                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                   In the                                 December 10, 2004
                          United States Court of Appeals                               Charles R. Fulbruge III
                                        for the Fifth Circuit                                  Clerk
                                             _______________

                                               m 04-20388
                                             _______________



                                        THOMAS G. MORRISON,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                     WEYERHAEUSER COMPANY,

                                                                Defendant-Appellee.


                                   _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                          m H-03-CV-1033
                                   _________________________


Before DAVIS, SMITH, and DENNIS,                        alia, title I of the Age Discrimination in Em-
       Circuit Judges.                                  ployment Act of 1967 (“ADEA”) and gave
                                                        rise to state law tort claims of intentional in-
JERRY E. SMITH, Circuit Judge:*                         fliction of emotional distress (“i.i.e.d.”) and in-
                                                        vasion of privacy. The district court granted
    Thomas Morrison sued his former employ-             summary judgment for defendant. Finding no
er, Weyerhaeuser Company (“Weyerhaeuser”),              error, we affirm.
alleging that his termination violated, inter
                                                                               I.
                                                           Morrison was hired as a shipping supervisor
   *                                                    in September 2001, when he was fifty years
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                        old. He received extensive safety training,
lished and is not precedent except under the limited    including courses in the plant’s Lock Out, Tag
circumstances set forth in 5TH CIR. R. 47.5.4.          and Try (“LOTT”) procedures, Posted Con-
fined Space Entry Areas, the Roof Access              gation Team, Morrison was issued a three-day
policy, and the Job Safety Analysis (“JSA”)           suspension for violating the LOTT policy. Af-
process. As Shipping Supervisor, Morrison             ter further investigation, other safety violations
had duties that included conducting safety            were uncovered, and on December 5, he was
training for employees in his department on the       terminated for those violations.1 Mitchem was
same subjects. Further, he was responsible for        responsible for the decisions to hire and fire
the plant’s roof, where the “cyclone system,”         Morrison.
a scrap accumulation system for the plant’s
finishing and corrugation processes, was                                       II.
located. When the system became clogged,                                       A.
two or three employees had to go to the roof             We review a summary judgment de novo
to unclog it.                                         and are bound by the same standards as was
                                                      the district court. Chaplin v. NationsCredit
   On November 26, 2002, Morrison was                 Corp., 307 F.3d 368, 371 (5th Cir. 2002).
notified that the cyclone system was clogged,         Summary judgment is appropriate only where
so he asked a clerk to tell another employee to       “the pleadings, depositions, answers to inter-
meet him on the roof, as required by company          rogatories, and admissions on file, together
policy. He then went onto the roof unaccom-           with the affidavits, if any, “when viewed in the
panied, in violation of the Roof Access policy.       light most favorable to the non-movant, ‘show
He removed the access hatch to the cyclone,
activating a warning that the cyclone was a
“confined space area” requiring employees to             1
                                                            The termination letter listed the following
(1) fill out a non-routine JSA; (2) de-energize
                                                      safety rule violations that “demonstrated that [Mor-
moving parts in the equipment pursuant to             rison’s] ability to place safety as the first priority
LOTT procedures; and (3) take all other               in the facility is not acceptable” and resulted in his
necessary steps before entering. Morrison did         termination:
not de-energize the cyclone, but manually
inserted a metal rod into the diverter space to          (1) Morrison violated Weyerhaeuser’s Roof
free the clog. The diverter activated while his          Access policy by accessing the roof alone;
arm was inside, pinning him in the machine.
After he radioed for help, a response team de-           (2) Morrison violated Weyerhaeuser’s JSA
energized the diverter and rescued him.                  (Job Safety Analysis) policy by failing to
                                                         complete a non-routine JSA prior to at-
   Morrison was transported to the emergency             tempting to clear the jam in the cyclone
room, accompanied by Plant Manager Doug                  system.
Mitchem and Morrison’s direct supervisor,
                                                         (3) Morrison violated the Confined Space
Victor Self. After Morrison had received an x-
                                                         Entry process by failing to perform the
ray and two pain shots and medical personnel             required tasks preliminary to entering a
had determined that he had no broken bones,              clearly identified confined space; and
he was released to go home.
                                                         (4) Morrison violated the LOTT process by
   The next day, based on a preliminary inves-           failing to isolate all energy sources prior to
tigation by Weyerhaeuser’s Accident Investi-             sticking his arm in the diverter area inside
                                                         the cyclone.

