IN THE UNITED STATES COURT OF APPEALS

        FOR THE FIFTH CIRCUIT
                   _______________

                     m 00-10438
                   Summary Calendar
                   _______________



     WILLIE BRACKENS AND VIRLEY BRACKENS,

                                        Plaintiffs-Appellants,

                        VERSUS

                 ENNIS STATE BANK;
                  BRAMLET BEARD,
      INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
                      PAT BEARD,
      INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
               GEORGIE RICHARDSON,
      INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
                    JACQUIE RICE,
      INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
                       AND
                   DOROTHY HOLT,
      INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,

                                        Defendants-Appellees.


             _________________________

       Appeal from the United States District Court
           for the Northern District of Texas
                    (3:98-CV-308-L)
            _________________________
                     March 12, 2001
Before SMITH, BENAVIDES,                                                        II.
  and DENNIS, Circuit Judges.                               Brackens and her husband sued, claiming,
                                                        inter alia, race discrimination, retaliation, loss
JERRY E. SMITH, Circuit Judge:*                         of consortium, misrepresentation, and
                                                        intentional infliction of emotional distress
                       I.                               (“i.i.e.d.”).2 The court granted summary judg-
    Willie Brackens, a black female, was fired          ment on all claims. Brackens appeals, claiming
from her job at Ennis State Bank (“ESB”).1              error in the failure to allow her to amend her
During her tenure there, she performed her              complaint and averring that questions of
work too slowly, made numerous errors, and              material fact prevented summary judgment.
received multiple warnings for conducting too           Finding no error, we affirm.
much personal business during the work day
and for excessive absences. She requested and                                  III.
received two extended medical leaves, ex-                  The Brackenses believe the court erred in
hausting her paid vacation. Upon her return,            refusing their request to amend their complaint
ESB filled her position with another employee           to include a “breach of oral contract.” We
and moved her to a bookkeeping position with            review the denial of a motion to amend for
identical salary and benefits. Brackens then            abuse of discretion. Whitmire v. Victus Ltd.,
filed a discrimination charge with the Equal            212 F.3d 885, 887 (5th Cir. 2000).3
Employment Opportunity Comm ission
(“EEOC”), claiming she had been transferred                The proposed amended complaint asserted,
because of her race and disability.                     in essence, that ESB had created a contract
                                                        with Willie Brackens through her reliance on
   After six months in the bookkeeping                  its promises and that ESB breached that
department, Brackens refused to participate in          contract by firing her without cause. Brackens
a drawing to determine the order of a new shift         appears to have raised a claim of promissory
rotation.      She called the employee                  estoppel, though she has not used that term.
administering the draw “the Devil” and a “fake          We construe pleadings liberally “to do
Christian,” then left work for the rest of the          substantial justice,” FED. R. CIV. P. 8(f), and
day. ESB suspended her without pay for three            we do not require technical forms of pleading
days, then fired her.                                   or motions. Rule 8(e)(1).

                                                                               A.
                                                           By its terms, rule 15(a) allows a plaintiff to
   *
                                                        amend a complaint after a responsive pleading
     Pursuant to 5TH CIR. R. 47.5, the court has        has been served by written consent of the ad-
determined that this opinion should not be              verse party or by leave of the court “when
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
                                                           2
                                                            Virley Brackens does not appeal the summary
   1
      We use “Ennis State Bank” to refer to Ennis       judgment on the loss of consortium claim.
State Bank, Bramlet Beard, Pat Beard, Georgie
                                                           3
Richardson, Dorothy Holt, and Jacquie Rice col-             See also Zenith Radio Corp. v. Hazeltine
lectively.                                              Research, Inc., 401 U.S. 321, 331-32 (1971).

