discriminatory intent" needed to

prevail    on    her    Title    VII   retaliation     claim,   but    also    the

"outrageous      conduct"       necessary     to    support   her     intentional

infliction of emotional distress claim.              See supra, pp. 3-5.

     In connection with each of these individual incidents--the

incubator incident, the blood incident, and the radiation disposal

incident--MacArthur carelessly or incompetently performed her task.

For example, with regard to the incubator incident, MacArthur

adjusted the pace on the machine, which ultimately ruined Painter's

experiment.      Again, MacArthur was careless, if not reckless, in

using her own blood for an experiment when she was concerned that

she may be infected with hepatitis.                Finally with regard to the

radiation    disposal     incident,     she   erroneously     disposed    of   the

radiation,      and    incompetently    performed      experiments     using   the

radiation, resulting in the indefinite suspension of her radiation

privileges.      MacArthur hardly contends that she was without fault

in each of these incidents; instead, she argues that Painter's

manner of reprimand constituted outrageous conduct. In response to

each incident involving MacArthur's carelessness or incompetence,

Painter had a plausible basis to become upset with MacArthur's

conduct.     Painter may have lost control, behaved intemperately,




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rudely reprimanded her or overreacted in reporting her mistake to

her supervisor, but the evidence does not demonstrate conduct and

actions so unjustifiable, so uncivilized, so based on malice, or so

senselessly destructive of another that it rises to the level of

"outrageous conduct" as that term relates to and describes the

cause of action for intentional infliction of emotional distress.

Accordingly, we reverse and render judgment in favor of defendant

Painter.

                                       IV

     In    sum,    we   hold   that   MacArthur   abandoned   her   Title   VII

retaliation claim by failing to argue or present it to the jury.

As to the jury's verdict on the claim of intentional infliction of

emotional distress, we REVERSE and RENDER judgment in favor of

defendant Painter.       For the foregoing reasons, the judgment of the

district court is

                  DISMISSED in part and REVERSED and RENDERED in part.




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