Bird v. Simpson Investment

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 96-40857
                         _____________________



PERRY L. BIRD,

                                                 Plaintiff-Appellant,

                                versus

SIMPSON INVESTMENT; SIMPSON
PAPER CO.; SIMPSON PASADENA
PAPER COMPANY,
                                            Defendants-Appellees.
_________________________________________________________________

      Appeal from the United States District Court for the
              Southern District of Texas, Galveston
                          (G-95-CV-359)
_________________________________________________________________
                          July 15, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     Perry L. Bird sued his employer, Simpson Pasadena Paper

Company, and related companies (collectively “Simpson”), raising

claims of age discrimination, disability discrimination, illegal

retaliation and intentional infliction of emotional distress.    The

district court granted Simpson’s motion for summary judgment, and

Bird appeals.      Because we find that Bird presented sufficient

summary judgment evidence to raise material issues of fact with

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
respect      to    his   age    and   disability      discrimination      claims,    we

reverse.         We affirm the district court’s dismissal of Bird’s claim

for intentional infliction of emotional distress.

                                           I

       Bird was first employed at the Pasadena, Texas paper mill by

Champion International Paper Company in 1970.                      Simpson acquired

Champion in 1987, and retained Bird in his position as supervisor

of the mobile equipment shop for the Pasadena mill.                      At the time,

Bird       was    fifty-two     years    old,    and     suffered       from   chronic

osteomyelitis as the result of a 1973 motorcycle accident.1

       As    the    mobile     equipment   supervisor,      Bird    supervised      the

in-plant shop responsible for maintaining and repairing mobile

equipment at the mill.                As a part of his job as an in-plant

maintenance shop supervisor, Bird was required on occasion to work

“outages,” as were the three other maintenance shop supervisors.

Outages were brief periods when certain production machines would

be     temporarily       shut    down   for     the    purpose     of    repairs    and

maintenance.         In order to keep the shut-down period to a minimum,

the crews working outages worked long shifts, sometimes more than

twelve hours, during the outage.                 Outage work also required a

significant amount of standing, walking and climbing.

       1
      Because this appeal concerns a motion for summary judgment,
we construe the facts in the light most favorable to Bird. Simpson
disputes several of Bird’s factual allegations.




                                           2
     Bird’s osteomyelitis, when aggravated by excessive standing or

walking, causes his leg to swell and drain fluid; the condition

also causes severe pain.       Because of his leg ailment, Champion

provided Bird with a handicapped parking space.        Simpson continued

this practice.    In 1988, shortly after taking over the plant,

Simpson purchased a four-wheeled scooter for Bird to use when

traveling within the plant.

     In 1993, Simpson offered early retirement packages to salaried

employees who were fifty-seven years old or older.          Bird was then

fifty-eight   years   old.    Bird   states   that   two   superiors,   his

immediate supervisor, Don Cupp, and the maintenance manager, Jose

Ramos, strongly suggested that he accept the early retirement

package.   Bird stated that after he declined, Cupp and Ramos began

to schedule him for increasing numbers of outages.            Because the

outage work severely aggravated Bird’s osteomyelitis, Bird asked

Cupp and Ramos not to assign him to so many outages.          Bird stated

that he even showed Cupp the aggravated condition of his leg, to

which Cupp allegedly responded that he had seen Bird’s leg before,

and, as for the outages:     “That’s your job.   If you don’t do it, go

home.”     Bird stated that, on other occasions, Ramos responded

similarly.

     In January 1994, Simpson began a reduction in force program to

reduce the number of workers at the Pasadena mill.         Simpson offered




                                     3
voluntary   severance   packages   to    thirty-one    employees    on   a

first-come, first-served basis. Employees were informed that after

the severance period, the mill would be restructured and employees

could apply for jobs during the restructuring.         Those who did not

obtain positions during the restructuring would be terminated.

     Bird did not want to accept the severance package.          However,

Bird stated that Ramos, the maintenance manager, urged Bird to

accept the package, and told him that if he did not apply for the

voluntary severance, he would be terminated and end up with no job

and no severance package--that Bird would “lose it all” if he did

not sign up.   Bird stated that Cupp also recommended that he apply

for the severance package.   Because Ramos was a member of the “Mill

Leadership Team” responsible for the restructuring, Bird became

afraid that he would lose his job and applied for the severance,

but more than thirty-one other employees had already applied.

