                 UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                         __________________

                            No. 99-10145
                         __________________



     STEPHANIE WALKER; NYREE PRESTON,

                                        Plaintiffs-Appellants,

                               versus

     CHERYL THOMPSON; DON KINGSTON;
     GLASFLOSS INDUSTRIES, INC.,

                                        Defendants-Appellees.

         ______________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
          ______________________________________________
                           June 13, 2000

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     This appeal is from a district court’s grant of summary

judgment in favor of an employer in a race discrimination case.   We

conclude that the district court properly granted summary judgment

with respect to the appellants’ claims of failure to promote,

retaliation, and intentional infliction of emotional distress and,

thus, affirm in part.     However, after a thorough review of the

record, we are convinced that the appellants have raised a genuine

issue of material fact regarding their claim of hostile work
environment.   We therefore vacate the district court’s grant of

summary judgment on that claim and remand for further proceedings.



I.    FACTUAL AND PROCEDURAL HISTORY

      Because this case is before us on appeal from a summary

judgment, we set forth the evidence in the light most favorable to

the appellants.   Glasfloss Industries, Inc. (Glasfloss), a closely

held Texas corporation with facilities in Dallas and Houston,

manufactures and sells air filtration products.            Scott Lange

(Lange), who resides in Wisconsin,1 is president of Glasfloss.      Don

Kingston (Kingston) is vice-president and general manager, and

Cheryl Thompson (Thompson) holds the position of office manager.

      In January of 1994, Thompson hired Stephanie Walker (Walker),

an   African-American   woman,   as    an   accounts-receivable   clerk.

Thompson was Walker’s immediate supervisor. The next month, during

a conversation on the topic of babysitting, Thompson told Walker

that her grandmother would rub a little black boy’s head for good

luck much like the slave masters did to slaves.2       Walker responded

that “it wasn’t funny” and that she “hadn’t [ever] heard anything

like that before.”


      1
         Lange is president of two other related Glasfloss
companies, Glasfloss Industries, Inc. (which is incorporated in
Wisconsin) and Glasfloss Industries, Inc. of Ohio. Lange is also
the general manager of Glasfloss in Wisconsin.
      2
        During her deposition, Thompson admitted to making this
remark to Walker; however, she asserts that it was in the context
of explaining that her grandmother had never been around African-
Americans.

                                   2
     Approximately a month later, Bill McKnight (McKnight), the

operations manager at Glasfloss, asked Walker “where she was from

[sic].”   She replied Africa.        McKnight laughed and retorted that

Walker did not look like she swung from the trees.                Thompson was

present when McKnight made that remark.              The next day, Thompson’s

husband was at the office and inquired of Walker “where did you say

you were from, your people was [sic] from?” Walker again responded

Africa, and Thompson’s husband said “I thought you looked like one

of my grandmother’s slaves.”        Thompson and her husband laughed.

     Late in 1994, Thompson hired Barbara Scoggins, a Caucasian

woman, for a position in the payroll department.              In March of 1995,

Thompson mentioned to Walker that a customer service supervisor

position was being created.          Walker informed Thompson that she

would be interested in such a position, and Thompson responded that

“nothing is official right now. . . . [W]e’ll let everybody know.”

Walker did not hear anything else about the position until it was

announced that Thompson had promoted Scoggins to the position of

customer service supervisor.

     In   April   or   May   of   1995,   a   data    entry   position   became

available. Walker again expressed interest to Thompson. According

to Walker, a white woman named Karen was hired to fill the data

entry position, a position Walker believed would be a functional

promotion. Walker later complained to Bert Hibl, who was the sales

manager, that she would never be promoted because of the prejudice

in the office.    Hibl responded “you’re probably right.”


                                      3
     In the context of discussing the collection of accounts for a

customer, Mark Filewood, marketing and product development manager,

told Walker he would send her back to Africa with her family if she

was not careful.    Filewood made this “threat” once during the

summer of 1995, and again several months later.

     On one occasion there were Brazilian nuts in the office, and

Thompson asked Walker whether she knew what they were called.

Thompson informed her that some people called them “nigger toes.”

     Scoggins hired Nyree Preston (Preston), an African-American

woman, for the position of customer service representative in March

of 1996.   Subsequently, Scoggins hired Denise Porter (Porter), an

African-American woman, for a position in the customer service

department. Scoggins was the immediate supervisor for both Preston

and Porter, and Scoggins reported to Thompson.

     In the spring of 1996, Amy Langsford (Langsford), an employee

at Glasfloss, was upset that her estranged husband would not return

her young son’s tennis shoes.        In Walker’s presence, a crying

Langsford exclaimed that her husband wanted to hang the shoes from

his rear view mirror “like those niggers.”       Upon hearing this,

Scoggins burst into laughter, and Langsford apologized to Walker.3

     During a conversation with Walker, Thompson indicated that any

race was acceptable except African-Americans. Thompson stated that

Matilda Faz (Faz), an Hispanic Glasfloss employee, was “still white



     3
        During her deposition, Scoggins testified that she heard
Langsford make the remark about the tennis shoes.

                                 4
as long as she wasn’t black.” At a subsequent time, McKnight

observed that Juby, an Indian Glasfloss employee, was as dark

complected as Walker.   Thompson explained that Juby was acceptable

because his hair was different from the hair of black people.

