UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 99-31226 ___________________________

CATHRYN GREEN,

Plaintiff-Appellant,

VERSUS

THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, incorrectly referred to in plaintiff’s complaints as “The Administrators of the Tulane Educatioinal Fund, Tulane University Hospital & Clinic, and Tulane University School of Medicine”; TULANE UNIVERSITY HOSPITAL AND CLINIC; TULANE UNIVERSITY SCHOOL OF MEDICINE; DONALD R. RICHARDSON, M.D.,

Defendants-Appellees.

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Appeal from the United States District Court for the Eastern District of Louisiana 97-CV-1869-K ___________________________________________________ December 22, 2000

Before DAVIS and EMILIO M. GARZA, Circuit Judges and POGUE*, Judge.

DAVIS, Circuit Judge:**

I.

Cathryn Green filed an action against Dr. Donald Richardson

and his employer, Tulane University, alleging she was sexually

harassed and retaliated against by Dr. Richardson in violation of

* Judge, U.S. Court of International Trade, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Title VII of the Civil Rights Act of 1991. She also asserted a

state law claim of intentional infliction of emotional distress

against both Dr. Richardson and Tulane, and a claim of tortious

interference with contract against Dr. Richardson. Both Dr.

Richardson and Tulane filed motions for summary judgment. The

district court entered various orders of dismissal, the only one at

issue here being a grant of defendants’ motion for summary judgment

on the intentional infliction of emotional distress claim. The

district court granted a Rule 54(b) motion, allowing an appeal to

be taken from this order. Green’s Title VII case against Tulane

went to trial, resulting in a verdict for the plaintiff in the

amount of $429,013.1 The only issue before us is the propriety of

the district court’s order granting summary judgment in favor of

Dr. Richardson on plaintiff’s claim of intentional infliction of

emotional distress.

II.

After careful review of the record and briefs of the parties,

we are satisfied that Green failed to produce sufficient summary

judgment evidence to permit a jury to find that Dr. Richardson’s

alleged conduct was sufficiently egregious to allow Green to

establish her claim for intentional infliction of emotional

distress. In White v. Monsanto Co. the Louisiana Supreme Court

held that to make out such a claim, a plaintiff must prove: “1)

that the conduct of the defendant was extreme and outrageous; 2)

1 This judgment is currently the subject of a separate appeal in this Court.

2 that the emotional distress suffered by the plaintiff was severe;

and 3) that the defendant desired to inflict severe emotional

distress or knew that severe distress would be certain or

substantially certain to result from his or her conduct.”

(La. 1991).

In defining exactly what will be considered “extreme and

outrageous” conduct, the Louisiana Supreme Court has stated that:

The conduct must 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. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort; on the contrary, some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

This Court has acknowledged that “the level of atrociousness

to which the behavior at issue must rise is quite high.” Skidmore

v. Precision Printing & Packaging, Inc.,

(5th

Cir. 1999). The tort is even more carefully scrutinized in the

workplace, since employers must, on occasion, “review, criticize,

demote, transfer, and discipline employees” in order to properly

manage their businesses. Therefore, it is extremely rare that an

employment dispute will support an emotional distress claim.

Wilson v. Monarch Paper Co.,

(5th Cir. 1991).

See also Nicholas v. Allstate Ins. Co.,

, 1026-27

3 (La. 2000). Even creating “unpleasant and onerous working

conditions designed to force an employee to quit, i.e.,

‘constructively’ to discharge the employee...although this sort of

conduct often rises to the level of illegality, except in the most

unusual cases...is not the sort of conduct...that constitutes

extreme and outrageous conduct.”

.

III.

The district court’s careful order and reasons of April 8,

1999 accurately describe the summary judgment evidence. Viewing

that evidence in the light most favorable to plaintiff, we are

satisfied that the facts fall short of those necessary to make out

an intentional infliction of emotional distress claim under the

tough Louisiana standards. For the reasons stated above and in the

district court’s order and reasons, we AFFIRM the judgment of the

district court.

4 POGUE, JUDGE, dissenting:

Based on a careful review of the record, I am convinced that

there are genuine issues of material fact in dispute and,

therefore, Green’s cause of action should have survived summary

judgment.

As the majority explains, to prove the tort of intentional

infliction of emotional distress, the plaintiff must show that (1)

the defendant’s conduct was extreme and outrageous, (2) the

emotional distress suffered by the plaintiff was severe, and (3)

the defendant desired to inflict severe emotional distress or knew

that severe distress would be certain or substantially certain to

result from his or her conduct. See White v. Monsanto Co.,

(La. 1991). Moreover, in the work place

environment, the outrageous conduct requirement precludes

recognition of a cause of action based, for example, on a normal

workplace vendetta. See Nicholas v. Allstate Insurance Comp.,

, 1025 n. 11 (La. 2000). “[U]npleasant and onerous work

conditions designed to force an employee to quit, i.e., [to]

‘constructively’ . . . discharge the employee” do not usually

constitute outrageous conduct, except in the “most unusual cases.”