After speaking with a different manager who assured Bird that the

mobile equipment supervisor position would be retained in the

restructured mill, Bird decided to withdraw his name from the wait

list for severance packages.

     Later in January, Simpson posted descriptions of the positions

available in the restructured mill.           “Job 193” was posted as

“Mobile Equipment Supervisor.”     Under the heading “this position

replaces/incorporates,”   Job   193     was   listed   as   an   “existing




                                   4
position.”     The     posting   indicated      that   the    functions    of    the

position would be:

       Supervise activities of the maintenance support functions
       (i.e. mobile equipment, machine shop, etc.) to improve
       equipment    performance,    meeting    quality,    cost,
       productivity,   safety   and    housekeeping   standards.
       Responsible for working with Maintenance employees
       assigned to this area and building a team atmosphere and
       effort within his crew. Responsible to develop people to
       utilize crew concept during incumbent’s absences.

Bird states that the position described was nearly identical to the

job he was then performing as supervisor of the mobile equipment

shop.

       Four individuals applied for Job 193:           Bird, JoAnn Atkinson,

the pump shop supervisor, Jesse Hayter and Betty Wall.                    Bird was

then    fifty-nine   years   old.     Applicants       were    evaluated       in   a

“360-degree” evaluation in which the applicant’s supervisor and

three    co-workers,     selected   by    the    applicable      job    selection

committee, completed written evaluations of the applicant’s skills

in five categories. Applicants were also interviewed by a panel of

managerial employees.

       The results of these first two stages were evaluated and

translated into numerical scores. These scores and the candidates’

applications were then submitted to the “job selection committee”

for the particular job, which made the final decision.                    The job

selection    committee    discussed      the   candidates,     and     rated    each

candidate in five standardized categories: (1) qualifications for




                                      5
the new position, (2) experience in the specific position or one

that   was    closely     related,   (3)    abilities    and   strengths,   (4)

performance in the current position, and (5) total company service.

       The records provided by Simpson indicate that Atkinson, a

forty-eight year old female employee, scored higher on both the

360-degree evaluation and the managerial interview.              A letter from

Simpson to the EEOC states that, of the four candidates, Bird

received the second highest score on the 360-degree evaluation.

The managerial interview, in which Atkinson scored a 2.71 and Bird

scored a 1.83, was relevant only to the “abilities and strengths”

category.     In the final scoring by the job selection committee,

Bird and Atkinson received identical scores in four of the five

categories described above.          Both received the highest possible

score in qualifications, specific experience, and total company

service.      Both received the second highest possible score for

current performance.        In the “abilities and strengths” category,

however, Atkinson received a score of “4” while Bird received a

score of “0.”       In March 1994, Atkinson was awarded Job 193.

       Bird   was   not   immediately      terminated,   however.      Instead,

Simpson asked Bird to remain and to train Atkinson.                 Bird states

that the curtailment date he was given was changed several times.

His duties continued to aggravate his leg condition.                  In June,

Bird’s doctor informed him that he was in danger of losing his leg,




                                        6
and that he could not continue to work.                     Bird went on thirty days’

sick leave on June 16, 1994, and was formally terminated as of

June 30, 1994.

                                              II

       Bird filed suit against Simpson in federal district court on

June 20, 1995. Bird raised claims for age discrimination under the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq.,   for     disability       discrimination          under    the    Americans     with

Disabilities        Act     (“ADA”),     42        U.S.C.    §   12101   et    seq.,    for

retaliation under Title VII of the Civil Rights Act of 1964,

42    U.S.C.    §   2000e-3,      and    for       the   intentional     infliction      of

emotional distress under Texas law.                         Bird sought backpay and

benefits, frontpay and benefits, compensatory damages for pain and

suffering, punitive damages for intentional discrimination and

attorney’s fees and costs.

