Warren Bouie v. Autozone, Inc., a Delaware Corporation, and Dan Gomez , 959 F.2d 875 ( 1992 )

SETH, Circuit Judge.

Warren Bouie brought this suit against his former employer AutoZone, Inc. (Auto-Zone) and his former supervisor Dan Gomez asserting five causes of action based on racial discrimination by AutoZone. However, the only cause of action at issue on appeal is Bouie’s claim for intentional or reckless infliction of emotional distress under New Mexico law. A jury awarded Bouie $16,120 in compensatory damages and $150,000 in punitive damages on the claim.

Appellants AutoZone and Gomez argue that the district court committed legal error by concluding that reasonable minds might differ on whether the conduct at issue was outrageous as that term is defined under New Mexico law. This error, Appellants claim, led to the improper denial of their motions for summary judgment, directed verdict, and judgment notwithstanding the verdict. In the alternative, Appellants contend that the jury award was excessive and warranted remittitur or a new trial. For the reasons that follow we find that AutoZone and Gomez were entitled to judgment n.o.v., and, therefore, we reverse.

In reviewing the denial of Appellants’ motions, we consider the facts and the inferences from those facts in the light most favorable to the non-moving party — Warren Bouie. See Zimmerman v. First Fed. Sav. and Loan Ass’n, 848 F.2d 1047, 1051 (10th Cir.1988).

Bouie is an African-American male. He was hired by Auto Shack, AutoZone’s predecessor, on October 14, 1986 as a parts salesman at one of Auto Shack’s Albuquerque stores. When he applied for the job, Bouie had five years of experience in the sale of auto parts.

AutoZone is a Delaware corporation duly licensed and authorized to do business in New Mexico. The company specializes in the sale of auto parts.

Appellant, Dan Gomez, is a Hispanic male who resided in Alabama when this lawsuit was filed. Gomez worked as both an AutoZone store manager and area advis- or in the New Mexico region while Bouie was employed with the company. In this capacity he had supervisory authority over Bouie. Bouie’s employment at AutoZone lasted just under a year. He was fired for a stated cause unrelated to this appeal.

Bouie heard from other employees that Gomez several times had referred to him as a “nigger” or “lazy-assed nigger,” and that Gomez stated he was not afraid to fire “niggers.” These racial slurs by Gomez and other AutoZone employees formed the basis of Bouie’s claim for reckless infliction of emotional distress and are the focus of this appeal. The slurs were never made directly to Bouie nor in his presence nor within his hearing.

Coworkers of Bouie testified that they had heard Gomez use racial slurs when referring to Bouie, the only African-American working in the Albuquerque AutoZone stores. One witness, Frank Ortega, worked at AutoZone about five months in 1987 as an assistant manager and as a manager. Ortega testified that both Gomez and the district manager, Gary Wee-dameyer, used racial slurs when referring to Bouie, and he testified that Weedameyer told him “[w]e need to take care of the nigger.” Ortega also stated that Gomez told him on several occasions that “Warren was lazy, he was a lazy nigger. And, you know, he [Gomez] needed — he [Gomez] wanted to get rid of him.” The witness stated that Gomez told him to have Bouie do busy work such as stacking oil rather than working in sales, the position for which he was hired. Ortega was ultimately fired by Gomez. He testified that he was appearing on behalf of Bouie because he realized he made a mistake by not reporting the racial slurs made by Gomez and Weedameyer. However, during cross-examination he stated that he never talked to Bouie about the racial slurs.

The second coworker of Bouie to testify was Ralph Mora. He worked at AutoZone for ten months in 1986-1987 as an assistant manager and as a manager. Mora testified that Gomez twice referred to Bouie as a “nigger” and at one point stated “he had to get rid of that lazy-ass nigger, no matter whether he would get the whole NAACP after him.” During his direct testimony, Mora stated that on two or three occasions he told Bouie about Gomez’s statements. On cross-examination, however, he stated that he told Bouie once. Mora testified that he told him because he believed Bouie was a good employee and wanted to warn him to be careful of Gomez. Mora eventually left the company after he was demoted by Gomez.

A third employee, Rod Ferriera, testified that Gomez often used the word “nigger” but only once when referring to Bouie. After it had been decided to fire Bouie (October 1987), Ferriera testified he overheard Gomez state: “We got that nigger, that nigger’s gone.” Ferriera also testified that he never told Bouie what Gomez said. Ferriera worked as the parts sales manager until he was demoted.

The final coworker to testify was Lawrence Akard. His job at AutoZone was to travel between the Albuquerque stores assisting younger inexperienced employees in the auto parts business. He worked at AutoZone until June 20, 1987. During this time, he testified that he heard Gomez use the word “nigger” when referring to Bouie “several times, ten or more.” He also heard Gomez say “some people may be afraid to fire a nigger, but I’m not.” Ak-ard testified that he told Bouie about the statements once or twice to alert him that Gomez was out to get him.