     At various other times, the managers at Glasfloss made several

offensive remarks regarding African-American hair.       In Walker’s

presence, McKnight, for no apparent reason, began talking about a

cat that had “nappy” hair like “black people.”          Walker asked

McKnight if he was trying to make a point, and McKnight did not

respond.   At a different time, Scoggins was planning to hold some

sort of beauty demonstration and asked Walker if she could “do”

Walker’s hair.    Scoggins said “[a]fter all, I do [my dog’s] hair.”

Walker refused.    One other time, while in the break room, Walker

overheard Thompson tell Faz to ask Walker about what she did with

her hair when it got wet and “nappy.”   Faz complied with Thompson’s

request, but Walker did not respond.

     As Walker was leaving a Glasfloss anniversary party held at a

local establishment, McKnight “yelled out that [she] needed to

hurry up and get to [her] car.”       When Walker asked him why, he

blurted out “because somebody would think [she] was there to rob

them.”   Everyone there, including Kingston, laughed.

     For Thompson’s 30th birthday in June of 1996, she received a

birthday card from another employee with a photographic likeness of

a monkey on the face of the card.     The card itself, commercially

produced by American Greetings, contained an innocuous birthday


                                  5
message.4      Thompson claims that she displayed it on her desk among

other birthday cards. Contrary to Thompson’s assertion, Walker and

Preston     contend    that     the   card    was   not   among    the    others     on

Thompson’s desk but instead was the lone card taped to Thompson’s

window with the picture of the monkey facing the desks of the

African-American employees. During the month that this card was on

display, Thompson, Scoggins, and McKnight would view the card in

relation to its position vis-a-vis the three African-Americans,

laugh, and make jokes about the “little black monkey.”

       It was around this time that Scoggins decided to move Porter

to a desk away from Preston’s desk in order to keep them from

talking.       Scoggins separated the two African-American employees

despite Preston’s protest that she was supposed to be training

Porter.     Additionally, Scoggins stated to Preston that she had a

personal problem with her conversing with Walker, and that although

she    could   not    control    Walker      because   Walker     was    not   in   her

department, she could control Preston and Porter, who worked under

her.

       At one point, Porter took one day of personal leave but needed

to call the office regarding work.               When she called and asked to

speak to Preston, the receptionist “screamed out” that Preston had

a “personal call.”        This upset Porter because the call was work-



       4
       The printed message inside the card read as follows: “After
awhile birthdays can get pretty hairy! Have a good one!” There
was also a handwritten message to Thompson from an employee at
Glasfloss, which simply was an expression of good will.

                                          6
related and there had been recent instructions to limit personal

calls.        When   Porter   returned   to   Glasfloss   the   next   day   she

addressed her complaint to the receptionist.              Scoggins reproached

her for doing so even though previously management had instructed

the employees to attempt to resolve their problems with co-workers

prior to resorting to making a complaint to management.5

       As a result of her encounter with Scoggins, Porter became very

upset.       After attempting to regain her composure in the restroom,

she returned to the office.         Walker apparently noticed some lint

from a facial tissue in Porter’s braided hair and began removing

it.    While Walker was doing so, Kingston walked by and said “What

are you doing [Walker], picking fleas?”

       Sometime during the latter part of 1996, Sandra, an employee

in the Glasfloss human resources department, told Walker and

Preston that Thompson instructed the receptionist to listen to

Walker’s and Preston’s phone conversations.               Also, Diane Cantu,

another human resources employee, stated that Thompson instructed

her “to act a certain way towards” Walker, Preston, and Porter.

       In December of 1996, Preston had a question regarding the

computer system and Walker, who was on a break, walked up to assist

her.       Upon seeing the two women talking, Thompson inquired whether

Walker had any work to do.        Walker replied that she was on a break



       5
         Porter had observed white employees directly address
problems with other departments and co-workers; however, it
appeared that African-Americans were forced to address all their
complaints through their supervisors, Thompson or Scoggins.

                                         7
and   helping   Preston    with   a   work-related     question.     Thompson

countered that regardless of what they were discussing, they should

not be talking.     Walker expressly inquired of Thompson “[a]re you

saying that the black ladies shouldn’t be talking?”                  Thompson

angrily responded “[t]hat’s exactly what I’m saying.”                Further,

around this same time, Thompson asserted that Kingston did not want

Walker, Porter, and Preston talking to one another. Thompson would

enforce this “policy” by standing with her hands on her hips and

staring at these women whenever she caught them talking.

