            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-60254
                                          Summary Calendar
                                          _______________

                                         BETTY TABOR,
                                                             Plaintiff-Appellant,
                                               VERSUS

                TIME WARNER ENTERTAINMENT COMPANY, L.P.,
                                                             Defendant-Appellee.
                                    _________________________

                            Appeal from the United States District Court
                              for the Southern District of Mississippi
                                        (3:98-CV-273-BN)
                                  _________________________

                                          November 1, 1999

Before JOLLY, SMITH, and BARKSDALE,                      After she was terminated, Tabor sued for
  Circuit Judges.                                    race, age, and disability discrimination
                                                     (specifically claiming wrongful termination and
JERRY E. SMITH, Circuit Judge:*                      hostile work environment), assault, intentional
                                                     infliction of emotional distress (“i.i.e.d.”), and
    Betty Tabor appeals an adverse summary           negligent hiring (and possibly retention) of
judgment in her action for employment                some of her black co-workers. Her bases for
discrimination. Finding no reversible error, we      these claims are that (1) she was intentionally
affirm.                                              struck in the back of the head by a black co-
                                                     worker in July 1995, resulting in an apology
                     I.                              from the co-worker and a transfer of that
   Tabor, a white female aged fifty-five,            worker to a different work area; (2) she was
worked for Time Warner Entertainment                 subjected regularly to discussion of race
Company, L.P. (“Time Warner”), and its               relations by her colleagues, some of whom
predecessor from September 25, 1989, until           often expressed the opinion that the black race
she was terminated on March 27, 1997. For            was burdened by its color in America and that
some of that time, she was the only white            the white race treated the black race unfairly;
employee in her work area but not the only           and (3) she was once slapped in the hand by a
one in her department.                               supervisor and told to place documents on a
                                                     different part of that supervisor’s desk.

                                                        Tabor did not allege that any racially
    *
      Pursuant to 5TH CIR. R. 47.5, the court has    charged discussion was aimed at her
determined that this opinion should not be           specifically, nor could she state for certain that
published and is not precedent except under the      she had reported the hand-slapping incident.
limited circumstances set forth in 5TH CIR. R.       She called the Equal Employment Opportunity
47.5.4.
Commission (“EEOC”) in April 1996 to                         and to be regarded as atrocious, and
discern whether the race-related discussions                 utterly intolerable in a civilized
occurring at work violated, in the EEOC’s                    community. The liability clearly does
opinion, her constitutional rights; an EEOC                  not extend to mere insults, indignities,
worker informed her that she had stated a                    threats, annoyances, petty oppression,
claim.                                                       or other trivialities . . . . Furthermore,
                                                             damages for intentional infliction of
   Tabor lost her job during a reduction in                  emotional distress are usually not
force in March 1997. One other employee, a                   recoverable in mere employment
black male, was also laid off. The supervisor                disputes. Only in the most unusual
who decided to terminate Tabor’s position was                cases does the conduct move out of the
a fifty-year-old white female, who said the                  realm of an ordinary employment
reason was that Tabor had less experience than               dispute into the classification of extreme
any of the other full-time employees in her                  and outrageous, as required for the tort.
department. This characterization is not
disputed.                                                 Brown v. Inter-City Fed. Bank for Sav.,
                                                          738 So. 2d 262, 264-65 (Miss. App. 1999)
   Tabor and her supervisors agreed that she              (internal citations omitted). In Brown, a
was not suited for any positions currently                supervisor had harassed an employee by asking
available, but she was encouraged to apply for            how old she was and when she was going to
any position for which she was qualified                  retire, and by commenting to her about the
should it become available. Some of the work              need for a younger staff. See id. at 263.
she had done was thereafter performed by a                Though this behavior was directed specifically
part-time employee, a thirty-year-old black               and repeatedly at the plaintiff and did raise a
female. After Tabor’s termination, there                  sufficient claim of age discrimination, it yet did
remained no white employees in that section of            not rise to the level of i.i.e.d.
the department.
                                                             Tabor’s case is likewise deficient. The
                      II.                                 general discussions about race and whites’
   We review a summary judgment de novo.                  propensity to discriminate against blacks may
See Webb v. Cardiothoracic Surgery Assocs.,               have been in poor taste, especially after Tabor
139 F.3d 532, 537 (5th Cir. 1998). With                   had indicated they made her uncomfortable.
regard to the charge of wrongful termination              The blow she received to the back of her head,
based on race, age, and disability, and to the            and the slap of her hand, were unpleasant and
charge of assault, we affirm, essentially for the         inappropriate, if intentional, but do not, even
reasons stated by the district court in its               taken together, rise above the level of “insult,
Opinion and Order entered on March 18,                    indignity, threat, annoyance, or petty
1999.                                                     oppression” to the threshold of i.i.e.d.
                                                          Because “we may . . . consider alternative
                       III.                               grounds for upholding the judgment, provided
   Tabor disagrees with Time Warner and the               the record supports such grounds,” see Gaia
district court as to whether the statute of               Techs. Inc. v. Recycled Prods. Corp., 175
limitations in Mississippi for i.i.e.d. is one year       F.3d 365, 371 (5th Cir. 1999), we by this
or three. We decline to reach that issue of               reasoning affirm the summary judgment with
state law, because there is no evidence of the            regard to the claim of i.i.e.d.
sort of conduct that Mississippi requires in
order to state such a claim.                                                    IV.
                                                             Regarding the summary judgment on the
   [I]n order to prevail, the conduct must                claim of hostile-workplace racial
   have been so outrageous in character,                  discrimination, we first note that Tabor errs in
   and so extreme in degree, as to go                     her contention that the court simply refused to
   beyond all possible bounds of decency,                 consider all of her evidence of racial