                                                    2
justice so requires.”4 This rule “circumscribes          granted.” Stripling v. Jordan Prod. Co., 234
the exercise of the district court’s discretion;         F.3d 863, 873 (5th Cir. 2000).5 Thus, in
thus, unless a substantial reason exists to deny         determining futility, we apply “the same stan-
leave to amend, that discretion is not broad             dard of legal sufficiency as applies under Rule
enough to permit denial.” Shipner v. E. Air              12(b)(6),”id.SS“whether in the light most fa-
Lines, Inc., 868 F.2d 401, 407 (11th Cir.                vorable to the plaintiff and with every doubt
1989) (dictum). In discerning the presence of            resolved in his behalf, the complaint states any
said “substantial reason,” the court may                 valid claim for relief.” Id. (internal quotations
consider such factors as “undue delay, bad               omitted).
faith, dilatory motive on the part of the
movant, repeated failure to cure deficiencies                                  B.
by amendments previously allowed, undue                     We look to state law for principles of con-
prejudice to the opposing party, and futility of         tract interpretation. Clardy Mfg. Co. v.
amendment.” Jacobsen v. Osborne, 133 F.3d                Marine Midland Bus. Loans, Inc., 88 F.3d
315, 318 (5th Cir. 1998) (quoting In re South-           347, 352 (5th Cir. 1996). “The longstanding
mark Corp., 88 F.3d 311, 314-15 (5th Cir.                rule in Texas provides for employment-at-will,
1996)). A denial “without any justifying rea-            terminable at any time by either party, with or
son,” however, “is not an exercise of that dis-          without cause, absent an express agreement to
cretion; it is merely an abuse of that discretion        the contrary.” Ronnie Loper Chevrolet-Geo,
and inconsistent with the spirit of the Federal          Inc. v. Hagey, 999 S.W.2d 81, 83 (Tex.
Rules.” Lowery v. Tex. A & M Univ. Sys., 117             App.SSHouston [14th Dist.] 1999, no pet.).
F.3d 242, 245 (5th Cir. 1997) (quoting Foman             The doctrine of promissory estoppel, however,
v. Davis, 371 U.S. 178, 182 (1962)).                     allows reliance on statements by an employer
                                                         to surmount the presumption of at-will
    The court deemed the Brackenses’ motion              employment. See Patterson v. Leal, 942
futile because it was “without merit.” We                S.W.2d 692, 694 (Tex. App.SSCorpus Christi,
have interpreted “futility” in this context “to          1997, writ denied).
mean that the amended complaint would fail to
state a claim upon which relief could be                    Regardless of the merits of Brackens’s
                                                         claim, she theoretically could prove some set
                                                         of facts demonstrating that she relied on some
   4
       Rule 15(a) states in relevant part:               ESB promise to her detriment. The district
                                                         court “may not dismiss a complaint under Rule
   A party may amend the party’s pleading                12(b)(6) unless it appears beyond doubt that
   once as a matter of course at any time be-            the plaintiff can prove no set of facts in
   fore a responsive pleading is served or, if the       support of his claim which would entitle him to
   pleading is one to which no responsive
   pleading is permitted and the action has not
   been placed upon the trial calendar, the par-
                                                            5
   ty may so amend it at any time within 20                   See also Jamieson v. Shaw, 772 F.2d 1205,
   days after it is served. Otherwise a party            1208 (5th Cir. 1985) (“When futility is advanced
   may amend the party’s pleading only by                as the reason for denying an amendment to a com-
   leave of court or by written consent of the           plaint, the court is usually denying leave because
   adverse party; and leave shall be freely              the theory presented in the amendment lacks legal
   given when justice so requires.                       foundation . . . .”).

                                                     3
relief.” Stripling, id.                                   or legal conclusions masquerading as factual
                                                          conclusions will not suffice to prevent a
   The theoretical possibility of presenting              motion to dismiss” or, by extension, a denial of
facts to support Brackens’s promissory estop-             a motion for leave to amend. Fernandez-Mon-
pel theory does not end the analysis. “In order           tez v. Allied Pilots Ass’n, 987 F.2d 278, 284
to avoid dismissal for failure to state a claim,          (5th Cir. 1993).
however, [Brackens] must plead specific facts,
not mere conclusory allegations . . . . We will              Brackens has alleged merely the legal ele-
thus not accept as true conclusory allegations            ments of a promissory estoppel claim; she has
or unwarranted deductions of fact.” Tuchman               not pled, with sufficient particularity, the facts
v. DSC Communications Corp., 14 F.3d 1061,                to support these elements. Thus, even under
1067 (5th Cir. 1994) (internal quotations omit-           the liberal 12(b)(6) standard, her claim would
ted).                                                     not have survived dismissal. Therefore, the
                                                          claim was futile, and the court did not err in
    The proposed amended complaint states                 refusing to grant leave to amend.
only that Brackens had a contract with ESB
that could be completed in one year, that she                                   IV.
relied on ESB’s representations in deciding to               The Brackenses contend that the court er-
accept employment, and that she was                       roneously granted summary judgment on their
damaged. She alleges no facts in support of               claims of race discrimination, retaliation, mis-
these allegations.6 “[C]onclusory allegations             representation, and i.i.e.d. We review a sum-
                                                          mary judgment de novo, applying the same
                                                          standards as did the district court. Uniroyal
   6                                                      Chem. Co. v. Deltech Corp., 160 F.3d 238,
   The relevant portion of the proposed amended
complaint reads as follows:

                                                             6
   38. Plaintiff Willie Brackens had a contract               (...continued)
   will [sic] defendant Ennis State Bank that                have been terminated from her job because
   could be completed in one year. All duties                there was [sic] no violations of the rules and
   and responsibilities were of such a nature                policies. Plaintiff Willie Brackens was
   that the functions were able to be performed              harassed, tormented and subjected to cruel
   on a yearly basis.                                        and unusual treatment by co-workers.

   39. Plaintiff was told of the opportunities at            41. Plaintiff Willie Brackens was damaged
   Ennis State Bank and relied on the                        due to the reliance on the misrepresentations
   representation of the agents of Ennis State               of the agents of Ennis State Bank. Plaintiff
   Bank in interviews and in subsequent                      gave up opportunities with other Bank
   reviews in making the decision to accept and              employers to agree to come to Ennis State
   continue employment with Ennis State                      Bank for non existent [sic] opportunities.
   Bank.
                                                          The complaint fails to state the terms of the
   40. Plaintiff received an audit report from            supposed oral contract, the representations
   the Texas Workforce Commission that                    Brackens believes ESB made to her (either
   states plaintiff Willie Brackens should not            personally or through stated company policy), or
                                     (continued...)       her foregone opportunities.

                                                      4
241 (5th Cir. 1998). A party is entitled to              She is black and therefore a member of a pro-
summary judgment when “the pleadings, de-                tected class, and she was terminated, an ad-
positions, answers to interrogatories, and ad-           verse employment action. The employee with
missions on file, together with the affidavits, if       whom she had the altercation triggering her
any, show that there is no genuine issue as to           suspension and termination was not
any material fact and that the moving party is           disciplined. Thus, the burden shifted to ESB
entitled to judgment as a matter of law.” FED.           to “‘produc[e] evidence [of] . . . a legitimate,
R. CIV. P. 56(c). A dispute over a material              nondiscriminatory reason’” for her
fact is genuine “if the evidence is such that a          termination. Reeves v. Sanderson Plumbing
reasonable jury could return a verdict for the           Prods., Inc., 530 U.S. 133, ___, 120 S. Ct.
nonmoving party.” Anderson v. Liberty Lobb-              2097, 2106 (2000) (quoting Burdine, 450 U.S.
y, Inc., 477 U.S. 242, 248 (1986). We must               at 254).8
view all inferences from the facts in the light
most favorable to the nonmoving party.                       ESB produced evidence that it terminated
Matsushita Elec. Indus. Co. v. Zenith Radio,             Brackens for her uncooperative behavior to-
475 U.S. 574, 587 (1986).                                ward her co-worker and for calling her “the
                                                         Devil” and a “fake Christian.” Brackens then
                       A.                                bore the burden to show that ESB’s
   The Brackenses contend that the district              articulated reason for the employment decision
court erred in granting summary judgment on              was pretextual. Id.; Burdine, 450 U.S. at 253;
her claim of race discrimination under 42                McDonnell Douglas, 411 U.S. at 804.
U.S.C. § 1981. Brackens must show four ele-
ments to establish a prima facie case of                    The district court concluded that Brackens
employment discrimination under title VII:               “utterly failed” to present such evidence and
(1) that she is a member of a protected class;           that she “merely testifie[d] to her subjective
(2) that she was qualified for the position;             belief that she was terminated due to her race
(3) that she suffered an adverse employment              through conclusory statements that her
action; and (4) that similarly situated                  termination ‘was because I was black,’ and
employees not in the protected class were                that the ‘entire City of Ennis is racist.’”
treated differently under nearly identical               Brackens’s subjective beliefs do not present
circumstances. Rutherford v. Harris County,              genuine issues of material fact sufficient to
197 F.3d 173, 184 (5th Cir. 1999).7 This                 survive summary judgment.9
standard also applies to cases brought under §
1981. See Chaline v. KCOH, Inc., 693 F.2d
                                                            8
477, 479 (5th Cir. 1982).                                     See also McDonnell Douglas, 411 U.S.
                                                         at 802.
   Brackens established a prima facie case.                 9
                                                              See Duffy v. Leading Edge Prods. Inc., 44
                                                         F.3d 308, 312 (5th Cir. 1995) (“[C]onclusory alle-
                                                         gations unsupported by concrete and particular
   7
     See also St. Mary’s Honor Ctr. v. Hicks, 509        facts will not prevent an award of summary judg-
U.S. 502, 515 (1993); Tex. Dep’t of Cmty. Affairs        ment.”); Waggoner v. City of Garland, 987 F.2d
v. Burdine, 450 U.S. 248, 253-56 (1981); McDon-          1160, 1164 (5th Cir. 1993) (observing that
nell Douglas Corp. v. Green, 411 U.S. 792,               subjective beliefs alone cannot establish a claim of
802-04 (1973).                                                                                 (continued...)