      That same month Walker contacted an attorney named Judith

Gregg   regarding    the   racial     discrimination    and   harassment    she

perceived at Glasfloss.       On January 8, 1997, Gregg sent Lange a

letter that summarized Walker’s complaints, including some of the

above-described incidents, and made clear that Walker did not want

to resign or take legal action but instead wanted the illegal

conduct to cease.        Lange promptly responded in writing to Gregg

indicating that Glasfloss did not condone discrimination and that

he had authorized Kingston to take immediate action and investigate

the allegations.

      As a result of the investigation, Kingston gave Thompson a

written warning for her lack of self control and diplomacy in

regard to the time she snapped at Walker and Preston for talking to

each other.     Kingston concluded, however, that there was no racial

discrimination      or   harassment     in   the   office     environment    at




                                        8
Glasfloss.6

     Sometime in early 1997, Walker observed two African-American

men attempting to apply for positions in the warehouse.                    McKnight

informed them Glasfloss was not hiring.                 Less than an hour later

McKnight gave applications for employment to two Hispanic men who

requested them.        Walker witnessed this on two separate occasions.7

     After realizing that Kingston did not interview any of the

other African-Americans with respect to Walker’s complaint of

racism,       Porter    believed    Walker’s     letter       to   Lange   had   not

accomplished anything.         She stated that she resigned because she

could    no    longer    tolerate      the    racism    and    discrimination     at

Glasfloss.

     On   February       26,   1997,    Walker    and    Preston,     without    the

assistance of counsel, filed a notice of charge of discrimination

with the Equal Employment Opportunity Commission (EEOC) because

they felt the letter had not adequately addressed the racial

discrimination at Glasfloss.             Moreover, they felt Kingston was

biased because (1) he made the “picking fleas” comment; (2) he

laughed at McKnight’s comment that people would think Walker was

there to rob them; and (3) he did not interview the other two


     6
        Although Kingston concluded that there had been no racial
discrimination or harassment, he testified during his deposition
that he reprimanded Thompson for making the comment about rubbing
the head of a black child for good luck.
     7
        McKnight also referred to an apparently homeless black man
who was walking near the grounds at Glasfloss as a “black drag
queen.”    McKnight called the police to complain, and eventually
the police came and removed him.

                                          9
African-American employees at the office, Porter and Preston,

regarding Walker’s complaint.

     After the EEOC complaint was filed, Walker and Preston felt

that the employees and managers were hostile to them.      Kingston

began greeting them every morning in a loud, sarcastic manner.

When Filewood came to the accounting office with papers, instead of

handing her the papers or placing them on Walker’s desk, he would

throw them on her desk.   Occasionally, the papers would land on the

floor. Walker complained to Kingston about Filewood’s actions, and

Filewood later apologized to Walker. Nevertheless, he continued to

give Walker hostile looks after the apology.

     Preston believed that McKnight would stand by the facsimile

machine and stare at her.   Preston’s chair sat on a plastic strip,

and McKnight would step on that strip in order to cause Preston’s

chair to roll.

     McKnight apologized to Walker but at the same time made a

request of Walker to “do a rain dance . . . what y’all do.”   Walker

perceived this to be a racist remark.

     On March 6, 1997, Thompson instructed Walker to retrieve some

paperwork from the warehouse.   Walker responded that the warehouse

was too cold, and, further, Thompson had previously said the

administrative office employees should not go to the warehouse

because they were not covered under the insurance policy.      After

her initial refusal, Walker complied with Thompson’s request.

Based on this event, Thompson reprimanded Walker with a written


                                 10
warning.

     Preston tape-recorded a conversation she had with Scoggins

without    Scoggins’   knowledge.      According    to   Preston,   in   that

conversation, Scoggins agreed that there was a division between

black and white people in the office and that the black people were

not treated fairly with respect to the no-talking policy. Scoggins

told Preston she was proud of Preston for standing up for her

rights.      Preston    nevertheless     believed    that    Scoggins     had

discriminated against her.

     Walker and Preston and certain representatives of Glasfloss8

met with the EEOC.        The EEOC was satisfied with Glasfloss’s

cooperation and the proposed agreement.9       Nevertheless, Walker and


     8
        The appellants state that Lange, the president, did not
attend this meeting.
     9
        The proposed agreement provided that the appellants would
not institute a lawsuit in exchange for the following:

            a.   Respondent agrees that the Company’s
            policy regarding socializing and talking in
            the work place will apply equally to all
            employees.     The Company policy permits
            employees to socialize and talk to each other
            provided such socialization and talk does not
            unsuitably interrupt others who are working or
            unsuitably affect employees’ productivity.
            This policy will be put in writing and
            disseminated to all employees via memorandum
            no later than 20 days from the date of this
            Agreement.

            b.   Respondent hereby confirms that it has a
            policy that has been distributed to all
            employees, including supervisors, managers and
            officials, against racial harassment, to
            include racially offensive comments, slurs,
            jokes, etc. Any violation of the letter or

