                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                    July 6, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                             No. 05-31008
                           Summary Calendar



                   MICHAEL TISDALE; CAROL TISDALE,

                                              Plaintiffs-Appellants,

                                versus

         WOMAN’S HOSPITAL, INC.; WOMAN’S HOSPITAL FOUNDATION,

                                              Defendants-Appellees.


             Appeal from the United States District Court
                 for the Middle District of Louisiana
                             (3:03-CV-604)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This action by Michael and Carol Tisdale, husband and wife,

against Woman’s Hospital, Inc. and Women’s Hospital Foundation

(collectively the Hospital) claims violations of the Americans with

Disabilities Act (ADA), the Age Discrimination in Employment Act

(ADEA), and the Employee Retirement Income Security Act (ERISA), as

well as intentional infliction of emotional distress (IIED), all

arising from termination of their employment with the Hospital.



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     Michael Tisdale, legally blind, had worked for the Hospital

since 1979; at termination, he was the director of materials

management.   Carol Tisdale had worked for the Hospital since 1991;

at termination, she was the director of patient services and

telecommunications.

     In   November    2002,   members   of   Michael   Tisdale’s   staff

complained to his supervisor that he required his subordinates to

perform   personal    errands.      Those    complaints   prompted   an

investigation that revealed the Tisdales had been operating a

personal business, NicaTraders, largely using Hospital resources.

On 6 November 2002, after meeting with their superiors to discuss

the allegations, the Tisdales were terminated upon admitting some

of the charges.

     As a result, the Tisdales filed this action.          In sum, the

Tisdales’ claim the true reasons for termination was Michael

Tisdale’s being blind. Without stating reasons, the district court

granted the Hospital summary judgment.           (In granting summary

judgment on 4 October 2005, the district court stated “written

reasons to be filed at a later date”.        As of the 28 October 2005

notice of appeal, those reasons had not been filed.)

     The Tisdales claim the court erred because:        (1) they have a

colorable IIED claim; (2) they have established a prima facie case

of discrimination under the ADA, ADEA, and ERISA; and (3) the

Hospital has not proffered a legitimate non-pretextual reason for



                                   2
their termination. A summary judgment is reviewed de novo, viewing

the evidence in the light most favorable to the non-movant.                   See,

e.g., Auguster v. Vermilion Parish Sch. Bd.,                  249 F.3d 400, 402

(5th Cir. 2001).

     For the IIED claim, the Tisdales have failed to create the

requisite     genuine   issue    of   material        fact    concerning   their

termination’s being “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community”.     Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022

(La. 2000).        Neither of the Tisdales claim they were treated

improperly when they were terminated.                 Instead, they claim the

Hospital inflicted emotional distress because, as a married couple,

their termination effectively eliminated all sources of family

income.      Such conduct, they claim, is “beyond all bounds of

decency”.     Under Louisiana law, the termination of an at-will

employee, even one with a long tenure, does not state a IIED claim.

See, e.g., id.

     The    ADA,   AEDA,   and   ERISA       claims   for    discrimination   are

analyzed under the well-known McDonnell Douglas burden-shifting

framework.    Assuming arguendo the Tisdales have presented a prima

facie case of discrimination under each Act, the Hospital presents

a legitimate, non-discriminatory reason for the termination, as




                                         3
discussed below.       The Tisdales fail to present the requisite

genuine issue of material fact.

     The Hospital claims the Tisdales were terminated because they

improperly     used   Hospital    resources,   some    of   which    were   in

furtherance of their NicaTraders business.            Indeed, the Tisdales

admitted to some of these charges, including:               using Hospital

employees subordinate to them to perform personal errands; posting

an advertisement for NicaTraders on the Hospital’s electronic

bulletin board; and the creation of the NicaTraders’ telephone

number and voice mail box within the Hospital’s telephone and voice

mail system.

     The Tisdales claim this is merely a pretextual reason for

their termination because: (1) they were not operating NicaTraders

using Hospital resources and during office hours, pointing namely

to the voice mail box which Carol Tisdale claims she rented to a

NicaTraders     co-owner;   (2)    other   employees    frequently     posted

advertisements on the electronic advertising board; and (3) other

employees commonly used subordinates to perform personal errands.

Nevertheless, the Tisdales fail to provide specific examples of

other employees who are engaged in “nearly identical” improper use

of Hospital resources.      See Okoye v. Univ. of Tex., Houston Health

Serv. Cent., 245 F.3d 507, 514 (5th Cir. 2001).

                                                                AFFIRMED




                                      4