                                                  2
that there is no genuine issue as to any material       Hicks, 509 U.S. 502, 511-12 (1993)). “[A]
fact.’” TIG Ins. Co. v. Sedgwick James, 276             plaintiff’s prima facie case, combined with
F.3d 754, 759 (5th Cir. 2002) (quoting Ander-           sufficient evidence to find that the employer’s
son v. Liberty Lobby, Inc., 477 U.S. 242, 249-          asserted justification is false, may permit the
50 (1986)). Once the moving party has dem-              trier of fact to conclude that the employer un-
onstrated that the non-moving party has no              lawfully discriminated.” Reeves v. Sanderson
evidence such that a reasonable jury could              Plumbing Products, Inc., 530 U.S. 133, 148
reach a verdict in its favor, the non-moving            (2000).
party must put-forth specific facts that demon-
strate a genuine factual issue for trial. Id.               Weyerhaeuser does not contest that Morri-
                                                        son was a member of the protected age group.
                        B.                              Even if we assume, as did the district court,
    Morrison claims his termination was age             that Morrison otherwise properly stated a pri-
discrimination. To maintain such a claim, a             ma facie case of intentional age discrimination,
plaintiff must bear the initial burden to make a        Weyerhaeuser adequately proffered a non-
prima facie case of discrimination under the            discriminatory reason for firing MorrisonSSthe
burden-shifting framework of McDonnell                  violation of four separate safety violations on
Douglas Corp. v. Green, 411 U.S. 792 (1973).            November 26SSsuch that the burden was
Where only circumstantial evidence of discrim-          shifted to Morrison to prove that the proffered
ination is available, a plaintiff must show that        rationale was pretextual.
he (1) was a member of the protected class
(over 40 years old); (2) was qualified for the             In opposition to summary judgment, Morri-
position; (3) was fired; and (4) was either             son points to evidence in the record that he
replaced by someone younger, treated less               argues is probative of pretext: (1) testimony of
favorably than employees who were similarly             an occupational safety expert; (2) testimony of
situated or was otherwise discharged because            a handwriting expert; and (3) Morrison’s de-
of his age.2                                            position testimony.3 Because we agree with
                                                        the district court that the proffered evidence is
    If established, a prima facie case raises an        not competent to raise an issue of material fact
inference of discrimination, and the burden of          to demonstrate pretext, summary judgment
production shifts to defendant to proffer a “le-        was proper.
gitimate nondiscriminatory reason” for its ad-
verse selection. Sandstad, 309 F.3d at 897. If             The primary evidence that Morrison relies
defendant meets this burden, the presumption
of discrimination is dissipated, and the burden
returns to the plaintiff to prove discrimination.          3
                                                             Morrison also argues that certain Weyer-
Id. at 897 (citing St. Mary’s Honor Ctr. v.
                                                        haeuser documentsSScited from outside the rec-
                                                        ordSSdemonstrate that the rules used to justify his
                                                        termination were not in force at the time of the
   2
     See West v. Nabors Drilling USA, Inc., 330         accident and were merely fabricated afterwards.
F.3d 379, 384 (5th Cir. 2003) (citing Brown v.          Because this purported evidence is not in the rec-
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir.             ord, we may not consider it. See Nissho-Iwai Am.
1996)); see also Sandstad v. CB Richard Ellis,          Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
Inc., 309 F.3d 893, 897 (5th Cir. 2002).                1988).

