MEMORANDUM OPINION

Opinion by: ALMA L. LÔPEZ, Chief Justice.

Sam Shadow ("Shadow") appeals a summary judgment granted in favor of Continental Airlines, Inc. ("Continental") in a lawsuit alleging age and disability discrimination and intentional infliction of emotional distress. Shadow generally attacks the order granting summary judgment, which did not specify the grounds on which it was granted. We affirm the trial court's summary judgment.

Background

Viewed in the light most favorable to Shadow, the summary judgment evidence reveals the following. In 1973, Shadow was hired as an aircraft mechanic by Texas International, a company that merged with Continental. In July or August of 1996, Kevin Laird ("Laird") became Shadow's new maintenance supervisor. Laird treated Shadow fairly until July 1997 when Laird told Shadow that his "years of experience didn't mean a damn thing" to him, and he began to treat Shadow unfairly.

During this time, Shadow was fearful of losing his job. Shadow developed high blood pressure and experienced nausea, stomach disorders, headaches, difficulty sleeping and eating, stress, anxiety and depression. Shadow reported his medical condition to Laird, but Shadow insists that his high blood pressure did not affect his work.

In a letter to Laird dated October 27, 1997, Shadow requested to retire from Continental on January 16, 1998. On November 11, 1997, having considered Shadow's record of attendance, performance, and discussions with Shadow about his health, Laird placed Shadow on paid medical leave of absence pending his retirement date.

On January 9, 1998, Shadow faxed Laird and Rodney Cox ("Cox"), Continental's Human Resources Manager, advising them of his desire to return to work on the expiration of his leave of absence. A "return to work" meeting was scheduled for January 23, 1998. The day of the meeting, Laird called Shadow to notify him of the meeting, but Shadow informed Laird he would be unable to attend. While discussing the need to reschedule the return to work meeting, Shadow insisted that he be allowed to bring his attorney to the meeting. Laird advised Shadow that he could have his union representative present but that private attorneys were not permitted at company meetings.

A second "return to work" meeting was scheduled for February 16, 1998 by letter from Rodney Cox. This letter was properly addressed and dated February 4, 1998, but was not received by Shadow until after the meeting because Shadow was out of town.

On February 18, 1998, Cox sent Shadow a letter seeking to reschedule another meeting and informing Shadow that if Cox did not hear from Shadow by February 27, 1998, he would assume that Shadow was no longer interested in returning to Continental. On February 25, 1998, Shadow sent a letter to Laird seeking to reschedule the meeting and requesting again that he be allowed to bring his attorney. Cox mailed a letter to Shadow dated March 4, 1998, which asserted his assumption that Shadow had retired. Neither Cox nor Shadow appear to have received each others' February 25, 1998 or March 4, 1998 letters. No additional evidence established that Shadow made subsequent efforts to contact Continental, and Shadow filed the underlying lawsuit on September 14, 1999.

Standard of Review

Continental moved for summary judgement under both traditional and no-evidence standards arguing that 1) Shadow could not establish a prima facie case for age or disability discrimination, 2) Shadow could not establish a pretext for discrimination and had no evidence to contradict Continental's nondiscriminatory reasons, and 3) Shadow could not produce any evidence of extreme and outrageous conduct necessary to establish intentional infliction of emotional distress.

Under traditional summary judgment standards, the moving party has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true. Id. Every reasonable inference is indulged in favor of the non-movant and any doubts resolved in its favor. Id.

Under no evidence summary judgment standards, the evidence is reviewed in the light most favorable to the non-movant and all contrary evidence and inferences are disregarded. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). A no evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id.

Age and Disability Discrimination

In enacting the Texas Commission on Human Rights Act ("TCHRA"), the Texas Legislature intended to correlate state law with federal law in employment discrimination cases. Texas Lab. Code. Ann. § 21.001 (Vernon 1996); M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). Accordingly, in employment discrimination cases, we employ the burden-shifting analysis established by the United States Supreme Court. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-143 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); M.D. Anderson Hosp., 28 S.W.3d at 24 (stating that Texas state courts look to analogous federal statutes and cases when interpreting TCHRA provisions).

A Texas employment discrimination plaintiff has the initial burden to come forward with a prima facie case of discrimination. Reeves, 530 U.S. at 142; Quantum, 47 S.W.3d at 477. If a prima facie case is established, the plaintiff is entitled to a presumption of discrimination. Reeves, 530 U.S. at 142. The burden then shifts to the defendant/employer to present evidence of a legitimate, nondiscriminatory reason for its action. Id. "[S]ubjective beliefs of discrimination alone are insufficient to establish a prima facie case." Romo v. Texas Department of Transp., 48 S.W.3d 265, 270 (Tex.App.-San Antonio 2001, no pet.) (quoting Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Once the employer has articulated a legitimate, nondiscriminatory reason for its actions, any presumption of discrimination disappears and the burden shifts back to the plaintiff to prove the employer's articulated reasons are merely a pretext for discrimination. Reeves, 530 U.S. at 143; Quantum, 47 S.W.3d at 477.

