Cunningham v. Richeson Mgmt Corp

United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-10320
_______________
GARLAN CUNNINGHAM,
Plaintiff-Appellee,
VERSUS
RICHESON MANAGEMENT CORPORATION,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-385
______________________________
Before SMITH, BARKSDALE, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Garlan Cunningham sued her former em-
ployer, Richeson Management Corporation
(“RMC”), for age discrimination under the
Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq., and for intentional inflic-
tion of emotional distress (“i.i.e.d.”) under
Texas law. A jury gave Cunningham damages
on both claims; the district court denied
RMC’s motion for judgment as a matter of law
(“j.m.l.”) on the portion of the award based on
i.i.e.d. RMC appeals only in regard to the
denial of j.m.l. on the i.i.e.d. claim. We vacate
and remand.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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I.
Cunningham worked for RMC in various
management positions, including, during the
time in question, as district manager of the
area that included the Dairy Queen store in
Gorman, Texas. A month before Cunning-
ham’s employment with RMC was terminated,
RMC’s owner and Chairman of the Board,
Doris Richeson, sent a memorandum to Cun-
ningham and a copy to all of RMC’s other su-
pervisors. This memo, which serves as the on-
ly basis for Cunningham’s i.i.e.d. claim,1 states
in full as follows:
Lazy cowboy left in saddle too long
(GRAHAM, TEXAS) SS You could tell he
was a little lazy, just the way he slumped
and rocked along in the saddle. His clothes
were dirty too, but we wondered whether it
was hard work, or just not caring how he
looked.
His name was Gorman something-or-other,
and years back someone had named the
horse he called his nag DQ.
One thing, he just couldn’t seem to round
up enough cows to make a difference.
Then the boss started noticing there were
no checks coming in when Gorman should
have been taking cows to market. And
items were missing without explanation.
And sometimes the other cowboys didn’t
seem to be working when they were paid to
work.
He looked at the stock tank every day as
DQ strode across the pastures; it was al-
most dry, just a little murky water left in it.
But the cows didn’t get sick too often, and
when they did, he’d just call the vet. After
all, it didn’t cost him anything, and the boss
probably would never know Gorman had
spent the money.
Gorman thought Pumper Daddy used to be
a pumper in the oil field, but these days he
just sold a few tools now and then. Gor-
man never knew exactly where Pamper
Daddy got the tools, but the boss didn’t
seem to mind if he got a few now and then.
Of course, some of them were just a-layin’
out there in the cowshed.
There were rumors, too, about Gorman’s
family problems. Or maybe they weren’t
even a family, just a society of fair weather
friends.
But nobody did anything about Gorman.
Probably didn’t want to have to go out and
fix the problem. Just let Gorman’s nag go
wherever he wanted to slog along.
Everyone was so nice. Finally even Gor-
man got tired of being petted and coddled,
and having his chuck wagon meals regular,
with plenty of hay and soft feed for poor
old DQ. But he didn’t really want to go to
work and earn his keep.
So Gorman cooked up a scheme with one
of his fair weather friends, and just left.
Course he knew his paycheck would be
coming anyway. But he could go ahead
and get that and maybe no work would fall
into his life.
Gorman hadn’t kept the cows fed and
1 To find that RMC intentionally inflicted emo-
tional distress on Cunningham, the jury considered
the memo as the sole evidence. The jury was
asked, “By issuing the ‘Lazy Cowboy’ memo, did
Richeson Management intentionally inflict emo-
tional distress on Cunningham?”

