United States Court of Appeals,

Fifth Circuit.

No. 94-20439.

Virginia WELLER, Plaintiff-Appellee,

v.

CITATION OIL & GAS CORPORATION, and Ralph Hollingshead, Defendants-Appellants.

June 3, 1996.

Appeals from the United States District Court for the Southern District of Texas.

Before GARWOOD, EMILIO M. GARZA and DEMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants Citation Oil & Gas Corporati on ("Citation") and Ralph Hollingshead appeal a jury

verdict awarding plaint iff

Virginia Weller damages on her employment discrimination claims. We

reverse.

I

Weller worked as a Contract Administrator in Citation's Contract and Marketing Department.

The department consisted of Weller, her sup erviso r Ralph Hollingshead, and one other female

employee. Through Weller's work monitoring natural gas stored in the El Paso Natural Gas Pipeline,

Weller discovered that Citation owned a quantity of gas which was not reflected in Citation's records.

Before completing a memorandum to Hollingshead detailing her discovery , Weller informed the

Executive Vice President' s secretary about the gas. When the Executive Vice President phoned

Hollingshead to discuss the discovered gas, Hollingshead was "caught off guard" and was unprepared

to explain the status of the gas. Hollingshead's superiors reprimanded him, and in turn, Hollingshead

reprimanded Weller f

o r ignoring proper channels. According to Weller, the reprimand was

unnecessarily harsh. During the next four days, Weller testified that Hollingshead seemed angry and

did not speak to her.

Shortly thereafter, Hollingshead loaned Weller a religio us children's book about angels.

Weller testified that she was glad they were speaking again. Upon returning the book the next day,1 Weller testified that she was not offended by this book.

2 The article states, "When we speak of Jezebel, we are identifying the source in our society of

obsessive sensuality, unbridled witchcraft and hatred of male authority."

3 The article states, "let us recognize that this demon can also operate through men. In fact,

Jezebel seeks the highly refined qualities of the professional musician...." The article continues

that the spirit "flows unhindered throughout the entertainment industries. It flaunts itself in the

world of fashion; it holds degrees in the philosophical departments of our schools and colleges." Weller told Hollingshead that the book presented a "unique thought" on t he subject of angels. 1

Hollingshead and Weller proceeded to have a short conversation about the death of John the Baptist,

and how a woman, po ssessed with a spirit called "Jezebel," danced when John the Baptist was

beheaded. Hollingshead then gave Weller some excerpted chapters from T he Three Battlegrounds,

a book by Francis Frangipane. According to Weller, she felt "anger" and "coldness" coming from

Hollingshead when he handed her the article. As he handed her the material, Hollingshead stated "the

Spirit of Jezebel is alive today."

The excerpted material Hollings head gave Weller contained an intense religious diatribe

concerning the "Spirit of Jezebel," a "controlling" and "manipul at ive" spirit bent on "corrupting"

society and turning it away from a fundamentalist understanding o f t he t eachings of Christ. 2

Acco r ding to the excerpt, the Spirit of Jezebel "is without gender," yet prefers to work through

women because of the "uniqueness of the female psyche in its abilit y to manipulate without physical

force." 3 The excerpt encourages its readers to "do battle" against the Spirit of Jezebel in order to

maintain a fundamentalist Christian order.

Weller was deeply offended by the excerpt's contents. She believed that Hollingshead

intended the material as a comment on her assertiveness at work. Three weeks later, after consulting

an attorney

, Weller concluded that she could no longer work with Hollingshead. She complained to

Citation o fficials and requested a transfer. Citation officials made an inquiry into the incident and

reprimanded Hollingshead but were unable to transfer Weller. Citation officials told Weller that they

had spoken to Hollingshead and anticipated no further problems if she would return to work. After

several weeks of negotiations, she resigned. Weller filed suit against Citation and Hollingshead,

asserting claims for sexual harassment, constructive discharge, and intentional inflict ion of emotional4 42 U.S.C. § 2000e-2.

distress. A jury found in her favor and awarded damages on all claims. Defendants now appeal the

jury verdict.

II

The defendants argue that Weller presented insufficient evidence to support the jury's verdict.

In reviewing a case for sufficiency of the evidence, we consider all the evidence presented, not just

the evidence supporting the verdict, but in the light mo st favorable to, and drawing all reasonable

inferences in favor of, the party who obtained the verdict. B oeing Co. v. Shipman, 411 F.2d 365, 374

(5th Cir.1969) ( en banc ). We will reverse only if reasonable minds exercising impartial judgment

could not have arrived at the verdict. D eAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d

591, 594 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995).

To state a claim for relief under Title VII 4 for gender discrimination based on a theory of a

hostile work environment, a plaint iff must prove (1) that she belongs to a protected class, (2) that she

was subject to u nwelcome harassment, (3) that the harassment was based on sex, (4) that the

harassment affected a term, condition or privilege of employment, and (5) that the employer knew

o r should have known about the harassment and failed to take prompt remedial action

. Nash v.

Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir.1993). Sexually discriminatory verbal

intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the

vict im's employment and create a n abusive wo rking environment violative of Title VII. H arris v.

Forklift Systems, Inc., 510 U.S. 17, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). In order to

be actionable, however, the challenged conduct must create an environment that a reasonable person

would find hostile or abusive. I d. Whether an environment is hostile or abusive depends on a totality

of circumstances, focusing on factors such as the frequency of the conduct, t he severity of the

conduct, the degree to which the conduct is physically threatening or humiliat ing, and the degree to

which the conduct unreasonably interferes with an employ ee's work perform ance. I d. at ----, 114

S.Ct. at 371. We have previously noted that the " "mere utterance of an ... epithet which engenders

offensive feelings in an employee' " is insufficient, without more, to support Title VII liabilit y.5 It is undisputed that the Jezebel excerpt was an isolated incident in an otherwise satisfactory

work relationship.

