Opinion
No. CA 3-98-CV-2430-R.
March 16, 2000.
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Fred A. Nickel ("Nickel") filed this suit against Rocky Mountain Clothing Company ("Rocky Mountain"), his former employer, alleging that his termination from Rocky Mountain constituted: (1) a violation of Title VII of the Civil Rights Act of 1964; (2) a violation of the Age Discrimination in Employment Act codified in 29 U.S.C. § 621-34 ("ADEA"); (3) wrongful termination; (4) retaliation; (5) breach of the covenant of good faith and (6) intentional infliction of emotional distress. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED as to all claims.
I. BACKGROUND FACTS
Rocky Mountain manufactures and sells western wear. In January of 1994 Rocky Mountain hired Nickel as an at-will sales representative in charge of selling the Company's children's and women's plus line in Arkansas, Texas, Oklahoma, and Louisiana. Additionally, Nickel also served as an account executive for the Army/Air Force Exchange Service ("AAFES") and J.C. Penney accounts in Texas.
Before 1994, all sales personnel of Rocky Mountain were independent contractors.
Rocky Mountain began to restructure its sales force nationwide in late 1994. Before restructuring, the sales representatives' territories for its women's plus and children's lines overlaid territories with other local sales representatives who handled different lines. The new structure provided that local sales representatives would assume responsibility for the women's plus and children's lines. When Rocky Mountain implemented this structure, Nickel's territory was reduced. Thus, by the end of the first quarter in 1995, Nickel only had the AAFES and J.C. Penney accounts, which did not require a full-time sales representative.
On April 10, 1995, Dennis Halvorson ("Halvorson"), the Western Regional Sales Director, and Jo Wilson ("Wilson"), the Human Resources Director, met with Nickel to inform him that his sales position was being eliminated due to restructuring. While there is some dispute as to what happened and what was said in the meeting, the end result was that Nickel was not terminated and he continued to work for Rocky Mountain, but his job description would change because of the restructuring. After the meeting, some executives at Rocky Mountain believed that Nickel wanted to retire after two more years. At the direction of Ron Schmitz ("Schmitz"), Rocky Mountain's General Manager, Rocky Mountain then created a new job for Nickel. This new arrangement included Nickel being responsible for some portion of the AAFES and J.C. Penney accounts and for selling markdown goods nationwide. Nickel was also paid $1,000 per month to maintain Rocky Mountain's Dallas Apparel Mart showrooms. In addition, Rocky Mountain waived Nickel's showroom expenses and his clothing sample charges.
Because of the applicable statute of limitations nothing in this case turns on whether Nickel wanted to retire at the end of two years. Under the current statute, several of Nickel's claims fall outside the 300 day period before the EEOC claim was filed and thus cannot be brought. These facts, however, are relevant to Plaintiff's argument that the statute of limitations should be tolled because of the continuous violation theory. These issues are further discussed in Section C.
In November of 1995, Scott Lewis ("Lewis") became Vice President of Sales. Several months later he created several new Key Account Manager positions. Lewis assigned Marylyn High ("High") as the Key Account Manager for the Boot Town, Cavender's Boot City, and Sargents' accounts in Texas. Because Lewis believed that Key Account Managers would need assistance with merchandising and training activities in the stores, he envisioned a Technical Support Representative/Sales Trainee position to meet those needs. Since Lewis believed that Nickel's existing job duties did not require Nickel full-time effort, Lewis assigned Nickel to assist High with the Cavender's and Boot Town accounts in early 1996.
In April of 1996, after having worked for several months under this new arrangement, Nickel wrote Lewis to express his concern that his current account assignment would not support his draw. Coincidentally, around the same time, High had also contacted Lewis about Nickel and what she perceived to be Nickel's poor performance in failing to properly maintain lines, visit his assigned stores, submit accurate and timely reports, and maintain the showroom. Lewis told High to continue working with Nickel to improve his performance and to document her counseling of Nickel. In October of 1996, Lewis decided to increase Nickel's monthly salary to $2,000 and to decrease his draw against commission to $2,000, in an effort to motivate him.
