UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________________

No. 92-8280

_________________________________________

FRED McKETHAN,

Plaintiff-Appellant,

VERSUS

TEXAS FARM BUREAU, and

Affiliated Companies, Including

its Subsidiaries and Subdivisions, ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ July 19, 1993

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

This appeal centers on whether cutting comments by the

presenter at an awards ceremony to one of the recipients, Fred

McKethan, can be the basis for age discrimination, in tentional

infliction of emotional distress, and slander. McKethan contests

adverse judgments on those claims, rendered by the district court

following his jury trial case-in-chief. In addition, he challenges

a number of other rulings and actions by the court, as well as the

denial of his Rule 60(b) motion for recusal, disqualification, and

a new trial. Because we agree with the disposition of the claims,

and conclude that the district court did not abuse its discretion,1 Agency managers supervise career agents and also sell

insurance. Like the career agents, they are under contract with

the various insurance agencies on a commission basis.

2 we AFFIRM

. And, because McKethan failed to file a notice of appeal

from the Rule 60(b) ruling, it is not subject to review.

I.

Texas Farm Bureau (TF B), i nter alia

, assists in providing

insurance coverage to its membership families. To that end, it

affiliates with several insurance companies, which employ "career

agents" to market and service a variety of products. Texas

counties are organized by sales districts; and each is supervised

by a district sales manager, who is an employee of TFB and is

compensated with, inter alia

, a b ase salary plus commission,

bonuses, and retirement benefits. The district managers have a

varie ty of responsibilities, including the supervision of agency

managers 1 and career agents within the di strict, and the

recruitment and training of new agents.

Employed by TFB in 1971 as a career agent, McKethan became a

district sales manager in 1973, and held that position throughout

his career. He was often recognized for outstanding work. In all

but one year, he won "the Top 10 jacket"; and, in his 20 years with

TFB, he never failed to win the "All-Star and Roundtable Trip"

awards.

In May 1990, TFB held its annual statewide agents' meeting in

San Ant onio. Approximately 700 people were in attendance,

i ncluding agents, agency managers, all 14 district managers

(including McKethan), the two regional sales managers , (Paul2 A master agent is "a young man or woman that' s done an

outstanding job".

3 As stated, the foregoing represents McKethan's version, which

we accept as true in view of the procedural posture of this case.

See infra

. According to Grantham and Peacock, Grantham asked

McKethan to stand up, and, while he was nervously looking for

McKethan's listing (he had never ad dressed a crowd that large),

stated "Fred, it doesn't look like you did anything"? He then

found McKethan's name, stated "Fred, I was j ust kidding", and

announced McKethan's ac complishments. He testified that his

comments lasted two or three seconds, and that he said nothing

about maste r agents. Regarding McKethan's confrontation with

3 Lancaster and Don Grantham), two associate state sales ma nagers,

and the state sales manager (Robert Peacock).

The following represents McKethan's version of what transpired

during the awards ceremony, at which Lancaster a nd Grantham

introduced recipients. McKethan had received positive recognition

at 17 consecutive banquets. When his turn for recognition came,

Grantham told him to stand up, but then said, "[s]it do wn, you

don't have anything, you haven't done anything to be recognized

for"; that McKethan "never had a master agent and never would have

one". 2 The remarks lasted approximately one to two minutes;

McKethan "felt like [he] had been poleaxed with a four-by-four".

For the remainder of the evening, he had a characteristic "red

stripe" in the middle of his forehead, which appears when he

becomes angry. At the close of the program , Randy Grantham, an

employee in McKethan's district and Don Grantham's son, approached

McKethan and said, "I went to Dad and told him, `Congratulations,

Dad, you've j ust ruined my career with Farm Bureau Insurance

Company'". McKethan then located Don Grantham, picked him up, and

stated, without laughter, "I ought to kill you". 3Grantham, Peacock testi fied that McKethan put his arm around

Grantham's neck, and, with laughter, stated, "I loved it, you son

of a bitch, I ought to kill you".

4 That night, McKethan played poker for one hour, and then went

to bed. When he awoke, he "was upset terribly"; "[he] felt ...

they had effectively destroyed [his] credibility with home office

people, with [his] district, with [his] life". He called his

immediate supervisor, Lancaster, and told him that he was ill; that

he had been to the bathroom seven times with an upset stomach; that

he "couldn't face the agents"; and that he was returning home. H e

conveyed the same information to Peacock, who called a few minutes

later; but Peacock did not apologize or o therwise respond.

