1 United States Court of Appeals,

Fifth Circuit.

No. 96-20533

Summary Calendar.

Diana WARD, Plaintiff-Appellant,

v.

BECHTEL CORPORATION, Defendant-Appellee.

Jan. 2, 1997.

Appeal from the United States District Court for the Southern

District of Texas.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Diana Ward, a n engineer and an African-American woman, sued

her former employer, Bechtel Corporation, alleging workplace

discrimination based on her sex , race, and national origin in

violation of Title VII of the Civil Rights Act of 1964 as amended,

42 U.S. C. § 2000e e t seq. She also asserted state law claims of

intentional infliction of emotional distress, premises liability,

and negligent hiring, supervision, and retention. Based upon our

review of the briefs, the applicable law, and relevant portions of

the record, we hold that the district court properly granted

summary judgment in favor of Bechtel on all counts.

Facts

In June 1991, Bechtel assigned Ward to a supervisory position

on an engineering project. One of the engineers supervised by Ward

was Mohan Manghnani. According to Ward's evidence, Manghnani was

a difficult employee from the outset, which one of Ward's2

supervisors attributed to Manghnani's reluctance to being

supervised by an African- American woman. Ward claimed that

Manghnani's behavior became more openly hostile after she refused

to recommend him for a promotion in January 1992. Manghnani's

hostility erupted in several discrete incidents between June 1992

and April 1993 in which he allegedly threaten ed Ward and, on one

occasion, elbowed her in the forearm. Even after Bechtel, at

Ward's req uest, reassigned Manghnani to a different engineering

project and building, he allegedly persisted in stating that he

would "kick [Ward's] ass" and "get" her. Concerned for her safety

and dissatisfied with Bechtel's response to her concerns, Ward

submitted her resignation on April 29, 1993.

Standard of Review and Summary Judgment Standard

We review the district court's grant of summary judgment de

novo, applying the standard set out in Fed.R.Civ.P. 56(c). Rule

56(c) mandates the entry of summary judgment against a party who

has failed to make an evidentiary showing sufficient to establish

an essential element of her c ase. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 91 L.Ed .2d 265 (1986); F razier v.

Garrison Inde p. Sch. Dist., 980 F.2d 1514, 1520 (5th Cir.1993).

Summary ju dgment is not precluded in this case merely because

appellant seeks an opportunity to prove that Bechtel was motivated

by discriminatory intent. S ee International Shortstop, Inc. v.

Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.1991), ce rt. denied,

502 U.S. 1059, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992).

Title VII3

Ward's complaint alleged that Bechtel unlawfully discriminated

against her on the basis of her sex, rac e, and national origin.

She also argues that she was placed in a hostile work environment

on the basis of her sex and race, and that Bechtel failed to

respond adequately to her complaints about this harassment.

The Supreme Court outlined the elements of a Title VII

discrimination claim in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In the

present context, McDonnell Douglas requires Ward to establish, as

her prima facie case, that (1) she belongs to a protected gro up,

i.e., African-American women; (2) that she was qualified for her

position; (3) that she was dismissed or suffered an adverse

employment action; and (4) that Bechtel sought to replace her with

a similarly qualified white man. S ee id. at 802 n. 13, 93 S.Ct. at

1824 n. 13; s ee also LaPierre v. Benson Nissan, Inc., 86 F.3d 444,

448 (5th Cir.1996).

Ward seeks to satisfy the third element by claiming that she

was constructively discharged from Bechtel. Constructive discharge

can form the basis of a Title VII claim. G uthrie v. Tifco Indus.,

941 F.2d 374, 377 (5th Cir.1991). "To show constructive discharge,

an employee must offer evidence that the employer made the

emplo yee's working conditions so intolerable that a reasonable

employee would feel compelled to resign." B arrow v. New Orleans

S.S. Ass'n, 10 F.3d 292, 297 (5th Cir.1994). Ward failed to adduce

evidence that her decision to resign was reasonable based on any of

the factors identified in Barrow. She did not, for example,1 Appellant's failure to raise a fact question as to whether

she suffered an advers e employment action is dispositive of her

Title VII discrimination claim. Accordingly, we need not address

the district court's alternative holding that appellant failed to

adduce evidence that any adverse action she might have suffered was motivated by discriminatory animus on the part of Bechtel.

