United States Court of Appeals,

Fifth Circuit.

No. 92-1891

Summary Calendar.

Artemio UGALDE, Plaintiff-Appellant,

v.

W.A. McKENZIE ASPHALT CO., et al., Defendants,

W.A. McKenzie Asphalt Co., Defendant-Appellee.

May 12, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Artemio Ugalde filed this suit against his employer, W.A. McKenzie Asphalt Co., after being

referred to as a "wetback" by his su perviso r. Ugalde brought claims for constructive discharge

pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and for intentional inflict ion of emotional distress.

McKenzie Asphalt moved for summary judgment and the district court granted the motion. Ugalde

appeals. We hold that Ugalde has failed to present a genuine issue of material fact relating to either

of his claims, and we therefore affirm the decision of the district court.

I

Ugalde was emplo y ed by McKenzie Asphalt as an operator of an asphalt paving machine.

Ugalde is an Hispanic male originally from Mexico. On September 26, 1990, Ugalde was working

as an asphalt paving machine operator on a road crew supervised by Bobbie Pope. Pope is alleged

to have called Ugalde a "wetback" and asked him to stop operating the paving machine and help other

employees shovel. When Ugalde could not find a shovel to use, Pope allegedly told two other

employees to let Ugalde use their shovels because they were Americans and did not have to do that

type of labor. Ugalde walked off t he work site and went to the main office to speak with John

McKenzie, who was in charge of employee complaints. Ugalde told McKenzie's secretary that hewas having problems with Pope and threatened to quit; Ugalde did not, however, report that Pope

had used racial slurs against him on that day. Furthermore, Ugalde had never complained about Pope

on any other previous occasion. Ugalde waited around to speak to McKenzie but inst ead left the

office and did not return to the work site.

Two days later, Ugalde returned to the main office to collect his paycheck. On this occasion,

Ugalde spoke with McKenzie but still did not tell him about Pope's alleged racial comments. At this

time, McKenzie offered to let Ugalde return to work at a lower rate of pay, but Ugalde declined this

offer; according to Ugalde, McKenzie's offer was accompanied by the statement that he would pay

Ugalde what he was paying the other Mexicans. About a week later, Jeff McKenzie went to Ugalde's

home and offered him a job at the same rate of pay that he had formerly been receiving and one in

which Pope would not be his supervisor; Ugalde declined this offer.

Ugalde instead filed a complaint wi t h the Equal Employment Opportunity Commission

(EEOC) claiming racial discrimination, a claim which was later denied by the EEOC. Ugalde then

filed suit on August 21, 1991, against McKenzie Asphalt for constructive discharge pursuant to Title

VII, 42 U.S.C. § 2000e, et seq., and for intentional infliction of emotional distress. Ugalde alleged

that McKenzie Asphalt constructively discharged him when it failed to take immediate remedial steps

after Ugalde complained of racial slurs made to him. Ugalde also alleged that McKenzie Asphalt

intentionally inflict

ed emotional distress upon him because a supervisor consistently referred to him

as a "Mexican" and a "wetback."

McKenzie Asphalt filed a motion for summary judgment, and on September 11, 1992, the

district court granted its motion. Ugalde appeals.

II

Ugalde argues that summary judgment was inapprop riate because there was sufficient

evidence to create a genuine issue of material fact as to whether he was constructively discharged in

violation of Title VII and whether McKenzie Asphalt's conduct was extreme or outrageous as

required under the common law to rt o f intentional infliction of emotional distress. In addition,

Ugalde argues that it was error for the district court to deny his m otion for leave to am end hi scomplaint to provide for compensatory and punitive damages and a jury trial pursuant to the Civil

Rights Act of 1991.

On the other hand, McKenzie Asphalt argues that Ugalde did not act reas o nably when he

walked off the job without giving it a chance to remedy the situation. McKenzie Asphalt also argues

that its conduct was not sufficiently extreme or outrageous to support a claim of intentional inflict ion

of emotional distress. Finally, McKenzie Asphalt argues that the dist rict court correctly denied

Ugalde's motion to amend his complaint because the provisions of the Civil Rights Act of 1991 that

Ugalde sought to apply do not apply retroactively.

III

A

Summary judgment is appropriate i f t he mo ving party establishes that there is no genuine

issue of material f

act and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A genuine factual issue is one that "properly can be resolved only by a finder of fact because [it] may

reasonably be resolved in favor of either party." I d. at 250, 106 S.Ct. at 2511. We review the district

court's granting of summary judgment de novo and affirm if the nonmoving party failed to present

sufficient evidence to create a genuine issue. P almer v. Fayard, 930 F.2d 437, 438 (5th Cir.1991).

B

We first review Ugalde's constructive discharge claim pursuant to Title VII. Ugalde argues

that the continuous, pervasive, and deli berat e use o f racial slurs and other abusive language by

McKenzie Asphalt's employee, Pope, was so deficient and unpleasant that a reasonable person in his

shoes would have felt compelled to resign. Furthermore, Ugalde argues that any reasonable person

would have felt compelled to resign after walking off the job site to complain of harassment and then

being denied the opportuni ty to make the complaint to the person in charge. Ugalde argues that racial

slurs alone can be the basis for a constructive discharge claim where a supervisor continuously and

deliberately uses racial slurs and other abusive language. In short, Ugalde argues that he has set forth

facts that would have made any reasonable person feel compelled to resign.Ugalde further argues that the district court erred by considering his treatment by McKenzie

Asphalt only on the day he walked off the job, and the district court should have instead considered

McKenzie Asphalt's treatment of him as a whole. Ugalde further argues that it was error for the

district court to find that Pope, his supervisor, was not an agent of McKenzie Asphalt and McKenzie

Asphalt could not be held liable for Pope's actions.

