Browning v. Southwest Research Institute , 288 F. App'x 170 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2008
No. 07-50434 Charles R. Fulbruge III
Clerk
LAUREN BROWNING
Plaintiff - Appellant
v.
SOUTHWEST RESEARCH INSTITUTE
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CV-245
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Lauren Browning appeals the summary judgment dismissal of her wage
discrimination, failure to promote, retaliation, and constructive discharge claims
based on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and of her wage discrimination and retaliation claims based on the Equal
Pay Act (“EPA”), 29 U.S.C. §§ 206(d), 215(a)(3). We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50434
I.
Lauren Browning was employed by the Southwest Research Institute (“the
Institute”) from December 7, 1998, to May 21, 2004. She was initially hired as
a one-year contract employee in the Institute’s Center for Nuclear Waste
Regulatory Analyses.1 This limited-term contract was extended in December
1999, and Browning was retained as a Research Scientist on a regular basis
beginning October 14, 2000.2 On May 10, 2004, Browning resigned from her
position with the Institute. Her resignation took effect on May 21.
It is undisputed that Browning was a productive and valuable employee.
Her performance evaluations, the testimony of her supervisors, and her
accomplishments while employed at the Institute reflect this fact. What is
disputed is whether, despite her abilities, the Institute discriminated against
Browning in the terms of her employment and retaliated against her in response
to her complaints about such alleged discrimination. Browning alleges that the
Institute discriminated against her because of her gender by paying her less
than male employees with similar positions were paid, by failing to promote her,
by retaliating against her because of her complaints about such discrimination,
and by constructively discharging her.
The district court granted summary judgment in favor of the Institute as
to each of these claims.3 Browning now appeals. After stating the appropriate
1
The Institute is a non-profit institution that conducts broad-based scientific and
engineering research, development, analysis, and exploration across many disciplines. The
Institute is organized into divisions, with each division handling a distinct area of research or
analysis. During the period of Browning’s employment, Division 20, the Center for Nuclear
Waste Regulatory Analysis, was devoted exclusively to projects sponsored by the U.S. Nuclear
Regulatory Commission.
2
The Institute’s technical staff is organized progressively along the following career
ladder: Scientists, Research Scientists, Senior Research Scientists, Principal Scientists, Staff
Scientists, and Institute Scientists.
3
The district court referred all pretrial matters, including summary judgment
proceedings, to a magistrate judge. The magistrate judge issued a Memorandum and
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standard of review, we address her arguments, bringing additional specificity to
the factual background of this case as required to address each claim.
II.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court. Rachid v. Jack in the
Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004). Summary judgment is appropriate
when “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
The burden is on the moving party to show that “there is an absence of evidence
to support the nonmoving party’s case.” Freeman v. Tex. Dep’t. of Crim. Justice,
369 F.3d 854, 860 (5th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986)). Once the moving party meets its initial burden, the nonmoving
party “must . . . set out specific facts showing a genuine issue for trial.” FED. R.
CIV. P. 56(e). The nonmoving party, however, “cannot satisfy this burden with
conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence.” Freeman, 369 F.3d at 860 (citation omitted). Further, a fact is
material only “if its resolution could affect the outcome of the action.” Wyatt v.
Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002). We review all facts
in the light most favorable to the non-moving party. Rachid, 376 F.3d at 308.
III.
Because Browning presents no direct and express evidence of unlawful
discrimination, her claim is analyzed using the framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wallace v. Methodist
Recommendation on the Institute’s motion for summary judgment. The district court, after
reviewing the Memorandum and Recommendation and Browning’s objections to it, adopted the
Memorandum and Recommendation in its entirety and granted the Institute’s motion for
summary judgment. Consistent with this, we reference the arguments and conclusions
presented in the Memorandum and Recommendation as those of the district court.
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Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). Under this framework, a plaintiff
must first create a presumption of intentional discrimination by establishing a
prima facie case. Id. The burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its actions. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The burden on the employer at
this stage “is one of production, not persuasion; it ‘can involve no credibility
assessment.’” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)). If the employer sustains its burden, the prima facie case is dissolved,
and the burden shifts back to the plaintiff to establish either: (1) that the
employer’s proffered reason is not true but is instead a pretext for
discrimination; or (2) that the employer’s reason, while true, is not the only
reason for its conduct, and another “motivating factor” is the plaintiff's protected
characteristic. Rachid, 376 F.3d at 312.
A.
Browning argues that the district court erred in granting summary
judgment on her Title VII and EPA claims for wage discrimination.
Both Title VII and the EPA prohibit employers from discriminating in
compensation based on sex. See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 206(d)(1).
