                   United States Court of Appeals,

                            Eleventh Circuit.

                                 No. 95-8602.

      Alfonzo HARRIS, Beverly Harris, Plaintiffs-Appellees,

                                      v.

 PROCTER & GAMBLE CELLULOSE CO., Terri Delong, Tollie Strode and
Michael Brantley, Defendants-Appellants.

                                Jan. 22, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. CV-94-135-2-MAC(DF)), Duross Fitzpatrick,
Chief Judge.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.

     HATCHETT, Circuit Judge:

     In this interlocutory appeal, we rely on Lightning v. Roadway

Express, Inc., 60 F.3d 1551 (11th Cir.1995), to affirm the district

court's denial of appellants' rule 12(b)(6) motion to dismiss the

appellee's claim for intentional infliction of emotional distress

under Georgia law.

                                  BACKGROUND

     Appellee Alfonzo Harris (Harris) worked at the Oglethorpe,

Georgia,   pulp   and   paper    plant   of   appellant   Procter   &   Gamble

Cellulose Co. (Procter & Gamble) for approximately twelve years.

The company terminated his employment in 1992.             On May 2, 1994,

Harris instituted this lawsuit in the United States District Court

for the Middle District of Georgia asserting federal and state due

process, federal civil rights, and state tort law claims against

Procter & Gamble and appellants Terri Delong, Tollie Strode, and
Michael Brantley.1        Harris's wife, appellee Beverly Harris, also

brought a claim for loss of consortium.

     The Harrises' pro se complaint alleged the following facts:

          13. During October 1991, Plaintiff detected and reported
     overexposure at the work place to toxic chemicals, known as
     "Hydrogen Sulfide", said chemicals capable of causing harm to
     Plaintiff Alfonzo Harris and other Procter & Gamble employees.

          14. As a direct result of the overexposure to Hydrogen
     Sulfide, Plaintiff Alfonzo Harris suffered numerous physical
     ailments, including sever[e] headaches, extreme nausea and
     fainting spells, which he reported to Defendants.

          15. After Plaintiff Alfonzo Harris reported the toxic
     chemical overexposure of employees, Defendants failed and
     refused to correct the problem reported and denied [that]
     overexposure to Plaintiff and/or other employees of toxic
     chemicals [had] occurred, in spite of the evidence to the
     contrary gathered by this Plaintiff.

          16. After reporting his findings to his supervisor of
     toxic chemical overexposure of employees, this Plaintiff
     suffered continuous harassment, threats of termination from
     employment, humiliation, supervisory indifference and false
     accusations from Defendants, said deliberate conduct on the
     part of Defendants intended to, and did eventually result, in
     Mr. Alfonzo Harris' termination from employment.

          ....

          21. Said discharge of Plaintiff Alfonzo Harris by the
     Defendant Procter & Gamble was malicious, abusive, and
     wrongful and was done with the intent to subject Plaintiff
     Alfonzo Harris and Plaintiff Beverly Harris, to public scorn
     and ridicule, to prevent Plaintiff Alfonzo Harris from
     collecting severance pay due from the sale of the Defendant
     Company as other employees received, to prevent this plaintiff
     from continued employment with the new owner of the Defendant
     company's plant as other employees were entitled, such conduct
     on the part of Defendants being the result of racial
     discrimination   and   the   attempt   to   cover-up   serious
     occupation[al] safety standards violations committed by
     Defendants.

          ....

          27.    As   a    result   of   Defendants'   intentional   and/or

     1
      Procter & Gamble employees Delong, Strode, and Brantley
allegedly had supervisory authority over Harris.
     negligent conduct, Plaintiffs, Alfonzo Harris and Beverly
     Harris, have suffered emotional and mental distress,
     humiliation and public ridicule, and damage to their
     reputation.

     On March 31, 1995, the district court issued an amended order

in response to appellants' motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6).         That order granted appellants'

motion as to Harris's:       (1) claims based upon 42 U.S.C. § 1983 and

state and federal due process clauses; (2) retaliation claim under

Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §

2000e-3(a);        (3)   racial   discrimination   claim   against   Delong,

Strode, and Brantley under Title VII, 42 U.S.C. § 2000e-2(a)(1);

and (4) state claims for wrongful or retaliatory discharge, breach

of the covenant of good faith and fair dealing, and negligent

infliction    of    emotional     distress.2   The   court   also    granted

appellants' motion as to Beverly Harris's claim under Title VII for

loss of consortium.

