Morrison v. Weyerhaeuser Co, et al

United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20388
_______________
THOMAS G. MORRISON,
Plaintiff-Appellant,
VERSUS
WEYERHAEUSER COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-03-CV-1033
_________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Thomas Morrison sued his former employ-
er, Weyerhaeuser Company (“Weyerhaeuser”),
alleging that his termination violated, inter
alia, title I of the Age Discrimination in Em-
ployment Act of 1967 (“ADEA”) and gave
rise to state law tort claims of intentional in-
fliction of emotional distress (“i.i.e.d.”) and in-
vasion of privacy. The district court granted
summary judgment for defendant. Finding no
error, we affirm.
I.
Morrison was hired as a shipping supervisor
in September 2001, when he was fifty years
old. He received extensive safety training,
including courses in the plant’s Lock Out, Tag
and Try (“LOTT”) procedures, Posted Con-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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fined Space Entry Areas, the Roof Access
policy, and the Job Safety Analysis (“JSA”)
process. As Shipping Supervisor, Morrison
had duties that included conducting safety
training for employees in his department on the
same subjects. Further, he was responsible for
the plant’s roof, where the “cyclone system,”
a scrap accumulation system for the plant’s
finishing and corrugation processes, was
located. When the system became clogged,
two or three employees had to go to the roof
to unclog it.
On November 26, 2002, Morrison was
notified that the cyclone system was clogged,
so he asked a clerk to tell another employee to
meet him on the roof, as required by company
policy. He then went onto the roof unaccom-
panied, in violation of the Roof Access policy.
He removed the access hatch to the cyclone,
activating a warning that the cyclone was a
“confined space area” requiring employees to
(1) fill out a non-routine JSA; (2) de-energize
moving parts in the equipment pursuant to
LOTT procedures; and (3) take all other
necessary steps before entering. Morrison did
not de-energize the cyclone, but manually
inserted a metal rod into the diverter space to
free the clog. The diverter activated while his
arm was inside, pinning him in the machine.
After he radioed for help, a response team de-
energized the diverter and rescued him.
Morrison was transported to the emergency
room, accompanied by Plant Manager Doug
Mitchem and Morrison’s direct supervisor,
Victor Self. After Morrison had received an x-
ray and two pain shots and medical personnel
had determined that he had no broken bones,
he was released to go home.
The next day, based on a preliminary inves-
tigation by Weyerhaeuser’s Accident Investi-
gation Team, Morrison was issued a three-day
suspension for violating the LOTT policy. Af-
ter further investigation, other safety violations
were uncovered, and on December 5, he was
terminated for those violations.1 Mitchem was
responsible for the decisions to hire and fire
Morrison.
II.
A.
We review a summary judgment de novo
and are bound by the same standards as was
the district court. Chaplin v. NationsCredit
Corp., 307 F.3d 368, 371 (5th Cir. 2002).
Summary judgment is appropriate only where
“the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together
with the affidavits, if any, “when viewed in the
light most favorable to the non-movant, ‘show
1 The termination letter listed the following
safety rule violations that “demonstrated that [Mor-
rison’s] ability to place safety as the first priority
in the facility is not acceptable” and resulted in his
termination:
(1) Morrison violated Weyerhaeuser’s Roof
Access policy by accessing the roof alone;
(2) Morrison violated Weyerhaeuser’s JSA
(Job Safety Analysis) policy by failing to
complete a non-routine JSA prior to at-
tempting to clear the jam in the cyclone
system.
(3) Morrison violated the Confined Space
Entry process by failing to perform the
required tasks preliminary to entering a
clearly identified confined space; and
(4) Morrison violated the LOTT process by
failing to isolate all energy sources prior to
sticking his arm in the diverter area inside
the cyclone.

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3
that there is no genuine issue as to any material
fact.’” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir. 2002) (quoting Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986)). Once the moving party has dem-
onstrated that the non-moving party has no
evidence such that a reasonable jury could
reach a verdict in its favor, the non-moving
party must put-forth specific facts that demon-
strate a genuine factual issue for trial. Id.
B.