                                    11
Preston refused   to   be   parties   to   the   agreement   because   they

believed that Kingston was biased against them because of the

allegations they made against him.           They believed Lange, the



         spirit of this policy by any employee will
         result in disciplinary action up to and
         including termination.

         c.   Respondent agrees to require all of its
         managers in the Dallas office to attend
         diversity/sensitivity training. This training
         will be done as soon as practical but no later
         than 60 days from the date of this Agreement.

         d.   Respondent agrees that the Dallas Vice
         President/General manager will be designated
         to receive all EEO complaints and that
         Respondent’s managers will not retaliate
         against any persons filing EEO complaints and
         will timely and effectively investigate each
         such complaint.

         e.   The parties to this Agreement agree that
         Respondent will reiterate its policy that all
         employees should be respectful to other
         employees, and that all employees are to
         refrain   from   conduct  that   amounts   to
         insubordination.

         f.   Respondent agrees to disseminate to all
         employees a reminder about its policy on
         overtime pay via memorandum within 20 days
         from the date of this Agreement.

         g.   Respondent    agrees    to    sign   and
         conspicuously post a copy of the “Notice”
         which is attached to this Agreement.      The
         notice will be on Commission letterhead and
         shall remain posted for 30 days from the
         effective   date   of   this    Agreement  in
         Respondent’s office . . . .

         h.   Respondent agrees that [the appellants]
         will not be penalized in future considerations
         for transfers, promotions, wage increases, or
         other employment related matters . . . .

                                  12
president, was the only person who could resolve the problems, and

he had not been involved in the process.

     Pursuant to the proposed agreement, Glasfloss subsequently

held mandatory diversity/sensitivity training for all managers and

office employees.    Also, Glasfloss circulated a memo stating that

“all employees are free to visit with any co-workers as long as the

visiting does not unsuitably interrupt others who are working or

unsuitably affect employees’ productivity.”

     During a team meeting the week before Preston resigned, she

was seated at the conference table when Brenda Barrett (Barrett),

a fellow Glasfloss employee, walked into the room.    Thompson asked

Barrett what kind of candy she had, and Barret replied that the

candy was from the “hood.”    According to Preston, the “hood” is in

South Dallas, and the population is 90% African-American.    Barrett

then offered Preston a piece of candy but did not offer it to

anyone else at the meeting.   Preston was the only African-American

at the meeting.

     On May 13, 1997, Walker10 and Preston11 resigned from Glasfloss.

Approximately three months later they filed suit in state district

court, asserting discrimination claims against Glasfloss, Kingston,

and Thompson.     The defendants removed the case to federal court.


     10
        During Walker’s tenure at Glasfloss, Thompson gave Walker
several good performance reviews that resulted in pay increases.
Walker’s initial pay rate rose from $7.50 to $9.25 per hour.
     11
         Preston received six raises during her employment at
Glasfloss and was promoted to lead customer service representative.
Her pay increased from $7.50 to $9.65 per hour.

                                  13
The   plaintiffs      filed   an     amended   complaint     alleging     race

discrimination and retaliation under Title VII, race discrimination

under 42 U.S.C. § 1981, and intentional infliction of emotional

distress under Texas law.          After discovery, the defendants moved

for summary judgment on all of the plaintiffs’ claims.                       The

district court granted that motion and dismissed the plaintiffs’

claims.    Walker and Preston now appeal to this Court.

II.   ANALYSIS

      A.    STANDARD OF REVIEW

      The appellants appeal the district court’s grant of the

appellees’ motion for summary judgment.           This Court evaluates a

district court's decision to grant summary judgment by reviewing

the record under the same standards the district court applied to

determine whether summary judgment was appropriate.                 Herrera v.

Millsap, 862 F.2d 1157, 1159 (5th Cir. 1989).                Therefore, the

summary    judgment   will    be    affirmed   only   when   this    Court   is

"convinced, after an independent review of the record, that `there

is no genuine issue as to any material fact' and that the movant is

entitled to judgment as a matter of law.'"            Id. (quoting Brooks,

Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins.

Co., 832 F.2d 1358, 1364 (5th Cir. 1987) and Fed.R.Civ.P. 56(c)).

Fact questions must be considered with deference to the nonmovant.

Herrera, 862 F.2d at 1159.         Thus, if a fact question is dispositive

of a motion for summary judgment, "we must review the facts drawing

all inferences most favorable to the party opposing the motion.'"


                                       14
Id. (quoting Brooks, 832 F.2d at 1364).           Questions of law are

reviewed de novo.    Id.

     B.     FAILURE TO PROMOTE UNDER SECTION 1981

     Walker argues that the district court erred in granting

summary judgment on her failure to promote claims under 42 U.S.C.

section 1981.12   In the district court, Walker raised failure to

promote claims under both Title VII and section 1981.           Walker now

appeals only the district court’s dismissal of her failure to

promote claims    under    section   1981,   arguing   that   there   is   no

requirement under section 1981 to exhaust administrative remedies.

