Whitmire v. Victus Limited ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60722
Summary Calendar
PAULA JO WHITMIRE,
Plaintiff-Appellant,
versus
VICTUS LIMITED T/A MASTER DESIGN FURNITURE,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
(1:97-CV-321-B-A)
May 31, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Paula Jo Whitmire appeals the district court’s grant of
summary judgment in favor of her former employer, Victus Ltd., on
her claims of assault and intentional infliction of emotional
distress. We affirm.
I
*
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should not be published and is not precedent except under the limited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.
Whitmire challenges the district court’s ruling that Whitmire
had failed to create a genuine issue of material fact as to whether
the plant manager who pushed and injured her acted with intent to
cause a harmful or offensive contact.1 Whitmire argues that the
act was intentional because the plant manager intended to push her.
But assault requires not only intent to contact the plaintiff, but
intent that the contact be “harmful or offensive.”2 The district
court did not err in concluding that the plaintiff created no
genuine dispute about the intent to harm. She had admitted that
the push was mere horseplay.
II
Whitmire also challenges the district court’s ruling that her
allegations of mistreatment by her employer do not evoke “outrage
or revulsion.” Under Mississippi law, an intentional infliction of
emotional distress plaintiff cannot recover unless she proves that
the harmful conduct of the defendant “evokes outrage or
revulsion.”3 This court has held, in interpreting Mississippi law,
1
We review the district court’s grant of summary judgment de novo. See
Horton v. City of Houston, 179 F.3d 188, 191 (5th Cir. 1999).
2
Assault occurs where a person “(a) ... acts intending to cause a harmful
or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and (b) the other is thereby put in such
imminent apprehension.” Webb v. Jackson, 583 So. 2d 946, 951 (Miss. 1991). We
note also that in order for this claim not to be barred by Mississippi’s workers
compensation statute, the alleged tortfeasor’s action must be “intentional
behavior designed to bring about the injury.” See A.W. Stevens v. FMC Corp., 515
So. 2d 928, 931 (Miss. 1987).
3
Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981). The
Mississippi Supreme Court continues to enforce this requirement. See Donald v.
Amoco Production Co., 735 So. 2d 161, 179 (Miss. 1999) (reaffirming the holding
2
that the “outrage and revulsion” standard requires that “the
conduct [be] 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.”4
Whitmire alleges that she was demoted and lost her office
space. She was given few or no responsibilities and a shabby
office that had previously been used for storage. Her supervisors
either yelled at her or refused to talk to her. These actions were
taken, she alleges, to force her out of her job. While these
allegations describe unpleasant and mean-spirited treatment,
Whitmire does not describe conduct that is outrageous or atrocious.
Indeed, her employer owes her no legally imposed duty5 to provide
a decent workspace, meaningful responsibility, or a civil boss.
The implied duty of good faith and fair dealing in employment does
not extend to termination, including constructive termination.6 In
sum, her allegations do not rise to the level of conduct evoking
outrage and revulsion, and thus summary judgment in favor of Victus
on the intentional infliction of emotional distress claim was
proper.
of Devers).
4
See White v. Walker, 950 F.2d 972, 978 (5th Cir. 1991) (quoting
Restatement (Second) of Torts § 46 cmt. d (1965)).
5
The existence vel non of contractually imposed duties is not at issue in
this appeal.
6
See Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543, 547 (5th Cir.
1994), and cases cited therein.
3
III
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
4