Accordingly, McKethan left the meeting.

A day or two later, Lancaster left a message on McKethan's

answering machine, stating, "[s]orry that happened in San Antonio,

hope you're feeling better, and you're the best district manager I

have in the south". Grantham did not apologize. He testified that

Peacock told him that he did not think an apology was necessary.

Nor did McKethan request one.

Approximately two weeks after the meeting, McKeth a n told

Lancaster that he intended to retire in 13 months (July 1, 1991).

He hoped to wait that long for tax reasons. Neither Lancaster nor

any other TFB official attempted to persuade him to stay.

In February 1991, McKethan filed an age discrimination charge

with the Equal Employment Opportunity Commission (EEOC), pursuant

to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §4 His letter stated:

I cannot f orget that the statewide meeting last

year was where everything fell apart

-- where I was subjected to ridicule in front of everyone. Nothing on earth can undo what was done, and it

would be grossly demeaning for me to attend, and I

am hoping and requesting that you spare me from

this experience. Please understand that in view of

what happened, nothing that is said or not said at

this meeting can undo the harm that was done.

5 621, et. seq.

, claiming that the awards incident constituted

constructive discharge. He was approximately 58 years old.

McKethan's attorney advised TFB that March that he represented

McKethan both in his age discrimination claim and in his slander

and intentional infliction of emotional distress claims, and that

unless the matter was resolved, suit would be filed in late April.

TFB responded by denying McKethan 's allegations. It did not

apologize for the awards incident or ask McKethan to reconsider his

decision to retire.

McKethan, by letter to Peacock that May, requested an excused

absence from the statewide meeting because of the comments made the

year before. 4 He warned that, given this stress, his doctor had

advised him not to attend, and if required to do so, he would "seek

compensation" for any stress-induced harm.

Peacock excused McKethan from attending the meeting, noting by

letter that he was "unaware" that McKethan was under a physician's

care, and remarking, "I stil l can't understand your reaction to

last year's meeting". In addition, he advised that he intended to

select McKethan's replacement soon (he was conducting the search),5 In January 1992, McKethan added supplemental claims for

intentional and negligent infliction of emotional distress.

6 and thanked him for "offering to introduce your replacement to the

people in your district prior to your retirement on July 1st".

Also in May, McKethan filed suit for discharge (constructive)

on the basis of age, in violation of the ADEA, with a supplemental

slander c laim. 5 The defendants answered that, "[w]ith regard to

reinstatement, ... it is not necessary, as [McKethan] is still an

employee of Defen dants, and his continued employment is workable

and feasible. ... [McKethan] can continue to work as a district

sales manager for TFB".

McKethan retired in July, as planned. Two months later, an

amended answer included the above quoted statement. Shortly after

reviewing it, McKethan wrote to Peacock, accepting "the invitation

... to continue working as a District Sales Manager". He

explained, "[a]lthough I have great misgivings because of all that

has happened

... I cannot stand being unemployed ...." He

requested, inter alia , that TFB notify those in attendance at the

meeting that Grantham's comments were not intende d to be

derogatory; tha t Grantham be asked to apologize; and that TFB

r eimburse him for lost wages. However, he did not condition his

return on those requests. In closing, McKethan stated, "[w]hile I

can never forget what happened to me

... I am prepared to forgive,

and u nder these circumstances I am anxious to get back to work

immediately".6 As stated in Lavespere v. Niagara Mach. & Tool Works, Inc.

,

910 F.2d 167, 185 (5th Cir. 1990), "because the denial of a motion

for summary judgment is an interlocutory order, the trial court is

free to reconsider and reverse its decision for any reason it deems

sufficient, even in the absence of new evidence or an intervening

change in or clarification of the substantive law".

7 TFB responded by denying McKethan's reinstatement request,

stating that the position had been filled following his retirement.

It explained that at the time of its original answer, McKethan was

sti ll employed, and that had he requested to stay prior to his

retiremen t, his request would have been honored. TFB's attorney

apologized for his failure to omit the continued employment offer

from the amended answer.

