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 1996-02

McNeil v. Cox Cable Comm Inc ( 1996 )


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  •                      UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30583
Summary Calendar
__________________
JOHN MCNEIL,
Plaintiff - Appellant,
versus
COX CABLE COMMUNICATIONS, INC;
COX CABLE COMMUNICATIONS, INC, doing
business as Cox Cable New Orleans Inc,
Defendants,
and
COX CABLE NEW ORLEANS INC, being sued as Cox Cable
Communications Inc d/b/a Cox Cable New Orleans,
Defendant - Appellee.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(94 CV 2163 I)
______________________________________________
February 7, 1996
Before KING, SMITH and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Plaintiff John McNeil appeals from a summary judgment granted
in favor of defendant Cox Cable New Orleans, Inc. ("Cox Cable").
We affirm.
McNeil   was    employed   by    Cox   Cable   as   a   customer   service
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
supervisor.   It is undisputed that McNeil was an at-will employee.
The undisputed summary judgment evidence reflects that McNeil was
given a written warning of unsatisfactory job performance for
failing to secure customer payments in February 1990.               On November
10, 1990, McNeil reported that $500 was missing from the company
safe. Cox Cable later determined that $26,000 was in fact missing.
Following an investigation, Cox Cable determined that the theft
must have been committed by one of its employees; McNeil and others
were questioned.      On November 29, 1990, McNeil's supervisor saw
unguarded cash drawers on McNeil's counter.          Following this second
violation for careless handling of money, and the intervening loss
of $26,000 under his care, McNeil was terminated.
McNeil sued Cox Cable for wrongful termination and intentional
infliction of emotional distress.             Cox Cable moved for summary
judgment    and   submitted      supporting    affidavits     and    documents
indicating that McNeil's termination was for poor job performance.
While McNeil filed a motion in opposition to summary judgment, he
did not present any summary judgment evidence.          The district court
granted summary judgment for Cox Cable.            McNeil now appeals the
summary    judgment   on   his   intentional     infliction    of    emotional
distress claim.
We review a summary judgment under well-established standards.
Blakeney v. Lomas Info. Sys., Inc.,
    65 F.3d 482
    , 484 (5th Cir.
1995); see Sterling Property Management, Inc. v. Texas Commerce
Bank, Nat'l Ass'n,
    32 F.3d 964
    , 966 (5th Cir. 1994).                   Summary
judgment is proper if, when viewing the evidence in the light most
favorable to the nonmovant, the moving party establishes that there
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is no genuine issue as to any material fact and that it is entitled
to judgment as a matter of law.         Sterling,
    32 F.3d at 966
    .
The     district   court   properly    denied   McNeil's   claim   of
intentional infliction of emotional distress.          To prevail under
Louisiana law,    McNeil must establish: (1) extreme and outrageous
conduct by Cox Cable; (2) severe emotional distress; and (3) that
Cox Cable desired to inflict severe emotional distress or knew or
was substantially certain that such distress would result from its
conduct.     See White v. Monsanto Co.,
    585 So.2d 1205
    , 1209 (La.
1991).     Furthermore, there is no cause of action for intentional
infliction of emotional distress for wrongful termination of an at-
will employee. See Hammond v. Medical Arts Group, Inc.,
    574 So.2d 521
    , 525 (La. App. 3d Cir. 1991).
In this case, there is no evidence of extreme or outrageous
conduct by Cox Cable.      The undisputed summary judgment evidence
reflects McNeil was dismissed for failing to properly secured Cox
Cable's money.    Cox Cable was within its legal right to terminate
McNeil.     Likewise, there is no summary judgment proof of severe
emotional injuries. Rather, the summary judgment evidence reflects
that McNeil was never treated by a physician for emotional distress
in connection with his termination.           Cox Cable did not oppose
McNeil's claim for unemployment.          Within months of termination,
McNeil obtained employment at a higher compensation than at Cox
Cable.     As a result, McNeil has failed to demonstrate any genuine
issue of material fact surrounding his intentional infliction of
emotional distress claim.
The summary judgment is AFFIRMED.
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