                                                    3
on to show pretext is the testimony of Robert                     Morrison also offered the testimony of a
Barr, an expert in occupational safety, but his               handwriting expert, Jeannett Hunt, who opined
affidavit does not properly raise an issue of                 that Morrison’s purported initials on a June 4,
material fact with regard to pretext. Although                2002, non-routine task check sheet were
conceding that Morrison violated the four                     falsified. As the district court correctly noted,
rules, Barr concludes that the four violations                this evidence did not raise a material issue of
should have been considered to be one inci-                   fact with regard to pretext, because Morrison
dent, and thus under Weyerhaeuser’s disciplin-                has failed to explain its relevance to the acci-
ary policies Morrison should have faced, at                   dent or to his termination.
most, a suspension and retraining.
                                                                 Besides the expert testimony, Morrison’s
    Barr’s statement, however, appears to be                  only summary judgment evidence is his deposi-
bare opinion, without citation to any source.                 tion and affidavit testimony to the effect that
It amounts to nothing more than his personal                  he believes the rules were used as a pretext to
feeling that Morrison was treated incorrectly                 discriminate against him because younger em-
or unfairlySSthat he was not subjected to “ac-                ployees who had committed safety violations
ceptable business practices in the safety indus-              were merely suspended, not fired. Morrison is
try”SSwhich is not probative of pretext. At is-               able specifically to identify one supervisor,
sue here is whether the termination was done                  Mitch Mathis, who received different discipline
with discriminatory intent,4 not whether it was               for a safety violation.
correct from a business, ethical, or personal
perspective. 5                                                   The Mathis incident is not probative cir-
                                                              cumstantial evidence of pretext, however, be-
                                                              cause the circumstances surrounding his viola-
   4                                                          tion were distinguishable as far less severe than
     Sandstad, 309 F.3d at 899 (“[An employer]
is entitled to be unreasonable so long as it does not         those in this caseSSMathis committed only
act with discriminatory animus”); see also May-               one, rather than four violations, and self-re-
berry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995).
                                                                 5
                                                                  (...continued)
   5
     Barr also concluded that it was inappropriate            Roebuck & Co., 3 F.3d 1035, 1042 (7th Cir. 1993)
for Weyerhaeuser to hold management to a higher               (holding that manager’s discrimination claim re-
standard than that used for other employees, be-              quired evidence that another manager was treated
cause he has not seen that in his personal experi-            differently for a similar act).
ence and it was not explicitly called for in Wey-
erhaeuser’s disciplinary policies. The appropriate                A company concerned for its safety recordSSa
question in an ADEA case, however, is whether the             high priority of Weyerhaeuser’s, as Morrison ad-
plaintiff was treated differently from another                mittedSSdoes not want to send a message to its
similarly situated employee that was not a member             employees that its safety rules are optional or un-
of his protected class, i.e., not over forty years old.       important. It is thus perfectly rational for a super-
See Wyvill v. United Cos. Life Ins. Co., 212 F.3d             visor to be disciplined more severely for safety vio-
298, 304-05 (5th Cir. 2000) (requiring plaintiff to           lationsSSparticularly where he is responsible for
show that company treated others differently in               training subordinates on safetySSbecause of the
“nearly identical circumstances”); Sarsha v. Sears,           bad example that is set when a supposed “expert”
                                         (continued...)       on safety ignores the rules.

                                                          4
ported the infraction.6 Further, it is doubtful           period of two years by Mitchem. At best, the
that Mathis can be considered a younger em-               evidence raises a tenuous inference of pretext,
ployee for a showing of pretext, because he               which is insufficient to survive summary judg-
was in his late forties and thus was in the pro-          ment in most cases where an employer has
tected class and was not that much younger                proffered a legitimate, non-discriminatory rea-
than Morrison.                                            son for the adverse employment decision, and
                                                          particularly so where the same-actor inference
   Other than Mathis, Morrison refers to other            comes into play.8
individual employees only generally, without
specific reference to their identities or circum-            In sum, because Morrison did not meet his
stances. This evidence is not probative of                burden to produce evidence from which a fact-
pretext.                                                  finder could reasonably find that Weyerhaeus-
                                                          er’s proffered reason for terminating his em-
   Even if we were to conclude that some of               ployment was pretext for age discrimination,
the evidence is probative of pretext, the con-            the district court appropriately granted sum-
nection is not strong enough to overcome the              mary judgment.9
“same-actor inference,” which was adopted in
Brown v. CSC Logic, Inc., 82 F.3d 651 (5th                                       C.
Cir. 1996). Where the same person is respon-                 Morrison alleges that Weyerhaeuser was
sible for hiring and discharging an individual,           guilty of i.i.e.d. when it falsified a safety pro-
there is an inference that age was not the rea-           cedure checklist to assist its efforts to termi-
son for the discharge.7                                   nate him, and by terminating him. To state a

   Morrison was both hired and fired within a
                                                             8
                                                               See West, 330 F.3d at 385 (“It is possible for
   6
                                                          a plaintiff’s evidence to permit a tenuous inference
     See Wyvill, 212 F.3d at 304-05 (requiring            of pretext yet be insufficient to support a reason-
plaintiff to show that company treated others dif-        able inference of discrimination.”).
ferently in “nearly identical circumstances”); Man-
iccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.               9
                                                               As the district court noted, the record is re-
1999) (“We require that the quantity and quality          plete with evidence that Morrison’s termination for
of the comparator’s misconduct be nearly                  violating safety rules was not pretextual. His
identical to prevent courts from second-guess-            employment record at Weyerhaeuser was spotty,
ing employers’ reasonable decisions and con-              indicating a pattern of ignoring company policies,
fusing apples with oranges.”).                            including safety regulations. His supervisor had
                                                          given him numerous oral reprimands for failure
   7
     See Brown, 82 F.3d at 658 (“Claims that em-          properly to train subordinates in safety, and he was
ployer animus exists in termination but not in hir-       given a written warning that “if you cannot/will not
ing seem irrational. From the standpoint of the           perform as I require, you will not work here.” See
putative discriminator, it hardly makes sense to          Reeves, 530 U.S. at 148 (upholding summary
hire workers from a group one dislikes (thereby           judgement “[i]f the plaintiff created only a weak
incurring the psychological costs of associating          issue of fact as to whether the employer’s reason
with them), only to fire them once they are on the        was untrue and there was abundant and
job.”) (citations, quotation marks, and brackets          uncontroverted independent evidence that no
omitted).                                                 discrimination occurred”).

