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

                                                 FILED
                                                                          February 20, 2009

                                     No. 08-60972                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HATTIE MOORE

                                                   Plaintiff-Appellant
v.

SOLAR GROUP

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:07-CV-182


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Hattie Moore challenges the district court’s grant of summary
judgment of her claims for employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2003 & Supp. 2007), and
intentional infliction of emotional distress under Mississippi law. Because there
are no genuine issues of material fact and Appellee Solar Group is entitled to
judgment as a matter of law, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-60972

      Moore, an African-American female, was hired by Solar Group in January
2007 from a temporary employment service for the position of material handler.
Gwen Barnes, Shirley Jones, and Jennifer Ducksworth were all “crew leaders”
who supervised Moore during her employment.1 They assigned tasks to Moore,
who was stationed at a work desk.                 Moore does not claim that she was
discriminated against by Barnes, Jones, or Ducksworth, and she cites no
instances of wrongdoing during her day-to-day employment.
      On March 2, 2007, production supervisor Jimmy Dykes (“Dykes”), a white
male,2 approached Moore. Dykes shined a “little baby flashlight[] . . . real quick”
in Moore’s face, which Moore alleges caused a burning sensation in her eyes.
Dykes purportedly said to Moore, “I’m going to have [to] ask you to leave because
I’m giving Patricia this job. Go clock out.” Moore believes that “Patricia” is
Patricia Prince, a white woman who was employed as a material handler by
Solar Group at the time. Dykes accompanied Moore on an adult tricycle --
allegedly closely -- as she walked the 100 to 150 yards from the time clock to the
plant exit. Moore had no previous interactions with Dykes, and she did not deal
with him after her termination.
      Moore filed suit in federal court, alleging that this incident was a violation
of Title VII and constitutes intentional infliction of emotional distress. In its
summary judgment evidence, Solar Group submitted the deposition testimony
of Dykes and affidavits of Barnes, Jones and Ducksworth, all of whom indicated
that Moore was fired at the recommendation of her crew leaders due to her
unsatisfactory work performance. Moore claims, without evidentiary support,
that such justification is pretextual.




      1
          These three crew leaders are also African-American females.
      2
          Dykes supervised the crew leaders. Moore reported directly to the crew leaders.

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       We review the grant of summary judgment de novo, drawing all inferences
in the non-movant’s favor. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
349 (5th Cir. 2001). A plaintiff’s Title VII claim is analyzed under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.
2007).     Where, as here, a plaintiff does not produce direct evidence of
discrimination, the modified McDonnell Douglas approach is employed. Under
that analysis,
       [T]he plaintiff must first demonstrate a prima facie case of
       discrimination; the defendant then must articulate a legitimate,
       non-discriminatory reason for its decision to terminate the plaintiff;
       and, if the defendant meets its burden of production, the plaintiff
       must then offer sufficient evidence to create a genuine issue of
       material fact that either (1) the employer’s reason is a pretext or (2)
       that the employer’s reason, while true, is only one of the reasons for
       its conduct, and another “motivating factor” is the plaintiff’s
       protected characteristic.
Burrell v. Dr. Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411-12 (5th Cir.
2007).
       The district court assumed arguendo that Moore had established her
prima facie case, since she is a member of a protected class, was subjected to an
adverse employment action, was qualified for her position, and was allegedly
replaced by someone outside the protected class. See Turner, 476 F.3d at 345.
Although there is some dispute as to whether Moore was replaced by someone
outside the protected class,3 we too will assume that she has established a prima
facie case.
       In response to Moore’s prima facie case, Solar Group articulated a
legitimate, non-discriminatory reason for Moore’s termination: that she


       3
        The dispute centers around whether an existing white employee, as opposed to a
newly-hired white employee, could “replace” Moore for purposes of establishing a prima facie
case.

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performed her job tasks unsatisfactorily. Accordingly, “the sole remaining issue
was ‘discrimination vel non[.]” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000).     Although Moore argues that Solar Group’s claimed
motivation is a pretext for race-based discrimination, she has failed to offer any
evidence to create a genuine issue of material fact that the employer’s reason
masks intentional discrimination. See id. at 141. Moore’s subjective belief that
she was the victim of discrimination, standing alone, is not evidence sufficient
to defeat a summary judgment motion. See Bauer v. Albemarle Corp., 169 F.3d
962, 967 (5th Cir. 1999) (“This court has consistently held that an employee’s
subjective belief of discrimination alone is not sufficient to warrant judicial
relief.” (internal quotation marks and citation omitted)).
      Moore urges that fact issues remain. She cites inconsistencies between the
deposition testimony of Moore and Dykes regarding the circumstances of her exit
from the plant on March 2, 2007. However, these disputes are immaterial to her
burden in a Title VII claim because, accepting her version of the facts, she does
not have a claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”)
      We also agree with the district court that summary judgment is
appropriate for Moore’s claim of intentional infliction of emotional distress.
Under Mississippi law, establishing this tort requires proof of conduct so
“‘wanton and wilful . . . [that] it would evoke outrage or revulsion.’” Speed v.
Scott, 787 So. 2d 626, 630 (Miss. 2001) (quoting Leaf River Forest Prods., Inc. v.
Ferguson, 662 So. 2d 648, 659 (Miss. 1995)). “[M]eeting the requisites of a claim
for intentional infliction of emotional distress is a tall order in Mississippi.” Id.
(quoting Jenkins v. City of Grenada, 813 F. Supp. 443, 446 (N.D. Miss. 1993)).
      Here, Moore claims that the following conduct constitutes intentional
infliction of emotional distress: (1) Dykes briefly “zig-zagged” a small flashlight

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in her eyes, causing her “physical as well as emotional distress at the time,” and
(2) Dykes rode an adult tricycle behind her for 100-150 yards in a menacing
fashion as she exited the plant.        Moore contends that the district court
impermissibly weighed facts and found Dykes’s different version of this situation
more credible. However, that is not accurate. The district court, accepting
Moore’s version of the facts, concluded that those facts do not establish a claim
of intentional infliction of emotional distress as a matter of law. We agree.
Whatever the emotional toll on Moore, Moore’s version of the facts does not
constitute “intolerable, outrageous or revolting[]” conduct required to establish
the Mississippi tort of intentional infliction of emotional distress. See id. at 631.
Accordingly, summary judgment was appropriate.
      The district court’s judgment is AFFIRMED.




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