Because Lewis did not believe that Nickel's performance had improved, after discussing the matter with Schmitz, they decided to approach Nickel about his performance in the Dallas Clothing Market in early 1997. Schmitz and Lewis met with Nickel and told him that he must cooperate with High and improve his performance. Additionally, Schmitz reminded him that his current employment would end in December 31, 1997, and sent him a letter to the same effect on February 25, 1997. At this time Nickel did not tell anybody at Rocky Mountain that he did not want to retire or that he believed that he was being terminated because of his age. According to High, Nickel's supervisor, his performance did not improve after the meeting. This was documented by High after having visited several stores in September of 1997 and discovering that the stores had not been serviced properly.
During 1997, while High and Nickel were having disputes over his performance, Nickel filed an EEOC claim on June 25, 1997. He never mentioned this complaint to anyone in Rocky Mountain and the EEOC did not forward the charge until later September. During that same month, Nickel's attorney contacted Rocky Mountain. Rocky Mountain, through Nickel's attorney, advised him that if he wanted to continue to work at Rocky Mountain, Nickel should discuss his job assignment with Schmitz. In late 1997, Nickel went to work sporadically, while counsel for both sides tried to reach a compromise settlement in which Nickel would retire by the end of December. By the end of the year, it was clear that settlement was unlikely and Rocky Mountain arranged for Nickel to attend its annual sales meeting in late January of 1998. Nickel did not attend this meeting.
During this time, and until he was terminated, Rocky Mountain continued to pay Nickel his salary.
Rocky Mountain contacted Nickel several times about returning to work or being discharged for job abandonment. Rocky Mountain offered Nickel the opportunity of taking over a new sales territory, since he had expressed an interest in returning to sales. Lewis had a vacant territory in Oklahoma, which was then one of the Rocky Mountain's newer clothing lines. Rocky Mountain believed that in addition to the Desert West territory, Nickel could retain the J.C. Penney and AAFES accounts. On February 13, 1998, Nickel met with several Rocky Mountain executives. In this meeting, he was offered a new employment agreement describing this new territory assignment. During this meeting, Nickel requested time to consider the offer. Since Nickel had not responded, Lewis wrote him a letter several weeks later on February 23 to let him know he had five working days to accept the offer or he would be discharged for job abandonment. Almost a month later on March 24, Lewis discharged Nickel because of Nickel's failure to report to work. On October 15, 1998, Nickel filed this suit against Rocky Mountain.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). If the defendant, however, is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. Defendant's Objections to Strike Plaintiff's Summary Judgment Evidence.
Defendant raises objections to Plaintiff's Evidence in Support of Response to Defendant's Motion for Summary Judgment on the basis that it does not comply with Federal Rule of Civil Procedure 56(e) and that it allegedly uses inadmissible evidence, hearsay, relevance and statements not supported by personal knowledge. (Defendant's Motion to Strike Plaintiff's Summary Judgment Evidence at 2-3). The Fifth Circuit has held that the papers of the party opposing summary judgment can usually be held to a "less exacting standard" than those of the moving party. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987). After reviewing the opposed evidence, this Court concludes that Defendants' objections go more to the weight and credibility this Court will assign to the evidence, not to its admissibility. Accordingly, Defendants' objections are OVERRULED.
C. Statute of Limitations
Defendant asserts that federal law prevents this Court from considering any alleged acts that occurred more than 300 days before Nickel filed charges with the EEOC. Defendant correctly relies upon federal law that requires plaintiffs to file a complaint with the EEOC "within 300 days after the date on which an alleged unlawful practice occurred." See Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994). Plaintiff does not contest that Nickel filed his EEOC claim outside the time limit for most of his claims, however, Nickel asserts that the EEOC filing is subject to equitable considerations which can toll the deadline. The Fifth Circuit has held that "the continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more which falls within the limitations period." See Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997). Thus, the continuing violations theory focuses on what events should have alerted the average person to act to protect his rights. Id.