       On June 3, 1996, before the conclusion of discovery, Simpson

moved for summary judgment on all claims.                          The district court

granted the motion for summary judgment, and dismissed Bird’s

claims with prejudice.                Bird now appeals the decision granting

summary judgment on his age and disability discrimination claims,

and    his     claim      for   the    intentional          infliction    of   emotional




                                               7
distress.2   Bird argues that his evidence tended to show both that

Simpson’s legitimate, nondiscriminatory explanation for selecting

Atkinson was pretextual, and that Simpson was hostile to Bird

because of his age and his disability.      Bird additionally appeals

the district court’s decision to deny Bird’s request to supplement

the   summary   judgment   record   with   transcript   evidence   from

depositions taken by Simpson after the summary judgment motion was

filed.




      2
      Bird does not appeal the district court’s decision granting
summary judgment on his claim for retaliation in violation of
Title VII, 42 U.S.C. § 2000e-3.




                                    8
                                     III

                                        A

     We review the district court’s decision granting summary

judgment de novo, construing all facts in the light most favorable

to the non-movant.      Ray v. Tandem Computers, Inc., 63 F.3d 429, 433

(5th Cir. 1995); Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th

Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467 (1993)).

                                        B

     Turning to the summary judgment record in this case, we

conclude that the district court erred in granting Simpson’s motion

for summary judgment.        Bird has established a prima facie case of

age discrimination and of disability discrimination.                Furthermore,

beyond the prima facie case, Bird has presented sufficient summary

judgment evidence to raise a factual dispute concerning whether

Simpson’s proffered explanation is pretextual.

                                     (1)

     In    assessing    Bird’s   prima      facie   case,    we   first   address

Simpson’s argument that this case must be considered a “reduction-

in-force” case rather than a “replacement” case.                  Simpson argues

that because Bird lost his job in the context of a plant-wide

reorganization, the question whether he has established a prima

facie     case   must   be   analyzed       under   the     somewhat   different




                                        9
requirements that have been established for layoffs cause by

reductions-in-force.

     To establish a prima facie case of age discrimination in the

typical case, the plaintiff must show that:

     (1) he was discharged; (2) he was qualified for the
     position; (3) he was within the protected class at the
     time of the discharge; and (4) he was either i) replaced
     by someone outside the protected class, ii) replaced by
     someone younger, or iii) otherwise discharged because of
     his age.

Rhodes, 75 F.3d at 992 (quoting Bodenheimer v. PPG Industries,

Inc., 5 F.3d 955, 957 (5th Cir. 1993)).

     We have, however, stated the test somewhat differently in

“reduction-in-force” cases. In such cases, we have stated that the

plaintiff must meet the first three requirements, and then must

offer “evidence, circumstantial or direct, from which a factfinder

might   reasonably   conclude   that   the   employer   intended    to

discriminate in reaching the decision at issue.”         Amburgey v.

Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir.

1991). Simpson argues that this standard must be applied to Bird’s

case, and that it requires Bird to show that Simpson did not treat

age neutrally, or regarded age as a negative factor.

     Simpson’s argument, however, misunderstands the rationale

behind the different approach in reduction-in-force cases.         The

typical prima facie case requirements must be modified in that




                                 10
context principally because “reduction-case plaintiffs are simply

laid   off   and   thus   [are]   incapable    of   proving   .   .   .   actual

replacement by a younger employee.”            Amburgey, 936 F.2d at 812

(quoting Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d

633, 642 (5th Cir. 1985)) (internal quotations omitted) (emphasis

in original).

       Although Simpson’s two reorganizations did reduce the Pasadena

mill’s workforce by approximately twenty percent, Bird’s claim is

properly     analyzed     under   the     traditional   prima     facie     case

requirements.      We have stated that the elements of the prima facie

case “are not Platonic forms, pure and unchanging:                rather, they

vary depending upon the facts of a particular case.” Amburgey, 936

F.2d at 812.       In its facts, Bird’s case is more analogous to a

failure-to-hire      or   a   failure-to-promote     situation     than    to   a

reduction-in-force.       The underlying basis of Bird’s case is his

assertion that Simpson awarded Job 193 to Atkinson rather than to

him because of his age and/or his disability.           In Bird’s theory of

the case, Atkinson is the employee whom Simpson favored over Bird

because of discriminatory motives.

