UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 97-20118 Summary Calendar _______________________

JOANNE S. WATTERS,

Plaintiff-Appellant,

versus

MONTGOMERY COUNTY EMERGENCY COMMUNICATION DISTRICT; MARY LADORE MABBITT,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-2916) _________________________________________________________________ (October 13, 1997)

Before JONES, DeMOSS, AND PARKER, Circuit Judges.

PER CURIAM:*

Appellant Joanne S. Watters appeals the district court’s

dismissal of her claims under the Americans With Disabilities Act

and the state law claim for intentional infliction of emotional

distress for failure to state a claim upon which relief can be

granted. Finding no error in the judgment, we affirm.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. BACKGROUND

According to her Second Amended Original Complaint,

Watters and appellee Mary LaDore Mabbitt were employed by appellee

Montgomery County Emergency Communication District (“MCECD”) as a

telecommunicator and coordinator in Conroe, Texas. Watters claims

that on the job, she was continually subject to improper and

unwanted actions and comments regarding her weight by employees of

MCECD. “Specifically, [appellee] Mary Mabbitt made comments about

[appellant’s] weight and her eating habits, consistently pointed

out [appellant] as an example of obesity, harassed [appellant]

about her manner of dress and physical appearance, and pressured

[her] and other employees to participate in an involuntary ‘weigh-

in.’” Second Amended Original Complaint at 2.

DISCUSSION

We review de novo a district court’s dismissal of a

plaintiff’s claim for failure to state a claim upon which relief

can be granted pursuant to FED. R. CIV. P. 12(b)(6). See Rolf v.

City of San Antonio,

, 827 (5th Cir. 1997) (relying on

Blackburn v. City of Marshall, Tex.,

(5th Cir. 1995)).

“Dismissal is not proper unless it appears, based solely on the

pleadings, that the plaintiff can prove no set of facts in support

of the claim(s) warranting relief.”

(relying on Rankin v. City

of Wichita Falls, Tex.,

(5th Cir. 1985)).

1. ADA CLAIM

Watters filed suit claiming that the appellees had

discriminated against her in violation of the ADA. The ADA

2 prohibits an employer from discriminating against an employee on

the basis of the employee’s disability. See Bridges v. City of

Bossier,

(5th Cir. 1996) (citing

), cert. denied, ___ U.S. ___,

(1997). Watters

alleges that she has been discriminated against because she is

perceived as having the disability of obesity.

“[E]xcept in rare circumstances, obesity is not

considered a disabling impairment.” 29 C.F.R. pt. 1630 app. §

1630.2(j). Even if an employer’s perception of an employee as

being obese might under certain circumstances qualify as an

impairment under the ADA, a physical impairment, standing alone, is

not necessarily a disability protected by the ADA. See Ellison v.

Software Spectrum, Inc.,

, 191 n.3 (5th Cir. 1996)

(quoting Dutcher v. Ingalls Shipbuilding,

(5th

Cir. 1995)).

Watters claims that the appellees discriminated against

her based on the statutory definition of a disability as being

regarded as having a physical or mental impairment that

substantially limits one or more of the major life activities. See

(2)(C); see also Bridges,

(interpreting

(2)(C)).

One is regarded as having a substantially limiting impairment [pursuant to

(2)(C)] if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment.

3 See

(relying on Dutcher,

-28 n.19).

We assume -- although she does not expressly state --

that Watters complains of being regarded as substantially limited

in the major life activity of working. See

(I)

(including working as a major life activity under the ADA). An

employer regards an employee as substantially limited in her

ability to perform the major life activity of working by “‘finding

the employee’s impairment to foreclose generally the type of

employment involved.’” Ellison,

(quoting Forrisi v.

Bowen,

, (4th Cir. 1986)). “[I]n order for an

employer to have regarded an impairment as substantially limiting

in the activity of working, the employer must regard an individual

as significantly restricted in the ability to perform a class or a

broad range of jobs.” Burch v. Coca-Cola Co., --- F.3d ---, ---,

(5th Cir. 1997) (relying on Bridges,

)).

In her Second Amended Original Complaint, Watters claims

that she was perceived “to be disabled because of her weight” and

that her weight was perceived as severely restricting her “ability

to perform various job related tasks.” Based on the pleadings,

there is no indication that the appellees found Watters’ weight to

foreclose her type of employment or that their alleged perception

of her obesity restricted her ability to perform a class or a broad

range of jobs. We agree with the district court’s conclusion that

Watters has failed to state a claim under the ADA for being

discriminated against for having a perceived disability.

4 2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

Under Texas law, to prevail on a claim for intentional

infliction of emotional distress, the claimant is required to prove

that “(1) the defendant acted intentionally or recklessly, (2) the

conduct was extreme or outrageous, (3) the actions of the defendant

caused the plaintiff’s emotional distress, and (4) the emotional

distress suffered by the plaintiff was severe.” Twyman v. Twyman,

(Tex. 1993). Liability for intentional

infliction of emotional distress is to be found “‘only where the

conduct has been 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.’”

(quoting Restatement (Second) of torts § 46 cmt.

d (1965)). Liability “‘does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities.’” Johnson v. Merrell Dow Pharmaceuticals, Inc.,

(5th Cir. 1992)(quoting Restatement (Second) of Torts

§ 46).

Although we may agree with Watters that the complained of

conduct -- repeated comments about her weight, changes in her

responsibilities on the job, and being compelled to participate in

a mandatory “weigh-in” -- could be considered to be rude and

insensitive, we must also agree with the district court that this

behavior does not rise to the level of outrageous conduct needed to

support an intentional infliction of emotional distress claim under

Texas law. See Wornick Co. v. Casas,

(Tex.

5 1993) (“‘It is for the court to determine, in the first instance,

whether the defendant’s conduct may reasonably be regarded as so

extreme and outrageous as to permit recovery.’” (quoting

Restatement (Second) of Torts § 46, cmt. h)).

CONCLUSION

For the foregoing reasons, the judgment of the district

court dismissing Watters claims pursuant to Fed. R. Civ. P.

12(b)(6) is affirmed. AFFIRMED.

6