4 demonstrate that Bechtel demoted her, cut her salary, or reassigned

h er to remedial or degrading work, any of which would tend to

support a finding of constructive discharge. B arrow, 10 F.3d at

297. The list of factors in B arrow is non-exclusive, but Ward has

failed to present other evidence sufficient to show that Bechtel

placed her in an intolerable work environment

. C ompare Guthrie,

941 F.2d at 377 (assuming arguendo that constructive discharge was

established w here employer demoted plaintiff, cut his pay 40

percent, and assigned him to work for a less experienced colleague

17 years his junior). We agree with the district court that a

reasonable person in Ward's position would not have felt compelled

to resign. 1

The district court also found that appellant's hostile work

environment claim failed the test of summary judgment. S ee Harris

v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d

295 (1993). Even assuming a rguendo that Ward was placed in such an

environment, she cannot prevail unless she additionally shows that

Bechtel failed to take "prompt and appropriate remedial action in

response" to her allegations. S ee Carmon v. Lubrizol Corp., 17

F.3d 791 (5th Cir.1994). Here, the summary judgment evidence

conclusively establishes that Bechtel investigated Ward's

allegations against Manghnani, that Manghnani was disciplined and5

threatened with termination if his abusive conduct persisted, that

he was removed from appel lant's engineering project and the

building in which she worked, and that he was instructed to have no

contact with her. The company also offered appellant paid time

off, medical leave, participat ion in an employee assistance

program, and an escort to and from her car each workday. Finally,

upon receiving Ward's letter of resignation, Bechtel, in an effort

to retain her services, postponed action on her resignation while

hiring two workplace violence experts to conduct a risk assessment

of Manghnani. Ward refused to cooperate in the experts' study. On

this record, we agree with the district court that appellant failed

to ra ise a genuine issue as to whether Bechtel failed to respond

adequately to her complaints. C ompare Hirras v. National R.R.

Passenger Corp., 95 F.3d 396, 400 (5th Cir.1996) (affirming summary

judgment in employer's favor on Title VII claim where employer

"took [the employee's] complaints seriously and conducted a prompt

and thorough investigation").

Intentional Infliction of Emotional Distress

The district court also granted summary judgment on Ward's

claim of intentional infliction of emotional distress, a tort

recognized by the Texas Supreme Court in Twyman v. Twyman, 855

S.W.2d 619, 621 (Tex.1993) (adopting RESTATEMENT (SECOND) OF TORTS

§ 46 (1965)). The district court held that there was no genuine

issue as to whether Bechtel's conduct was "extreme and outrageous,"2 To establish intentional infliction of emotional distress,

the plaintiff must show that (1) the defendant acted intentionally

or recklessly, (2) the defendant's conduct was ex treme and

out rageous, (3) the defendant's actions caused the plaintiff

emotional distress, and (4) the emotional distress suffered by the

plaintiff was severe. Twyman, 855 S.W.2d at 621.

3 Bec a use we find no extreme and outrageous conduct on

Bechtel's part, we need not address the district court's conclusion

that Ward's emotional distress was not "severe."

6 as required to establis h liability. 2 We again agree with the

district court. As we have explained:

Conduct is outrageous, for purposes of an intentional

infliction of emotional distre ss claim, if it surpasses all

bounds of decency, such that it is utterly intolerable in a

civilized community.... Liability does not extend to mere

insults, indignities, threats, annoyances, or petty

oppressions.

Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 195 (5th Cir.1996)

(citing Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th

Cir.1993) (internal quotation marks omitted)), petition for cert.

filed, 65 USLW 3205 (Sept. 3, 1996).

Without suggesting that appellant's concerns regarding

Manghnani were "petty," we hold that she has failed to raise a

genuine issue of material fact as to whether Bechtel's conduct was

extreme and outrageous. Appellant raises a related argument that

Bechtel "ratified" Manghnani's conduct, but t his claim is

unpersuasive in light of the company's decisive actions to remove

Manghnani from her work site and to prevent him from harassing her.

Cf. Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 655 (5th

Cir.1994) (employee's sexual harassment of plaintiff was ratified

where supervisor "took no action to remedy the situation ..."). 3

Negligence Claims4 S ection 408.001 took effect Sept. 1, 1993. The previous

version of the statute contained a similar exclusivity provision.

See T EX .R EV .C IV .S TAT .A NN

. §§ 8306-83091 (Vernon 1967 & Supp.1985),

cited in Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985)

(internal citations omitted).

7 Finally, the district court correctly held that appellant's

remaining state tort claims, sounding in negligence, were preempted

by the Texas Workers' Compensation Act. T E X .L AB .C ODE A NN

. § 408.001

(Vernon 1996). The Act provides the exclusive remedy for injuries

sustained by an employee in the course of his employment as a

result of his employer's negligence. D ickson v. Silva, 880 S.W.2d

785 (Tex.App.-Houston [1st Dist.] 1993, writ denied ). S ee also

Ajaz v. Continental Airlines, 156 F.R.D. 145, 148-49

(S.D.Tex.1994). 4 Appellant, however, contends that her negligence

claims are not pre-empted because her psychological injuries were

not sustained in the course of he r employment. She reasons that

Mangh nani's conduct was personal in nature, and was motivated by

his bias against women and African-Americans. However, there is no

question that appellant based her premises liability and negligent

hiring, supervision, and retention claims on Bech tel's alleged

negligence with respect to her workplace supervision of Manghnani.

This is not a case involving an off-duty altercation between two

employees of the same company. C ompare Prescott v. CSPH, Inc., 878

S.W.2d 692 (Tex.App.-Amarillo 1994, writ denied ) (employee stabbed

by off-duty co-worker acting for personal reasons could not recover

under T.W.C.A. but was limited to common law causes of action not

barred by the Act). The essence of Ward's case is that she was

harmed, while trying to do her job, by another employee who8

resisted her authority, and that Bechtel failed to re spond

adequately. To the extent that her case is based on Bechtel's

a lleged negligence, recovery is foreclosed by the Texas Workers'

Compensation Act.

Appellant failed to create a genuine issue of material fact as

to any of her claims against Bechtel. Accordingly, the summary

judgment of the district court is AFFIRMED.