                                        (2)

       Identifying Atkinson as the employee who “replaced” Bird, Bird

has plainly established a prima facie case of age discrimination.

Bird was within the protected class and applied for Job 193.                Bird




                                        11
did not receive Job 193, which went to a younger person.           Although

Simpson     obviously   disputes    Bird’s   qualifications,      Bird    was

“qualified,” within the meaning of the second element of the prima

facie case.     Job 193 was very similar to the job Bird had been

performing for many years; indeed, Job 193 initially bore the exact

title of Bird’s job and was posted as an “existing position.”             Bird

possessed all of the objective criteria listed in the job posting

sheet, and was asked to help train Atkinson for her new position.

     Bird    has   similarly   established    a   prima   facie    case    of

disability discrimination.         To establish a prima facie case of

disability discrimination, a plaintiff must show: (1) that he

suffers from a “disability” within the meaning of the ADA; (2) that

he was qualified for the position that he held or desired; (3) that

he was subject to an adverse action; and (4) that he was replaced

by a non-disabled employee or was treated less favorably than non-

disabled employees.     Daigle v. Liberty Life Ins. Co., 70 F.3d 394,

396 (5th Cir. 1995).

     The parties do not dispute that Bird’s leg ailment is a

“disability” under the ADA, and we assume that this requirement has

been met.      Bird has also shown that he suffered an adverse

employment action in being rejected for Job 193, and that the

position was awarded to a non-disabled employee.          However, Simpson

argues that Bird cannot show that he was a “qualified individual




                                     12
with a disability.”       Simpson argues that because Bird stated in

various applications for disability benefits that he was “totally

disabled” and “unable to work,” Bird should be judicially estopped

from asserting that he is qualified to perform the essential

functions of Job 193.      We reject this argument because the record

shows that Bird was not unable to perform his job in March 1994,

when the adverse action was taken, nor did he claim to be.3

                                   (3)

     In the McDonnell Douglas burden-shifting format, once Bird has

established   a   prima   facie   case,   a   rebuttable   presumption   of


     3
      Simpson’s estoppel argument is based upon insurance and
disability forms that Bird completed. In his internal employee
disability form, dated November 30, 1994, Bird answered “yes” in
response to a question that asked “are you now totally disabled and
unable to work.”      In this same form, however, Bird clearly
indicates that the condition dates back through many years of
satisfactory employment, and that the duration of his total
disability is “unknown.”    In other documents cited by Simpson,
Bird’s doctor indicated that Bird was unable to continue working in
his prior job “because of excessive walking and climbing.” The
doctor also states that the duration of the disability is
“unknown.”
     All of these forms were completed after June 15, 1994, when
Bird went on disability leave after being warned by his doctor that
he had abused his leg and was in danger of losing it. It appears
clear from the record that after this date, Bird was completely
disabled and therefore not “qualified” within the meaning of the
ADA. However, the decision to award Job 193 to Atkinson rather
than Bird was made in March 1994, at which point Bird did not claim
to be totally disabled, and was, in fact, performing his job,
continuing to work on outages, and even began training Atkinson.
Bird’s state of total disability in June 1994, particularly if he
remains unable to work, is relevant to the question of damages, but
cannot be used to estop Bird from pursuing his ADA claim.




                                    13
discrimination     is   established,     and   Simpson     must   articulate    a

legitimate, nondiscriminatory reason for selecting Atkinson over

Bird for Job 193.       Simpson offers the explanation that Atkinson

scored higher than Bird in both the “360-degree” evaluation and the

managerial interview.       These results contributed to Atkinson’s

scoring higher than Bird in the “abilities and strengths” category

of the final evaluation.      Atkinson was awarded Job 193 because she

had the highest total score from the five categories of the final

evaluation.       Additionally, a member of the job selection team

stated     that    Bird’s   score   of      “0”     disqualified        him   from

consideration.

                                    (4)

     The    burden   therefore   returns       to   Bird   to   offer    evidence

demonstrating that the employer’s explanation is “unworthy of

credence,” or that illegal discrimination “more likely” motivated

the employer’s decision.      Burdine, 450 U.S. at 256, 101 S.Ct. at

1095. The fact that a prima facie case has been established is not

enough, although the underlying evidence supporting the prima facie

case remains relevant.      While it is true that the nonmovant “must

do more than simply show that there is some metaphysical doubt as

to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-7, 106 S.Ct. 1348, 1356 (1986), at the




                                       14
summary judgment stage, the district court may not make credibility

determinations or reject relevant evidence as unpersuasive.