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worked. He couldn’t even remember that
a cow needed help to produce offspring,
and without offspring, it would be a long
winter indeedSSmaybe a couple of them,
since the herd had been damaged irrepara-
bly. The hay and the feed had to come
from somewhere. But Gorman would suf-
fer no ill; he’d just be on his way.
This lazy cowboy was left in the saddle too
long. Wonder why? Was no one ready to roll
up their sleeves and handle the situation? ##
SSDoris Richeson
RMC argues that this memorandum is not ex-
treme and outrageous and thus is insufficient
to constitute i.i.e.d. under Texas law, so the
district court should have granted j.m.l.
II.
We review de novo the denial of j.m.l., ap-
plying the same legal standard used by the dis-
trict court. Lubke v. City of Arlington, 455
F.3d 489, 494 (5th Cir. 2006). A j.m.l. should
be granted only if “there is no legally sufficient
evidentiary basis for a reasonable jury to have
found for that party with respect to that issue.”
Id. (quotation omitted).
In Texas, “[t]o recover damages for
[i.i.e.d.], a plaintiff must establish that: (1) the
defendant acted intentionally or recklessly;
(2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s actions caused
the plaintiff emotional distress; and (4) the re-
sulting emotional distress was severe.” Hoff-
mann-La Roche Inc. v. Zeltwanger, 144
S.W.3d 438, 445 (Tex. 2004). RMC appeals
only on the basis that its conduct was not ex-
treme and outrageous. “Extreme and outra-
geous conduct is conduct ‘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 intolera-
ble in a civilized community.’” Id. (quoting
Twyman v. Twyman, 855 S.W.2d 619, 621
(Tex. 1993) (quotation omitted)).
The Texas Supreme Court has held that a
supervisor’s constant humiliating and abusive
behavior toward an employee constituted ex-
treme and outrageous conduct. In GTE
Southwest, Inc. v. Bruce, 998 S.W.2d 605,
613-17 (Tex. 1999), an employer engaged in
“constant humiliating and abusive behavior”
and “constantly harassed and intimidated” his
employees. Id. at 608. “The employees com-
plained about [the supervisor’s] daily use of
profanity, short temper, and his abusive and
vulgar dictatorial manner. The employees
complained that, among other offensive acts,
[he] repeatedly yelled, screamed, cursed, and
even ‘charged’ at them. In addition, he inten-
tionally humiliated and embarrassed the em-
ployees.” Id. at 608-09. In holding that this
conduct was extreme and outrageous, the
court relied on the regular pattern of abuse.
Id. at 617. “Occasional malicious and abusive
incidents,” on the other hand, “must often be
tolerated in our society.” Id.
In addition to GTE Southwest, the other
two cases that Cunningham relies on as au-
thority for the claim that RMC’s conduct was
extreme and outrageous also involved sus-
tained conduct, not one-time incidents. In
Skidmore v. Precision Printing & Packaging,
Inc., 188 F.3d 606, 613 (5th Cir. 1999), we
reasoned that conduct was extreme and outra-
geous in part because the “improper conduct
was persistent and long-standing.” In Wilson
v. Monarch Paper Co., 939 F.2d 1138, 1144-
45 (5th Cir. 1991), we stated that a substantial
demotion following on the heels of “a year-
long campaign of harassment and abuse” was

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extreme and outrageous. Cunningham argues
that in Wilson we held specifically that the sin-
gle incident of demotion was extreme and
outrageous. Though our opinion does state
that the year of abusive conduct by itself was
insufficient under the standard, we did not say
that the single act of demoting the plaintiff was
sufficient on its own to constitute extreme and
outrageous conduct. Our conclusion that the
demotion was extreme and outrageous was
linked to the year-long campaign of humilia-
tion: With the demotion, “the steep downhill
push to total humiliation was complete.” Id. at
1145.2
Especially instructive is the recent, unani-
mous decision in Creditwatch, Inc. v. Jackson,
157 S.W.3d 814 (Tex. 2005). The court ad-
dressed, inter alia, a claim of i.i.e.d. stemming
from a post-termination eviction of the plaintiff
from the house where she was living, allegedly
orchestrated by the defendant employer. The
court denied the i.i.e.d. claim with the fol-
lowing explanation:
Assuming all this was true, it was callous,
meddlesome, mean-spirited, officious, over-
bearing, and vindictiveSSbut not “so outra-
geous in character, and so extreme in de-
gree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious,
and utterly intolerable in a civilized com-
munity.” . . . Intentional infliction claims
cannot be used “to circumvent the limita-
tions placed on the recovery of mental an-
guish damages under more established tort
doctrines.”
* * *
We certainly understand judicial reticence
to dismiss claims like this one stemming
from heinous acts. But except in circum-
stances bordering on serious criminal acts,
we repeat that such acts will rarely have
merit as intentional infliction claims.
Id. at 817-18 (footnotes containing citations
omitted).
The memorandum sent to Cunningham was
a lone incident that is not actionable for i.i.e.d.
under Texas law. Cunningham provides no
authority that suggests this single memo meets
the required exacting standard under Texas
law, which supplies the rule of decision in this
case.
The judgment is VACATED, and this mat-
ter is REMANDED for further proceedings as
appropriate.
2 We are not declaring that a single incident can
never constitute extreme and outrageous conduct,
but only that the single memorandum in this case
does not resemble the lengthy patterns of reprehen-
sible conduct evident in GTE Southwest, Skidmore,
and Wilson. Those cases do not support Cunning-
ham’s position.

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