* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4.

1 29 U.S.C. §621, et. seq.

.

-1- United States Court of Appeals

Fifth Circuit



## FILED

June 25, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-20281

ERVIN E. HAWKINS,

Plaintiff-Appellant

VERSUS

FRANK GILLMAN PONTIAC, GILLMAN, LTD., and THE GILLMAN COMPANIES,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas, Houston Division

(H-02-CV-80)

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Ervin E. Hawkins brought this action

against his former employer, Frank Gillman Pontiac, Gillman Ltd.,

and the Gillman Companies (“Gillman Pontiac”) alleging age

discrimination unde r the Age Discrimination in Employment Act of

1967 (“ADEA”) 1 and intentional inflict ion of emotional distress

(“IIED”) under Texas state law. The district court found that both2 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986).

-2- claims were barred by the statute of li mitations and granted

summary judgment in Gillm an Pontiac’s favor. We REVERSE the

district court’s grant of summary judgment for Gillman Pontiac on

Hawkins’s ADEA claim. But we AFFIRM summary judgment for Gillman

Pontiac as to Hawkins’s Texas state law IIED claim.

BACKGROUND

For summary judgment purpos es, we review the depositions,

affidavits, and documents in the record in the light most favorable

to Hawkins, the non-movant. 2 Applying that standard, the following

facts reasonably may be found or inferred from the record.

Hawkins joined Gillman Pontiac as an employee in 1964. He was

promoted to a sales manager position in 1968. In June 1992,

Hawkins was approached by one of his supervisors who offered

Hawkins a mandatory transfer to the positio n of “fleet sales

manager.” Although Hawkins did little to investigate the fleet

sales manager position, based on his 20 years’ experience with

Gillman Pontiac, he believed that the transfer would be a demotion.

Gillman Pontiac disputes that the offered transfer was a demotion,

but it is undisputed that the compensation for the new position

would have been solely commission-based whereas Hawkins’s existing

sales manager position was compensated on a salary plus commission

basis.

The transfer Gillman Pontiac offered to Hawkins was mandatory.-3-

In both his deposition and affidavit testimony, Hawkins testified

that when he asked why he could not stay in his position as a sales

manager, Hawkins’s direct supervisor told him that Gillman Pontiac

wanted “new blood” in the sales manager position. According to

Hawkins, when Hawkins asked his supervisor what the “ne w blood”

comment meant, the supervisor clari fied the comment by stating,

“you know, younger people.” Hawkins decided to decline the

mandatory transfer and ceased working at Gillman Pontiac.

In June of 1993, nearly a year after Hawkins ended his

employment with Gillman, Ha wkins filed a charge of age

discrimination with the Equal Employment Opportunity Commission

(“EEOC”). Hawkins engaged counsel, Phyllis Finger, to represent

him before the EEOC. Accordingly, Finger directed the EEOC to keep

her apprised of the developments in Hawkins’s case.

The EEOC administrative file, which was attached to Gillman

Pontiac’s motion for summary judgment, reflects no activity on

Hawkins’s discrimination charge between A ugust 1994 and August

1998. During that time, Finger closed her law practice and changed

her mailing address. Finger ’s affidavit states that she duly

informed the EEOC of the closure of her legal practice and her new

mailing address. The EE OC file, however, is devoid of any

annotations or documentation corroborating Finger’s testimony.

In September of 1998, the EEOC issued a Dismissal and Notice

of Ri ghts (“right-to-sue”) letter, which was mailed but returned-4-

undelivered. The right-to-sue letter itself is correctly addressed

to Hawkins and marked with certified mail number Z 0 62 781 349.

But an empty window envelope in the EEOC file with the right-to-sue

letter did not indicate to whom the letter had been mailed. The

envelope is postmarked, dated, and has the certified ma il label

attached. The certified mail receipt bears a handwritten note

suggesting that the right-to-sue letter was to be sent to Finger.

The right-to-sue letter was returned to the EEOC undelivered and

stamped “Forwarding Order Has Expired.”

Hawkins’s mailing address in September of 1998 was the same

address he had when he filed his charge of discrimination with the

EEOC. Hawkins was not traveling in September of 1998, and Hawkins

did not recall having any trouble with his mail during that period.

Additionally, Hawkins did not receive the September 1998 right-tosue letter unti l it was handed to him on October 16, 2001 when

Hawkins went to the EEOC office with his current counsel.

On January 10, 2002, within 90 day s of his October 16, 2001

receipt o f the September 1998 right-to-sue letter, Hawkins filed

suit in federal district court claiming that: (1) he was

constructively discharged due to his age when Gillman Pontiac made

the non-optional transfer offer; and (2)the constructive discharge

resulted in emotional distress because he was angered and

embarrassed due to the loss of his long-time position with Gillman

Pontiac.3 Hanks v. Transcon. Gas Pipe Line Corp.

, 953 F.2d 996, 997 (5th

Cir. 1992)(internal citations omitted).

4 See Fed. R. Civ. P. 56(c).

5 See Holtzclaw v. DSC Communications Corp. , 255 F.3d 254, 258

(5th Cir. 2001)(internal citation omitted).