                                                      5
claim of i.i.e.d. in Texas, a plaintiff must show            the district court was correct in asserting that
(1) intentional or reckless action (2) that was              even if Morrison’s claim of forgery were true,
extreme and outrageous; (3) that caused plain-               that act was insufficiently extreme and outrag-
tiff emotional distress; and (4) that was se-                eousSSas a matter of lawSSto establish an
vere.10 Whether conduct is extreme and outra-                i.i.e.d. claim. As the court pointed out, the
geous is initially a question of law.11 For con-             checklist was not used as a basis for the deci-
duct to be sufficiently extreme and outrageous               sion to fire Morrison and was not used against
to state an i.i.e.d. claim, it must “go beyond all           him in any way, even to embarrass him.
possible bounds of decency, and to be regard-
ed as atrocious and utterly intolerable in a civ-               Morrison’s argument that the alleged forg-
ilized community.”12                                         ing of initials on the checklists constitutes ex-
                                                             treme and outrageous conduct based on Dean
   As a threshold matter, the mere fact that                 v. Ford Motor Credit Co., 885 F.2d 300 (5th
Morrison was terminated is insufficient to state             Cir. 1989), is unconvincing. In Dean, we in-
an i.i.e.d. claim; Texas courts have announced               terpreted Texas law to allow an i.i.e.d. claim
that such claims do not attach to the ordinary               where a plaintiff alleged that her supervisor in-
employment dispute and can exist in only the                 tentionally placed two forged company checks
most unusual of circumstances.13 Otherwise,                  in her purse, because “[m]erely causing the
                                                             innocent plaintiff to be subject to such an
                                                             accusation of crime and put ting her in fear
   10
      Tex. Farm Bureau Mut. Ins. Cos. v. Sears,              that it might come passes the bounds of con-
84 S.W.3d 604, 610 (Tex. 2002); Twyman v. Twy-               duct that will be tolerated by a civilized society
man, 855 S.W.2d 619, 621-22 (Tex. 1993);                     and is, therefore, outrageous conduct.” Id. at
Hughes Training Inc. v. Cook, 254 F.3d 588, 594              307 (emphasis added). Morrison was not
(5th Cir. 2001).                                             accused of any crime, so Dean is inapposite.
   11                                                        Even if the alleged forgery was illegal or un-
     Atkinson v. Denton Pub. Co., 84 F.3d 144,
151 (5th Cir. 1996).                                         ethical, or the termination was unlawful under
                                                             the ADEA, that does not necessarily make it
   12
        Twyman, 855 S.W.2d at 621 (quoting RE-               sufficiently extreme and outrageous to support
STATEMENT (SECOND) OF TORTS §    46 (1965)).                 a claim for i.i.e.d.14
   13
      Benners v. Blanks Color Imaging, Inc., 133
S.W.3d 364, 373 (Tex. App.SSDallas 2004, no
pet. h.) (“In the workplace, to properly manage its             13
                                                                  (...continued)
business, an employer must be able to supervise,             Cir. 2000) (citing Horton v. Montgomery Ward &
review, criticize, demote, transfer and discipline           Co., 827 S.W.2d 361, 369 (Tex. App. SSSan
employees. Although many of these acts are nec-              Antonio 1992, writ denied)).
essarily unpleasant for the employee, an employer
                                                                14
must have latitude to exercise these rights in a per-              Foye v. Montes, 9 S.W.3d 436, 440 (Tex.
missible way, even though emotional distress                 AppSSHouston [14th Dist.] 1999, pet. denied)
results. Thus, a claim for intentional infliction of         (“Even conduct which may be illegal in an employ-
emotional distress does not lie for an ordinary em-          ment setting may not constitute the sort of be-
ployment dispute.”) (internal citations omitted) ; see       havior that constitutes ‘extreme and outrageous’
also Walker v. Thompson, 214 F.3d 615, 628 (5th              conduct.”) (citing Gearhart v. Eye Care Ctrs. of
                                       (continued...)        Am. Inc., 888 F. Supp. 814, 819 (S.D. Tex.