In April 1992, the defendants' summary judgment motion was

denied, and, a few days later, a jury trial held. At the close of

McKethan's evidence, TFB and Grantham moved successfully on the age

discrimination and emotional distress claims for a directed verdict

(pursuant to 1991 amendments to Fed. R. Civ. P. 50, now "judgment

as a matter of law"). In addition, the court s ua sponte

reconsidered, and granted, summary judgment on the slander claim. 6

Judgment was entered on April 25; McKethan timely appealed on May

21.

On June 1, 1992, McKethan filed a motion to recuse,

disqualify, and for a new trial, based upon an ex parte contact in

January 1992, reflected in defend ants' post-trial motion for

attorney's fees. The motion was transferred to another judge, who

denied it. McKethan did not file a notice of appeal from this

order.7 McKethan also maintains that the court abused its discretion

in refusing, prior to trial, to compel TFB to answer discovery

regarding its employment of blacks and females. McKethan asserts

that it was needed to impeach Peacock's deposition testimony,

likely to be reiterated at trial, regarding TFB's employment

pract ices, thus calling into question the credibility of TFB's

denial of age discrimination. Because we hold i nfra that the court

concluded properly that McKethan failed to raise a fact issue on

constructive discharge, irrespective of TFB's intent to

discriminate, we need not address this issue.

In addition, McKethan contends that the court abused its

discretion by expressing frustration with McKethan's counsel in the

presence of the jury, and by curtailing cross-examination. We

disagree; the error, if any, was harmless.

8 II.

McKethan challenges discovery and procedural rulings and other

actions by the district court, the judgments on his substantive

claims, and the denial of his post-trial motion.

A.

McKethan agrees that our standard of review for the contested

d iscovery and procedural rulings and actions is abuse of

discretion. S ee United States v. Doucette

, 979 F.2d 1042, 1044

(5th Cir. 1992); Mills v. Beech Aircraft Corp. , 886 F.2d 758, 761

(5th Cir. 1989); Fontenot v. Upjohn Co. , 780 F.2d 1190, 1193 (5th

Cir. 1986). Primarily at issue is the denial of his untimely

motion to change the trial location and date. 7

McKethan filed suit in the Western District of Texas, Austin

Division, on May 1, 1991. That July, Judge James R. Nowlin

reassigned the case to Judge Walter S. Smith, Jr. On August 2,

trial was set for December 16 in Austin; on October 2, it was reset

for March 16, 1992. In response to TFB's agreed motion for a

continuance, Judge Smith on December 17 reset trial for April 20,8 McKethan does not contest the court's discretion to transfer

the trial to a different division within the district. Instead, as

noted, he contends that the transfer and subsequent refusal to

grant a continuance constitute an abuse of discretion.

In addition, he maintains for the first time on appeal that

the court reversibly erred by transferring venue without affording

him notice and an opportunity to be heard. TFB counters that Judge

Smith did not transfer venue; rather, he provided notice of a "special session", pursuant to 28 U.S.C. § 141, which states:

Special sessions of the district court may be

held at such places in the district as the nature

of the business may require, and upon such notice

as the court orders.

Any business may be transacted at a special

session which might be transacted at a re g ular

session.

This circuit has not analyzed the discretionary powers arising from

§ 141; and, we refrain from doing so here because, even accepting

McKethan's characterization of the order as a transf er of venue

under 28 U.S.C. § 1404, our failure to review his untimely

procedural contention will not result in plain error. As we stated

in Jarvis Christian College v. Exxon Corp.

, 845 F.2d 523, 528 (5th

Cir . 1988), "while generally a hearing is desirable the lack

thereof does not indicate the invalidity of the subsequent order".

Moreover, McKethan had notice, four months before trial, th at it

would be held in Waco. Although he had ample opportunity to timely

object, he failed to do so. See infra

.

9 Judge Sparks on January 16 granted McKethan leave to file an

amended complaint. McKethan maintains that the court reversibly

erred by reassigning the case to its docket after Judge Sparks had

exercised "jurisdiction" over it. Even assuming this contention

has any merit, McKethan failed to sufficiently brief it;

accordingly, we consider it waived. See Fed. R. App. P. 28(a)(5)

("[t]he argument shall contain th e contentions of the appellant

9 1992, and, sua sponte

, moved it to the Waco division of the

district. 8

On January 14, 1992, Judge Smith transferred approximately 90

cases, including this one, to Judge Sam Sparks. On January 16, he

took back seven, including this one, and assigned Judge Sparks four

others. 9with respect to the issues presented, and the reasons therefor,

with citations to the authorities, statutes, and parts of the

record relied on"); Marple v. Kurzweg , 902 F.2d 397, 399 n.2 (5th

Cir. 1990).