-5- G illman Pontiac moved for summary judgment on both claims.

The district court granted summary judgme nt concluding that both

claims were time-barred because: (1) the ADEA claim was not filed

within 90 days of the date that the EEOC mailed the right-to-sue

letter; a nd (2) the EEOC proceedings did not toll the two year

statute of limitations applicable to IIED claims under Texas state

law. Hawkins timely appealed.

ANALYSIS

We review the distric t court’s grant of summary judgment d e

novo

, applying the sam e criteria used by the district court. 3

Summary judgment is only proper if the movant can show that there

is no genuine dispute as to any material issue of fact and that he

is entitled to judgment as a matter of law. 4 Morever, we may

sustain a district court’s grant of summary judgment “on any ground

supported by the record, even if it is different from that relied

on by the district court.” 5

I. Plaintiff’s ADEA claim

In order to file an age discrimination suit under the ADEA, a6 See Julian v. City of Ho uston , 314 F.3d 721, 725 (5th Cir.

2002).

7 29 U.S.C. § 626 (d)-(e).

8 Julian , 314 F.3d at 726 (internal citations omitted).

9 See Espinoza v. Missouri Pac. R.R. Co.

, 754 F.2d 1247, 1249

(5th Cir. 1985).

10 See Espinoza

, 754 F.2d at 1249; see also Franks v. Bowman

Transp. Co.

, 495 F.2d 398, 405 (5th Ci r. 1974)(holding that if a

plaintiff failed to receive a notice of right-to-sue thought no

fault of his own, delivery of the letter to the mailing address

cannot be considered to constitute statutory notification), rev’d

on other grounds , 424 U.S. 747 (1976).

-6- plaintiff must first file an administrative charge with the EEOC. 6

The time period for filing suit under the ADEA is no earlier than

60 days after a charge is filed and no later than 90 days after

receiving a right-to-sue le tter from the EEOC. 7 Thus, an ADEA

plaintiff need not wait on a right-to-s ue letter to be issued by

the EEOC before he files suit. 8 But if the plaintiff waits until

the EEOC issues a right-to-sue letter, the 90-day filing

requirement in ADEA is treated as a statute of limitations, and it

is subject to tolling and waiver. 9 We have held that delivery of

a right-to-sue letter to the address designated by the pl aintiff

suffices to start the 90-day filing period unless: (1) the

plaintiff, through no fault of his own, failed to receive the

letter or; (2) the statute should be tolled for some other

equitable reason until the plaintiff actually received notice. 10

Applying the p ertinent legal principles to the facts that-7-

reasonably may be found and inferred in Hawkins’s favor from the

evidence of record, we conclude that a reasonable trier of fact

could find that Hawkins failed t o receive a right-to-sue letter

prior to October 16, 2001 through no fault on his part. The record

is unclear as to the address that the EEOC intended the right-tosue letter to be delivered because the right-to-sue letter was

addressed to Hawkins but a hand written note on the certified mail

receipt indicates that the EEOC actually attempted to mail the

letter to Finger. Ms. Finger states that she notified the EEOC

that, as Hawkins’s attorney, she would receive mailings f or him.

She said that she later notified the EEOC of her new address when

it was changed. Both Hawkins and Finger attested that neither of

them has ever received a right-to-sue letter in this case prior to

Hawkins’s October 16, 2001 visit to the EEOC office, although their

correct mailing addresses were on file with the EEOC. Thus,

reading t he record in the light most reasonably favorable to

Hawkins, neither Hawkins nor his attorney can be held responsible

for Hawkins’s non-receipt of the right-to-sue letter. Accordingly,

there is a genuine dispute as to a material issue of fact that must

be resolved at trial, viz

., whether Hawkins and his former counsel

were without fault in failing to receive the September 1998 rightto-sue letter.

The question now becomes whether Hawkins can withstand Gillman

P ontiac’s summary judgment challenge to the merits of Hawki ns’s11 See 29 U.S.C. 623(a)(1).

12 See Price v. Marathon Cheese Corp.

, 119 F.3d 330, 336 (5th

Cir. 1997).

13 See Fabella v. Soccorro Indep. Sch. Dist. , 329 F.3d 409, 415

(5th Cir 2003).

14 Faruki v. Parson S.I.P., Inc.

, 123 F.3d 315, 318-19 (5th Cir.

1997)(internal citations omitted).

-8- ADEA claim. Although the district court did not specifically

consider this prong of Gillman Pontiac’s attack, we next determine

if the district court’s grant of summary judgment may be sustained

on any other ground supported by the record.

Under ADEA, an employer may not discharge an employee on the

basis of that employee’s age. 11 A plaintiff must prove intentional

discrimination to establish a violation of the ADEA, which he can

do by presenting either direct or circumstantial evidence. 12

In this case, Hawkins presented direct evidence of intentional

discrimination because, according to Hawkins, the reason given by

his direct supervisor for the mandatory transfer was that Gillman

Pontiac wanted “new blood,” “you know, younger people” in the sales

manager position that Hawkins occupied. 13 But even with summary

judgment proof of direct evidence of intentional discrimination,

Hawkins sti ll must show that he was constructively discharged in

order to survive Gillman Pontiac’s summary judgment c hallenge to

his ADEA claim. 14

A constructive discha rge occurs when the employer makes15 See id. ; Ward v. Bechtel Corp. , 102 F.3d 199, 202 (5th Cir.