     The appellees respond that the district court did not dismiss

the § 1981 claims on the basis of failure to exhaust administrative

remedies.    Although the district court’s opinion could have been

drafted more precisely, a careful reading convinces us that the

district court dismissed the § 1981 claims for failure to exhaust

and, in the alternative, on the merits.

     In the district court’s discussion regarding whether Walker

had exhausted her administrative remedies by raising her failure to

promote claims in the EEOC charge, the district court referred only

to the Title VII claim and made no mention of the section 1981

basis for those claims.       However, in a separate section of the

opinion discussing the defendants’ argument that Walker’s failure

to promote claims under Title VII and section 1981 were barred by

the relevant statutes of limitations, the district court stated


     12
          Preston did not allege a failure to promote claim.

                                     15
that because those claims were not exhausted, it did not need to

decide whether the claims were time barred. Additionally, later in

the opinion, the district court stated that “[f]or the same reasons

that this Court has dismissed Walker’s Title VII claims, this Court

hereby GRANTS Defendants’ Motion for Summary Judgment on Plaintiff

Walker’s Section 1981 claim.”              Thus, through incorporation by

reference, the district court apparently did dismiss the section

1981 failure to promote claims for failure to exhaust.

     The district court erred in dismissing the § 1981 claims on

that basis.    “The use of section 1981 as an avenue for redress of

employment discrimination is not constrained by the administrative

prerequisites [applicable to] Title VII claims . . . .”               Scarlett

v. Seaboard Coast Line R. Co., 676 F.2d 1043, 1050 (5th Cir. Unit

B 1982).

     Nevertheless,      as    previously     stated,   the    district   court

alternatively dismissed the section 1981 failure to promote claims

on the merits.      In the section of the opinion discussing whether

the Title     VII   failure   to   promote    claims   were    exhausted,    the

district court noted that even if it had been able to reach the

merits of the claim, it would have dismissed the claims as a matter

of law.    Thus, in the alternative, the district court denied the

Title VII failure to promote claims on the merits, finding that

although    Walker    had     demonstrated     a   prima      facie   case    of

discrimination,      Glasfloss     had     articulated     legitimate,       non-

discriminatory reasons for not promoting Walker, and she had failed


                                      16
to demonstrate that the reasons were pretextual.          In that footnote

the court never referred to the section 1981 basis for the failure

to promote claims--it only mentioned the Title VII basis for the

claim.    As set forth above, however, the district court in a later

section of    the   opinion   expressly   stated   that   it   granted   the

defendant’s motion for summary judgment on the section 1981 claims

for the same reasons it granted summary judgment on the Title VII

claims.    Again, the district court was incorporating by reference

another section of the opinion.     Thus, the only fair reading of the

opinion is that the district court also denied in the alternative

the § 1981 claims on the merits.        The district court was free to

adopt the same basis for deciding both types of failure to promote

claims because employment discrimination claims brought under both

§ 1981 and Title VII are analyzed under the Title VII evidentiary

framework. Lawrence v. University of Tx. Med. Branch at Galveston,

163 F.3d 309, 311 (5th Cir. 1999).

     We conclude that Walker incorrectly argues that the district

court dismissed the § 1981 claims solely on the basis that she had

failed to exhaust her administrative remedies.            Walker does not

challenge the district court’s denial of her § 1981 claim on the

merits in her appellate brief.          By failing to do so, she has

abandoned that argument on appeal.        See Williams v. Time Warner

Operation, Inc., 98 F.3d 179, 183 n.5 (5th Cir. 1996).                    We

therefore affirm the district court’s grant of summary judgment on

Walker’s section 1981 failure to promote claims.


                                   17
     C.     HOSTILE WORK ENVIRONMENT CLAIMS

     The appellants argue that the district court erred in granting

summary judgment in favor of the appellees on the claim of hostile

work environment in violation of Title VII.                   To survive summary

judgment, the appellants must create a fact issue on each of the

elements    of    a    hostile   work      environment      claim:   (1)    racially

discriminatory intimidation, ridicule and insults that are; (2)

sufficiently      severe    or     pervasive      that   they;    (3)   alter    the

conditions   of       employment;    and    (4)    create    an   abusive   working

environment.      See DeAngelis v. El Paso Mun. Police Officers Ass’n,

51 F.3d 591, 594 (5th Cir. 1995) (hostile work environment based on

sexual harassment).        In determining whether a working environment

is hostile or abusive, all circumstances must be considered,

including    “the      frequency    of     the    discriminatory     conduct;   its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.”               Harris v. Forklift Systems,

Inc., 114 S.Ct. 367, 371 (1993).

