1

United States Court of Appeals,

Fifth Circuit.

No. 97-10037.

Marge J. McCONATHY, Plaintiff-Appellant,

v.

DR. PEPPER/SEVEN UP CORPORATION, Defendant-Appellee.

Jan. 7, 1998.

Appeal from the United States District Court for the Northern

District of Texas.

Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.

PER CURIAM:

This is an appeal from a decision of the United States

District Court for the Northern District of Texas, Judge Robert B.

Maloney, presiding. In this case, Judge Maloney granted summary

judgment in favor of the Defendant-Appellee, the Dr. Pepper/SevenUp Corporation ("Dr. Pepper"). The Plaintiff-Appellant, Marge J.

McConathy ("McConathy") timely appealed, and the matter now lies

before this panel.

Background

Marge J. McConathy was employed as a benefit manager for Dr.

Pepper from January 1990 to July 1993. During this time, McConathy

received one formal evaluation of her job performance, in which her

performance was rated as "satisfactory or fully satisfactory."

McConathy suffers from a disease of the jaw known as

temporomandibular joint disease, and related complications.

McConathy underwent jaw surgery three times in 1991 because of this

condition. As a result, she missed approximately twenty-five days
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of work, all of which were covered by sick leave or vacation time.

McConathy underwent jaw surgery again in September of 1992, in

connection with complications regarding an emergency hysterectomy.

McConathy alleges that her supervisor at Dr. Pepper, Colin

Quigley ("Quigley"), was not very supportive of her during this

time. McConathy states that when she approached Quigley regarding

the additional surgery, he became angry, and told her that she

"better get well this time," and that he would "no longer tolerate

her health problems." He also allegedly complained to McConathy

that it was inappropriate for her to make such extensive use of Dr.

Pepper's health benefits, because of her position as benefits

manager. Quigley has acknowledged that he knew of her medical

condition.

When McConathy returned from the 1992 surgery, Quigley

allegedly pressured her to return to work before she fully

recovered, and ordered her to take a business trip to St. Louis

over her protest that she was still in pain from the surgery.

Further, Quigley allegedly told McConathy's staff to cease

communication with her regarding various business projects under

her supervision. Quigley also allegedly excluded McConathy from

business meetings, transferred assignments away from her, and

refused to acknowledge her presence when she was with him.

To make matters worse, on June 22, 1993, a screw placed in

McConathy's jaw during a previous surgery came loose. Her

physician advised her to go into surgery immediately and that her

recovery time would be approximately two weeks. McConathy states
 

1It should be noted that Dr. Pepper did not cite any summary

judgment evidence in favor of this assertion, however. 

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that she tried to inform Quigley about the need for this surgery,

but he ignored her, and as a result, she deferred having the

surgery.

McConathy was fired on July 2, 1993, because (according to Dr.

Pepper) the corporation was reorganizing her department. McConathy

and a secretary were fired, and another person was hired to fill

her position. Dr. Pepper has stated that the reason for this was

because it abolished the position of benefits manager and needed an

accountant in that section to ascertain the proper allocation of

funds from 401(k) plans.1 McConathy claims that Quigley was aware

of her medical condition at the time she was fired, and that he was

aware she might be eligible for disability payments or

accommodations such as a lighter duty assignment. She also claims

that in addition to Quigley, Dr. Pepper's staff psychologist,

Quigley's supervisor, and Dr. Pepper's Chief Financial Officer were

also aware of her condition. McConathy claims that a result of her

termination, she lost her medical insurance, stock options, and has

suffered emotional distress.

In September of 1995, McConathy filed for disability benefits

with the Social Security Administration ("SSA"). In this

application ("the SSA application"), McConathy stated that she was

suffering from chronic pain and did not see how she could hold any

position even on a part-time basis.

McConathy filed suit against Dr. Pepper in state court,
 

2The ADA claims were based on charges filed with the Equal

Employment Opportunity Commission ("EEOC"). According to Dr.

Pepper, the EEOC issued McConathy a right to sue letter, but did

not make a determination on her claims. 

 

3It must be noted that the district court's decision was a bit

unclear as to the basis for its decision on all the claims. 

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asserting causes of action of intentional infliction of emotional

distress and violation of Texas public policy. She later amended

her petition to include claims of harassment, discriminatory

discharge, and failure to accommodate under the Americans with

Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213.2 She sought

compensatory and punitive damages. Dr. Pepper removed the case to

federal court.

Dr. Pepper moved for summary judgment, and this was granted in

an order by Judge Maloney dated December 18, 1996.3 All of

McConathy's claims were dismissed with prejudice. The decision

stated that McConathy's hostile environment harassment claim was

dismissed sua sponte, and that the discriminatory discharge and

failure to accommodate claims were dismissed on the basis of

judicial estoppel, in that the information given in the SSA

application was inconsistent with her claims, and hence, the claims

were dismissed.