      Bird   submitted    a   variety    of    affidavits    and    deposition

transcripts in response to the summary judgment motion.                     Bird

submitted a highly complimentary 1986 performance review,4 which

indicated that he was “cost and quality conscious,” effective at

negotiating with outside suppliers, had “an excellent working

relationship with both hourly and supervisory shop personnel,” and

had   outstanding   mechanical     expertise.        Bird    submitted      many

additional affidavits from subordinates and superiors that also

praise Bird’s high level of technical understanding and mechanical

expertise, his negotiating ability, and his communication and

leadership skills.       Other affidavits indicated that Atkinson had

little or no technical or mechanical knowledge, and therefore had

difficulty   supervising      mechanical      repairs.      The    former   mill

manager, Henry Jones, stated in his affidavit that Atkinson’s

      4
      Although a 1986 review might be considered outdated under
other circumstances, Simpson was unable to locate any more recent
written evaluations in response to Bird’s discovery request. A
Simpson employee who had supervised Bird apparently stated during
his deposition that he had completed performance appraisals of
Bird, but no appraisals for the period during which Simpson owned
the plant were produced. Counsel for Simpson stated at a hearing
before the district court that “[i]t appears that there were no
evaluations.”   Interestingly, the affidavit of the former mill
manager indicates that annual performance appraisals were mandatory
under Simpson policy. The manager further stated that he recalled
seeing evaluations for Bird, and never saw an “unsatisfactory”
rating.




                                    15
performance    as   supervisor   of    the   roll   grinding   shop   was

unsatisfactory, and that he therefore eliminated her responsibility

over that shop.      Bird also submitted copies of the first two

postings for Job 193,5 which clearly seek significant mechanical

knowledge and experience.

     Other affidavits confirm Bird’s statement that he was required

to work most of the outages in 1993 and the first half of 1994, and

that the other maintenance shop managers did not work nearly as

many outages as Bird.    One employee stated that Bird told him he

had asked Cupp and Ramos for relief from the outage duty, but they

had told him it was his job.      The employee also stated that he

“knew Bud [Bird] was worried [about keeping his job] because Jose

Ramos had been pushing him to take severance . . . I was not

present when Jose made those statements but, Bud told me that Jose

had told him to take the severance because Bud was going to lose

his job.”     Bird’s own affidavit and deposition transcript repeat

his assertions that Cupp and Ramos refused to accommodate his

disability by reducing his outage work, and that they pushed him to

take early retirement because if he did not he would “lose it all.”

     Most interestingly, Bird also submitted the affidavit of Betty

McIntosh, an employee who was supervised by Atkinson at the time of


     5
      Simpson was apparently unable to provide a copy of the third
posting during discovery.




                                  16
the reorganization.           McIntosh states that, on the final day to

submit applications for the restructured jobs, Atkinson told her

that       John   Schurman,    a   managerial   employee   involved    in   the

restructuring, had “told her to bid on ‘Bud’s job.’”                  Atkinson

reportedly said “the goddamned son of a bitch he is going to make

me do it again . . . he is going to make me take it.”                 McIntosh

stated that Atkinson had told her that she did not want “Bud’s job”

and that “she really wanted the stores supervisor job or a job in

purchasing.6

       Finally, Bird offered summary judgment evidence concerning the

final analysis prepared by the job selection team for Job 193.

That “team,” the individuals who were responsible for completing

ratings of the four candidates that would determine who received

Job 193, included Schurman, Ramos, and one other individual.                Bird

and Atkinson received identical scores in (a) qualifications for


       6
      Although credibility determinations are inappropriate at the
summary judgment stage, we note that Atkinson’s bid sheet for
restructured jobs supports Bird’s claim that she was told to apply
for Job 193. Atkinson’s entire bid sheet is neatly typed, and the
line for position desired is marked with the words “see attached
listing.” The attached listing, also typed, identifies the stores
supervisor job as the first choice, followed by purchasing agent
jobs and other selections. However, the position desired line also
contains handwritten scribbles to the side.      These handwritten
marks appear to insert Job 193 and one other choice in front of the
other positions that were listed on the attached sheet. Atkinson’s
own affidavit states without elaboration that she “applied for and
received the job of mobile equipment supervisor,” but she does not
deny making the statements that McIntosh described.