"Even though the burden of production shifts, the burden of persuasion remains continuously with the plaintiff." Romo, 48 S.W.3d at 270. It is not sufficient merely to show the employer's proffered reasons are false or not credible; the plaintiff must prove the employer intentionally discriminated. Reeves, 530 U.S. at 146-47. In some cases, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. However, "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id.

Continental sought summary judgment on the discrimination claims on the grounds that 1) Shadow could not establish a prima facie case for either age or disability discrimination, and 2) Shadow presented no evidence of pretext to contradict Continental's non-discriminatory reasons for its actions.

Prima Facie Discrimination

To establish a prima facie case of employment discrimination, a plaintiff must show: (1) he was a member of a protected class, (2) he suffered an adverse employment action, and (3) non-protected class employees were not treated similarly. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App.-Houston[1st Dist.] 2000, no pet.).

Continental sought to negate the prima facie case for age discrimination by asserting that Continental did not discharge or terminate Shadow, but instead that Shadow retired. Continental's summary judgment proof includes Shadow's request for retirement and absence from return to work meetings. Continental also sought to negate the prima facie case for disability discrimination by asserting that Shadow was not a member of the protected class. Additionally, in its summary judgment pleadings, Continental asserted several non-discriminatory reasons for its actions including:

• Shadow submitted a written request to retire.

• Shadow talked generally about retiring.

• Shadow was advised of and counseled on performance problems in October 1997.

• Laird's letter to Shadow addresses performance issues and attendance problems, in addition to any health issues, as the reason for a medical leave prior to retirement.

Because both the prima facie case and the pretext argument turn on the issue of whether Shadow retired, we will bypass the prima facie discrimination analysis and address Continental's non-discriminatory reasons for its actions.

Pretext for Discrimination

Since Continental articulated a non-discriminatory reason for its actions, Shadow has the burden to prove that Continental's articulated reasons are merely a pretext for discrimination. Reeves, 530 U.S. at 143. A plaintiff can prove the employer's articulated reasons are pretext "in two ways, `either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir. 1991) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In the summary judgment setting, however, the plaintiff need not prove pretext but merely establish a genuine issue of material fact on the matter. See Amburgey, 936 F.2d at 813; Russo, 93 S.W.3d at 438. "Summary judgment will be improper if the plaintiff makes a prima facie case and produces sufficient evidence for a jury to disbelieve the employer's stated reason for discharge." Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 438-39 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (first emphasis added) (citing Reeves, 530 U.S. at 146-48). Here, Shadow failed to produce sufficient evidence showing Continental's reasons are untrue.

Continental offers Shadow's letter requesting retirement and Laird's affidavit authenticating the letter as conclusive proof that Shadow sought retirement and in fact retired. Shadow's affidavit does not controvert this letter, and his proffered testimony is ambiguous about the authenticity and veracity of the letter. When questioned on whether the signature on the letter is his, Shadow equivocally answered, "I couldn't say yes. I couldn't say no. I don't know." An affidavit is insufficient to create a fact issue unless the statements therein are "direct, unequivocal, and perjury can be assigned to them." Wallerstein v. Spirt, 8 S.W.3d 774, 781 (Tex.App.-Austin 1999, no pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)). Neither Shadow's affidavit nor his deposition testimony include statements that are direct, unequivocal, or assignable as perjury. Shadow's proof does no more than "create a mere surmise or suspicion" of a fact regarding the letter's veracity. Moore, 981 S.W.2d at 269.

Shadow's primary argument is that he was "forced to retire," yet he is unable to articulate any specifics regarding his forced retirement. He acknowledges that he spoke to Laird about retirement, but cannot recall the context of those conversations or any intentions he may have expressed. Shadow's testimony reveals that his claim is based on subjective feelings. Shadow admits that it was his feeling that he was being forced to retire. When pressed on the issue of whether he was actually forced to retire, he answered, "well, no, sir. I wouldn't call it forced. Well, yes and no." Shadow's only outright assertion that he was forced to retire is in his affidavit, yet there too he fails to specify facts supporting such a conclusion.

Shadow also offers Laird's November 11, 1997 letter, which unilaterally placed Shadow on paid medical leave until retirement, as proof that he was forced to retire. However, this letter was issued after Shadow requested retirement and indicates only that Continental sought to place Shadow on medical leave until his date of retirement.

Additionally, Continental's summary judgment proof shows several attempts to schedule return to work meetings after Shadow sought to revoke his retirement after his medical leave. Shadow argues that these meetings fail to negate Shadow's claim that he was terminated. However, in view of Shadow's retirement request, Laird's actions in conformity with Shadow's retirement, and Shadow's admission that employees must attend a return to work meeting before they can return to work, the non-occurrence of these meetings show simply that there was no action to revoke Shadow's retirement.

Shadow offers the testimony of Karl Baker who testified that Laird stated Shadow was fired and had not shown up for several meetings. Viewed in the light most favorable to Shadow, this testimony shows that Laird thought Shadow was "fired". However, even if Laird considered Shadow's failure to attend the return to work meetings grounds for termination, this evidence still does not controvert the fact that Shadow retired, which was Continental's reason for considering Shadow's employment to have ended.