Morrison claims his termination was age
discrimination. To maintain such a claim, a
plaintiff must bear the initial burden to make a
prima facie case of discrimination under the
burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Where only circumstantial evidence of discrim-
ination is available, a plaintiff must show that
he (1) was a member of the protected class
(over 40 years old); (2) was qualified for the
position; (3) was fired; and (4) was either
replaced by someone younger, treated less
favorably than employees who were similarly
situated or was otherwise discharged because
of his age.2
If established, a prima facie case raises an
inference of discrimination, and the burden of
production shifts to defendant to proffer a “le-
gitimate nondiscriminatory reason” for its ad-
verse selection. Sandstad, 309 F.3d at 897. If
defendant meets this burden, the presumption
of discrimination is dissipated, and the burden
returns to the plaintiff to prove discrimination.
Id. at 897 (citing St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511-12 (1993)). “[A]
plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s
asserted justification is false, may permit the
trier of fact to conclude that the employer un-
lawfully discriminated.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148
(2000).
Weyerhaeuser does not contest that Morri-
son was a member of the protected age group.
Even if we assume, as did the district court,
that Morrison otherwise properly stated a pri-
ma facie case of intentional age discrimination,
Weyerhaeuser adequately proffered a non-
discriminatory reason for firing MorrisonSSthe
violation of four separate safety violations on
November 26SSsuch that the burden was
shifted to Morrison to prove that the proffered
rationale was pretextual.
In opposition to summary judgment, Morri-
son points to evidence in the record that he
argues is probative of pretext: (1) testimony of
an occupational safety expert; (2) testimony of
a handwriting expert; and (3) Morrison’s de-
position testimony.3 Because we agree with
the district court that the proffered evidence is
not competent to raise an issue of material fact
to demonstrate pretext, summary judgment
was proper.
The primary evidence that Morrison relies
2 See West v. Nabors Drilling USA, Inc., 330
F.3d 379, 384 (5th Cir. 2003) (citing Brown v.
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir.
1996)); see also Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 897 (5th Cir. 2002).
3 Morrison also argues that certain Weyer-
haeuser documentsSScited from outside the rec-
ordSSdemonstrate that the rules used to justify his
termination were not in force at the time of the
accident and were merely fabricated afterwards.
Because this purported evidence is not in the rec-
ord, we may not consider it. See Nissho-Iwai Am.
Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988).

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4
on to show pretext is the testimony of Robert
Barr, an expert in occupational safety, but his
affidavit does not properly raise an issue of
material fact with regard to pretext. Although
conceding that Morrison violated the four
rules, Barr concludes that the four violations
should have been considered to be one inci-
dent, and thus under Weyerhaeuser’s disciplin-
ary policies Morrison should have faced, at
most, a suspension and retraining.
Barr’s statement, however, appears to be
bare opinion, without citation to any source.
It amounts to nothing more than his personal
feeling that Morrison was treated incorrectly
or unfairlySSthat he was not subjected to “ac-
ceptable business practices in the safety indus-
try”SSwhich is not probative of pretext. At is-
sue here is whether the termination was done
with discriminatory intent,4 not whether it was
correct from a business, ethical, or personal
perspective. 5
Morrison also offered the testimony of a
handwriting expert, Jeannett Hunt, who opined
that Morrison’s purported initials on a June 4,
2002, non-routine task check sheet were
falsified. As the district court correctly noted,
this evidence did not raise a material issue of
fact with regard to pretext, because Morrison
has failed to explain its relevance to the acci-
dent or to his termination.
Besides the expert testimony, Morrison’s
only summary judgment evidence is his deposi-
tion and affidavit testimony to the effect that
he believes the rules were used as a pretext to
discriminate against him because younger em-
ployees who had committed safety violations
were merely suspended, not fired. Morrison is
able specifically to identify one supervisor,
Mitch Mathis, who received different discipline
for a safety violation.
The Mathis incident is not probative cir-
cumstantial evidence of pretext, however, be-
cause the circumstances surrounding his viola-
tion were distinguishable as far less severe than
those in this caseSSMathis committed only
one, rather than four violations, and self-re-
4 Sandstad, 309 F.3d at 899 (“[An employer]
is entitled to be unreasonable so long as it does not
act with discriminatory animus”); see also May-
berry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995).
