IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60317 (Summary Calendar)

LISA BOWERS, M.D.

Plaintiff-Appellant, v.

CHRISTOPHER J. CAMPBELL, M.D.; ANESTHESIA ASSOCIATES OF NORTH MISSISSIPPI, P.A.

Defendants-Appellees.

- - - - - - - - - - On Appeal from the United States District Court for the Northern District of Mississippi (98-CV-156) - - - - - - - - - - February 21, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

This Mississippi employment dispute is before us on diversity

jurisdiction. Plaintiff-Appellant Dr. Lisa Bowers challenges the

district court’s (1) grant of the motion of Defendant-Appellee

Anesthesia Associates of North Mississippi (“AANM”) for judgment as a

matter of law (“j.m.l.”) and a remittitur regarding Dr. Bowers’s claims

for consequential damages and damages for emotional distress resulting

from AANM’s breach of its employment contract with her and (2) denial

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. of Dr. Bowers’s motion for a new trial regarding her claim of tortious

breach of contract. In the district court, Dr. Bowers sought damages

for employment termination on the ground that the termination violated

the terms of her employment contract and did so in a manner that

inflicted emotional distress on her. As we agree with the district

court’s conclusion that Bowers’s claims for damages for emotional

suffering and tortious breach of contract are without merit and that she

is only entitled to 30 days’ compensation for AANM’s failure properly

to notify her of the termination of her employment, we affirm the

rulings of the district court.

I. Facts and Proceedings

Dr. Bowers was employed as a specialized physician anesthesiologist

by AANM, a small anesthesiologist group founded by Drs. James Cook and

Christopher Campbell. After the death of Dr. Cook in 1996, the group

was owned solely by Dr. Campbell. The employment agreement between the

parties to this litigation was a one-year contract that “would be

extended automatically for successive one year periods” beginning on

August 1, up to and including a third year. It was signed by Dr. Bowers

and Dr. Cook. Dr. Bowers asserts that she began working for AANM with

the understanding that she would be made a partner after three years of

satisfactory performance. The contract contained two paragraphs

allowing AANM to terminate an employee. Paragraph 8B states that:

This contract may be terminated by either party on not less than 30 days advance written notice thereof. If the employee violates any of the provisions of the contract, the Group may terminate the employment immediately without further

2 obligation except to pay the employee for compensation earned prior to the termination of this contract. However, the medical group may terminate the employment hereunder immediately if, in their best judgment, it is necessary to protect its business or good name. . . .

Paragraph 8D provides that:

This agreement shall automatically terminate at any time, if, in the sole judgment of the Group, employee becomes unfit to properly perform the duties set out in the Work Agreement or employee is deemed unfit for reasons including but not limited to interpersonal relation difficulties with other employees or members of the Group, or if Anesthesiologists skills are found to be severely lacking and patient care is unacceptable. . . .

Dr. Bowers contends that when a colleague was denied partnership after

completing the third of his three one-year contracts, she became

concerned for her own future with AANM and asked Dr. Campbell whether

she was still on partnership track. According to Dr. Bowers, Dr.

Campbell responded that “I never intended to make you a partner.” After

being thus informed, Dr. Bowers began looking for jobs elsewhere. As

a result of her search, she scheduled an on-site interview with an

anesthesiology group in Florida at the beginning of January, 1998.

On the evening of Friday January 2, 1998, Dr. Campbell called Dr.

Bowers at home and told her to take the job in Florida because she was

to be terminated by AANM; when pressed for a reason, Dr. Campbell

asserted that there had been some complaints about her conduct and her

personality. Dr. Campbell asked Dr. Bowers to clean out her locker at

the hospital over the weekend but she chose instead to keep her

interview with the group in Florida. When she returned and attempted

3 to clean out her locker on Monday morning, she was provided with a

written notice of her termination which contained no specification of

cause. Dr. Campbell then threatened to have Dr. Bowers charged with

trespass for allegedly causing a scene and had her escorted from the

hospital by security guards. AANM paid Dr. Bowers no further salary

under the contract and cancelled her malpractice and health insurance.

Unsuccessful in finding employment with another group, Dr. Bowers moved

to Florida and began building a solo practice. She asserts that, in

doing so, she spent $80,000 of her savings and borrowed an additional

$30,000 to support herself and her daughter until her practice got under

way.