                                                         6
    Alternatively, Morrison’s claim fails as a                sion on his private affairs when his supervisor
matter of law because there is no evidence that               insisted on and was present during his medical
he suffered the requisite degree of emotional                 examination following the accident.18 There
distress. Under Texas law, the emotional dis-                 are three elements to this type of invasion of
tress must be “severe.”15 “Severe” emotional                  privacy claim: (1) an intentional intrusion;
distress is that which no reasonable person                   (2) upon the seclusion, solitude, or private af-
could be expected to endure and must be more                  fairs of another; (3) that would be highly of-
than “mere worry, vexation, embarrassment or                  fensive to a reasonable person.19 Texas courts
anger.”16 Morrison has not sought counseling,                 have added a fourth elementSSthat the intru-
therapy or medication and admitted that the                   sion be unreasonable, unjustified or unwarrant-
distress caused by his discharge was mostly fi-               ed.20 In the employment context, Texas fur-
nancial. He merely asserts, without citation to               ther requires that the employee have a rea-
evidence, that “[i]t is undisputed that he suf-               sonable expectation of privacy in the area
fered severe damage,” which is insufficient on                searched or the matters investigated.21
its own allow his i.i.e.d. claim to survive sum-
mary judgment.17                                                 The district court correctly found that Mor-
                                                              rison cannot sustain a claim for invasion of pri-
                      D.                                      vacy, because he did not have an expectation
   Finally, Morrison brought a claim for the                  of privacy in anything that occurred at the
Texas tort of invasion of privacy, specifically               examination. He testified that all that occurred
that he was subject to an unreasonable intru-                 was an x-ray of his hand, and no medical
                                                              personnel asked him questions. By Morrison’s
                                                              own admission, nothing private was disclosed,
   14
    (...continued)                                            and he did not feel that he was injured by his
1995)).                                                       supervisor’s presence. Under these circum-
   15                                                         stances, where he was not harmed and had no
        Twyman, 855 S.W.2d at 621-22.
   16
     Huckabay v. Moore, 142 F.3d 233, 242 (5th
Cir. 1998) (citing Behringer v. Behringer, 839,                  18
                                                                    See Billings v. Atkinson, 489 S.W.2d 858,
844 (Tex. App.SSFort Worth 1994, writ denied);                859 (Tex. 1973) (recognizing tort of invasion of
Regan v. Lee, 879 S.W.2d 133, 136 (Tex. App.                  privacy); see also Cain v. Hearst Corp., 878
SSHouston [14th Dist.] 1994, no writ)).                       S.W.2d 577, 578 (Tex. 1994) (identifying which
   17
                                                              forms of tort are recognized, including intrusion on
       Ford v. NYLCare Health Plans, Inc., 301                the seclusion of the private affairs of another).
F.3d 329, 332-33 (5th Cir. 2002) (“At the sum-
mary judgment stage, ‘the plaintiff can no longer                19
                                                                   Valenzuela v. Aquino, 853 S.W.2d 512, 513
rest on . . . mere allegations, but must set forth by         (Tex. 1993); RESTATEMENT (SECOND) OF TORTS
affidavit or other evidence specific facts.”) (internal       §625B (1977).
citations omitted); see also TIG Ins., 276 F.3d at
759 (“Conclusional allegations and denials, spec-                20
                                                                      See Billings, 489 S.W.2d at 860.
ulation, improbable inferences, unsubstantiated
                                                                 21
assertions, and legalistic argumentation do not                    See K-Mart Corp. v. Trotti, 677 S.W.2d 632,
adequately substitute for specific facts showing a            636 (Tex. App.SSHouston [1st Dist.] 1994) (find-
genuine issue for trial.”) (internal citations omit-          ing that employee had reasonable expectation of
ted).                                                         privacy in locked locker and purse).

                                                          7
intention of keeping the revealed information
private, Morrison cannot sustain a claim for
invasion of privacy.22

   AFFIRMED.




   22
      In addition, it is doubtful that Morrison had
a reasonable expectation of privacy in information
sought by the employer as part of an investigation
directly related to its business interests. See, e.g.,
Patton v. United Parcel Serv., Inc., 910 F. Supp.
1250, 1276 (S.D. Tex 1995).

                                                         8