                                        17
the new position, (b) experience in the specific position or a

closely related position, (c) performance in the current position,

and (d) total company service.        In the fifth category, “abilities

and strengths,” Atkinson received a “4” rating, while Bird received

a “0” rating.   Schurman stated in his deposition that the first two

stages of the application procedure, the “360-degree” evaluations

and the managerial interview, were relevant only to the “abilities

and strengths” category, and that those scores were only part of

the picture that the team considered in its discussion of how to

rate each candidate in “abilities and strengths.”                  Thus, the

ratings for Bird and Atkinson in the decisive “abilities and

strengths”   category   were   left       largely   to   the   discretion   of

Schurman, Ramos, and the other member of the job selection team.

     This evidence, particularly when combined with the evidence

concerning Cupp and Ramos’ efforts to push Bird to retire, and

their refusal to reduce the number of his assignments to outage

duties, is sufficient to permit Bird to take his claims to the

trier of fact.7

                                      C



     7
      Because we find that Bird has offered substantial evidence
that questions the legitimacy of the “objective” selection process
for Job 193, we make no comment on whether Bird’s evidence of
alleged animosity toward age or disability would suffice in the
absence of the pretext evidence.




                                  18
     Bird also appeals the district court’s decision to grant

Simpson’s motion for summary judgment on his claim for intentional

infliction of emotional distress.      Bird argues that Simpson’s

actions in awarding Job 193 to Atkinson rather than Bird, was

demoralizing and left him depressed.      In his deposition, Bird

stated:

     I mean, you work for a job 25 years or 30 years, and that
     same type of work for 30 some odd years, worked there
     since 1970, and then all at once you’re not qualified
     anymore, that you can’t do your job and someone with less
     qualifications than you had got your job, you kind of
     wonder what’s happened? You know, what is going on here?
     And you know, you go out here, you can’t look for a job
     because you don’t even have--you don’t have enough self-
     esteem to even ask for it. They have demoted you so much
     and then criticized you and downsized you so much, how do
     you go ask for a job?

Bird argues that the elements of a claim for the intentional

infliction of emotional distress are satisfied because (1) Simpson

intentionally discriminated against him on the basis of his age and

disability,   (2)   that   Simpson’s   conduct   was   ‘extreme   and

outrageous,” and (3) that Simpson’s conduct caused him to suffer

severe emotional distress.

     Pendant claims for the intentional infliction of emotional

distress are common in employment discrimination lawsuits.         To

sustain a claim, the conduct complained of must go beyond mere

insults, indignities, threats, annoyances, petty oppressions, or

other trivialities.”   Wilson v. Monarch Paper Co., 939 F.2d 1138,




                                 19
1143 (5th Cir. 1991) (citing Restatement (Second) of Torts § 46).

The Texas Supreme Court has stated that the conduct must be “so

outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized society.”                       Randall’s Food

Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (internal

quotations and citations omitted).              We have previously observed

that the typical conduct alleged in employment discrimination

cases, including demeaning comments, unfair criticism, demotion,

termination or other harassment, is not sufficiently “extreme and

outrageous,” however deplorable it may be. This is true even where

the   evidence    suggests     that    those        acts    are       based    upon   an

illegitimate     factor    such   as   race,    age    or    disability        and    are

therefore illegal.        Wilson, 939 F.2d at 1143.