Under both Title VII and the EPA, if a plaintiff establishes a prima facie case of
wage discrimination, which for the sake of argument we will assume Browning
has done, then the employer can respond with evidence that the disparate wage
payments were made “pursuant to (i) a seniority system; (ii) a merit system; (iii)
a system which measures earnings by quantity or quality of production; or (iv)
a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1);
Jones v. Flagship Intern., 793 F.2d 714, 723 n.8 (5th Cir. 1986) (noting that Title
VII incorporates the EPA’s four defenses to a wage discrimination claim).
Factors other than sex include, among other things, employees’ “[d]ifferent job
levels, different skill levels, previous training, and experience.” Pouncy v.
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Prudential Ins. Co., 668 F.2d 795, 803 (5th Cir. 1982). If an employer responds
with legitimate, non-discriminatory reasons for an alleged pay disparity, the
plaintiff must then show that the purported reason is a pretext for
discrimination. See Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1137 n.8 (5th Cir.
1983) (applying Title VII pretext standard to EPA cases).
In its motion for summary judgment, the Institute referenced testimony
and other evidence that demonstrated that Browning’s salary reflected her prior
work experience, seniority, job title, field of study, and contributions to the work
of the Institute. Having made this showing, Browning was required to raise a
genuine issue of fact as to whether the purported reasons were pretextual.
As to this, the Institute argues as a threshold matter that Browning is now
introducing, for the first time, arguments regarding certain male employees of
the Institute and that, consequently, these arguments were not preserved for
appellate review. Browning contends that these arguments and the related
evidence were properly before the district court and therefore were preserved for
appellate review. However, a careful review of the record shows that Browning
did not provide the Institute an opportunity to address nor the district court an
opportunity to rule on the arguments she now presents. We therefore hold that
Browning waived any argument that she might have as to those male employees
of the Institute who are now so thoroughly discussed in her briefs to this Court.
See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (noting that if a “litigant
desires to preserve an argument for appeal, the litigant must press and not
merely intimate the argument during the proceedings before the district court.
If an argument is not raised to such a degree that the district court has an
opportunity to rule on it, we will not address it on appeal”).4
4
In her objections to the magistrate judges’s Memorandum and Recommendation,
Browning reasserted her broad argument that her pay was generally and discriminatorily
disparate in relation to all male Research Scientists, Senior Research Scientists, and Principal
Scientists. She also, however, for the first time mentioned several individuals—both Research
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No. 07-50434
Thus, Browning’s wage discrimination claims fail because Browning failed
to raise a genuine issue of material fact as to whether the Institute’s purported
legitimate, non-discriminatory reasons for her allegedly disparate wage
payments were a pretext for discrimination. The Institute offered testimony and
other evidence that demonstrates that Browning’s salary reflected her prior
work experience, seniority, job title, field of study, and contributions to the work
of the Institute; and Browning offers no evidence–beyond conclusory
allegations—that raises a genuine issue of fact as to whether these purported
reasons were pretextual. Moreover, the Institute referenced testimony and other
evidence that demonstrates that any pay disparities between Browning and
those individuals she had identified in her deposition testimony as occupying a
comparable position at the Institute were the product of legitimate, non-
discriminatory reasons; and Browning does not challenge these arguments. We
therefore hold that the district court appropriately dismissed Browning’s Title
VII and EPA wage discrimination claims.
B.
Scientists and Senior Research Scientists—who received a higher salary than she did. Her
arguments regarding these individuals are vague and insufficient to raise a general issue of
material fact regarding whether the Institute’s offered reasons for her salary were pretextual.
Indeed, her arguments were not even directed at showing that the Institute’s offered reasons
were pretextual. Moreover, the district court did not address Browning’s arguments regarding
these individuals, and Browning has presented no argument that the district court’s failure to
address these arguments was an abuse of discretion. See Requena-Rodriguez v. Pasquarell,
190 F.3d 299, 307 n.27 (5th Cir. 1999) (noting that a district court has power “to decide that
legal arguments not raised before a magistrate judge are waived”). Finally, we are further
confirmed in our belief that Browning presented only a vague argument regarding all male
Research Scientists, Senior Research Scientists, and Principal Scientists by her reply to the
Institute’s response to her objections, which once again reasserted this argument and, in a
footnote, objected to any requirement that she must name, with specificity, male employees
whom she contends received higher pay. While it may be true that Browning was not required
to name, with specificity, male employees who received higher pay to establish her prima facie
case, she did need to present some evidence, by way of comparison with male employees or
otherwise, that the Institute’s offered reasons for her salary were pretextual—and she did not.
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No. 07-50434
Browning also argues that the district court erred in granting summary
judgment on her Title VII failure to promote claim.