5 Barr also concluded that it was inappropriate
for Weyerhaeuser to hold management to a higher
standard than that used for other employees, be-
cause he has not seen that in his personal experi-
ence and it was not explicitly called for in Wey-
erhaeuser’s disciplinary policies. The appropriate
question in an ADEA case, however, is whether the
plaintiff was treated differently from another
similarly situated employee that was not a member
of his protected class, i.e., not over forty years old.
See Wyvill v. United Cos. Life Ins. Co., 212 F.3d
298, 304-05 (5th Cir. 2000) (requiring plaintiff to
show that company treated others differently in
“nearly identical circumstances”); Sarsha v. Sears,
(continued...)
5(...continued)
Roebuck & Co., 3 F.3d 1035, 1042 (7th Cir. 1993)
(holding that manager’s discrimination claim re-
quired evidence that another manager was treated
differently for a similar act).
A company concerned for its safety recordSSa
high priority of Weyerhaeuser’s, as Morrison ad-
mittedSSdoes not want to send a message to its
employees that its safety rules are optional or un-
important. It is thus perfectly rational for a super-
visor to be disciplined more severely for safety vio-
lationsSSparticularly where he is responsible for
training subordinates on safetySSbecause of the
bad example that is set when a supposed “expert”
on safety ignores the rules.

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5
ported the infraction.6 Further, it is doubtful
that Mathis can be considered a younger em-
ployee for a showing of pretext, because he
was in his late forties and thus was in the pro-
tected class and was not that much younger
than Morrison.
Other than Mathis, Morrison refers to other
individual employees only generally, without
specific reference to their identities or circum-
stances. This evidence is not probative of
pretext.
Even if we were to conclude that some of
the evidence is probative of pretext, the con-
nection is not strong enough to overcome the
“same-actor inference,” which was adopted in
Brown v. CSC Logic, Inc., 82 F.3d 651 (5th
Cir. 1996). Where the same person is respon-
sible for hiring and discharging an individual,
there is an inference that age was not the rea-
son for the discharge.7
Morrison was both hired and fired within a
period of two years by Mitchem. At best, the
evidence raises a tenuous inference of pretext,
which is insufficient to survive summary judg-
ment in most cases where an employer has
proffered a legitimate, non-discriminatory rea-
son for the adverse employment decision, and
particularly so where the same-actor inference
comes into play.8
In sum, because Morrison did not meet his
burden to produce evidence from which a fact-
finder could reasonably find that Weyerhaeus-
er’s proffered reason for terminating his em-
ployment was pretext for age discrimination,
the district court appropriately granted sum-
mary judgment.9
C.
Morrison alleges that Weyerhaeuser was
guilty of i.i.e.d. when it falsified a safety pro-
cedure checklist to assist its efforts to termi-
nate him, and by terminating him. To state a
6 See Wyvill, 212 F.3d at 304-05 (requiring
plaintiff to show that company treated others dif-
ferently in “nearly identical circumstances”); Man-
iccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999) (“We require that the quantity and quality
of the comparator’s misconduct be nearly
identical to prevent courts from second-guess-
ing employers’ reasonable decisions and con-
fusing apples with oranges.”).
7 See Brown, 82 F.3d at 658 (“Claims that em-
ployer animus exists in termination but not in hir-
ing seem irrational. From the standpoint of the
putative discriminator, it hardly makes sense to
hire workers from a group one dislikes (thereby
incurring the psychological costs of associating
with them), only to fire them once they are on the
job.”) (citations, quotation marks, and brackets
omitted).
8 See West, 330 F.3d at 385 (“It is possible for
a plaintiff’s evidence to permit a tenuous inference
of pretext yet be insufficient to support a reason-
able inference of discrimination.”).