Plaintiff has failed to present evidence to support the claim that Rocky Mountain engaged in conduct which would entitle Plaintiff to invoke the continuing violations theory. The evidence establishes only that in 1995, in a reorganization of the sales territory, Rocky Mountain was going to terminate Nickel. After a meeting between the parties, Rocky Mountain executives decided not to terminate Nickel because they believed he wanted to retire in two years. The evidence also shows that the territory changes in 1995 and 1996 were part of a sales reorganization and Nickel was not singled out because of his age. These alleged acts of conspiracy are just the sort of isolated occurrences to which the continuing violation theory does not apply. Therefore, since Nickel filed his EEOC complaint on June 25, 1997, the earliest date within the 300-day limitations period is August 29, 1996. Only Nickel's complaint related to his notice of separation, some performance counseling, and his discharge are properly included within his charge. Nickel's complaint about territory assignments is untimely because the last change on his territory was effective on September 1, 1995.
D. Nickel's claim of age discrimination in violation of the ADEA
Plaintiff asserts age discrimination claims under the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 621, et seq. The ADEA makes it unlawful for an employer "to fail or refuse to hire . . . any individual or otherwise discriminate against any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). The basic framework for analyzing employment discrimination cases was laid out by the Supreme Court in McDonnell Douglas v. Green, see 411 U.S. 792, 802 (1973). Although McDonnell Douglas analyzed employment discrimination under Title VII, this same analysis is applicable to cases involving the ADEA. See O'Connor v. Consolidates Coin Caterers Corp., 517 U.S. 308, 311 (1996).
A plaintiff can prove age discrimination either by direct evidence, or indirectly through a series of shifting burdens of proof. Since there has been no direct evidence of age discrimination offered in this case, the Court considers Nickel's claims under the burden shifting approach set out in McDonnell Douglas. Accordingly, Nickel first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." See McDonnell Douglas v. Green, 411 U.S. at 802. If the defendant can carry this burden, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons, but were instead a pretext for discrimination. See Hicks, 509 U.S. at 515. The plaintiff must not only show that the reasons articulated by the employer were false, but that age was the real reason for termination. Id. The ultimate burden of persuading the trier of fact of the defendant's intentional discrimination remains with the plaintiff at all times. Id. at 507.
1. Prima Facie Case of Age Discrimination
To properly establish an ADEA violation, a plaintiff must initially demonstrate a prima facie case, creating a rebuttable presumption that discrimination occurred. To establish a prima facie case a plaintiff must show that: (1) he was in the age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time of the adverse action she was performing her job at a level that met the legitimate expectations of her employer; and (4) she was replaced by an employee who was sufficiently younger so as to create an inference that the employment decision was based on age discrimination. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)).
It is uncontested that Nickel was discharged by Rocky Mountain on March 24, 1998, that he was qualified for his position, and that he was 66 years old at the time of discharge and belonged to the protected class. To establish a prima facie case Nickel, must show that he was replaced by someone younger or "otherwise discharged because of his age." Nickel fails to show that he was replaced by someone younger than him or that his discharge had anything to do with his age. His complaint is that the Defendant violated the ADEA by notifying him of his discharge, by discharging him in 1998 and by High's counseling of him. With the evidence brought forth, it is questionable whether or not Plaintiff can create an issue of fact as to this element of the prima facie case. Nevertheless, the Fifth Circuit has held that it is relatively easy to present a prima facie case, and that most cases turn on the issue of whether defendant's proffered reason for the discharge is a pretext for discrimination. See Thronbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 639 n. 6 (5th Cir. 1985). Thus, reading Plaintiff's complaint and summary judgment response generously and assuming that Nickel can present a prima facie case, this Court will proceed to the next step of the McDonnell Douglas analysis.
2. Defendant's Legitimate, Non-discriminatory Reason.
Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the termination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The defendant's burden of production is very light and "if the employer has produced any evidence `which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,' then the employer has satisfied its burden." See Thornton v. Nieman Marcus, 850 F. Supp. 538, 543 (N.D.Tex 1994) (quoting St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 509 (1993)).