Wilson v. Monarch Paper Co.,

(5th Cir.

1991)(emphasis omitted).

I depart from the majority’s analysis, however, because

Louisiana law also requires that, in an intentional infliction of

emotional distress case, an actor’s knowledge of the victim’s

5 situation is to be considered in judging the actor’s conduct. See

Wright v. Otis Engineering Corp.,

(La.App. 3rd

Cir. 1994); White,

. “Where the actor has

knowledge of another’s particular susceptibility to emotional

distress, the actor’s conduct should not be judged in the light of

the effect such conduct would have on a person of ordinary

sensibilities.” Wright,

(emphasis omitted).

After reviewing the record and briefs of the parties, I

believe that a reasonable jury could conclude that Richardson

intentionally tried to remove Green from her position as a result

of her decision to terminate their affair, and that considered in

light of the special nature of Green and Richardson’s relationship,

a relationship that influences the characterization of Richardson’s

behavior, a reasonable jury could determine that Richardson’s

actions were, in fact, “outrageous” and “beyond all possible bounds

of decency . . . .” White,

. As a result, and in

opposition to the majority, I believe that a reasonable jury could

find this conduct to be outrageous, satisfying the first prong of

the test.

I am also satisfied that a reasonable jury could conclude that

Green’s distress was severe and that Richardson was substantially

certain that severe distress would result from his conduct,

elements of the tort the majority did not analyze due to their

holding that Richardson’s conduct was not outrageous.

The record provides evidence of these facts: Richardson was

6 Green’s boss and friend for more than twenty years. During the

course of Green’s employment, Richardson pursued Green, making

repeated requests to enter into an intimate relationship. In 1993,

after Richardson confirmed that a relationship would not affect

Green’s job, Green finally relented and entered into a consensual

relationship with her boss and close friend.

Green led a difficult life. She had experienced periods of

depression and attempted suicide, was attacked and raped in her

home, and suffered from meningitis, all during the twenty-year

period that she knew and was close to Richardson. A reasonable

jury could conclude that Richardson, fully aware of Green’s

background, took advantage of their closeness to pursue a more

intimate relationship. A jury could find that when Green ended the

affair, Richardson, knowing how important Green considered her job,

purposely tried to take away Green’s one stabilizing influence,

thereby intentionally inflicting distress. In so doing, Richardson

abused his authority as Green’s boss and close friend. Sexual

harassment of this nature falls within the “most unusual cases”

contemplated by Wilson.

As noted, a reasonable jury could have found that Richardson

was not only Green’s employer, but her friend, social companion,

and for the period of time leading up to the events in question,

her boyfriend. Richardson had, on occasion, prescribed

antidepressants to Green. He consoled her when she was raped,

visiting Green in the emergency room. It is difficult to imagine

that Richardson could not know of Green’s sensitivities. As such,

7 under Louisiana law, Richardson’s conduct should not be viewed in

the light of its effect on a person of ordinary sensibilities, but

the effect such actions would have on a person who had suffered

through difficult emotional experiences. A jury could find that

instead of discussing with Green that, upon the termination of

their personal relationship, Richardson found it difficult to

continue a working relationship, Richardson attempted to sabotage

Green’s job. Viewed in this manner, Richardson’s conduct can be

characterized as “outrageous.”

A jury could have concluded that Green experienced severe

distress as the result of Richardson’s conduct. She received

numerous days of administrative leave, underwent therapy with a

psychiatrist, and was unable to continue her employment with

Richardson. Frank Currie, from Tulane’s Personnel Office, stated

that on several occasions, Green appeared distraught. One

psychiatrist found the stress so evident that he recommended to

Green not to return to Tulane if she was still under Richardson’s

supervision.

The evidence is also sufficient for a jury to find that

Richardson knew or should have known that his conduct would inflict

severe emotional distress on Green. Before entering into the

relationship, Green and Richardson had numerous discussions on the

effect this personal relationship would have on their working

relationship. Green refused to begin a personal relationship with

Richardson until he realized how important her job was and

reassured her that terminating the relationship would not

8 jeopardize her job. Between these conversations and their twenty-

year friendship, a jury could find that Richardson was aware of the

important role Green’s job played in her emotional stability. He

would also be aware that any interference with her employment,

especially in a harassing manner, would obviously greatly distress

Green.

Thus, I conclude that when the evidence is viewed in the light

most favorable to the nonmovant, Green, material issues of fact

exist precluding summary judgment.

For the foregoing reasons, I respectfully dissent.

9