10 He added in his subsequent motio n for a new trial that when

Judge Smith first set the case for trial in Waco, he "immediately

contacted Judge Smith's law clerk who advised a motion to have the

matter returned to Austin for trial would not be needed because the

case was being reassigned for trial in Austin to the docket of

Judge Sam Sparks".

While we recognize that some courts permit communications with

law clerks, they are not a substitute for the requisite papers to

be filed with the court and notice or other response from it. This

is especially true when, as here, the subject of the communication

is a basis for an issue on appeal. The numerous and fundamental

reasons for this are most obvious.

11 For purposes of this case, we treat McKethan's motion to reset

as a reques t to transfer venue, pursuant to 28 U.S.C. § 1404(a).

See supra not e 8. As discussed in note 8, McKethan does not

maintain that the court lacked discretion to transfer the trial to

10 TFB received a copy of the January 16 reassignment order;

McKethan's counsel maintains that he did not. On April 8, 1992,

McKethan filed a motion for trial to be held in Austin, and for a

continuance, in which he objected to the earlier transfer to Waco.

As explanation for his belated filing, counsel stated that he had

not received the order reassigning the case to Judge Smith;

accordingly, he w as unaware that the case remained scheduled for

trial on April 20 in Waco until April 7, when he spoke with one of

Judge Smith's law clerks by telephone. 10 The c ourt denied this

motion, stating that "a transfer of this case to the Austin

Division at this late date would be highly prejudicial".

McKethan seeks a new trial, asserting that the district court

abused its discretion in refusing to reset the trial's location and

date. 11 We disagree. The court acted within its discretion inWaco.

12 Of course, we refuse to consider his claimed reliance on a

conversation with a law clerk. See note 10, supra.

13 TFB's counsel signed the motion and certified that McKethan's

counsel desired to join. In addition, the certificate of service

11 ruling that McKethan's motion, filed over four months after notice

and approximately ten days be fore trial, was far too late in the

day. As hereinafter discussed, the explanation for the belated

filing, based upon counsel's claimed failure to receive the

reassignment order, is quite unavailing.

First, and most important, Judge Smith's December 17 order set

the trial's location and date. Counsel received no notice that

either changed with transfer of the case to Judge Sparks. Rather,

counsel's confusion stemmed from his misplaced assumption,

discussed in note 10, supra

, that the assignment to Judge Sparks

nullified the location and date. He proceeded for over four months

of discovery and pretrial motions without inquiring into an amended

setting. 12 Simply because counsel did not receive the reassignment

order does not excuse his decision to assume, without notice from

the court, that the setting had been changed.

Moreover, the record contradicts counsel's purported lack of

knowledge. On February 3, Judge Smith, not Judge Sparks, signed an

order granting McKethan's motion for an extension of time to reply

to TFB's summary judgment motion. And, on February 14, TFB and

McKethan filed a joint motion, requesting an extension of time to

file the pretrial order because "the case was reset for April 20,

1992, in Waco, Texas". 13 The pretrial order, filed on March 24,stated that a copy had been sent by certified mail to McKethan's

counsel.

14 Counsel's c ontention in his reply brief that the pretrial

order did not so inform, because it "was submitted by [his]

associate" is totally without merit. In fact, it is almost, if not

completely, astonishing that such an assertion would be made.

Needless to say, that another lawyer in counsel's firm may have

prepared and submitted the pretrial order is immaterial; obviously,

that knowledge is imputed to him.

15 In his reply brief, McKethan withdrew his negligent infliction

of emotional distress claim in light of Boyles v. Kerr , 1993 Tex.

LEXIS 58, 36 Tex. Sup. Ct. J. 874 (Tex. May 5, 1993), which held

that Texas does not recognize that tort.

12 approximately one month prior to the trial date, was signed by

McKethan's counsel. It referred to Judge Smith as presiding, and

specified April 20 as the t rial date. Thus, at a minimum, one

month before the t rial date, counsel was aware of it, and the

reassignment to Judge Smith. 14 The court did not abuse its

discretion in denying McKethan's motion for a new setting.

