                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 94-40302


                         FRANKLIN ATKINSON,

                                              Plaintiff-Appellant,


                               VERSUS


                    DENTON PUBLISHING COMPANY,

                                                 Defendant-Appellee.




          Appeal from the United States District Court
                For the Eastern District of Texas



                            May 15, 1996
Before REYNALDO G. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

     For 21 years Franklin Atkinson was the circulation manager for

the Denton Record-Chronicle, a paper owned by Denton Publishing

Company. On December 30, 1991, at age 58, Atkinson was terminated.

Atkinson filed this lawsuit, claiming that he was unlawfully

discharged in that (1) he was discharged because of his age, in

violation of the Age Discrimination in Employment Act, 29 U.S.C. §

623, (2) his discharge breached a written employment contract, (3)

the Paper's actions rose to the level of intentional infliction of

emotional distress, and (4) he was terminated because he refused to

commit an illegal act. The district court issued an order granting
Denton Publishing's motion for summary judgment as to each of

Atkinson's claims, and denying Atkinson's cross-motion for summary

judgment. Atkinson appeals the district court's disposition of his

age discrimination, breach of contract and intentional infliction

of emotional distress claims, arguing that summary judgment was

inappropriate because genuine issues of material fact exist as to

each of those claims.1      Atkinson also appeals several rulings made

by the district court prior to summary judgment, which he claims

impermissibly prejudiced his ability to present probative summary

judgment evidence.     We first address the propriety of the district

court's procedural rulings.

                            PROCEDURAL RULINGS

     Atkinson argues that the district court abused its discretion

by (1) refusing to allow Atkinson to propound interrogatories in

excess of those allowed by the court's local rules; (2) refusing to

compel    production   of    personnel   files   for   many   of    Denton

Publishing's past and present employees; and (3) refusing to allow

Atkinson additional time to obtain his expert's report.            Atkinson

further maintains that the district court abused its discretion by

(1) relying upon incompetent summary judgment evidence, and (2) by

quashing Atkinson's amended motion for summary judgement.              The

district court's disposition of these contested discovery and

procedural matters is reviewed only for an abuse of discretion.

McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 (5th Cir. 1993),

      1
       Atkinson makes no argument on appeal related to his claim
that Denton Publishing terminated him because he refused to commit
an illegal act.

                                    2
cert. denied, 114 S. Ct. 694 (1994); Mayo v. Tri-Bell Indus., Inc.,

787 F.2d 1007, 1012 (5th Cir. 1986) (discovery rulings are reversed

only if they are "arbitrary or clearly unreasonable").                After

careful consideration of the complete record, we find no abuse of

the considerable discretion afforded the district court as to these

matters.    Only two of the issues raised merit further discussion.

1.   Interrogatories

     Atkinson initially filed this suit in the Northern District of

Texas because he believed both parties were residents of Tarrant

County.     Because both parties were in fact residents of Denton

County, the district court sua sponte transferred the case to the

Eastern District of Texas.     Once assigned to the Eastern District,

the case was placed on Track 3 pursuant to the Eastern District's

Civil Justice Expense and Delay Reduction Plan.2            Track 3 allows 15

interrogatories, in addition to the mandatory disclosures required

by the Federal Rules of Civil Procedure.         Atkinson moved to expand

the allowed number of interrogatories from 15 to 31 in order to

accommodate two sets of interrogatories served on the defendant

with his complaint while the case was still pending in the Northern

District of Texas.     The district court denied his motion.

     On appeal, Atkinson claims that Denton Publishing's responses

to the required interrogatories was with reference to the mandatory

disclosure    requirements,   such   that   he   received    no   additional

benefit from the defendant's limited responses.               In addition,

        2
        The Civil Justice Expense and Delay Reduction Plan was
adopted pursuant to the Civil Justice Reform Act of 1990, 28 U.S.C.
§ 471 et seq.

                                     3
Atkinson claims that the district court abused its discretion by

not    requiring      Denton      Publishing           to    answer     the     remaining

interrogatories,         which     addressed           issues     central      to    Denton

Publishing's       defenses      and   would         have   helped    Atkinson      develop

competent summary judgment evidence.

