IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-60014

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ROWAN COMPANIES, INC.,

Plaintiff-Appellee,

VERSUS

TIMOTHY MILLER,

Defendant-Appellant,

* * * * * * * * * * * * * * * * * * * * * * *

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No. 98-60475

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ROWAN COMPANIES, INC.,

PlaintiffCounter DefendantAppellee,

VERSUS

TIMOTHY MILLER,

DefendantCounter ClaimantAppellant.

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Appeals from the United States District Court

for the Southern District of Mississippi

(4:96-CV-60-W-S, & 4:96-CV-60)

_________________________

May 4, 1999

Before SMITH, WIENER, and PARKER, Circuit Judges.
 

* 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should not be published and is not precedent except under the limited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.

 

1 The defendant company initiated this as a declaratory judgment action to

establish its maintenance and cure obligations; Miller counterclaimed on the

basis of the issues discussed in this opinion.

2

JERRY E. SMITH, Circuit Judge:*

Timothy Miller appeals the dismissal of his claim of hostile

work environment under title VII and his supplemental state-law

claim of intentional infliction of emotional distress

("i.i.e.d.").1 Agreeing with the district court that no reasonable

jury could find for Miller on either claim, we affirm.

I.

A.

At the close of Miller’s case, his former employer, defendant

Rowan Companies, Inc. (“Rowan”), moved for judgment as a matter of

law ("j.m.l.") under FED. R. CIV. P. 50, which provides that

[i]f during a trial by jury a party has been fully heard

on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue

against that party and may grant a motion for judgment as

a matter of law against that party with respect to a

claim or defense that cannot under controlling law be

maintained or defeated without a favorable finding on

that issue.

We review the district court’s decision de novo. Burch v. CocaCola Co., 119 F.3d 305, 313 (5th Cir. 1997), cert. denied,

118 S. Ct. 871 (1998). We affirm if we conclude that there is

insufficient evidence to create a fact question for the jury.
3

Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir. 1994). “If the

facts and inferences point so strongly and overwhelmingly in favor

of the moving party . . . that reasonable jurors could not have

arrived at a contrary verdict, then [we] will conclude that the

motion should have been granted.” Burch, 119 F.3d at 313.

B.

Miller, a black former police officer, was hired by Rowan in

July 1994 as a roustabout assigned to Rig 38, an offshore drilling

facility in the Gulf of Mexico. Although he got along well with

the crew and was promoted to floorman (with a corresponding pay

increase) in seven months, Miller claims that he was subjected to

racially derogatory comments. Two crewmen, George Szemborski and

Don Rutan, held themselves out as Klansmen and invited Miller to

their purported KKK meetings. Miller responded by greeting his

white coworkers with the “power salute”SSan arm gesture indicating

“power to the people.” In similar fashion, when told of an

incident in Vidor, Texas, in which a black family’s home had been

burned down because “niggers” are not welcome there, Miller

indicated an interest in moving there. Wilson reported none of

this banter to his supervisors.

In March 1995, Miller found an envelope, anonymously put into

his locker by Szemborski and Rutan, containing a piece of rope tied

like a noose and a hand-written note stating “wear this to the

party tonight.” Miller told his supervisor, Kirkpatrick, about

this incident, whereupon Kirkpatrick indicated support for Miller
4

and told him not to worry about it. Miller then reported this

incident to another one of his supervisors, Ramage, who asked

Miller whether he had been bothering anybody. When Miller

indicated that he had not, Ramage remarked that all this

“horseplay” had to be cut out. He then untied the rope and threw

it out.

Hearing how upset he had become over the incident, several of

Miller’s white coworkers came forward and spoke words of support

and encouragement to him. Dick Cain, the night tool pusher, told

Miller that he would put a stop to such incidents. Even Szemborski

and Rutan came forth and admitted their wrongdoing to Miller,

explaining that the whole matter was intended as a “joke.” 

Miller accepted their apologies, and his work thereafter

continued without incident. Miller claims, however, to have

suffered nightmares about the event. When he reported this to the

Vice President of Industrial Relations, Bill Person, his claim was

met with surprise; Person said that the incident “shouldn’t have

affected” a former police officer such as Miller.