McConathy filed for an appeal, on the basis that the district

court erred in its decision to grant summary judgment in favor of

Dr. Pepper. Specifically, McConathy attacks the district court's

use of the doctrine of judicial estoppel as a basis for throwing

out her central ADA claims. We do not find error in the district

court's decision, and we therefore AFFIRM its decision.
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Standard of Review

This Court reviews the grant of summary judgment de novo,

applying the same criteria used by the district court. Texas

Medical Ass'n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th

Cir.1996). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law." FED.R.CIV.P. 56(c).

Similarly, this Court reviews a dismissal on the pleadings de

novo, applying the same standard as the district court. Truman v.

United States, 26 F.3d 592, 593 (5th Cir.1994). "Accordingly, we

accept the well-pleaded allegations in the complaint as true, and

we construe those allegations in the light most favorable to the

plaintiff." Id. at 594. Dismissal is appropriate "only if it

appears that no relief could be granted under any set of facts that

could be proven consistent with the allegations." Rubinstein v.

Collins, 20 F.3d 160, 166 (5th Cir.1994)(internal quotation marks

omitted).

Analysis

McConathy claims that the district court's decision to dismiss

her claims of discriminatory discharge and failure to accommodate

on the basis of judicial estoppel was in error. She states that

judicial estoppel was inappropriate here. She further states that

even if it was appropriate to apply judicial estoppel in this case,

the document upon which judicial estoppel was based, the SSA
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application, was not sufficiently authenticated to be worthy of use

in this situation. If McConathy is correct on one of these two

claims, she prevails. We do not think McConathy is correct on

either claim, however.

The district court was not procedurally forbidden from

entering summary judgment on the basis of judicial estoppel.

Federal Rule of Civil Procedure 8(c) states that "a party shall set

forth affirmatively ... estoppel ... and any other matter

constituting an avoidance or an affirmative defense." FED.R.CIV.P.

8(c). It is true that this Court has stated that a defendant is

supposed to raise an affirmative defense as a basis for summary

judgment when the motion for summary judgment is in the initial

pleading tendered by the defendant. Funding Sys. Leasing Corp. v.

Pugh, 530 F.2d 91, 96 (5th Cir.1976). However, where "the matter

is raised by the trial court that does not result in unfair

surprise, technical failure to comply precisely with Rule 8(c) is

not fatal," and in such a situation a court may hold that the

defense was not waived. Lucas v. United States, 807 F.2d 414, 417

(5th Cir.1986); see also Allied Chemical Corp. v. Mackay, 695 F.2d

854, 855-856 (5th Cir.1983); United States v. Shanbaum, 10 F.3d

305, 312 (5th Cir.1994). McConathy does not argue that she was

prejudiced by Dr. Pepper's failure to formally plead judicial

estoppel in its answer, and we do not believe that such prejudice

occurred. Therefore, the district court did not err in applying

the doctrine of judicial estoppel as the basis for its grant of

summary judgment.
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 McConathy further claims that even if it was appropriate to

apply judicial estoppel, the SSA application was not properly

authenticated, and hence, inadmissible. We disagree, and believe

that the SSA application was admissible. "The requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what the proponent claims."

FED.R.EVID. 901(a). This circuit does not require conclusive proof

of authenticity, and the district court's decision is reviewed for

abuse of discretion. U.S. v. Jimenez Lopez, 873 F.2d 769, 772 (5th

Cir.1989); U.S. v. Scurlock, 52 F.3d 531, 538 (5th Cir.1995).

The district court based its conclusion that the SSA

application was properly authenticated on the basis that (1)

McConathy produced the document in response to a discovery request,

(2) the document bore her signature, (3) she did not claim that the

document is not authentic or that her signature is a forgery, and

(4) she acknowledged in her response to Dr. Pepper's motion for

summary judgment that she requested total disability benefits for

certain time periods. This is a sufficient basis for the district

court's decision, and we find no abuse of discretion. The fact

that it appears that Dr. Pepper provided no affidavit from its

counsel that the document was actually produced by McConathy is not

enough to create reversible error.

This Court has held that "the application for or the receipt

of social security disability benefits creates a rebuttable

presumption that the claimant or recipient of such benefits is
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judicially estopped from asserting that he is a "qualified

individual with a disability.' " Cleveland v. Policy Management

Sys., 120 F.3d 513, 518 (5th Cir.1997). McConathy did not offer

any credible summary judgment evidence indicating that, at the time

of her termination, she was otherwise qualified to continue her

duties at Dr. Pepper. Her statements in the SSA application say

that she couldn't "see how she could hold a management position or

any position even on a part-time basis." The statements in the SSA

application create a presumption that McConathy is not a qualified

person with a disability, and she has not provided evidence to

rebut this presumption, and hence she is estopped from making such

a claim.

McConathy attempts to prevent application of judicial estoppel

based on the SSA application by claiming that the Supreme Court's

holding in McKennon v. Nashville Banner Publishing Co., 513 U.S.

352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), precludes such an

application of judicial estoppel. In that case, the Supreme Court

held that after-acquired evidence that showed an employee would be

fired anyway did not preclude recovery under the Age Discrimination

in Employment Act. Id. The situation is different here. According

to McConathy, McKennon indicates that after-acquired evidence

cannot be used to estop McConathy from arguing that an adverse

employment decision was made because of her disability. See Id. at

356-60, 115 S.Ct. at 884-85. However, her statements are being

used in this case in relation to her job qualifications, a matter

which has nothing to do with the motivation behind her employer's
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action. McKennon involves the use of after-acquired evidence for

a different reason than here, and is therefore not on point.