       Denton      Publishing       answered           Atkinson's      first        set     of

interrogatories with 18 responses.                     The 18 responses included a

total of 36 subparts.            Only seven of those responses are framed

with any reference to the information disclosed as part of the

mandatory discovery requirements.                    Atkinson did not complain that

the district court lacked authority to limit discovery, or that

Denton Publishing had failed to comply with the requirement for 15

responses.      Instead, Atkinson argued solely that Denton Publishing

should be compelled to respond to the remaining interrogatories.

Atkinson     did   not    explain      why   additional         interrogatories           were

necessary, beyond stating that the information related to Denton

Publishing's defenses in some unspecified way.                       Moreover, the text

of the propounded but refused interrogatories does not appear in

the record.

       Given    the      scope    of    Denton         Publishing's      multiple-part

responses,      and   the   absence     of       a    compelling     reason    to    expand

discovery, it was not an abuse of the district court's discretion

to    deny   Atkinson's     motion      to       expand     the    number     of    allowed

interrogatories.




                                             4
2.   Personnel Files

     Atkinson      also    moved    to   compel    production       of   the   Denton

Publishing personnel files for 12 designated past or present

employees    of   Denton    Publishing,        plus     personnel   files      for   an

additional    47     former        employees      who     were   voluntarily         or

involuntarily separated from the company at the age of 40 or older.

The district court ordered production of the requested personnel

files for in camera inspection.                 After examining many of the

requested files, the court ordered production of one file in its

entirety and excerpts from a second file.

     Atkinson argues generally that the files had the potential for

establishing a pattern and practice of age discrimination, which

would be admissible circumstantial evidence of discrimination. But

Atkinson's complaint alleges that he was terminated because his

general manager, who valued his performance, was replaced by Bill

Patterson, a younger man who discriminated against Atkinson and

other employees on the basis of age.              Many of the personnel files

requested related to employees who left Denton Publishing long

before Bill Patterson became general manager.                    In light of the

district court's in camera review, and the lack of any nexus

between Atkinson's complaint and the employees terminated prior to

Bill Patterson's promotion, the district court did not abuse its

discretion by denying Atkinson's motion to compel production of the

remaining files.




                                          5
                              SUMMARY JUDGMENT

       This Court reviews the grant of summary judgment de novo,

applying the same standard as the district court. Bodenheimer v.

PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).                   Summary

judgment is appropriate when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law.   FED. R. CIV. P. 56(C).      There is no genuine issue of material

fact   if    the   evidence   is   such    that,   drawing   all   reasonable

inferences in favor of the non-movant, Atkinson, a reasonable jury

could not return a verdict in his favor.               Anderson v. Liberty

Lobby, Inc., 106 S. Ct. 2505, 2510-11 (1986).

1. Age Discrimination Claim

       In reviewing summary judgment, this Court must decide whether

Atkinson produced facts which, if believed, would lead a reasonable

jury to conclude that it was more likely than not that Denton

Publishing terminated Atkinson because of his age.                 Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc);

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 n.8 (5th Cir.

1993).      To conduct that review, we have historically employed the

familiar McDonnell Douglas framework.          McDonnell Douglas v. Green,

93 S. Ct. 1817, 1824 (1973); but see O'Connor v. Consolidated Coin

Caterers Corp., 116 S. Ct. 1307, 1309 (1996) (leaving open the

question of whether McDonnell Douglas applies in ADEA cases).

       Under McDonnell Douglas, the plaintiff bears the initial

burden to demonstrate a prima facie case by a preponderance of the

evidence.      Rhodes, 75 F.3d at 992.        Once established, the prima


                                       6
facie case serves to create a rebuttable presumption of unlawful

discrimination.      Id.   at   993.        The    employer    can    rebut   that

presumption with evidence that, if believed by the trier of fact,

would support a finding that unlawful discrimination did not

motivate the employer's action.            Id.     At that point, a plaintiff

can avoid summary judgment if "the evidence taken as a whole (1)

creates a fact issue as to whether each of the employer's stated

reasons was what actually motivated the employer and (2) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complains.               The employer, of course,

will be entitled to summary judgment if the evidence taken as a

whole would not allow a jury to infer that the actual reason for

the discharge was discriminatory."            Id. at 994.