B.

McKethan maintains that the district court erred in granting

judgment as a matter of law on his age discrimination and

intentio nal infliction of emotional distress claims, 1 5 and in

granting summary judgment on his slander claim.

Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law". Fed.

R. Civ. P. 56(c). We apply the same standard of review as did the

district court, Hamilton v. Grocers Supply Co.

, 986 F.2d 97, 98

(5th Cir. 1993), drawing all inferences most favorable to the nonmoving party. I d. "The mere existence of a scintilla of evidence16 The Rule provides in part:

If during a trial by jury a party has been

fully heard with respect to an issue and the re is

no legally sufficient evidentiary basis for a reasonable jury to have found for that party with

respect to that issue, the court may grant a motion

for judgment as a matter of law against that party

on any claim ... that cannot under the controlling

law be maintained wit hout a favorable finding on

that issue.

Fed. R. Civ. P. 50(a)(1).

13 in support of the plaintiff's position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff". A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 252

(1986). The foregoing standard also applies to our review of

judgments as a matter of law. Fed. R. Civ. P. 50(a)(1); B arnett v.

I.R.S. , 988 F.2d 1449, 1452 n.5, 1453 (5th Cir. 1993). 16

1.

For his age discrimination claim, McKethan must prove, inter

alia

, his asserted constr uctive discharge. "The general rule is

that if the employer deliberately makes an employee's working

condition s so intolerable that the employee is forced into

involuntary resignation, then the employer has encomp assed a

constr uctive discharge and is as liable for any illegal conduct

involved therein as if it had formally disc harged the aggrieved

employee." B ozé v. Branstetter

, 912 F.2d 801, 804 (5th Cir. 1990)

(internal quotations omitted). The test is that of a "reasonableemployee"; that is, "were [the working conditions] so difficult or

unpleasant that [a] reasonable person in [McKethan's] shoes would17 Rather, in the three years preceding his departure, his income

increased from $69,346.40 in 1988 to $83,956.96 in 1990.

18 As stated supra

, Lancaster, McKethan's direct supervisor,

apologized a day or two after the incident; but, according to

McKethan, Lancaster's message "[did] not constitute an apology".

14 have felt compelled to resign". U galde v. W.A. McKenzie Asphalt

Co. , 990 F.2d 239, 242 (5th Cir. 1993).

First, we emphasize that none of the usual factors present in

a constructive discharge case are before us. It is undisputed that

McKethan was not demoted; he was not asked to perform duties

inconsistent with, or more onerous than, other TFB district sales

managers; and TFB did not reduce his compensation. 17 Moreover, the

record is devoid of evidence indicating that the awar ds incident

diminished his reputation. McKethan testified that he knew of no

one whose opinion of him changed, and his agents performed better

during the months following the incident than they had in the

previous two years. Accordingly, his characterization of his

working conditions as intolerable was based only on the

embarrassment caused by the incident, TFB's failure to initiate a

proper apology, 18 and otherwise dissuade him from retiring, and his

inferences that the foregoing reflected TFB's desire to replace him

with a younger person. Based on the evidence, a reasonable jury

could not find constructive discharge.

Even if Grantham's remarks were, as McK ethan alleges, the

first step of a scheme to force him to retire because of his age,

a reasonable person would not have felt compelled to resign based

on that incident alone; rather, he would have demanded an apology19 In Ugal de , one supervisor referred to Ugalde and other

Hispanic employees as "Mexicans" and "wetbacks". When Ugalde was

not immediately given a chance to meet with the head of the company

to voice his complaints, he walked of f the job. We affirmed the

summary judgment because, under the circumstances presented in the

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". I d.

(quoting Bozé , 912 F.2d at 805).

20 For example, Peacock testified that in June 1990, f ollowing

the incident in May, he and McKethan played golf together and

socialized for over four hours; during that time, McKethan did not

express bitterness about either his decision to retire or the

incident. According to Peacock, the same occurred when they played

golf together in October of that year. McKethan does not dispute

this testimony.

15 or otherwise attempted resolution within TFB, and, if nec essary,

filed an age discrimination claim with t he EEOC while employed.

