Ahmed Eldib v. Bass Pro Outdoor World, L.L.C. , 654 F. App'x 620 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1978
AHMED ELDIB, D.D.S.,
Plaintiff – Appellant,
v.
BASS PRO OUTDOOR WORLD, L.L.C., d/b/a Bass Pro Shops
Outdoor World; JOHN DOE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:15-cv-00118-JAG)
Submitted: April 26, 2016 Decided: July 18, 2016
Before WYNN, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin P. Shea, KEVIN P. SHEA, Hampton, Virginia, for Appellant.
James W. Walker, J. Brandon Sieg, VANDEVENTER BLACK, LLP,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Ahmed Eldib appeals the district court’s order granting
Bass Pro Outdoor World, LLC’s (“Bass Pro”) motion to dismiss his
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Eldib argues that the facts alleged in his complaint were
sufficient for a jury to conclude that Bass Pro’s behavior was
extreme and outrageous, and that Eldib suffered severe emotional
distress. “Because the district court dismissed [Eldib’s]
claims under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim, we review legal issues de novo and
treat the facts alleged in the complaint as true.” Nemphos v.
Nestle Waters N. Am., Inc., 775 F.3d 616, 617 (4th Cir. 2015).
In Virginia, to establish liability for intentional
infliction of emotional distress, a plaintiff must prove:
“(1) the wrongdoer’s conduct was intentional or reckless;
(2) the conduct was outrageous and intolerable; (3) there was a
causal connection between the wrongdoer’s conduct and the
emotional distress; and (4) the emotional distress was severe.”
Harris v. Kreutzer, 624 S.E.2d 24, 33 (Va. 2006). To satisfy
the second element, it is not enough that the conduct is
“[i]nsensitive and demeaning”; rather, 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
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atrocious, and utterly intolerable in a civilized community.”
Id. (quoting Russo v. White, 400 S.E.2d 160, 162 (Va. 1991)).
Viewing the facts in the light most favorable to Eldib, he
encountered unhelpful, perhaps incompetent, employees who
persisted in their incorrect belief that they were unable to
sell assault rifles to non-citizens. This conduct does not rise
above the level of “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities,”
Gaiters v. Lynn, 831 F.2d 51, 53 (4th Cir. 1987) (quoting
Restatement (Second) of Torts § 46, cmt. d (1965)), and is less
“outrageous” than the behavior exhibited by the defendant in
Kreutzer, 624 S.E.2d at 33-34. Furthermore, the comments were
not “manifestly disparaging or demeaning” of Eldib’s ethnicity
or national origin. Gaiters, 831 F.2d at 54. Under these
circumstances, the district court correctly determined that
Eldib failed to allege sufficient facts to satisfy the
“outrageous and intolerable” requirement of intentional
infliction of emotional distress. Kreutzer, 624 S.E.2d at 33.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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