9 As the district court noted, the record is re-
plete with evidence that Morrison’s termination for
violating safety rules was not pretextual. His
employment record at Weyerhaeuser was spotty,
indicating a pattern of ignoring company policies,
including safety regulations. His supervisor had
given him numerous oral reprimands for failure
properly to train subordinates in safety, and he was
given a written warning that “if you cannot/will not
perform as I require, you will not work here.” See
Reeves, 530 U.S. at 148 (upholding summary
judgement “[i]f the plaintiff created only a weak
issue of fact as to whether the employer’s reason
was untrue and there was abundant and
uncontroverted independent evidence that no
discrimination occurred”).

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claim of i.i.e.d. in Texas, a plaintiff must show
(1) intentional or reckless action (2) that was
extreme and outrageous; (3) that caused plain-
tiff emotional distress; and (4) that was se-
vere.10 Whether conduct is extreme and outra-
geous is initially a question of law.11 For con-
duct to be sufficiently extreme and outrageous
to state an i.i.e.d. claim, it must “go beyond all
possible bounds of decency, and to be regard-
ed as atrocious and utterly intolerable in a civ-
ilized community.”12
As a threshold matter, the mere fact that
Morrison was terminated is insufficient to state
an i.i.e.d. claim; Texas courts have announced
that such claims do not attach to the ordinary
employment dispute and can exist in only the
most unusual of circumstances.13 Otherwise,
the district court was correct in asserting that
even if Morrison’s claim of forgery were true,
that act was insufficiently extreme and outrag-
eousSSas a matter of lawSSto establish an
i.i.e.d. claim. As the court pointed out, the
checklist was not used as a basis for the deci-
sion to fire Morrison and was not used against
him in any way, even to embarrass him.
Morrison’s argument that the alleged forg-
ing of initials on the checklists constitutes ex-
treme and outrageous conduct based on Dean
v. Ford Motor Credit Co., 885 F.2d 300 (5th
Cir. 1989), is unconvincing. In Dean, we in-
terpreted Texas law to allow an i.i.e.d. claim
where a plaintiff alleged that her supervisor in-
tentionally placed two forged company checks
in her purse, because “[m]erely causing the
innocent plaintiff to be subject to such an
accusation of crime and put ting her in fear
that it might come passes the bounds of con-
duct that will be tolerated by a civilized society
and is, therefore, outrageous conduct.” Id. at
307 (emphasis added). Morrison was not
accused of any crime, so Dean is inapposite.
Even if the alleged forgery was illegal or un-
ethical, or the termination was unlawful under
the ADEA, that does not necessarily make it
sufficiently extreme and outrageous to support
a claim for i.i.e.d.14
10 Tex. Farm Bureau Mut. Ins. Cos. v. Sears,
84 S.W.3d 604, 610 (Tex. 2002); Twyman v. Twy-
man, 855 S.W.2d 619, 621-22 (Tex. 1993);
Hughes Training Inc. v. Cook, 254 F.3d 588, 594
(5th Cir. 2001).
11 Atkinson v. Denton Pub. Co., 84 F.3d 144,
151 (5th Cir. 1996).
12 Twyman, 855 S.W.2d at 621 (quoting RE-
STATEMENT (SECOND) OF TORTS § 46 (1965)).
13 Benners v. Blanks Color Imaging, Inc., 133
S.W.3d 364, 373 (Tex. App.SSDallas 2004, no
pet. h.) (“In the workplace, to properly manage its
business, an employer must be able to supervise,
review, criticize, demote, transfer and discipline
employees. Although many of these acts are nec-
essarily unpleasant for the employee, an employer
must have latitude to exercise these rights in a per-
missible way, even though emotional distress
results. Thus, a claim for intentional infliction of
emotional distress does not lie for an ordinary em-
ployment dispute.”) (internal citations omitted) ; see
also Walker v. Thompson, 214 F.3d 615, 628 (5th
(continued...)
13(...continued)
Cir. 2000) (citing Horton v. Montgomery Ward &
Co., 827 S.W.2d 361, 369 (Tex. App.SSSan
Antonio 1992, writ denied)).