Defendant claims it had several independent, legitimate, non discriminatory reasons for its actions. First, Nickel was discharged in March 1998 for job abandonment, not because of age. Second, Rocky Mountain and its agents believed Nickel only wanted to work two more years before retirement and it was until late September 1997 that the company became aware that Nickel did not want to retire, even though he had earlier seemed to agree to a December 1997 separation date. Finally, High's counseling of Nickel was related to his failure to satisfactorily perform his job duties, not his age.
Rocky Mountain has brought forth sufficient evidence to prove that Nickel refused to come to work during the first part of 1998 and as a result of that it had to terminate him. Defendant also presented evidence that High's counseling was related to Nickel's job performance. Nickel does not claim the he was treated differently than any other younger employee who had failed to perform in a satisfactory fashion. The reasons set forth in Defendant's affidavits, counseling memorandum and the February 24, 1998, letter sent to Nickel's counsel by Mountain States Employer Council satisfy Defendant's burden on the second prong of the McDonnell Douglas analysis.
3. Showing the Articulated Reason is Merely a Pretext.
After Rocky Mountain has successfully rebutted the plaintiff's prima facie case of discrimination by showing a nondiscriminatory reason for his discharge, Nickel must, in order to maintain his cause of action, prove that the defendant's reason is merely a pretext for discrimination. The Supreme Court has held that a plaintiff must present evidence establishing not only that the enunciated reasons for his discharge are false, but also that they operated as a pretext for discrimination. See Hicks, 509 U.S. at 515. Thus, a plaintiff must go beyond merely refuting the nondiscriminatory reasons advanced by his employer to prove specific evidence of discrimination, "such as `direct' evidence of . . . discrimination, information about the [attributes] of other employees in plaintiff's position, the treatment and evaluation of other employees, or the employer's variation from standard evaluation practices." See Beinkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1998). The Fifth Circuit has adopted a two-part test for determining in a plaintiff can avoid summary judgment on the question of pretext: "if the evidence, taken as a whole: (1) creates a fact issue as to whether each of the employer's stated reasons was not what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains." See Rhodes v. Gutberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996).
Nickel argues that he was terminated because of his age, that High's counseling was offensive and demeaning and that the company engaged in a systematic plan to terminate Nickel because of his age. While Nickel claims that Rocky Mountain Directors wanted him out to hire younger women, he has failed to present evidence to support those assertions. Nickel also points towards High's attitude towards him as an example of Rocky Mountain's discrimination. However, Nickel has failed to identify any comments or actions High took towards him because of his age, rather than his job performance. Furthermore, Plaintiff has failed to present any evidence that would overcome the inference in that the person who hired him when he was already sixty would want to fire him several years later because of his age. See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 320 (5th Cir. 1997). In sum, Nickel has failed to carry its burden thus his ADEA claim cannot be sustained. Defendant's Motion for Summary Judgment is GRANTED as to this claim.
Nickel alleges that Halvorson had a plan to get rid of him to hire younger women. In his affidavit, Halvorson does not admit ever having made this comment or forming part of a plan to hire younger women. While Plaintiff makes several allegations about this matter this Court has not found any evidence that would prove that Rocky Mountain engaged in a plan to fire Nickel because of his age.
E. Nickel's claim of retaliation
In his original complaint, Nickel alleges that Rocky Mountain retaliated against him after he filed his charge with the Equal Employment Opportunity Commission ("EEOC") on June 25, 1997 by reassigning him, giving him derogatory job assignments and by de facto demoting him. See Plaintiff's Original Complaint ¶ 84. Courts apply the McDonnell Douglas burden-shifting analysis to retaliation claims under the ADEA. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998). To establish a prima facie case of retaliation, Plaintiff must show that (1) he was engaged in protected activity; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 540 (5th Cir. 1998); Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). Once Plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the alleged retaliatory action. See Long v. Eastfleld College, 88 F.3d 300, 304-05 (5th Cir. 1996). Finally, the Plaintiff has the opportunity to show that Defendant's reason is a pretext for unlawful retaliation. Id.