Dr. Bowers brought this suit, alleging that Dr. Campbell, acting

individually and on behalf of AANM, breached the employment contract

between the parties by terminating Dr. Bowers without cause with five

months remaining on the one-year contract. She also advanced a claim

for tortious breach of contract, and she sought compensatory damages for

loss of income, costs incurred in relocating and establishing her own

practice, and mental anguish and emotional distress, as well as punitive

damages. At the conclusion of the presentation of all the evidence, the

district court granted AANM’s motion for a j.m.l. rejecting Bowers’s

claim for tortious breach of contract against both Dr. Campbell and

AANM. The jury was then instructed to determine whether Dr. Campbell

had breached Paragraph 8D of the contract in terminating Dr. Bowers, to

which the jury responded affirmatively. It was also asked to assess

compensatory damages, including “emotional distress and mental anguish,”

4 for which the jury awarded Dr. Bowers $175,000. She then filed a motion

for a new trial on her claim for tortious breach of contract, which

motion the district court denied. The district court granted AANM’s

motion for remittitur and a j.m.l., concluding that Dr. Bowers was

entitled only to 30 days’ pay ($15,660) for AANM’s failure to furnish

her with 30 days’ advance notice of termination pursuant to Paragraph

8B. Dr. Bowers appeals both decisions of the district court.

II. Analysis

A. Standard of Review

“‘A motion for judgment as a matter of law . . . in an action

tried by jury is a challenge to the legal sufficiency of the evidence

supporting the jury's verdict.’”1 We apply the same standard as does the

district court, i.e., “[a] jury verdict must be upheld unless ‘there is

no legally sufficient evidentiary basis for a reasonable jury to find’

as the jury did.”2

Remittitur is allowed if the damages awarded by the jury are

excessive.3 “A verdict is excessive if it is ‘contrary to right reason’

or ‘entirely disproportionate to the injury sustained.’”4 Finally, we

1 Harrington v. Harris,

(5th Cir. 1997) (quoting Hiltgen v. Sumrall,

(5th Cir. 1995)).

F.3d at 367 (quoting Fed. R. Civ. P. 50(a)(1)). 3 Eiland v. Westinghouse Electric Corporation,

(5th Cir. 1995) (citing Westbrook v. General Tire and Rubber Co.,

(5th Cir. 1985)). 4 Eiland,

(quoting Caldarera v. Eastern Airlines, Inc.,

(5th Cir. 1983)).

5 review the district court’s interpretation of an unambiguous contract,

a question of law, de novo.5

B. Discussion

1. Interpretation of the Contract

Dr. Bowers insists that the district court erred in granting AANM’s

motion for a j.m.l., thereby overturning the jury’s verdict in her

favor. She contends that Dr. Campbell purported to terminate her

employment for cause when no cause existed, and that in doing so he

violated paragraph 8D of the contract, as the jury found. As such, she

claims, Dr. Campbell, individually, and AANM are liable for damages for

lost salary, relocation costs, and emotional and mental distress, for

which the jury awarded her $175,000.

After the jury had rendered its verdict, the district court granted

AANM’s motion for a j.m.l., concluding that Dr. Bowers’s employment was

subject to an at-will provision, as set forth in paragraph 8B of the

contract, requiring only 30 days’ notice. Under Mississippi law, when

an employment contract “‘stipulates for, or where usage requires, a

certain period of notice, the employment may be cancelled on shorter

notice or with none at all, upon payment of wages or salary for the

period of notice.’”6 Applying that rule, the district court properly

found that Dr. Bowers was entitled only to 30 days salary. As a result,

5 Stinnett v. Colorado Interstate Gas Co.,

, 254 (2000). 6 Fusilier, Ott, & McKee, P.A. v. Moeller,

(Miss. 1987) (quoting 9 Williston, A Treatise on the Law of Contracts, § 1017 (1967)).

6 the district court correctly granted AANM’s motion for remittitur and

reduced the jury’s damages award from $175,000 to $15,660, which

represents 30 days’ salary under the employment contract between Dr.

Bowers and AANM. The trial court’s reduction of the damage award was

appropriate because any amount of compensatory damages awarded by the

jury in excess of 30 days’ salary, such as, for example, damages for the

emotional distress suffered by Dr. Bowers or the relocation costs she

incurred, is by definition excessive under the contract’s provision

allowing at-will termination on 30 days’ notice.