The fact that Shadow submitted a request to retire and was unable to participate in return to work meetings indicates a legitimate reason to consider that Shadow had retired. Shadow's subjective belief that he was forced to retire is insufficient to overcome a showing of retirement, Continental's non-discriminatory reason. See M.D. Anderson Hosp., 28 S.W.3d at 25. Since Shadow offered no evidence to disprove Continental's legitimate non-discriminatory reason to consider Shadow retired, the district court correctly granted summary judgement on Shadow's age and disability discrimination claims. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002).

Intentional Infliction of Emotional Distress

To recover damages for intentional infliction of emotional distress, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS§ 46 (1965)). Continental sought summary judgment on the grounds that Shadow could produce no evidence of extreme and outrageous conduct.

Whether the defendant's conduct is so extreme and outrageous as to permit recovery is initially a question for the court. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 123 (Tex.App.-San Antonio 1998, pet. denied). When reasonable minds may differ, however, the question is for the jury, subject to the court's control, to determine whether the conduct, in a particular case, is sufficiently extreme and outrageous. GTE Soutwest v. Bruce, 998 S.W.2d 605, 616 (Tex. 1999). Outrageous conduct is that which goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized society. Wornick Co., 856 S.W.2d at 734. "[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct." GTE Southwest, 998 S.W.2d at 612.

In the employment context, a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. Wal-Mart Stores, Inc. v. Canchola, 2003 WL 22053417 (Sept. 4, 2003) (per curiam). An employer is given latitude to "supervise, review, criticize, demote, transfer, and discipline employees." GTE Southwest, 998 S.W.2d at 612. To establish a claim in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. Id. at 613. Thus, such extreme conduct exists only in the most unusual circumstances. Id.

Liability may arise when one in a position of authority engages in repeated or ongoing harassment of an employee if the cumulative quality and quantity of the harassment is extreme and outrageous. GTE Southwest, 998 S.W.2d at 615. Occasional malicious and abusive incidents must often be tolerated in our society, but once such conduct becomes a regular pattern of behavior and continues despite the victim's objection and attempts to remedy the situation, it can no longer be tolerated. Id. at 617. When repeated or ongoing harassment is alleged, the offensive conduct is evaluated as a whole. Id. at 615.

Shadow asserts that his claim against Continental is based on Laird's "course of conduct" toward Shadow. In his affidavit, Shadow asserts that Laird engaged in a course of conduct that embarrassed him, shamed him, and humiliated him. In support of his allegation of extreme and outrageous conduct, Shadow makes the following allegations:

Laird engaged in false reporting of Shadow's misconduct.

Laird yelled at Shadow "on occasion".

Laird embarrassed Shadow.

Laird unjustifiably criticized Shadow's work.

Laird told other employees that Shadow was going to jail and wanted to retire.

Laird forced Shadow into retirement.

Laird never received retirement benefits.

Upon independent review of the record, we find that the evidence offered in support of each of these allegations is weak, and when considered as a whole, falls short of extreme and outrageous conduct. The evidence amounts to no more than "insults, indignities, . . ., annoyances, petty oppressions, or other trivialities." GTE Southwest, 998 S.W.2d at 612. Moreover, there is no evidence that these incidents were part of a regular pattern of "repeated or ongoing harassment." Id. at 615.

Additionally, the allegations of false reporting and forced retirement do not support a claim of intentional infliction of emotional distress. The alleged false reporting could not contribute to Shadow's high blood pressure, the alleged physical manifestation of his emotional distress, because Shadow only became aware of this alleged activity after the lawsuit was filed.

Moreover, Shadow's singular reliance on his allegation of wrongful termination, i.e. that he was forced to retire, is misplaced. Shadow offered no factual evidence of outrageous conduct executed in an effort to force his retirement. In Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52 (Tex. 1998), the court held "the mere fact of termination of employment, even if the termination is wrongful, is not legally sufficient evidence that the employer's conduct was extreme and outrageous under the rigorous standard that we established in Twyman." Id. at 54; see also Canchola, 2003 WL 22053417 (holding that employer's conduct in investigating and ultimately terminating employee was an ordinary employment dispute and did not constitute outrageous conduct); Wornick Co., 856 S.W.2d at 735 (holding that a security guard escorting a terminated employee off the premises did not reach the requisite level of outrageousness); Diamond Shamrock Ref. Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (holding that employer allegedly accusing an employee of thievery and firing him is insufficient to constitute outrageous behavior); Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 557 (Tex.App.-San Antonio 1998, no pet.) (holding that a singular incident of termination where an employee received a letter of termination allegedly for improper or pretextual reasons did not constitute outrageous behavior).

Accepting Shadow's version of the events as true, we conclude, as a matter of law, that Continental's conduct toward Shadow, including the manner in which Shadow's employment ended, did not constitute outrageous behavior. The facts do not reveal ongoing harassment or extreme circumstances. Continental's behavior, as a matter of law, did not rise to the level of conduct that would "exceed all possible bounds of decency" and was not "utterly intolerable in a civilized community." Wornick Co., 856 S.W.2d at 734. The district court correctly granted summary judgment on Shadow's claim for intentional infliction of emotional distress.

Conclusion

The trial court's judgment is affirmed.