                                                     5
   Brackens argues that because the event pre-         tion. Long v. Eastfield College, 88 F.3d 300,
cipitating her suspension and termination “was         308 (5th Cir. 1996); Shirley v. Chrysler First,
investigated without affording Ms. Brackens            Inc., 970 F.2d 39, 42 (5th Cir. 1992). To es-
due process to state her case” and because the         tablish a prima facie case of retaliation, Brac-
timing of the discharge “came just days after          kens must show that (1) she engaged in
Willie Brackens had been subjected to a hostile        protected activity; (2) she suffered an adverse
work environment and had been harassed by              employment action; and (3) there was a causal
senior and fellow employees,” a trier of fact          connection between the protected activity and
might find for the Brackenses. Both facts,             the employment action. E.g., Mattern v. East-
even when construed most favorably to Ms.              man Kodak Co., 104 F.3d 702, 705 (5th Cir.
Brackens, are immaterial.           To settle          1997); Shirley, 970 F.2d at 42.
grievances, private parties need not satisfy the
constitutional requirements of due process.                The parties do not dispute that Brackens
See, e.g., Bures v. Houston Symphony Soc’y,            engaged in a protected activity or that she suf-
503 F.2d 842, 843 (5th Cir. 1974). Thus, its           fered an adverse employment action within the
presence or absence has no bearing on this             meaning of title VII. To demonstrate causal
case.                                                  connection, Brackens proffers her belief that
                                                       she verbally accosted a co-worker rather than
    The timing of the discharge also has little        a supervisor, a diagnosis that she had post
relevance, because Brackens has not alleged            traumatic stress disorder while at ESB, the
facts that connect her strained working                bank president’s suggestion that her work
relationships with a discriminatory motive.            performance was very good, and the fact that
Indeed, she admits making the statements for           only she was disciplined after the incident that
which ESB says she was fired. Thus, the                triggered her termination.
Brackenses failed to present evidence that the
articulated reason for firing was pretextual.             None of these facts remotely connects her
The district court did not err in granting             termination with her EEOC filing. Thus, she
summary judgment for ESB on this issue.                did not meet her burden of production, so the
                                                       court did not err in granting summary
                      B.                               judgment on the retaliation claim.
    Brackens contends the district court erred
in granting summary judgment on her title VII                                 C.
claim that she was terminated in retaliation for          The Brackenses contend that the district
filing with the EEOC. The analysis of a retal-         court erred in granting summary judgment on
iation claim resembles that of the                     their intentional misrepresentation claim.10 To
discrimination claim above.

   Once Brackens establishes a prima facie                10
                                                              The court correctly found that because
case, the burden shifts to ESB to articulate a         Brackens testified that only Richardson and Rice
legitimate, non-retaliatory reason for the ac-         had made misrepresentations to her, the Brackens-
                                                       es’ claims of misrepresentation against Bramlet
                                                       Beard, Pat Beard, and Dorothy Holt must fail,
   9
    (...continued)                                     because a material representation is an essential el-
discrimination).                                                                             (continued...)