McConathy also makes various claims about the alleged

inapplicability of judicial estoppel because it supposedly violates

the spirit of the ADA, is bad public policy, and that this case

involves perceived disability, which she claims is somehow subject

to different standards than real disability. McConathy is

basically throwing in everything but the kitchen sink with these

arguments, and these arguments are not reasons for reversible

error.

The next issue to be dealt with is whether the district court

erred in dismissing sua sponte McConathy's ADA hostile environment

harassment claim. First of all, it should be stated that this

circuit has never recognized an ADA claim based on hostile

environment harassment, though other courts have done so, or have

at least assumed the existence of such a cause of action. See

McClain v. Southwest Steel Co., 940 F.Supp. 295, 301-302

(N.D.Okla.1996); Gray v. Ameritech Corp., 937 F.Supp. 762, 771

(N.D.Ill.1996); Fritz v. Mascotech Automotive Sys. Group, 914

F.Supp. 1481, 1492 (E.D.Mich.1996); Henry v. Guest Serv., Inc.,

902 F.Supp. 245, 251-252 (D.D.C.1995), aff'd 98 F.3d 646

(D.C.Cir.1996); Haysman v. Food Lion, Inc., 893 F.Supp. 1092

(S.D.Ga.1995). In this case, we will proceed as though such a

cause of action exists. However, we wish to make it clear that we

do not pass on whether this circuit recognizes such a cause of

action. We do not feel this is the appropriate case to make such
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a determination, and we merely will assume such a cause of action

exists for the sake of argument. This case should not be cited for

the proposition that the Fifth Circuit recognizes or rejects an ADA

cause of action based on hostile environment harassment.

 That having been said, if we assume the existence of such a

cause of action, it would be modeled after the similar claim under

Title VII, in which a claimant must prove:

(1) that she belongs to a protected group; (2) that she was

subjected to unwelcome harassment; (3) that the harassment

complained of was based on her disability or disabilities;

(4) that the harassment complained of affected a term,

condition, or privilege of employment; and (5) that the

employer knew or should have known of the harassment and

failed to take prompt, remedial action.

Rio v. Runyon, 972 F.Supp. 1446, 1459 (S.D.Fla.1997)(citing Henson

v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir.1982), which

applied these factors to a hostile environment claim based on

sexual harassment). In order to be actionable on a hostile

environment theory, disability-based harassment, like sexual

harassment, would presumably have to "be sufficiently pervasive or

severe to alter the conditions of employment and create an abusive

working environment." Farpella-Crosby v. Horizon Health Care, 97

F.3d 803, 806 (5th Cir.1996).

McConathy has not alleged sufficiently pervasive

disability-based harassment so as to state a claim upon which

relief can be granted. Even if we assume everything she claims

about Quigley is true, his actions, while insensitive and rude,

would not be sufficient as a matter of law to state a claim of

hostile environment harassment. See DeAngelis v. El Paso Mun.
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Police Officers Ass'n, 51 F.3d 591, 595-96 (5th Cir.1995), cert.

denied, --- U.S. ----, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995)(noting

that "mere utterance of an ... epithet which engenders offensive

feelings in an employee" is not enough to constitute hostile

environment harassment). It is a simple fact that in a workplace,

some workers will not get along with one another, and this Court

will not elevate a few harsh words or "cold-shouldering" to the

level of an actionable offense.

On a related note, McConathy's state claims of intentional

infliction of emotional distress also fail. In order to succeed on

this claim, McConathy must prove that her employer acted in a

manner that was extreme or outrageous. Wornick Co. v. Casas, 856

S.W.2d 732, 734 (Tex.1993). This conduct must be so extreme as to

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

atrocious, and utterly intolerable in a civilized community." Id.

(quoting Restatement (Second) of Torts § 46 cmt.d (1965)).

McConathy has not alleged or shown such conduct on the part of Dr.

Pepper or its employees. Even if Quigley was in fact generally

cruel, unfair, and threatened to fire her, this does not pass

muster as the type of utterly indecent, intolerable, and atrocious

behavior necessary to prevail on an intentional infliction of

emotional distress claim. See e.g.: Ramirez v. Allright Parking

El Paso, Inc., 970 F.2d 1372, 1375-1377 (5th Cir.1992); Guthrie v.

Tifco Indus., 941 F.2d 374, 379 (5th Cir.1991), cert. denied, 503

U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992); Wilson v.

Monarch Paper Co., 939 F.2d 1138 (5th Cir.1991). While it is true
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that inter-office behavior can arise to the level of a tort of

intentional infliction of emotional distress, the standard for such

a claim is rather rigorous, and we will not lower that standard.

Conclusion

Based on the foregoing, we find no reversible error in the

decision of the district court to grant summary judgment in favor

of the Defendant-Appellee, Dr. Pepper. Therefore, we AFFIRM the

decision of the district court.

AFFIRMED.