     The appellants must show that the discriminatory conduct was

severe or pervasive enough to create an objectively hostile or

abusive work environment.           Id. at 370.      This Court has opined that

“[d]iscriminatory verbal intimidation, ridicule, and insults may be

sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment that

violates Title VII.”         Wallace v. Texas Tech University, 80 F.3d


                                           18
1042, 1049 n.9 (5th Cir. 1996) (citing DeAngelis, 51 F.3d at 593).

In that case, we assumed arguendo that if there was specific

evidence of “routinely [made] racist remarks,” then a fact issue

had been raised to prevent summary judgment. Id. at 1049 (brackets

in opinion).

     In the instant case, the district court granted summary

judgment, concluding that “[n]one of these comments were physically

threatening or humiliating, nor did they unreasonably interfere

with Walker and Preston’s work.          Instead, they were simply truly

offensive.”     We disagree.

     Without restating all the evidence of racial remarks and

allegations set forth previously in this opinion, we conclude that,

viewing the evidence in the light most favorable to the appellants,

they have created a genuine issue of material fact with respect to

their claim of hostile work environment.          The offensive remarks

began in 1994, shortly after Walker was hired and had not ceased

the week prior to the appellants’ resignations in May of 1997.

While working for Glasfloss, the appellants at various times were

subjected to:    comparisons to slaves and monkeys, derisive remarks

regarding   their   African    heritage,    patently   offensive   remarks

regarding the hair of African-Americans, and conversations in which

a co-worker and supervisor used the word “nigger.”            The office

manager also informed them that the vice-president did not want the

African-American women to talk to each other.

     Further, we note that the district court never mentioned the


                                    19
fact that Porter, an African-American woman not party to this suit,

resigned because she felt she could no longer tolerate the racism

and discrimination at Glasfloss. Under these circumstances, we are

persuaded that the appellants have created a fact issue with

respect    to   whether      the     racial     insults      they     endured    were

sufficiently    severe      or     pervasive    to   alter    the    conditions    of

employment and create a hostile or abusive work environment.

     Relying on two Supreme Court cases, the appellees argue that

even if we determine that there is a fact issue in regard to the

hostile work environment claim, there are entitled to summary

judgment   because     of    the    prompt,     remedial     action    taken    after

receiving Walker’s letter outlining her complaints.                      Burlington

Industries,     Inc.   v.    Ellerth,     118    S.Ct.     2257     (1998)   (sexual

harassment under Title VII); Faragher v. City of Boca Raton, 118

S.Ct. 2275 (1998) (same).13          In those two cases, the Supreme Court

held that “[a]n employer is subject to vicarious liability to a

victimized employee for an actionable hostile environment created

by a supervisor with immediate (or successively higher) authority

over the employee.”         Burlington, 118 S.Ct. at 2270; Faragher, 118

S.Ct. at 2292-93.      However, when no tangible employment action has

been shown, an employer is entitled to raise an affirmative defense

to such claim.     The two elements of this affirmative defense are:


     13
        Although those two cases involved sexual harassment instead
of racial harassment, the Supreme Court indicated its approval of
Courts of Appeals in sexual harassment cases drawing from standards
developed in racial harassment cases. Faragher, 118 S.Ct. at 2283
n.1.

                                         20
“(a) that the employer exercised reasonable care to prevent and

correct promptly any [racially] harassing behavior, and (b) that

the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or

to avoid harm otherwise.”           118 S.Ct. at 2270; 118 S.Ct. at 2293.

     Here, as discussed elsewhere in our opinion, no tangible

employment    action    has    been      shown.      This    affirmative   defense

therefore is available to the appellees. Apparently, in an attempt

to demonstrate the first element of the affirmative defense, the

appellees     point    to     the     policy      statement     it   had   against

discrimination.        It is undisputed that the Glasfloss employee

handbook      contained       an      EEOC        policy     statement     against

discrimination,14      however,     it    appears     that    Glasfloss    had   not

promulgated a complaint procedure specifically to address racial

harassment.15 In his deposition, Lange, the president of Glasfloss,

testified that there were no specific policies for the vice-



     14
           The policy statement read as follows:

            It is the policy of the company not to
            discriminate    in     recruitment,    hiring,
            compensation, promotion or any other condition
            of employment on the basis of race, color,
            national origin, religion, sex, age, physical
            or mental handicaps, marital status, pregnancy
            or parenthood.
     15
        The handbook instructs employees who believe they have been
subject to sexual harassment to notify management immediately. The
handbook also has a section regarding employee complaints in
general.    That section instructs the employee to contact his
immediate supervisor regarding the problem. If the problem is not
resolved, then the employee should inform the appropriate manager.

                                          21
president to follow if he received a race discrimination complaint

against the office manager.       The Supreme Court explained that

although it is not necessary as a matter of law for an employer to

have    “promulgated   an   antiharassment   policy   with   complaint

procedure,” the need for such an expressed policy may be raised

when litigating the first element of the defense.       Faragher, 118

S.Ct. at 2293.     The lack of such a written policy procedure at

Glasfloss certainly weighs in the appellants’ favor in determining

whether there is a genuine issue of material fact with regard to

whether Glasfloss exercised reasonable care to prevent any racially

harassing behavior.