6 In DeAngelis, we noted the yet unresolved dilemma facing courts adjudicating claims at the

intersection of Title VII and the First Amendment:

Where pure expression is involved, Title VII steers into the territory of the First

Amendment. It is no use to deny or minimize this problem because, when Title

VII is applied to sexual harassment claims founded solely on verbal insults,

pictorial or literary matter, the statute imposes content-based,

viewpoint-discriminatory restrictions on speech.

DeAngelis, 51 F.3d at 598-99. Supreme Court precedent in this area provides little

guidance concerning whether conduct targeted for its expressive content, like

Hollingshead's conduct in this case, may be regulated under Title VII. See Wisconsin v.

Mitchell, 508 U.S. 476, 485-87, 113 S.Ct. 2194, 2200, 124 L.Ed.2d 436 (1993) (holding

that conduct not

targeted on the basis of its expressive content may be regulated under

Title VII). Because we find that the evidence was insufficient to support the jury's verdict,

we leave this troubling question for another day. DeAngelis, 51 F.3d at 595 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57 , 67, 106 S.Ct.

2399, 2405, 91 L.Ed.2d 49 (1986)).

Citation and Hollingshead argue that giving the Spirit of Jezebel excerpt to Weller was

insufficient to support the jury's finding of hostile work environment. We agree. Title VII was only

meant to bar conduct that is so severe and pervasive that it destroys a protected clas s member's

opportunity to succeed in the workplace. DeAngelis, 51 F.3d at 593. Viewing the evidence in the

light most favorable to the verdict, the jury could have reasonably inferred that Hollingshead meant

the article as retributive epithet—that Hollingshead remained angry at Weller and that he was calling

her a "Jezebel." 5 We do not doubt that Weller was deeply offended by the article. However, we note

that making actionable "conduct that sporadically wounds or offends but does not hinder a female

employee's performance, would not serve the goal of equality." I d. Instead, a lesser standard "would

attempt to insulate women from everyday insults as if they remained models of Victorian reticence."

Id. Such a result is not the goal of Title VII. I d. We therefore hold that it was unreasonable, on the

evidence presented, for the jury to find that Hollingshead's conduct created a hostile work

environment. 6 Accordingly, we reverse the jury's verdict awarding Weller damages under a hostile7 Because Weller failed to present sufficient evidence to support her hostile work environment

claim, her constructive discharge claim necessarily fails as well. See Landgraf v. USI Film Prods.,

968 F.2d 427, 429 (5th Cir.1992), affirmed, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229

(1994) ("To prove constructive discharge, the plaintiff must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to prove a hostile work environment.").

We also need not address whether the jury properly held Hollingshead personally liable under

Title VII. See Grant v. Lone Star Co., 21 F.3d 649, 650 (5th Cir.) (refusing to hold individual,

who does not qualify as an "employer" under Title VII, personally liable for creating hostile work

environment), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994). Nor need we

address Citation's claim that the company took sufficient remedial steps to insulate itself from

liabilit y. See Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir.1994) (insulating an employer

from Title VII liability where an employer takes an employee's allegations seriously, conducts a

prompt and thorough investigation, and immediately implements remedial or disciplinary

measures). work environment theory. 7

III

The defendants next contest the jury's award for intentional inflict ion of emotional distress.

Under Texas law, intentional inflict ion of em o t io nal distress requires proof (1) that the defendant

acted intentionally or recklessly, (2) that the defendant's conduct was extreme and outrageous, (3)

that the defendant's actions caused the plaint iff emotional distress, and (4) that the emotional distress

suffered by the plaint iff was severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th

Cir.1989). Conduct is "outrageous," for purposes of an intentional infliction of emotional distress

claim, "if it surpasses all bounds of decency, such that it is utterly intoler able in a civilized

community." U

galde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993) (internal

quotati on marks omitted). We have previously stated, in affirming summary judgment for a defendant

on an intentional i nflict io n of emotional distress claim, "Liability does not extend to mere insults,

indignities, threats, annoyances, or petty oppressions." Id. at 243.

Citation and Hollingshead argue that the evidence was insufficient to support Weller's claim

of intentional inflict

ion of emotional distress. After carefully reviewing the evidence in the light most

favorable to the verdict, we conclude that Weller presented insufficient evidence to support the jury's

verdict for intentional inflict ion of emotional distress. The Jezebel excerpt may have been hurtful and

offensive, but intentional infliction of emotional distress requires evidence of conduct beyond mere

insults, indignities, or petty oppressions. I d. Weller failed to present such evidence. Therefore, it8 Having reversed the jury's verdict in total, we need not address defendants' other points of

error. was unreasonable for the jury to conclude that Hollingshead's conduct was sufficiently "outrageous"

to support an intentional inflict ion of emotional distress claim. S ee Ugalde, 990 F.2d at 243 (holding

employer's repeated references to an Hispanic employee as "wetback" insufficient ly outrageous and

extreme to support a claim for intentional inflict ion of emotional distress). Accordingly, we reverse

the jury's verdict on Weller's claim of intentional infliction of emotional distress. 8

IV

For the foregoing reasons, we REVERSE and RENDER judgment in favor of the defendants.