See Ugalde

, 990 F.2d at 243. 19 We conclude that McKethan's working

conditions were more than sufficiently conducive to an attempt to

resolve his grievances. 20 Our conclusion is buttressed by the fact

that McKethan voluntarily delayed retirement for 13 months for tax

benefits, and that, subsequent to re tirement, requested his job

back.

McKethan may have felt humiliated; but, t he standard is an

o bjective one. And, as stated, viewing all inferences in

McKethan's favor, we conclude that a reasonable employee would not

have felt compelled to resign. Accordingly, the district court

properly granted judgment again st McKethan on his age

discrimination claim.21 The court explained:

As distinguished from the tort of negligent

infliction of emotional distress, we believe the

rigorous legal standards of the Restatement

formulation of intentional infliction of emotional

distress help to assure a meaningful delineation

between inadv ertence and intentionally or

recklessly outrageous misconduct. The requirements

of intent, extreme or outrageous conduct, and

severe emotional distress before liability can be

established will, we think, strike a proper balance

between diverse interests in a free society. That

balance, at minimum, must allow freedom of

individual action while providing reasonable

opportunity for redress for victims of conduct that

is determined to be utterly intol erable in a

civilized community.

Id. at ** 5-6.

16 2.

McKethan's intentional infliction of emotional distress claim

was based on the awards incident, TFB's failure to take corrective

act ion, and TFB's retraction of the continued employment offer

contained in its amended answer. Of course, we apply Texas law to

this claim and his other supplemental claim for slander, discussed

in part II.B.3. See Wilson v. Monarch Paper Co. , 939 F.2d 1138,

1142 (5th Cir. 1991).

The Texas Supreme Court has recen tly adopted the tort of

intentional infliction of emotional distress, as stated in § 46(1)

of the Restatement (Second) of Torts (1965). S ee Twyman v. Twyman

,

1993 Tex. LEXIS 59, 36 Tex. Sup. Ct. J. 827 (Tex. May 5, 1993). 2 1

Accordingly, in order to recover fo r intentional infliction of

emotional distress, McKethan must establish that (1) the defendant

acted intentionally or recklessly; (2) the defendant's conduct was17

extreme and o utrageous; (3) the defendant's actions caused him

emotional distress; and (4) the emotional distress was severe. I d.

at ** 3 -4. "It is for the court to determine, in the first

instance, whether the defendant's conduct may re asonably be

regarded as so extreme and outrageous as to permit recove ry."

Wornick Co. v. Casas

, 1993 Tex. LEXIS 102, * 7 (Tex. June 30, 1993)

(internal quotations omitted).

In W ornick Co.

, the plaintiff was unexpectedly fired, eve n

though she had received favorable job-performance reviews; was told

to leave the premises immediately; and was met by a security guard

instructed to escort her off the premises. The guard waited while

she spoke with the president of the company, who promised that she

would be on a leave of absence, rather than terminated, pending a

meeting. Despite this promise, the plaintiff was removed from the

payroll shortly thereafter and not allowed to return to the

premises; no meeting was scheduled. Id. at ** 2-5.

The Texas Supreme Court held that although this conduct "could

reasonably be expected to cause humiliation

... [it] did not

`exceed all possible bounds of de cency' and was not `utterly

intolerable in a civilized community'". I d. at * 8. The court

emphasized that to hold otherwise would wholly underm ine the

employment at will doctrine by subjecting employers to "a potential22 Our decisions prior to the recent Te xas Supreme Court

decisions compel the same result. We held that an "ordinary

emplo yment dispute" rises to the level of "outrageous" conduct

under Texas law where there is evidence of intentional and

systematic degradation and humiliation, Wilson , 939 F.2d at 1145,

or reprehensible conduct that is "utterly intolerable in a

civilized community". D ean v. Ford Motor Credit Co.

, 885 F.2d 300,

306-07 (5th Cir. 1989).

23 Accor dingly, we need not consider TFB's assertion that

litigants' allegations are absolutely privileged in infliction of

emotional distress cases.

18 jury trial in connection with virtually every discharge". 22 I d. at

* 12.

The conduct at issue is less extreme than that in Wornick Co.