       We are not persuaded that the appellees have shown as a matter

of law that they exercised reasonable care in correcting the

racially harassing behavior.       It is undisputed that Lange, who

resided in Wisconsin, promptly responded in writing to Walker’s

complaint letter dated January 8, 1997.      He then charged Kingston

with the responsibility of investigating Walker’s allegations of

racism.    The appellants’ evidence, when viewed in the light most

favorable to them, has demonstrated that Kingston (1) made the

“picking fleas” remark; (2) laughed at McKnight’s comment that

people would think Walker was there to rob them; (3) had a policy

against African-Americans talking to one another; and (4) greeted

the appellants in a sarcastic manner every morning after the

complaint.    Additionally, it is undisputed that Kingston did not

interview the other two African-American employees at the office,


                                  22
Porter and Preston, regarding Walker’s complaints of racism.

     Finally, it should be noted that Kingston’s investigation

purportedly     revealed     no   racial    harassment    or   discrimination

whatsoever.     Kingston reached this conclusion even though (1) he

testified during his deposition that Thompson was reprimanded for

saying her grandmother rubbed a black child’s head for good luck

and (2) Thompson testified that Kingston informed her she should

not have said to Walker that Brazilian nuts were called “nigger

toes.”

     Based     on   the   above   alleged   facts,   we   conclude   that   the

appellees have failed to demonstrate as a matter of law the first

element   of    the   defense,    i.e.,     “that   the   employer   exercised

reasonable care to prevent and correct promptly any [racially]

harassing behavior.”

     In regard to the second element of this defense--whether the

employee unreasonably failed to utilize any opportunities provided

by the employer or whether the employee failed to avoid harm

otherwise16--the appellees point to the fact that the appellants



     16
         Although the appellants did not report to Glasfloss the
first racially offensive remarks, we do not believe that such delay
entitles the appellees to judgment as a matter of law with respect
to their affirmative defense. Cf. Indest v. Freeman Decorating,
Inc., 164 F.3d 258, 266 (5th Cir. 1999)(explaining that a
“plaintiff’s failure or delay in invoking anti-harassment
procedures may suggest that a company lacked vigilance or
determination to enforce them or that it appeared to turn a blind
eye toward . . . harassment”); Watts v. Kroger Co., 170 F.3d 505,
510-11 (5th Cir. 1999) (simply because an employee waited several
months to complain of sexual harassment did not entitled employer
as a matter of law to Burlington/Faragher affirmative defense).

                                      23
refused to agree to the proposed settlement negotiated by the EEOC.

However, in light of the appellants’ testimony that the racial

remarks   and    hostile   actions        continued    after   the   internal

investigation    at   Glasfloss,     we    are   not   persuaded     that    the

appellants’ refusal to sign the proposed settlement demonstrates

the second element of this defense as a matter of law.                      Thus,

because there is a genuine issue of material fact regarding this

affirmative defense, and for the reasons stated earlier in this

section, the district court’s grant of summary judgment on the

hostile work environment claim must be vacated and remanded.

     D.   INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

     There are four elements of a claim for intentional infliction

of emotional distress under Texas law.           See Skidmore v. Precision

Printing and Pkg., Inc., 188 F.3d 606, 613 (5th Cir. 1999).             First,

a plaintiff must show that the defendant acted intentionally or

recklessly. Second, the defendant’s conduct must have been extreme

and outrageous--so outrageous as to go beyond all possible bounds

of decency.     Third and fourth, the actions of the defendant must

have caused the plaintiff to suffer emotional distress, and the

distress must be severe.     Id.     In the employer-employee context,

Texas courts have found few incidents to constitute extreme and

outrageous conduct.     Horton v. Montgomery Ward & Co., 827 S.W.2d

361, 369 (Tex.App.--San Antonio 1992, writ denied).17


     17
         This Court has held that causing an innocent employee to
be subject to an accusation of theft because she opposed an illegal
employment practice constituted extreme and outrageous conduct.

                                     24
     Insults,       indignities,     threats,       annoyances,      or     petty

oppressions, without more, do not rise to the level of intentional

infliction of emotional distress. Id. (citing RESTATEMENT (SECOND)

OF TORTS § 46 cmt. d (1965)).              Conduct that is illegal in the

context of employment does not necessarily constitute extreme and

outrageous conduct.        Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d

239, 243     (5th   Cir.   1993).     Neither      does   condemnable     conduct

necessarily translate into conduct that rises to the level of

extreme and outrageous. Id. (explaining that although we condemned

supervisor’s    use   of    ethnic   slurs    against     employee   on    a   few

occasions, such conduct was not sufficiently extreme or outrageous

to support claim for intentional infliction of emotional distress).