14 Foye v. Montes, 9 S.W.3d 436, 440 (Tex.
AppSSHouston [14th Dist.] 1999, pet. denied)
(“Even conduct which may be illegal in an employ-
ment setting may not constitute the sort of be-
havior that constitutes ‘extreme and outrageous’
conduct.”) (citing Gearhart v. Eye Care Ctrs. of
Am. Inc., 888 F. Supp. 814, 819 (S.D. Tex.

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Alternatively, Morrison’s claim fails as a
matter of law because there is no evidence that
he suffered the requisite degree of emotional
distress. Under Texas law, the emotional dis-
tress must be “severe.”15 “Severe” emotional
distress is that which no reasonable person
could be expected to endure and must be more
than “mere worry, vexation, embarrassment or
anger.”16 Morrison has not sought counseling,
therapy or medication and admitted that the
distress caused by his discharge was mostly fi-
nancial. He merely asserts, without citation to
evidence, that “[i]t is undisputed that he suf-
fered severe damage,” which is insufficient on
its own allow his i.i.e.d. claim to survive sum-
mary judgment.17
D.
Finally, Morrison brought a claim for the
Texas tort of invasion of privacy, specifically
that he was subject to an unreasonable intru-
sion on his private affairs when his supervisor
insisted on and was present during his medical
examination following the accident.18 There
are three elements to this type of invasion of
privacy claim: (1) an intentional intrusion;
(2) upon the seclusion, solitude, or private af-
fairs of another; (3) that would be highly of-
fensive to a reasonable person.19 Texas courts
have added a fourth elementSSthat the intru-
sion be unreasonable, unjustified or unwarrant-
ed.20 In the employment context, Texas fur-
ther requires that the employee have a rea-
sonable expectation of privacy in the area
searched or the matters investigated.21
The district court correctly found that Mor-
rison cannot sustain a claim for invasion of pri-
vacy, because he did not have an expectation
of privacy in anything that occurred at the
examination. He testified that all that occurred
was an x-ray of his hand, and no medical
personnel asked him questions. By Morrison’s
own admission, nothing private was disclosed,
and he did not feel that he was injured by his
supervisor’s presence. Under these circum-
stances, where he was not harmed and had no
14(...continued)
1995)).
15 Twyman, 855 S.W.2d at 621-22.
16 Huckabay v. Moore, 142 F.3d 233, 242 (5th
Cir. 1998) (citing Behringer v. Behringer, 839,
844 (Tex. App.SSFort Worth 1994, writ denied);
Regan v. Lee, 879 S.W.2d 133, 136 (Tex. App.
SSHouston [14th Dist.] 1994, no writ)).
17 Ford v. NYLCare Health Plans, Inc., 301
F.3d 329, 332-33 (5th Cir. 2002) (“At the sum-
mary judgment stage, ‘the plaintiff can no longer
rest on . . . mere allegations, but must set forth by
affidavit or other evidence specific facts.”) (internal
citations omitted); see also TIG Ins., 276 F.3d at
759 (“Conclusional allegations and denials, spec-
ulation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a
genuine issue for trial.”) (internal citations omit-
ted).
18 See Billings v. Atkinson, 489 S.W.2d 858,
859 (Tex. 1973) (recognizing tort of invasion of
privacy); see also Cain v. Hearst Corp., 878
S.W.2d 577, 578 (Tex. 1994) (identifying which
forms of tort are recognized, including intrusion on
the seclusion of the private affairs of another).
19 Valenzuela v. Aquino, 853 S.W.2d 512, 513
(Tex. 1993); RESTATEMENT (SECOND) OF TORTS
§625B (1977).
20 See Billings, 489 S.W.2d at 860.
21 See K-Mart Corp. v. Trotti, 677 S.W.2d 632,
636 (Tex. App.SSHouston [1st Dist.] 1994) (find-
ing that employee had reasonable expectation of
privacy in locked locker and purse).

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intention of keeping the revealed information
private, Morrison cannot sustain a claim for
invasion of privacy.22
AFFIRMED.
22 In addition, it is doubtful that Morrison had
a reasonable expectation of privacy in information
sought by the employer as part of an investigation
directly related to its business interests. See, e.g.,
Patton v. United Parcel Serv., Inc., 910 F. Supp.
1250, 1276 (S.D. Tex 1995).

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