                                                      2
discrimination in the workplace as time-barred.               discriminatory conduct; its severity;
Rather, the court found that, because Tabor                   whether it is physically threatening or
must have been aware of the complained-of                     humiliating, or a mere offensive
actions more than 180 days before she filed her               utterance; and whether it unreasonably
charge with the EEOC, the court could not                     interferes with an employee’s work
apply the “continuing violations” doctrine and                performance.
instead could consider evidence only from the
180 days before filing. Given that Tabor, long             Harris v. Forklift Sys., Inc., 510 U.S. 17,
before that time, had been advised by an                   21-23 (1993) (internal citations omitted). We
EEOC official that she stated a claim, this                first note, in parsing that definition, that for an
conclusion is correct.1                                    action claiming hostile work environment,
                                                           there must first have existed discriminatory
   The only behavior Tabor alleges that can be             conduct. We need not address whether mere
considered to have established a hostile work              discussion at the workplace of controversial
environment after December 6, 1997, is the                 issues related to suspect classifications can rise
race-related discussions going on among two                to the level of such discrimination.2 Rather,
co-workers. The question, then, is whether                 we assume arguendo that the comments
such speech can be understood by itself to                 constitute cognizable discrimination against
have created a discriminatorily hostile working            Tabor.3
environment. It cannot.
                                                              We then note, however, that the
   The law is that                                         discriminatory conversations occurred between
                                                           co-workers, not supervisors. Only two co-
   [w]hen the workplace is permeated with                  workers were involved, and other co-workers
   discriminatory intimidation, ridicule, and              were as offended as Tabor was and did not
   insult, that is sufficiently severe or                  participate. Tabor complained to a superior
   pervasive to alter the conditions of the                only once, the superior took at least some
   victim’s employment and create an                       action to quell the discussions, and Tabor did
   abusive working environment, Title VII                  not inform any superior thereafter that the
   is violated. This standard . . . takes a                actions taken had not successfully righted the
   middle path between making actionable                   problem. While Tabor suspected that the
   any conduct that is merely offensive and                discussions were aimed in part at her, there is
   requiring the conduct to cause a tangible               no evidence to suggest that the speakers
   psychological injury . . . . This is not,               wished to hurt her feelings because she was
   and by its nature cannot be, a                          white, and no evidence that she was ever
   mathematically precise test . . . . But we
   can say that whether an environment is
                                                             2
   ‘hostile’ or ‘abusive’ can be determined                    See, e.g., Weller v. Citation Oil & Gas Corp.,
   only by looking at all the circumstances.               84 F.3d 191 (5th Cir. 1996); DeAngelis v. El Paso
   These may include the frequency of the                  Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir.
                                                           1995).
                                                                 3
                                                                    It is far from plain, however, that any
   1
     Tabor argues that by admitting that she was           “discriminatory intimidation, ridicule, and insult”
aware of her rights before she filed the EEOC              occurred. Time Warner’s policies were neutral on
complaint, the district court and Time Warner also         their face; Time Warner did not monitor and limit
acknowledged that she was justified in her                 Tabor’s conversations any more than those of the
complaint. If that were so, any defensive                  employees whose speech Tabor disliked. None of
invocation of the 180-day limit would constitute an        the supervisory personnel engaged in the subject
admission of the charges filed. To the contrary, the       generalized discussions of race relations. Nor did
response from the EEOC only indicated her                  all, or even most, of the co-workers participate in
complaint was sufficient to bring a claim, not that        the discussions Tabor disliked, nor did any direct
she ultimately would prevail.                              his commentary at her personally.

                                                       3
specifically mentioned during any of these
discussionsSSor that anything negative was
ever said about her specifically. Likewise,
there is no evidence that Tabor’s work product
suffered as a result of the discussions, no
evidence that she asked to be transferred to a
non-discriminatory environment (such as the
floor below, on which, according to the
undisputed record, these discussions did not
occur), and no evidence that her life outside
the workplace suffered as a result of the
discussions.

    In short, even if we assume the co-workers’
conversations to be discriminatory, they still
rise only to the level of “mere offensive
utterances” rather than severe, humiliating,
physically threatening conduct that materially
affected Tabor’s work performance. The
district court thus did not err in granting
summary judgment on the hostile work
environment claim.

                     V.
    The district court’s opinion deals
appropriately with Tabor’s claim for negligent
hiring of the relevant co-workers. Tabor
argues that she also raised the issue of
negligent retention of those workers.
Assuming arguendo that a negligent retention
claim was adequately pleaded, the claim
cannot prevail on these facts.

   Mississippi permits a claim for negligent
retention when an employer “[r]etain[s] in
employment a servant who is, or should be
known to be incompetent, habitually negligent,
or otherwise unfit.” Johnson v. Mississippi
Dep’t of Corrections, 682 So. 2d 367, 370
(Miss. 1996) (citing Eagle Motor Lines v.
Mitchell, 78 So. 2d 482 (Miss. 1955)). Tabor
claims that Time Warner negligently retained
the relevant co-workers, in that their behavior
worked a violation of her constitutional rights.
As we have said, however, the behavior did
not rise to the level of a violation of law.

   AFFIRMED.




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