Grantham's remarks were brief and, at worst, conveyed the message

that McKethan had not earned recognition; by co ntrast, the

termination in Wornick Co. implied incompetence or misbehavior. As

for the failure to delete the offer of continued employment from

the amended answer, this conduct, even if intentiona l, is not

meaningfully distinguishable from the president's conduct in

Wornick Co. 23

In addition, McKethan failed to provi de evidence that his

distress was severe. The Texas Supreme Court has not yet analyzed

the severity requirement; however, quoting the Restatement (Second)

of Torts § 46 comment j (1965), the Texas Court of Appeals has held

that in order to create a jury issue on liability, the plaintiff

must present evidence that his distress was so severe that "no

reasonable man could be expected to endure it". K .B. v. N.B.

, 811

S.W.2d 634, 640 (Tex. App.-Sa n Antonio 1991, writ denied), c ert.

denied , ___ U.S. ___, 112 S. Ct. 1963 (1992). McKethan failed to19

meet this burden. Aside from his testimony about stomach problems

on the day of, and after, the incident, the only other possible

evidence of severe distress is his conclusory testimony regarding

his self-diagnosed depression.

In view of the foregoing, the district court correctly refused

to allow the jury to consider McKethan's claim for intentional

infliction of emotional distress.

3.

McKethan maintain s that the court erred in disposing of his

slander claim by sua sponte granting, on reconsideration, TFB's

summary judgment motion. "Slander is a defamatory statement orally

communicated or published to a third person without legal excuse".

Ramos v. Henry C. Beck Co. , 711 S.W.2d 331, 333 (Tex. App.-Dallas

1986, no writ ). "A statement is defamatory if the words tend to

injure a person's reputation, exposing the person to public hatred,

contempt, ridicule, or financial injury." E inhorn v. LaChance

, 823

S.W.2d 405, 410-11 (Tex. App.-Houston 1992, writ dism'd w.o.j.).

"Whether the words are reasonabl y capable of the defamatory

meaning the plaintiff attributes to them is a question of law for

the trial court". Kelly v. Diocese of Corpus Christi , 832 S.W.2d

88, 91 (Tex. App.-Corpus Christi 1992, writ dism'd w.o.j.). To

that end, "[t]he allegedly slanderous statements must be construed

as a whole, in light of the surrounding circumstances or context in

which a person of ordinary intelligence would underst and the

statements". S

hearson Le hman Hutton, Inc. v. Tucker , 806 S.W.2d

914, 920-21 (Tex. App.-Corpus Christi 1991, writ dism'd w.o.j.).24 McKethan does not dispute this testimony.

20 The district court concluded: "[a]ssuming that [McKethan's]

testimony as to the statements made by Don Grantham is true, those

statements, taken in the undisputed context of their making are not

slanderous, and no reasonable jury could so find". (Emphasis in

original.) We agree.

As noted, Grantham's remarks were made at a ceremony

recognizing top performance. McKethan agreed that "traditionally

and over the years, there had a lways been at least teasing and

laughter". Grantham and Lancaster were at the podium to announce

the "top ten in the company" for region one and two. McKethan's

name was nint h on the list for region two. Rather than read

McKethan's accomplishments, Grantham stated (McKethan's version):

"Sit down, you don't have anything, you haven't done anything to be

recognized fo r ... [you] never had a master agent and never will

have one". According to all witnesses at trial, except McKethan,

at least part of the crowd reacted with laughter. 24

McKethan's name was listed pr ominently in the program as a

moderator for two panel discussions earlier that day. He had been

recognized at 17 consecutive banquets. And, according to

testimony, he was widely regarded as one of the best district sales

managers in the state. Considering the context of a jovial

recognition ceremony, th e nature of the remarks, and McKethan's

prominence as an exceptional district sales manager, we conclude

that a person of ordinary intelligence would not have attributed a

defamatory meaning to the remarks.25 As McKethan agrees, because the motion was filed more than ten

days after judgment, we consider it a Rule 60(b ) motion. S ee

Harcon Barge Co. v. D & G Boat Rentals, Inc.

, 784 F.2d 665 (5th

Cir.), cert. denied sub n om.

, S outhern Pacific Transp. Co. v.

Harcon Barge Co. , 479 U.S. 930 (1986).

26 Section 144 provides:

Whenever a party to any proceedin g in a

district court makes and files a timely and

sufficient affidavit that the judge before whom the

matter is pending has a personal bias or prejudice

either a gainst him or in favor of any adverse

party, such judge shall proceed no further therein,

but another judge shall be assigned to hear such

proceeding.