2. Tortious Breach of Contract

Dr. Bowers advances that the district court erred in dismissing her

claims for tortious breach of contract against AANM and Dr. Campbell in

his individual capacity because, she contends, there was sufficient

evidence to support her claim that Dr. Campbell knowingly breached the

contract. Under Mississippi law, when such evidence is presented at

trial, the court must allow the jury to resolve the factual question

whether such a breach occurred.7 Dr. Bowers insists that Dr. Campbell

knowingly breached the terms of the contract in terminating her

employment for cause when no cause existed. The district court

correctly found, however, that Dr. Campbell did not terminate Dr. Bowers

pursuant to the “for cause” provision but rather under a separate

provision allowing for at-will termination on 30 days’ notice. And even

though Dr. Campbell failed to provide Dr. Bowers with the requisite

7 Eselin-Bullock & Assocs. Ins. Agency, Inc. v. Nat’l Gen. Ins. Co.,

(Miss. 1992).

7 notice, that failure is remedied by the district court’s award of 30

days’ salary in compensation, which we agree is proper here.

Dr. Bowers also appeals the district court’s dismissal of her claim

for tortious breach of contract and her request for punitive damages,

urging that Dr. Campbell intentionally inflicted emotional distress on

her by the manner in which he terminated her employment and the manner

in which he treated her when she returned to the hospital to clean out

her locker. Under Mississippi law, punitive damages are only to be

awarded if the breach of contract is accompanied by an “intentional

wrong, insult, abuse or such gross negligence as to constitute an

independent tort.”8 We agree with the district court that the evidence

adduced here is insufficient to prove that such an independent tort was

suffered by Dr. Bowers.

Although Mississippi law allows “damages for intentional torts even

where they are not accompanied by physical or bodily injury,”9 it does

so only in limited circumstances, under the rubric of intentional

infliction of emotional distress (“i.i.e.d.”). “‘In such instances, it

is the nature of the act itself —— as opposed to the seriousness of the

consequences —— which gives impetus to legal redress.’ The law

intervenes only where the distress inflicted is so severe that no

8 Fusilier,

. 9 Burroughs v. FFP Operating Partners, L.P.,

(5th Cir. 1994).

8 reasonable man could be expected to endure it."10

[A] plaintiff must prove that defendant's conduct is "extreme and outrageous." It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been 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. Though plaintiff need not prove cognizable physical injuries, the emotional stress must be genuine and severe.11

Although the behavior of Dr. Campbell, if it was as represented by Dr.

Bowers, would be deplorable, it would not be so egregious as to

constitute an independent tort under Mississippi law. Dr. Bowers

complains that in the wake of her termination, she suffered from anxiety

over both her finances and possible damage to her reputation, and that

she was humiliated by being escorted out of the hospital by security

guards in the presence of her former colleagues and friends. We

nevertheless agree with the district court that these claims, even when

viewed in the light most favorable to Dr. Bowers as the non-movant, were

insufficient as a matter of law to sustain her claim for tortious breach

of contract.12

10

(citations omitted). 11

(citations omitted). 12 In Burroughs, we applied Mississippi law in holding that emotional injuries described as leaving the plaintiff “jittery, upset, unnerved, depressed, crying, emotional, mortified, terribly upset, bothered tremendously, and very badly hurt” and resulting in

9 Dr. Bowers contends further that Dr. Campbell should be held liable

individually for tortious breach of contract. “[W]hen a corporate

officer directly participates in or authorizes the commission of a tort,

even on behalf of the corporation, he may be held personally liable.”13

Because we find that no tort was committed by Dr. Campbell in

terminating Dr. Bowers, he is protected from liability by the legal

fiction of the corporate veil. As such, we agree with the decision of

the district court to grant Dr. Campbell’s motion for a j.m.l.,

rejecting those claims against him in his individual capacity.

III. Conclusion

For the foregoing reasons, we conclude that the district court

correctly granted AANM’s motion for a j.m.l. and remittitur, and

correctly limited the damages to Dr. Bowers to $15,660. We also

conclude that the district court was correct in dismissing Dr. Bowers’s

claim for tortious breach of contract against both AANM and Dr. Campbell

in his individual capacity because she failed to adduce sufficient

evidence to support that claim. Therefore, the judgment of the district

court is, in all respects,

AFFIRMED.

her “poor church attendance in the period following the incidents of this case and to her overall lower level of participation in community affairs” but not including “medical testimony describing any clinical manifestations of depression or other mental infirmities” were “insufficient to sustain damages for i.i.e.d.” Burroughs,

. 13 Mississippi Printing Co., Inc. v. Maris, West and Baker, Inc.,

(Miss. 1986).

10 11