     In Thomas v. Clayton Williams Energy, Inc., the Texas Court of

Appeals found that a supervisor’s frequent use of racial epithets

against an employee did not rise to the level of extreme and

outrageous     conduct.       2   S.W.3d    734,    740-41   (Tex.App.--Hous.

(14(Dist.) Sept. 23, 1999)).          In the case at bar, although the

appellee’s racial harassment of the appellants may have been

illegal (we have found there is a genuine issue of material fact

with respect to their claim of hostile work environment under Title

VII), it does not rise to the level of extreme and outrageous

conduct under Texas law.18 Accordingly, the district court properly


Dean v. Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir. 1989).

     18
        As to the third and fourth factors involving the emotional
distress itself, the appellants simply assert that “they have

                                      25
granted summary judgment for the appellees on the Texas tort claim

of intentional infliction of emotional distress.

     E.    RETALIATION CLAIMS

     To demonstrate a claim for retaliation, the appellants must

prove (1) that they engaged in an activity that was protected; (2)

an adverse employment action occurred; and (3) a causal connection

existed between the participation in the activity and the adverse

employment action.     Webb v. Cardiothoracic Surgery Assoc, 139 F.3d

532, 540 (5th Cir. 1998).        Here, we are concerned solely with

ultimate employment decisions.      Id.

     The   appellants   correctly   assert     that   they   engaged   in   a

protected activity when they filed a complaint with the EEOC.

Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (explaining that

“[t]here can be no question that [the employee’s] retaliation

claims satisfy   the    first   element   of   the    analysis,   filing    an

administrative complaint is clearly protected activity”).              Thus,

the first prong is satisfied.

     Preston contends that she suffered an adverse employment

action when Glasfloss took from her a major account, the Kansas

City Air Filter account.        The parties recognize that ultimate

employment decisions include acts “such as hiring, granting leave,

discharging, promoting, and compensating.” Dollis, 77 F.3d at 782.

Our case law indicates that the removal of an account would not



testified that they have suffered feelings of emotional distress
sufficient to allow for emotional distress damages.”

                                    26
constitute an adverse employment action.                 In Dollis, the employee

alleged, among other things, that she was refused consideration for

promotion, refused attendance at a training conference, and her

work was criticized to a government vendor.                77 F.3d at 779-80.        We

held that these were at most “tangential” to future decisions that

might be ultimate employment decisions.                  Likewise, in Mattern v.

Eastman Kodak Company, 104 F.3d 702, 708 (5th Cir. 1997), this

Court     found       the   following   events   did     not     constitute   adverse

employment actions because of their lack of consequence: verbal

threat of being fired, reprimand for not being at assigned station,

missed     pay    increase,       and   being   placed    on     “final    warning.”

Preston’s removal from a major account without other consequences

(such     as     an    unwanted    reassignment)19       “does    not     equal   being

discharged” nor does it “rise above having mere tangential effect

on a possible future ultimate employment decision.” Mattern, 104

F.3d at 708.

     As stated above, to prove retaliation, both Walker and Preston

recognize that they must demonstrate their employer discriminated

against them in such things as “hiring, granting leave, discharge,

promoting and compensating.”20            The appellants argue that they were

discriminated against in the context of taking leave.                      They assert



     19
           Burlington, 118 S.Ct. at 2268.
     20
        Although the appellants raised the issue of constructive
discharge in the district court, on appeal the appellants do not
allege constructive discharge to satisfy the requirement of adverse
employment action.

                                           27
that Thompson prevented “them from taking their breaks together

after they    complained   to    the   EEOC.”      More     specifically,   the

appellants claim that “Thompson would seek out the two ladies while

they were on break and look at them in distaste and put her hands

on her hips in a gesture of disapproval.”           The appellants cite no

authority to support their contention that “granting leave” in this

context would encompass taking a short break.             They have not shown

that this constitutes an adverse employment action.

     Finally, Walker contends that when Thompson deducted her

overtime pay on one occasion in 1997, it was in retaliation for

Walker’s EEOC complaint.        This claim is premised entirely on the

fact that Walker was not initially paid $2.89 for overtime she

failed to have approved in advance pursuant to Glasfloss’s policy.

Again, Walker cites no authority that would support her argument on

this issue and cannot demonstrate that this de minimis loss of pay

rose to the level of an adverse employment action.

     Accordingly, both Walker’s and Preston’s retaliation claims

fail.

III. CONCLUSION

     For the reasons stated above, we AFFIRM the district court’s

summary judgment against Walker with respect to her section 1981

failure to promote claims.       We AFFIRM the district court’s summary

judgment   against   Walker     and    Preston    with    respect    to   their

intentional   inflection   of     emotional      distress    and    retaliation

claims.    We VACATE the district court’s grant of summary judgment


                                       28
against Walker and Preston with respect to their hostile work

environment claims and REMAND for trial.

AFFIRMED in part, VACATED and REMANDED in part.




                               29