When the nonmoving party fails to respond to an issue raised in the motion for summary judgment, as in this case, the court may not grant summary judgment on this basis alone. See Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). Instead, the court takes the moving party's evidence as undisputed and must assess whether the moving party has met its burden of entitlement to summary judgment based on the evidence. See id.; Vega v. J.C. Parsley, 700 F. Supp. 879, 881 (W.D. Tex. 1988).
Thus, to establish that he was subject to retaliation Nickel would have to present some evidence that Rocky Mountain acted in retaliation against a protected activity engaged by Nickel. Nickel filed his complaint with the EEOC on June 25, 1997. This is a protected activity fulfilling the first requirement. Rocky Mountain, however, did not become aware of this complaint until late September of 1997. Plaintiff failed to offer any evidence that Rocky Mountain engaged in any conduct after September 1997 that could support a retaliation claim. Even viewing his charge of retaliation in the light most favorable to Nickel, there is no evidence that any of the complained of actions alleged in his Original Complaint occurred as a result of his protected activity. Nickel failed to present any evidence that his June 25, 1997, EEOC claim was the cause he was terminated. This Court finds that Nickel has failed to establish a prima fade case of retaliation and also GRANTS summary judgment to Defendant on this claim.
F. Nickel's claim of a hostile work environment
Plaintiff alleges that he was subject to a hostile work environment. See Plaintiff's Complaint, at ¶¶ 681-82. While it is not certain that such a cause of action is actionable under the ADEA, as it is under Title VI, this Court does not need to address the viability of this action. Instead the Court will assume that such a cause of action is actionable and that the same standards used in Title VI would apply. Under this standard, the Plaintiff has failed to prove that he was subjected to a hostile work environment. Consequently, Defendant is entitled to summary judgment on this claim as a matter of law.
To establish an actionable claim of hostile work environment for age a plaintiff must demonstrate: (1) that he belongs to a protected class; (2) that he was subject to unwelcome age harassment; (3) that the harassment was based on age; (4) that the harassment affected a "term, condition or privilege of employment"; and (5) that the employer knew or should have know of the harassment and failed to take prompt remedial action. See DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d 591, 593 (5th Cir. 1995). Nickel alleges that Rocky Mountain created a hostile work environment by (1) instructing two of its representatives to verbally terminate Plaintiff in April, 1995; (2) removing sales territory and assigning Plaintiff to less desirable territories and assignments; (3) presenting Nickel with a letter advising him that he would be terminated effective December 31, 1997; and (4) High's tenure as his supervisor created a hostile environment, and assigning him the responsibility for the Rocky Mountain showrooms was harrasing. While Nickel is a member of a protected class, he does not convince the Court that the alleged harassment affected the terms, conditions, and privileges of his employment nor that this alleged harassment occurred because of his age. See Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). Plaintiff has failed to present any evidence of conduct that created a hostile work environment based on his age. Since Plaintiff fails to bring forth any evidence of offensive remarks or references to his age that created such a hostile work environment and was so severe to change a term, condition, or privilege of Nickel's employment, this court grants Defendant's motion in regard to Nickel's hostile work environment claim.
Allegations one and two are barred by the statute of limitations as previously discussed in Section C.
G. Nickel's claim for intentional infliction of emotional distress
Rocky Mountain moves for summary judgment as to Nickel's claim for intentional infliction of emotional distress. Under Texas law, a plaintiff must prove: "(1) the defendant acted internationally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." MacArthur v. University of Texas Health Center Tyler, 45 F.3d 890, 898 (5th Cir. 1995); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1375 (5th Cir. 1992); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989); Randall's Food Market Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Summary judgment must be granted because Nickel cannot prove as a matter of law that the defendant's conduct was extreme and outrageous. See Celotex, 477 U.S. at 322.