       The district court concluded and it is not seriously disputed

that    Atkinson   demonstrated   a        prima    facie   case     of   unlawful

discrimination: (1) he was discharged; (2) he was qualified for the

position; (3) at age 58, he was within the protected class; and (4)

he was replaced by someone outside of the protected class -- a 38-

year-old   worker.     Denton   Publishing         effectively     rebutted    the

presumption of discrimination with evidence that Atkinson was

terminated   for   insubordination         after    he   refused     to   accept   a

transfer to the Lewisville News and the Grapevine Sun, two smaller

newspapers also owned by Denton Publishing.                   Denton Publishing

further responded with evidence that the decision to transfer

Atkinson was made because Atkinson failed to complete specific

assignments delegated to him within the time period proscribed, and


                                       7
because the paper was experiencing increasing competition for

subscribers after the demise of a large daily paper in its market.



     Atkinson produced controverting evidence which created genuine

issues of fact as to whether each of Denton Publishing's asserted

reasons for his discharge were in fact pretextual.                   Denton's

primary reason for the discharge, Atkinson's refusal to accept a

transfer,   was    disputed   by    Atkinson's     evidence   that    he   was

terminated before he was offered any transfer, and evidence that

Denton Publishing immediately withdrew the transfer offer when

Atkinson attempted to accept it.           Denton Publishing claimed that

the transfer was motivated by Atkinson's failure to complete

assignments and increasing competition for subscribers.              Atkinson

responded with summary judgment evidence that all assignments had

been completed on a timely basis, or would have been, if he had not

been terminated.    Moreover, Atkinson was never given any negative

performance evaluations or warnings abut his performance, although

it was the company's policy to do so before termination.             In fact,

in the month prior to his termination, Atkinson was told that he

was "doing a good job."       Atkinson also offered evidence that the

demise of the large daily Dallas paper did not significantly impact

Denton Publishing's market in a negative way, and that he had

offered numerous ideas to counter any competitive effect, which had

all been refused by his employer.

     Atkinson      also   offered         additional   evidence      of    age

discrimination, based upon which a reasonable jury could conclude


                                      8
that he was more likely than not discharged because of his age.

See Rhodes, 75 F.3d at 994-95; Moore v. Eli Lilly & Co., 990 F.2d

812, 816 (5th Cir. 1993), cert. denied, 114 S. Ct. 467 (1993).

Atkinson offered evidence that general manager Bill Patterson

preferred   to   deal   directly   with   Atkinson's    younger,     less

experienced subordinates.      Atkinson also offered evidence that

Patterson told another Denton Publishing employee that he preferred

to solve problems directly with the younger employees because

Atkinson had "old ideas and old ways."        Atkinson also offered

evidence that Patterson gave younger employees pay raises, when

equally entitled older employees were denied raises.            Finally,

Atkinson's deposition identifies other employees in the protected

age class who were terminated and replaced by younger workers after

Bill Patterson was promoted to general manager.

     Taken as a whole, Atkinson's summary judgment evidence creates

a fact issue on the issue of whether age was a determinative factor

in Denton Publishing's decision to terminate Atkinson. Although we

express no opinion on the ultimate merits of Atkinson's claim,

summary judgment at this stage was therefore improper.

2. Breach of Contract

     In August 1991, Atkinson and Denton Publishing entered into a

"Profit   Sharing   Bonus   Agreement."   Under   the   terms   of   that

agreement, Atkinson agreed to function as a circulation manager for

Denton Publishing from August 1, 1991, until June 30, 1992. Denton

Publishing agreed that Atkinson would be compensated $720 per week,




                                   9
and in addition, would receive a profit sharing bonus calculated

according to the terms of the agreement.