To establish a prima facie case for a failure to promote claim, a plaintiff
must establish that: (1) she is a member of the protected class; (2) she applied
for a position for which she was qualified; (3) she was rejected for the position;
and (4) after she was rejected, the employer continued to seek applicants with
the employee’s qualifications or filled the position with someone outside the
protected class. See Celestine v. Petroleos de Venezuella, S.A., 266 F.3d 343, 354-
55 (5th Cir. 2001). A plaintiff must establish that she meets objective promotion
criteria at the prima facie stage of her case. See Medina v. Ramsey Steel Co.,
Inc., 238 F.3d 674, 681 (5th Cir.2001). If a plaintiff makes out a prima facie
case, we analyze the claim under the familiar McDonnell Douglas
burden-shifting framework described above. Id.The Institute argues that Browning failed to establish a prima facie case
on her failure to promote claim because she failed to offer evidence that she was
qualified for the position she sought and failed to offer evidence that the
Institute sought applicants with similar qualifications.5 As to each of these
arguments, the Institute relies only on the fact that Browning did not receive
two “Clearly Outstanding” ratings on her annual performance evaluations and
that, as a matter of policy, the Institute does not promote employees who have
not received two such ratings.6 The Institute argues that the relevant
5
The position Browning sought was eventually filled by a female. Although relevant
to whether the Institute had a discriminatory intent, this fact is insufficient to defeat
Browning’s prima facie case. See Nieto v. L & H Packing Co., 108 F.3d 621, 624 n.7 (5th
Cir.1997) (“While the fact that one’s replacement is of another national origin ‘may help to
raise an inference of discrimination, it is neither a sufficient nor a necessary condition.’”
(quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).
6
The Institute annually evaluates each employee’s performance and assigns one of five
possible ratings: Clearly Outstanding, Exceeds Expectations, Meets Expectations, Needs
Improvement, or Unsatisfactory. Pluses and minuses are attached to these ratings to indicate
that an employee’s performance is within an intermediate range. While employed at the
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No. 07-50434
performance criteria are objective and that because Browning failed to meet
them she cannot establish a prima facie case.
In response, Browning argues that the Institute’s performance evaluations
are wholly subjective and that, consequently, the Institute’s arguments do not
defeat the second and fourth elements of her prima facie case.
Here, Browning has the better side of the argument. The Institute’s
internal documents indicate that “some of these criteria [used in staff
evaluations] are subjective.” Moreover, deposition testimony of the individuals
who performed the evaluations relevant here indicates that no objective criteria
control the evaluations and that no objective measures distinguish one rating
from another. As one of the evaluators testified, the evaluators simply “have a
pretty good idea of the break point” between ratings. The evidence, then,
indicates that the performance evaluations are subjective, as Browning argues.
Further, and “[a]s we have indicated before, an employer may not ‘utilize wholly
subjective standards by which to judge its employees’ qualifications and then
plead lack of qualification when its promotion process . . . is challenged as
discriminatory.’” Medina, 238 F.3d at 681 (alteration in original) (quoting
Crawford v. West. Elec. Co., 614 F.2d 1300, 1315 (5th Cir.1980)). This is true
because “‘the criteria . . . may be pretext for . . . discrimination.’” Id.Consequently, we hold that Browning has established a prima facie case for her
failure to promote claim.
Because Browning has established a prima facie case, the burden shifts to
the Institute to articulate a legitimate, non-discriminatory reason for its actions.
Here, the Institute’s subjective performance evaluations are sufficient to
establish a legitimate, non-discriminatory reason for its failure to promote
Institute, Browning received the following ratings: 1999, Exceeds Expectations; 2000, Exceeds
Expectations; 2001, Exceeds Expectations; 2002, Exceeds Expectations Minus; 2003, Meets
Expectations Minus; 2004, Meets Expectations Minus.
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Browning to the position she sought. See Alvarado v. Tex. Rangers, 492 F.3d
605, 616 (5th Cir. 2007) (“An employer’s subjective reason for not selecting a
candidate, such as a subjective assessment of the candidate’s performance in an
interview, may serve as a legitimate, nondiscriminatory reason for the
candidate’s non-selection.”); Manning v. Chevron Chem. Co., 332 F.3d 874, 882
(5th Cir. 2003) (affirming grant of summary judgment because employee did not
raise genuine issue of fact that subjective hiring criteria were pretext for
discrimination). But because subjective reasons can be a pretext for
discrimination, such “reason[s] will satisfy the employer’s burden of production
. . . only if the employer articulates a clear and reasonably specific basis for its
subjective assessment.” Alvarado, 492 F.3d at 616. Browning’s performance
evaluations and the testimony of the individuals who evaluated her performance
reference clear and reasonably specific bases for the Institute’s subjective
assessments. Browning’s performance evaluations, for instance, indicate, among
other things, that she made gratuitous, negative comments about her colleagues;
discussed internal Institute matters with clients; failed to follow Institute
procedures; made an unauthorized business trip; failed accurately to report her
time; and was reluctant to participate in certain Institute initiatives.