C

McKe nzie Asphalt argues that Ugalde's allegations do not rise to the level of severe and

pervas ive harassment necessary to support a claim for constructive discharge. McKenzie Asphalt

argues that these alleged ethnic slurs are insufficient to establish a claim of constructive discharge,

particularly in a job context such as Ugalde's where rough language may be expected and Ugalde was

not singled out for abuse. It also points out that although Pope's alleged comments supposedly were

directed to other Hispanic employees in addition to Ugalde, none of these workers quit or threatened

to do so. Even if the alleged ethnic slurs were severe and pervasive enough to support a constructive

discharge, Ugalde's claim would still fail, McKenzie argues, because he did not give it a chance to

address the alleged harassment. A reasonable employee in Ugalde's shoes would not have felt

compelled to resign without giving his employee a chance to institute measures to stop the alleged

harassment. It further notes that it offered to let Ugalde return to work at his previous rate of pay

in a position that would not require him to work with Pope. Ugalde cannot rely on an alleged agency

relationship between Pope and it, McKenzie Asphalt asserts, to support a cl ai m that Pope

constructively discharged him.

Regarding Ugalde's alternative theory that he was constructively discharged when he returned

to pick up his paycheck and was offered another position at a lower rate of pay, McKenzie Asphalt

argues that even on this date Ugalde did not report Pope's alleged misconduct. Furthermore, Ugalde

concedes he quit two days earlier and therefore on the date he picked up his paycheck Ugalde had

no job or position from which he could be constructively discharged.

D

In order to establish that he was constructively discharged, Ugalde must prove that hisworking conditions were so difficult or unpleasant that a reasonable person in his shoes would have

f elt compelled to resign. C ortes v. Maxus Exploration Co., 977 F.2d 195, 200 (5th Cir.1992)

(quoting Landgraf v. USI Film Prods., 968 F.2d 427, 429 (5th Cir.1992)). The general rule is that

if the employer deliberately makes an employee's working conditions so intolerable that the employee

is forced into involuntary resignation, then the employer has committed a constructive discharge and

is as liable as if it had formally discharged the aggrieved employee. J urgens v. EEOC, 903 F.2d 386,

390 (5th Cir.1990). To find that a constructive discharge has occurred, the trier of fact must be

satisfied that the w o rking conditions to which the employee was subjected were so difficult or

unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.

Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). The burden is on the employee

to prove constructive discharge. Boze v. Branstetter, 912 F.2d 801, 804-05 (5th Cir.1990).

After reviewing the record, we do not find evidence to suggest that a reasonable person in

Ugalde's position would have felt compelled to resign. Aside from Ugalde's conclusory accusations,

Ugal de's o nly evidence of discriminatory conduct is that one supervisor employed by McKenzie

Asphalt referred to him and other Hispanic employees as "Mexicans" and "wetbacks." Ugalde

attempted to complain about these comments on only one occasion. Even at that time, Ugalde did

not mention that the supervisor had used ethnic slu rs. When Ugalde was not immediately given a

chance to meet with the head of the company, he walked off the job; it was at this point Ugalde's

constructive discharge claim arose. Under the circumstances presented in this case, "a reasonable

employee instead of resigning would first have pursued either or both of two courses—completed

the internal grievance procedure, or filed a complaint with the EEOC." Boze, 912 F.2d at 805.

Assuming all facts in a light most favorable to Ugalde, we conclude that his working

conditions were not so difficult or unpleasant that a reasonable employee in his shoes would have felt

compelled to resign. For this reason, the district court did not err in granting summary judgment to

McKenzie Asphalt as a matter of law on Ugalde's Title VII claim.

IV

We now turn to Ugalde's claim of intentional inflict ion of emotional dist ress. The district1 Because we affirm the district court's granting of summary judgment to McKenzie Asphalt,

we need not reach Ugalde's third issue, i.e., whether the district court should have allowed him to

amend his pleadings to provide for a jury trial and compensatory and punitive damages pursuant

to the Revised Civil Rights Act of 1991. court clearly did not err in granting summary judgment on this claim to McKenz ie Asphalt. To

prevail on a claim of intentional inflict ion of emotional distress, Texas law requires a finding of four

elements: (1) the defendant acted intentionally or recklessly; (2) t he defendant's conduct was

extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4)

the emotional distress suffered by the plaint iff was severe. D ean v. Ford Motor Credit Co., 885 F.2d

300, 306 (5th Cir.1989). Conduct is considered to be "outrageous" if it surpasses "all bounds of

decency" such that it is "utterly intolerable in a civilized community." I d. (quoting RESTATEMENT

(SECOND) OF TORTS § 46 cmt. d). Liability does not extend to mere insults, indignities, threats,

annoyances, or petty oppressions. S ee Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th

Cir.1991). Even conduct which may be illegal in an employment context may not be the sort of

conduct constituting extreme and outrageous conduct. Id.

The only conduct alleged to have been outrageous and extreme is that a supervisor referred

t o Ugalde over a period of time as a "Mexican" and as a "wetback." Although we condemn t his

conduct, we simply cannot say that it rises to the level of extreme and outrageous conduct necessary

to support a claim for intentional inflict ion of emotional distress. Accordingly, the district court did

not err in granting summary judgment as a matter of law on this issue.

V

We find that the district court was correct in its determination that Ugalde has faile d to

present a genuine issue of material fact regarding either of his claims. 1 The district court therefore

did not err in granting McKenzie Asphalt summary judgment and dismissing Ugalde 's claims of

constructive discharge and intentional infliction of emotional distress.

AFFIRMED.