During the cross-examination of Bouie, he confirmed that Mora and Akard told him that Gomez referred to him as a “nigger.” Bouie acknowledged, however, that Gomez never directly called him a “nigger.” Bouie stated that Gomez often stared at him and referred to him as “Hoss” or “Bud” rather than by his first name or Mr. Bouie. When Bouie objected to the use of “Hoss” and “Bud” Gomez stopped.

Bouie testified that the knowledge that Gomez, a minority, would refer to him as a “nigger” caused Bouie to withdraw into himself, lose his appetite, and lose sleep. He also began to question and distrust other people. Bouie told some of his coworkers that he was hurt by Gomez’s words and actions. Bouie did not, however, seek medical attention or miss work. He also did not mention the racial slurs in three separate statements given to the Equal Employment Opportunity Commission.

After his discharge, Bouie filed a five-count suit in district court against Auto-Zone and Gomez. The court’s jurisdiction over the federal claims was based on 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 2000e. The court had pendent jurisdiction over the state claims. Bouie alleged: (1) a violation of 42 U.S.C. § 1981; (2) a violation of Title VII of the Civil Rights Act; (3) breach of contract; (4) intentional and negligent infliction of emotional distress; and (5) fraudulent and negligent misrepresentation. The district court granted AutoZone and Gomez’s motion for summary judgment on causes one, three, and five; however, the court found sufficient disputed material facts to allow the Title VII and intentional infliction of emotional distress claims to be tried. Both claims were tried simultaneously although only the infliction of emotional distress count was submitted to the jury. The Title VII claim was dismissed by the judge and is not the subject of this appeal.

Our review focuses on the district court’s denial of Appellants’ motion for directed verdict and judgment notwithstanding the verdict. Both motions are reviewed de novo applying the same standard used by the district court. See Guilfoyle v. Missouri, Kansas & Texas R.R. Co., 812 F.2d 1290, 1292 (10th Cir.1987). “The district court errs in denying the motion ‘only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party for whom the jury found.’ ” Heyen v. United States, 945 F.2d 359, 362 (10th Cir.1991) (quoting Zimmerman v. First Fed. Sav. & Loan Ass’n, 848 F.2d 1047, 1051 (10th Cir.1988)).

As mentioned, Bouie testified that Gomez never directly referred to him as a “nigger.” Gomez did call Bouie directly “Hoss” and “Bud,” but Bouie testified that he did not equate a racial meaning to these terms. Bouie only learned of Gomez’s use of the racial slurs secondhand from two of his coemployees.

Neither party cites a single state or federal case where recovery under the tort of intentional or reckless infliction of emotional distress has been allowed for racial slurs which are repeated by a third party to a plaintiff. While Appellee argues that some of the slurs in Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (App.1981), were made behind closed doors and later repeated to the plaintiff, Dominguez is distinguishable from the present facts because direct slurs were also made.

Instead, as mentioned, some of the witnesses who heard the words, testified that they described the remarks made about Bouie to him at another time and place. Some witnesses who also heard the words did not repeat them to Bouie. The reason for the difference is not indicated.

On this appeal we must hold that the evidence provided no basis for a cause of action for outrageous conduct under New Mexico statutes or under New Mexico case law (or case law elsewhere). This is for the reason that the racial slurs relied on were not made to the plaintiff by the defendants, nor in his presence, nor within his hearing.

There is no basis for the legal conclusion made by the trial court that secondhand statements are actionable. There are no decisions by New Mexico courts which suggest such a doctrine, and there is nothing in the Restatement (Second) of Torts, which the New Mexico courts often cite, to support such a conclusion.

With the emphasis in the opinions and in the textbooks on the requirement of a “high degree of probability that emotional distress would follow,” see Salazar v. Furr’s Inc., 629 F.Supp. 1403 (D.N.M.1986), and Restatement (Second) of Torts § 46, there must be added here as an element thereof the high degree of probability that the slurs would be repeated.

The circumstances of time, place, and listeners of the quoted statements are not described to give some measure as to whether or not they were made in a loose definition of “confidence” which could prevent the “high degree of probability” of repetition within the “high degree of probability that emotional distress would follow.” We must follow what the state law is or what it might be, and in the silence on this matter we are not prepared to make any new doctrine on this record as a whole which in our view would be a significant departure.

Obviously, the slurs however or wherever made cannot be condoned in the workplace, as here, in the supervisory relationship, or under any circumstances.

IT IS ORDERED that the judgment of the United States District Court for the District of New Mexico is REVERSED, and the case is REMANDED for entry of judgment n.o.v. for Appellants.