      In Wilson, we indicated that there must be something that goes

beyond mere      workplace    harassment       to   support       a    claim   for    the

intentional infliction of emotional distress.                         In Dean v. Ford

Motor Company, 885 F.2d 300, 306-307 (5th Cir. 1989), for example,

in addition to harassment such as unfair work assignments, being

transferred from desk to desk, and being subjected to demeaning

performance reviews, a supervisor placed blank company checks into

the plaintiff’s purse in a scheme to make it appear that the

plaintiff was a thief.        We held that these actions “[took] this




                                       20
case beyond the realm of an ordinary employment dispute and into

the realm of an outrageous one.”      Id. at 307.    In Wilson, we found

that “the degrading and humiliating way that [Wilson] was stripped

of his duties and demoted from an executive manager to an entry

level warehouse supervisor with menial and demeaning duties,” was

sufficiently outrageous to sustain a claim.

     Bird points to the fact that he was a “devoted and valuable”

employee who loved his job, and that replacing him with a person

who did not have his skills and demanding that he train her was

outrageous and intolerable, and “eroded his self-esteem and sense

of worth.”   Yet these actions are no more “outrageous” than any

other claim that an adverse action has been unfairly taken against

an employee because of illegal discrimination.

     The only atypical factual allegation to which Bird points is

his assertion that Cupp and Ramos refused to accommodate his

disability   by   reducing   his   outage   duty,   even   though   “Bird’s

suffering was apparent.”       Although his supervisors’ refusal to

reduce his outage duties may have been callous, their refusal of

Bird’s request is not the sort of “extreme and outrageous” conduct

that will satisfy the legal requirements for a claim of intentional

infliction of emotional distress.8

     8
      Bird does not allege that Cupp and Ramos intended to cause
permanent damage to Bird’s leg.     Such an allegation would be
implausible, considering that Bird himself was not aware of the




                                    21
                                   IV

     In conclusion, we find that the district court erred in

granting summary judgment on Bird’s termination claims for age

discrimination   in   violation   of    the   ADEA,   and   for   disability

discrimination in violation of the ADA.9         Bird submitted adequate

summary judgment evidence from which a reasonable trier of fact

could     conclude    that    Simpson’s        proffered      “legitimate,

nondiscriminatory explanation” was unworthy of credence.               That

evidence, combined with the elements of the prima facie case and

other evidence suggesting that Simpson was hostile to Bird because

of his age or disability, would permit a jury to infer that the

real reason that Simpson selected Atkinson over Bird was a desire

to force Bird out because of his age or disability.          As for Bird’s

claim for intentional infliction of emotional distress, we find

that the district court properly granted Simpson’s motion for

summary judgment on that claim.10


serious risk to his leg until June 1994.
     9
      In response to questioning during oral argument, counsel for
Bird asserted that Bird has raised the failure to accommodate as an
independent ADA violation. Our review of the complaint and Bird’s
response to Simpson’s motion for summary judgment leaves us
somewhat skeptical of this point.      The district court has not
addressed this issue, and we leave the question of the proper
construction of the pleadings to the district court in the first
instance.
     10
      Our conclusion that the district court erred in granting
summary judgment on Bird’s ADEA and ADA claims makes it unnecessary




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                AFFIRMED in part, REVERSED in part, and REMANDED.




for us to consider whether the district court abused its discretion
in refusing to consider Bird’s motion to supplement his summary
judgment response with transcript evidence from depositions taken
after the motion for summary judgment was filed. The evidence in
question principally concerns the process by which Simpson
allegedly revised Job 193 to better fit Atkinson’s qualifications
and capabilities; no new factual allegations in support of Bird’s
intentional infliction of emotional distress claim are offered.
     We observe, however, that although the district court’s
response to the motion in question was severe in its criticism of
Bird’s counsel, the district courts enjoy broad discretion in
responding to rules violations and other procedural transgressions.
We note that counsel’s inaccurate and misleading citations to the
summary judgment record became a source of significant frustration
to the district court, and we observe that this questionable
conduct has continued in counsel’s brief on appeal. As only one
example, on page 11 of the appellant’s brief, the court is informed
that “Bird was told he would have to work as long as Simpson wanted
to obtain the six month severance pay that Simpson was awarded each
terminated employee.” Counsel cites to the record at 898-899, and
to the record excerpts at tab 23. Only one of the four pages cited
even refers to severance pay--a reference that is found in
counsel’s question rather than the witness’ answer--and it does not
support the proposition cited. Counsel is strongly cautioned that
such behavior cannot be condoned, and certainly will not be
tolerated by the district court upon remand.




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