1997).

16 Barrow v. New Orleans S.S. Ass’n , 10 F.3d 292, 297 (5th Cir.

1994).

17 Id

. at 297 n.19 (citing McKethan v. Texas Farm Bureau

, 996

F.2d 734, 740-41 (5th Cir.), r eh’g denied

, 3 F.3d 441 (5th Cir.

1993), cert. denied , 510 U.S. 1046, 126 L. Ed. 2d 661, 114 S. Ct.

694 (1994)).

-9- working conditions so intolerable that a reasonable employee would

feel compelled to resign. 15 Courts consider a variety of factors

in determining whether an employee was constructively discharged,

including the following: (1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4) reassignment to menial or

degrading work; ( 5) badgering, harassment, or humiliation by the

employer calculated to encourage the employee’s resignation; or (6)

offers of early retirement that would make the employee worse off

whether the offer was a c cepted or not. 16 The question is not

whether Hawkins felt compelled to resign, but whether a reasonable

employee in Hawkins’s situation would have felt so compelled. 17

After r eviewing the record, a reasonable fact-finder could

conclude that the mandatory transfer would have been a demotion in

light of the undisputed changes in Hawkins’s salary structure and

the significant reduction in number of employees he would manage in

the offered position. A reasonable fact-finder could also conclude

that Hawkins performed sufficient research on the offered position

prior to resigning (in light of his 20-plus years’ experience at18 See Fierros v. Tx. De p’t of Health , 274 F.3d 187, 190 (5th

Cir. 2001).

19 T EX

. C IV

. P RAC

. & R EM

. C ODE § 16.003 (West. 2004); M atlock v.

McCormick , 948 S.W.2d 308, 311 (1997).

-10- Gillman Pontiac) to justify a finding that Hawkins had been

constructively discharged. Thus, the district court’s grant of

summary judgment to Gillman Pontiac cannot be sustained based on

the merits of Hawkins’s ADEA claim. 18

II. Hawkins’s State IIED claim

The applicable statute of limitations for IIED claims in Texas

is two years. 19 Because Hawkins left Gillman Pontiac’s employ in

July of 1992, the district court concluded that Hawkins’s IIED

claim filed in federal court nine years later is time-barred since

the EEOC proceedings did not toll the applicable statute of

limitations period. However, neither Texas nor this court has

decided whether EEO C proceedings that a plaintiff is required to

e xhaust in bringing a federal discrimination claim will toll the

Texas stat ute of limitations applicable to the state law IIED

claim. Because Hawkins cannot survive summary judgment on the

merits of his IIED claim, however, we need not decide the res nova

state statute of limitations issue.

In order to establish a claim for IIED under Texas law,

Hawkins must show that: (1) Gillman Pontiac acted intentionally or

recklessly; (2) its condu ct was extreme and outrageous; (3) its20 Southwestern Bel l Mobile Sys. v. Franco , 971 S.W.2d 52,

53(Tex. 1998)(holding that wrongful termination of employment,

without more, is not so extreme and outrageous to support an IIED

claim); MacArthur v. Univ. of Tex. Hlth. Ct r. , 45 F.3d 890, 899

(5th Cir. 1995)(“In the employment context, a claim for intentional

infliction of emotional distress will not be supported by the broad

range of conduct labeled as ‘mere employment disputes.’”)(internal

citations omitted).

21 Parkway Co. v. Woodruff , 901 S.W.2d 433, 434 (Tex. 1995).

-11- actions caused Hawkins emotional distre ss; and (3) Hawkins’s

resulting emotional distress was severe. Garden-variety employment

disputes do not usually constitute an extreme and outrageous action

for the purpose of supporting a claim for IIED. 20 Moreover, “mere

worry, anxiety, vexation, embarrassment, or anger” are not

sufficient to make out an IIED claim. 21

The record demonstrates that Hawkins was subjected to a few

discriminatory comments and that he was worried and embarrassed by

the loss of his job. The record also shows that Hawkins endured a

few sleepless nights, which he self-medicat ed with aspirin and

over-the-counter sleeping aids. Based on this record evidence,

Hawkins has suffered neither extreme and outrageous conduct nor the

severe emotional dist ress necessary to establish an IIED claim.

Therefore we conclude that, even assuming Hawkins timely filed his

IIED claim, summary judgment on thi s claim is nevertheless

warranted.

CONCLUSION

Because we conclude that there are genuine disputes of-12-

material fact concerning Hawkins’s ADEA claim, we REVERSE the

district court’s grant of summary judgment on that claim and

REMAND the case for further proceedings. However, because we

conclude that Hawkins has not established all the elements of an

IIED claim, we AFFIRM the district court’s grant of summary

judgment on that state law claim.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.