The affidavit shall state the facts and the

reasons for the belief that bias or pr ejudice

exists, and shall be filed not less than ten days

bef ore the beginning of the term at which the

proceeding is to be heard, or good cause s hall be

shown for failure to file it within such time. A

party may file only one such affidavit in any case.

It shall be accompanied by a certificate of counsel

of record stating that it is made in good faith.

Section 455(a) provides:

Any justice, judge, or magistrate of the

United States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.

21 C.

McKethan maintains that t he court erred in denying his Rule

60(b) motion for recusal, disqualification and a new trial, 25

pursuant to 28 U.S.C. §§ 144, 455. 26 The motion was triggered by

TFB's disclosure in its motion for attorney's fees, subsequent to

entry of judgment, of an ex parte telephone c onversation between

Judge Smith and a lawyer with the firm representing TFB (Judge27 The conversation was one of the time entries in fee statements

attached to TFB's motion.

28 The order transferring the case back to Judge Smith was, in

fact, signed on January 16, the day before the conversation,

although it was not filed until January 21.

22 Smi th's former firm). 2 7 That lawyer, in response to McKethan's

motion, confirmed by affidavit that he c ontacted Judge Smith on

January 17, 1992, to alert him that Judge Sparks, to whom the case

had been transferred on January 14, would be biased in TFB's favor

because he formerly represented it.

Judge Smith transferred the motion to Judge H. F. Garcia. In

the transfer order, Judge Smith explained that he took the call

because it was from a friend of many years and that he responded to

the inquiry by stating that he had not intended to transfer the

case, and that an amended order had already been filed. 28

Judge Garcia allowed McKethan additional time to file an

extended reply to Judge Smith's order and TFB's response to the

motion. He subsequently denied the motion. McKethan did not file

a notice of appeal from that ruling.

1.

McKethan urges that we review the denial of his Rule 60(b)

motion, even though he failed to file a notice of appeal from it.

We disagree. McKethan failed to preserve for appellate review the

recusal issue raised in his Rule 60(b) motion, because he did not

separately appeal from the ruling on it. See Ingraham v. United

States

, 808 F.2d 1075, 1081 (5th Cir. 1987) ("where a 60(b) motion

is filed after the appeal is noticed, an appeal from the ruling on29 This court focused on the fact that denial of a Rule 60(b)

motion is separately appealable, even where, as here, appeal from

the underlying judgment is pending.

30 According to McKethan, Judge Smi th's e x parte conversation,

along with his conduct at trial, severely comprised his appearance of impartiality.

31 This circuit has not yet clearly defined the scope of our review of § 455 issues raised for the first time on appeal. In

United States v. York , 888 F.2d 1050, 1055-56 (5th Cir. 1989), we

suggested that the Supreme Court has at least implicitly rejected

a per se rule deeming untimely all § 455 motions raised for the

first time on appeal. I d. The Y ork panel therefore refused to

apply "an inflexible rule", but concluded that the motion was

untimely based upon the facts and circumstances. I d. In addition,

we no ted that regardless of timeliness, some courts apply the

plain-error rule, which requires a showing of "particularly

egregious errors" resulting in a "miscarriage of justice". I d.

(internal quotations omitted). Without deciding whether

untimeliness may be disregarded where there is plain error, we held

that appellant failed to establish plain error. Id.

23 that motion must be separately taken if the issue raised in that

motion is to be preserved for appeal"). 2 9 Accordingly, the Rule

60(b) motion is not before us.

2.

In the alternative, McKethan asserts that, because he filed a

notice of appeal from the underlying judgment, we should review, as

if presented for the first time on appeal, Judge Smith's failure to

recuse or disqualify himself. 30 Although it may indeed be within

o ur power to do so, we refuse to countenance this att empt to

circumvent the requirements discussed supra

. 31 This issue was not

raised for the first time on appeal

-- far from it. McKethan fully

presented it in his Rule 60(b) m otion; both parties extensively

briefed and otherwise presented it; and the district court gave it

careful consi deration, concluding it was without merit. We will24

not participate in the fiction that the issue was not raised in

district court simply because McKethan failed to comply with the

prerequisites to review. Accordingly, we reiterate that the issue

is not properly before us.

III.

For the foregoing reasons, the judgment is

AFFIRMED

.