       The district court found that the profit sharing agreement was

an employment contract for the stated period.                  We agree that there

is at least a fact question about whether the agreement formed a

binding      employment     contract.         The   district    court      nonetheless

concluded that summary judgment was appropriate because Atkinson

committed the first material breach of the agreement by refusing

the offer of transfer on the day of termination.                            The court

reasoned that because the agreement did not limit Atkinson's

service to a particular newspaper owned by Denton Publishing,

Atkinson could not refuse the transfer without breaching the

agreement.         However,    the     position     offered     to   Atkinson       paid

significantly less and did not include a profit sharing bonus.

Perhaps more important is the fact that Atkinson contends he was

terminated before any offer of transfer was made.                       Viewing the

facts in a light most favorable to Atkinson, Denton Publishing's

unilateral decision to terminate the agreement six months early, or

alternatively, its unilateral attempt to modify the financial terms

of the agreement without new consideration was a material breach

that    preceded        Atkinson's     alleged      refusal    of    the     transfer.

Atkinson's summary judgment evidence demonstrated that there remain

genuine issues of material fact relating to his claim for breach of

contract, and summary judgment was improper.

       Nor    do   we    agree,   as    the    district   court      found     in    the

alternative, that collateral estoppel bars Atkinson's claim for


                                          10
breach of contract.           Shortly after he was terminated, Atkinson

filed a claim before the Texas Employment Commission (TEC) under

the Texas Payday Law3 claiming his entitlement to a bonus according

to the terms of the agreement.            See TEX. REV. STAT. ANN. art. 5155 §

5(f) (rules and procedures used by TEC in benefit determinations

are used to make preliminary wage determinations under the Texas

Payday Law).     While this action was pending, the TEC issued a final

determination that Atkinson was not entitled to a bonus under the

agreement.       Denton Publishing argues that the final TEC wage

determination collaterally estops Atkinson from litigating his

breach of contract claim, which is based upon the agreement.

       Atkinson argues that TEC decisions do not have preclusive

effect, citing TEX. REV. STAT. ANN. art. 5221b-9(r), which states

that   findings    made      in   a   claim    for   benefits       under    the   Texas

Unemployment Compensation Act cannot be used as evidence in another

proceeding not brought under the Act.4               Denton Publishing responds

that although article 5221b-9(r) prohibits the use of benefit

determinations     as     collateral     estoppel,      it    does    not     apply     to

preclude   the    use   of    wage     determinations        made    by     the   TEC   in

subsequent litigation.




       3
      TEX. REV. CIV. STAT. ANN. art. 5155. The Texas Payday Law has
been repealed and codified at TEX. LABOR CODE § 61.011 et seq. This
opinion refers to that version of the Texas Payday Law applicable
to Atkinson's claims.
       4
      TEX. REV. STAT. ANN. art. 5221b-9(r) was repealed and is now
codified at TEX. LABOR CODE § 213.007. This opinion refers to the
version of that statute applicable to Atkinson's claims.

                                          11
      The     Texas     legislature       denied    TEC    benefit    determinations

preclusive effect because "[t]he adjudication process under the

Texas Employment Compensation Act is geared to the disposal of a

large number of cases in an expeditious manner."                     REPORT   BY THE   TEXAS

HOUSE COMM.   ON   LABOR   AND   EMPLOYMENT RELATIONS, H.B. 813 (Mar. 26, 1991).

Further, "[t]he mere possibility that collateral estoppel will be

applied has the potential for bogging down the appeals process

under   the     Texas      Unemployment        Compensation    Act    by      protracted

litigation where further litigation is contemplated in other forums

involving the same facts and parties."                        Id.     Both of those

justifications for denying TEC findings preclusive effect apply

equally     when     the     TEC    is   making    wage,   rather     than      benefit,

determinations.         There are, however, no Texas cases addressing the

issue of whether the statute prohibits the assertion of TEC wage

determinations as collateral estoppel, and it is not necessary that

we decide that issue in this case.                 If the statute is applicable,

the   TEC     determination         as   to   Atkinson's    claim    would      not     bar

relitigation in this action.                  If the statute is not applicable,

then the preclusive effect of the TEC determination is governed by

Texas collateral estoppel principles.                Migra v. Warren City School

District Bd. of Educ., 104 S. Ct. 892, 896 (1984).                         Under Texas

law, collateral estoppel precludes relitigation of identical issues

actually litigated in a prior action if: (1) the issue was fully

and fairly litigated in the prior action; (2) the issue was

essential to the decision in the prior case; and (3) the parties

were cast as adversaries in the prior action.                  J.M. Muniz, Inc. v.