The determination of whether the conduct is "sufficiently outrageous for purposes of recovery for the intentional infliction of emotional distress is a question of law." See Miller v. Galveston/Houston Diocese, 911 S.W.2d 897 (Tex.App.-Amarillo 1995, no writ). Extreme and outrageous conduct has been defined as:
[S]o 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. . . . Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous!"Ramirez, 970 F.2d at 1375; Dean, 885 F.2d at 306; see also MacArthur, 45 F.3d at 898; Randall's Food Market, 891 S.W.2d at 644. In the employment context, the standard to establish "extreme and outrageous" is particularly demanding. Mere employment disputes will not sustain a cause of action for intentional infliction of emotional distress. See MacArthur, 45 F.3d at 898; Ramirez, 970 F.2d at 1376; Miller, 911 S.W.2d at 899. Courts have frequently held that "in order to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer and discipline employees." MacArthur, 45 F.3d at 898 (quoting Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992)).
Nickel relies on Defendant's actions of terminating his employment, criticism of his job performance, and removal of his sales territory as part of the internal restructuring, as well as his allegations that he was embarrassed because he was omitted from the "one on one" meeting with Lewis, that he was humiliated by being the only sales representative listed in the address book without a territory, and that he was assigned "menial and demeaning tasks." (Plaintiff's response page 21). Termination of employment is insufficient to satisfy the extreme and outrageous element of the cause of action. See Miller, 911 S.W.2d at 899. Further, Plaintiff's complaints about the criticism of his job performance, the fact he did not have a territory in the address book and his job duties fall into the category of "insults, indignities, threats, annoyances, petty oppression, or other trivialities" but do not rise to the level of extreme and outrageous conduct as a matter of law. See MacArthur, 45 F.3d at 898; Ramirez, 970 F.2d at 1375; Dean, 855 F.2d at 306; Randall's Food Market, 891 S.W.2d at 644. Therefore, this Court GRANTS Defendant's Motion with respect to Nickel's claim of intentional infliction of emotional distress. See MacArthur, 45 F.3d at 898.
H. Nickel's claim of wrongful discharge and discharge in violation of the implied covenant of good faith fair dealing.
Nickel brings a claim for wrongful discharge against Rocky Mountain. It is settled that Texas recognizes the at-will employment doctrine. Under the at-will doctrine an employer may discharge an employee at any time, with or without notice, and for any or no reason. See Federal Express Corp. v. Dutshmann, 846 S.W.2d 282, 283 (Tex. 1993); Travel Masters, Inc. v. Star Tours, Inc., 827 S.W.2d 830, 832 (Tex 1992). In Sabine Pilot Service Inc. v. Hauck, the Texas Supreme Court created a cause of action for wrongful discharge when an employer discharges an employee because the employee refuses to violate a criminal law. See 687 S.W.2d 733, 734-35 (Tex. 1985). This is the only situation in an at-will employment situation in Texas where an employee can recover for wrongful discharge. Nickel has not claimed or presented any evidence that (1) he was not an at-will employee or (2) that he refused to violate a criminal law and he was fired for it. Thus, Rocky Mountain's Motion for Summary Judgment is GRANTED as a matter of law since there is no factual or legal basis for this claim.
Finally, Nickel brings a claim against Rocky Mountain for discharge in violation of the implied covenant of good faith and fair dealing. The Texas Supreme Court has recognized a common law duty of good faith and fair dealing only where the parties are subject to a "special relationship." See Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212 (Tex. 1988); Arnold v. Nat'l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). It is well settled that in Texas there is no duty of good faith and fair dealing between an at-will employee and his employer. See Winograd v. Wills, 789 S.W.2d 307, 312 (Tex.App.-Houston [14th Dist.] 1990, writ denied). Thus, absent this relationship; the duty to act in good faith is contractual in nature. See Electro Associates, Inc., v. Harrop Construction Co., Inc., G.B., 908 S.W.2d 21, 22 (Tex.App.-Houston [1st Dist.] 1995, no writ). Because Nickel has failed to present any evidence that there was either a "special relationship" as defined by the Supreme Court of Texas between Nickel and Rocky Mountain or that there was a contractual duty of good faith among the parties, Defendant's Motion for Summary Judgment is GRANTED.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to all claims. It is so ORDERED.
SIGNED THIS 15 DAY OF March, 2000.
UNITED STATES DISTRICT COURT CHIEF JERRY BUCHMEYER