While visiting his parents during two weeks off between

shifts, Miller mentioned the March 21 incident. His father

contacted the local chapter of the NAACP, which sent a letter to

Rowan complaining of the affair.

Upon returning to work, Miller was contacted by Dereck

Necaise, the rig manager, who requested a private meeting with him,

at which Necaise offered to transfer Szemborski and Rutan to

another rig if Miller was uncomfortable working with them. Miller
5

instead requested to be transferred, and his wish was granted.

Miller’s tenure on his new rig was without incident.

Explaining, however, that he was still upset by it, Miller

requested and was granted a paid leave of absence.

Rowan’s independent investigation of the incident led it to

conclude that it was an isolated breach of company policy.

Szemborski and Rutan were counseled and fined two weeks' pay as

punishment; each was informed that repetition of such conduct would

result in termination. Necaise was counseled regarding Rowan’s

anti-discrimination policy, and a written notice was issued to all

employees reminding them that horseplay and racial discrimination

would not be tolerated and could result in immediate suspension or

termination.

Necaise met with Miller during the leave of absence and

apologized for the incident. He assured Miller that the occurrence

was a violation of company policy that would not happen again and

requested that Miller return to work. Miller declined and is

currently pursuing a career in health care.

II.

A.

A title VII hostile work environment claim requires that

(1) plaintiff belongs to a protected class; (2) he was subject to

unwelcome harassment; (3) the harassment was racially motivated;

(4) the harassment affected a term, condition, or privilege of

employment; and (5) the employer knew or should have known about
6

the harassment and failed to take prompt remedial action. See Long

v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996). As the

district court correctly noted, Miller has failed to establish the

possibility of the fifth element.

Regarding Rowan’s notice, in the words of the district court:

“[T]he incident in question was isolated, unannounced, and not

preceded by any conduct brought to the attention of the defendant.”

See Jones v. Flagship Int’l, 793 F.2d 714, 720 (5th Cir. 1986).

Regarding remedial action, Rowan docked the perpetrators

(Szemborski and Rutan) two weeks’ pay, issued written warnings to

all crewmen, and instructed supervisory personnel on the gravity of

Miller’s plight. Rowan offered to remove either Miller or the

perpetrators from the rig, depending on Miller’s preference.

Finally, the culprits personally apologized to Miller, explained

that they were only joking, and Miller accepted their apologies and

explanations as such. The court was correct in holding that this

constituted prompt remedial action as a matter of law. See, e.g.,

Carmon v. Lubrizol Corp., 17 F.3d 791, 793-95 (5th Cir. 1994)

(finding prompt remedial action).

B.

The elements of a claim of i.i.e.d., under Mississippi law,

are that (1) plaintiff was subjected to conduct by defendant’s

employees that was “so outrageous in character, and extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized
7

community,” Wong v. Stripling, 700 So. 2d 296, 306 (Miss. 1997);

(2) the conduct proximately caused plaintiff severe emotional

distress; (3) defendant intended to inflict severe emotional

distress or knew or was substantially certain that severe emotional

distress would result; and (4) defendant’s employees were acting in

the course and scope of their employment, and the conduct was

ratified by the defendant, Tichenor v. Roman Catholic Church,

32 F.3d 953, 959 n.21 (5th Cir. 1994). The defendant is Rowan, not

Szemborski and Rutan. Miller has failed to adduce evidence from

which a reasonable jury could find that Rowan either “intended to

inflict severe emotional distress,” “knew or was substantially

certain that severe emotional distress would” befall Miller, or

“ratified” the offensive conduct in question. See, e.g., Leaf

River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss.

1995) (finding that defendant’s bona fide remedial efforts

precluded a finding of intentional infliction of emotional

distress). Under the totality of circumstances, Rowan's response

to Miller’s plight has been responsible, fair, and arguably

aggressive and by no means evinced improper intent or ratification.

The district court issued a fine opinion explaining all this.

The judgment is AFFIRMED.