                                              12
Mercantile Texas Credit Corp., 833 F.2d 541, 544 (5th Cir. 1987)

(citing Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818

(Tex. 1984)).        Even    if   article   5221b-9(r)   does    not   preclude

relitigation of Atkinson's breach of contract claim, Atkinson's

claim for breach of contract is not identical to the Texas Payday

Law claim he filed with the TEC.                 Moreover, the adjudicative

process afforded by the Texas Unemployment Compensation Act did not

provide Atkinson with the opportunity to fully and fairly litigate

all aspects of his claim.         We therefore decline to give preclusive

effect to the TEC determination.

3. Intentional Infliction of Emotional Distress

     Under   Texas    law,    the   tort    of   intentional    infliction   of

emotional distress has four elements: (1) intentional or reckless

conduct; (2) that was extreme or outrageous; (3) that caused

emotional distress; (4) that was severe.           Wornick Co. v. Casas, 856

S.W.2d 732, 734 (Tex. 1993).         Only conduct that is "so outrageous

in character and so extreme in degree as to go beyond all possible

bounds of human decency, and to be regarded as atrocious and

utterly intolerable in a civilized community" will satisfy the

second element of the tort of intentional infliction of emotional

distress.    Dean v. Ford Motor Credit, 885 F.2d 300, 306 (5th Cir.

1989); see also Wornick, 856 S.W.2d at 735.              Further, it is the

province of the court to determine whether a defendant's conduct

may reasonably be regarded as extreme and outrageous enough to

permit recovery.      Wornick, 856 S.W.2d at 734.




                                       13
     Atkinson alleges that he was terminated without warning after

long-service, that the company published false and defamatory

reasons for his termination to people inside the company, that his

superiors were disrespectful or rude to him during his employment

and in the termination meeting, and that as a result he experienced

"grief,     shame,    humiliation,     anger,    depression     and   nausea."

Virtually all of Atkinson's allegations fall within the realm of an

ordinary    employment      dispute,   which    is   not   actionable   as   an

intentional infliction of emotional distress.              As a matter of law,

the alleged conduct is not extreme and outrageous.              See Ugalde v.

W.A. McKenzie Asphalt Co., 990 F.2d 239 (5th Cir. 1993); Johnson v.

Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33-34 (5th Cir.

1992); Wornick, 856 S.W.2d at 735.          The district court's grant of

summary    judgment    as   to   Atkinson's     intentional    infliction    of

emotional distress claim was appropriate.

                                  CONCLUSION

     For the foregoing reasons, the district court's orders (1)

denying Atkinson's motion to expand the number of interrogatories;

(2) denying, in part, Atkinson's motion to compel production of

certain Denton Publishing personnel files; (3) denying, in part,

Atkinson's motion to strike portions of Denton Publishing's summary

judgment evidence; (4) quashing Atkinson's amended motion for

summary judgement; and (5) denying Atkinson's motion to expand the

time required to obtain a report from his expert on damages, are

affirmed.    The district court's grant of summary judgment in favor

of the defendant, Denton Publishing, is AFFIRMED as to Atkinson's


                                       14
intentional   infliction   of   emotional   distress   claim.   As   to

Atkinson's age discrimination and breach of contract claims, the

district court's grant of summary judgment is VACATED, and the

cause is REMANDED to the district court for further proceedings

consistent with this opinion.

     The district court's summary judgment is AFFIRMED in part, and

VACATED AND REMANDED in part.




                                  15