                                                   6
support this tort claim, Brackens must show                  Even taking all of Brackens’s statements as
that (1) a material representation was made;              true, her claim fails as a matter of law. First,
(2) it was false; (3) the speaker knew it was             the statements regarding a raise and
false or made it recklessly without any                   advancement merely explained the normal
knowledge of the truth and as a positive                  course of events, contingent on her
assertion; (4) the speaker made it with the               performance. “There is nothing wrong with
intention that it should be acted upon by the             assuring a potential employee that he will
party; (5) the party acted in reliance upon it;           advance if he performs well and then refusing
and (6) the party thereby suffered injury.11              to advance him if he does not.” DeSantis v.
                                                          Wackenhut Corp., 732 S.W.2d 29, 38 (Tex.
    In district court, Brackens alleged that              App.SSHouston [14th Dist.] 1987), aff’d in
Richardson and Rice              made three               part, rev’d in part on other grounds, 793
misrepresentations during her job interview:              S.W.2d 670 (Tex. 1990).                  These
(1) that employees normally get a raise after a           representations were not definite promises, so
year of employment; (2) that ESB would be                 even if Brackens did rely on them to her
flexible with respect to school issues and                detriment, she cannot prevail.12
illnesses; and (3) that competent employees
would have opportunities to advance. In                       Second, Brackens admitted in deposition
addition, Brackens believed that her sick leave           that ESB allowed her to leave work to take
was “secretly held against” her. On appeal,               care of her children “the same as any other em-
she claims that ESB president Bramlet Beard               ployee.” Thus, by her own admission, ESB
cited excessive absences as a partial reason for          did not misrepresent to her its willingness to
her termination, yet she believes all leave was           be flexible. Brackens alleges that Beard
approved and that Beard did not indicate that             “made representations that suggested her job
her job was at stake.                                     was not at risk,” yet he cited excessive
                                                          absences as a reason for her termination. She
                                                          does not say, however, whether these
                                                          representation occurred before or after she had
   10
     (...continued)                                       exhausted her leave. Moreover, she has
ement of the claim. See Green Int’l, Inc. v. Solis,       alleged no facts that indicate that Beard’s
951 S.W.2d 384, 390 (Tex. 1997). On appeal, the           comments, whatever they may have been, were
Brackenses do not distinguish among these                 more than vague assurances.
defendants.
                                                             Therefore, Brackens failed to provide evi-
    Moreover, at trial the Brackenses presented           dence of any definite representation, correct or
claims for both negligent and intentional                 otherwise. Without evidence of a specific
misrepresentation.     Although they do not
distinguish the two on appeal, their argument
covers only issues related to intentional
                                                             12
misrepresentation.                                               See Gilmartin v. KVTV—Channel 13, 985
                                                          S.W.2d 553, 558 (Tex. 1998) (explaining that
   11
     Collins v. Morgan Stanley Dean Witter, 224           detrimental reliance on a promise may establish a
F.3d 496, 501 n.7 (5th Cir. 2000); Ins. Co. of N.         fraud claim only when the plaintiff reasonably and
Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998);           justifiably relies on a definite promise, not vague
Green Int’l, 951 S.W.2d at 390.                           assurances).

                                                      7
material representation, we need not reach the          claim.
other five elements of the standard. The court
correctly granted summary judgment on this                 AFFIRMED.13
claim.

                       D.
   Brackens contends the court erred in
granting summary judgment on her Texas law
claim for i.i.e.d. She must establish four ele-
ments: (1) the defendant acted intentionally or
recklessly; (2) the conduct was extreme and
outrageous; (3) the defendant’s actions caused
emotional distress; and (4) the emotional dis-
tress was severe. Hirras v. Nat’l R.R.
Passenger Corp., 95 F.3d 396, 400 (5th Cir.
1996). “[T]he level of atrociousness to which
[the behavior] must [rise] is quite high. Simply
put, it must exceed all possible bounds of
decency and be utterly intolerable in a civilized
society.” Skidmore v. Precision Printing &
Packaging, Inc., 188 F.3d 606, 613 (5th Cir.
1999) (quoting Franklin v. Enserch, Inc., 961
S.W.2d 704, 710 (Tex. App.SSAmarillo 1998,
no writ)).

    Brackens alleged that ESB employees
caused her distress because they accused her
of taking too much sick leave, working slowly
and inaccurately, and using company time for
personal business. Ordinary employment dis-
putes are not adequate to support i.i.e.d.
claims. Estate of Martineau v. ARCO Chem.
Co., 203 F.3d 904, 913 (5th Cir. 2000). Brac-
kens offers no evidence that ESB’s conduct
was anything more.

   Further, although Brackens notes on appeal
that she was diagnosed with post traumatic
stress disorder and was placed on medication
and therapy, she utterly fails to draw any con-
nection between this emotional strain and any
action traceable to ESB. Thus, the court did               13
                                                             We decline ESB’s suggestion that we impose
not err in granting summary judgment on this            sanctions for frivolous appeal under FED. R. APP.
                                                        P. 38.

                                                    8