     The district court denied appellants' motion, however, as to

Harris's claim for intentional infliction of emotional distress,

holding:

          Liability for intentional infliction of emotional
     distress "does not extend to mere insults, indignities,
     threats,    annoyances,    petty   oppressions,   or    other
     trivialities," Cooler v. Baker, 204 Ga.App. 787, 420 S.E.2d
     [649] 649-650 (1992) (quoting with approval The Restatement
     (Second) of Torts [Ch. 2, Emotional Distress,] § 46(1),
     comment d) (emphasis added). More specifically, threats by an
     employer do not constitute "the kind of egregious conduct
     necessary to state a claim for the intentional infliction of
     emotional distress."    Sossenko v. Michelin Tire Corp., 172
     Ga.App. 771, 324 S.E.2d 593, 594 (1984) (quoting Thomas v.
     Ronald A. Edwards Construction Co., 163 Ga.App. 202, 205(2),
     293 S.E.2d 383 (1982)).      However, threats arising in an

     2
      Harris's Title VII racial discrimination claim against
Procter & Gamble survived appellants' motion to dismiss.
     employer-employee relationship involve a "captive victim whom
     may fear reprisal for complaining," such that "a reasonable
     person could find the conduct outrageous and egregious" and
     thereby claim intentional infliction of emotional distress.
     Richardson v. Hennly, 209 Ga.App. 868, 434 S.E.2d 772, 776
     (1993) (quoting Coleman v. Housing Authority, etc.,       191
     Ga.App. 166, 169(1), 381 S.E.2d 303 (1989)).          Despite
     everything stated thus far, an employer's threats and
     retaliatory activities satisfy the requisite element of
     outrageousness supportive of a claim for intentional
     infliction of emotional distress. Yarbray v. Southern Bell
     Telephone & Telegraph Co., 261 Ga. 703, 409 S.E.2d 835, 838
     (1991).

          Given the above-noted split in Georgia authorities this
     court cannot conclusively state that these plaintiffs fail to
     present a claim for intentional infliction of emotional
     distress, and if for no other reason defendants' motion to
     dismiss must be DENIED in this particular.

The district court, however, also determined that "Harris' claim

for intentional infliction of emotional distress and, a fortiori,

Ms. Harris' claim for loss of consortium, presents a controlling

question of law as to which there is substantial grounds for a

difference of opinion."       Consequently, the court, pursuant to 28

U.S.C.    §   1292(b),   permitted   the   parties   to    petition   for   an

interlocutory appeal on this issue.          On May 18, 1995, this court

granted appellants permission to appeal.

                                DISCUSSION

         We have jurisdiction pursuant to 28 U.S.C. § 1292(b).              In

this interlocutory appeal, our review of the district court's

decision is limited to a pure question of law.            See Foster Wheeler

Energy Corp. v. Metropolitan Knox Solid Waste Auth., Inc., 970 F.2d

199, 202 (6th Cir.1992).

          It has long been the rule ... that a complaint should not
     be dismissed for failure to state a claim unless it appears
     beyond doubt that the plaintiff can prove no set of facts in
     support of his [or her] claim which would entitle him [or her]
     to relief. Moreover, in evaluating the sufficiency of the
     pleading attacked on motion, both the district court and this
     court are required to construe the complaint in the light most
     favorable to the plaintiff and to take the allegations
     contained therein as true. The plaintiff need not set forth
     all the facts upon which the claim is based; rather, a short
     and plain statement of the claim is sufficient if it gives the
     defendant fair notice of what the claim is and the grounds
     upon which it rests.      A 12(b)(6) motion tests only the
     sufficiency of the claim set out in the plaintiff's pleadings.
     Denial of such a motion, therefore, does not indicate that the
     plaintiff will ultimately prevail on a claim which withstands
     a 12(b)(6) challenge.

Mann v. Adams Realty Co., Inc., 556 F.2d 288, 293 (5th Cir.1977)

(citations omitted).3

         Applying   these   principles,   we   hold   that   the   Harrises'

complaint sets forth sufficient factual allegations to state a

claim under Georgia law for intentional infliction of emotional

distress.    See Lightning v. Roadway Express, Inc., 60 F.3d 1551,

1554-55, 1558 (11th Cir.1995);       Yarbray v. Southern Bell Tel. &

Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837-38 (1991);          Anderson v.

Chatham, 190 Ga.App. 559, 379 S.E.2d 793, 799-800 (1989).

                                CONCLUSION

     Accordingly, we affirm the district court's order denying

appellants' motion to dismiss as to Harris's claim for intentional

infliction of emotional distress.

     AFFIRMED.




     3
      In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207
(11th Cir.1981) (en banc ), this court adopted as binding
precedent all decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