Because the Institute has articulated a legitimate, non-discriminatory
reason for not offering Browning a promotion, her prima facie case is dissolved
and the burden shifts back to her to establish either: (1) that the employer's
proffered reason is not true but is instead a pretext for discrimination; or (2) that
the employer’s reason, while true, is not the only reason for its conduct, and
another “motivating factor” is the plaintiff's protected characteristic. See
Rachid, 376 F.3d at 312.
Browning has attempted to establish that the Institute’s asserted
justifications are pretextual in several ways. First, Browning argues that the
subjective nature of the Institute’s performance evaluations allowed the
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Institute to suppress her rating. We have held, however, that “[t]he mere fact
that an employer uses subjective criteria is not . . . sufficient evidence of
pretext.” Manning, 332 F.3d at 882. Second, Browning testified that the alleged
failure accurately to report her time was a pretextual motive manufactured by
the Institute. She does not, however, offer any evidence beyond her conclusory
allegation to this effect, nor does she challenge the other asserted inadequacies
that are noted in her performance evaluations. Third, Browning asserts that the
Institute more strictly judged her performance than that of male employees. Her
citations to the record, however, demonstrate exactly the contrary. She first
directs the Court to the performance evaluations of a male employee who
received better evaluations than she did. These evaluations also indicate that
the employee had time management issues, but these issues were hardly of the
sort referenced in Browning’s evaluations. Indeed, the evaluators urged the
employee, for instance, “to try to achieve a better balance between devotion to
his career and attention to his personal health.” Browning also directs the court
to the performance evaluations of a second male employee. This employee’s
evaluations demonstrate some interpersonal problems; the evaluators, for
instance, note that “he often creates the perception that he is the single oracle-
like source of . . . knowledge in the program” and “needs to develop an image of
quiet, confident technical competence.” Fatal to Browning’s comparison,
however, is that this employee did not receive more favorable evaluations.
Based on the evidence offered by Browning, no trier of fact reasonably can
infer that the Institute is dissembling to cover up a discriminatory purpose.
Indeed, Browning has offered no evidence of discriminatory intent: she does not
offer evidence that any Institute employee made sexist comments, that the
Institute has a pattern or practice of discriminating against females, or that the
individuals who evaluated her performance have ever been accused of
discrimination based on sex or ever behaved in a manner that evidences such a
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No. 07-50434
possibility. Indeed, her only arguments that the Institute’s asserted
justifications are pretextual are those noted above, and there is little in the way
of record evidence in support of these arguments. Thus, Browning has failed to
carry her burden of establishing that the Institute’s asserted justifications for
not offering her the promotion she sought are pretextual. The district court did
not therefore err in granting summary judgment on this claim.
C.
Browning also argues that the district court erred in granting summary
judgment on her Title VII and EPA retaliation claims.
Both Title VII and the EPA—through the Fair Labor Standards Act
(“FLSA”)— prohibit employers from retaliating against employees who engage
in activity protected under the respective acts. See 42 U.S.C. § 2000e-3(a); 29
U.S.C. § 215(a)(3). To establish either a Title VII or an EPA retaliation claim,
a plaintiff must establish, among other things, that she suffered an adverse
employment action. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th
Cir. 2002); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008)
(applying the same requirement in an FLSA case).
The Institute argues that Browning cannot establish a prima facie case of
retaliation because she suffered no adverse employment action. The Supreme
Court recently clarified that a retaliation claim may rest on an action that “a
reasonable employee would have found . . . [to be] materially adverse, which in
this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotation marks
omitted). This standard, as the Supreme Court noted, is phrased “in general
terms because the significance of any given act of retaliation will often depend
upon the particular circumstances. Context matters.” Id. at 69. Context
matters because “‘[t]he real social impact of workplace behavior often depends
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No. 07-50434
on a constellation of surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words used or the
physical acts performed.’” Id. at 69 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81–82 (1998)). Further, the Supreme Court noted that
the materiality requirement reflects the importance of separating “significant
from trivial harms.” Id. at 68. With this standard in mind, we examine the
incidents of retaliatory conduct alleged by Browning.
Browning alleges that the Institute engaged in a pattern of retaliation
against her. Browning’s strongest allegation is that the Institute retaliated
against her by reducing her job responsibilities. It is undisputed that the
Institute removed Browning from the Principal Investigator position of the
Quantity and Chemistry Integrated Subissue. The loss of job responsibilities
can in some circumstances constitute an adverse employment action. But as the
Institute argues and as Browning admits, the Institute periodically rotates its
scientists into and out of lead roles like the one Browning held. Indeed,
Browning’s deposition testimony references several examples of this. As noted
above, we have been instructed to consider the “particular circumstances” and
the “real social impact of workplace behavior.” Under these circumstances, we
are certain that Browning’s seemingly normal rotation out of the Principal
Investigator position, with no specific association with protected activity, would
not dissuade a reasonable worker from making or supporting a charge of
discrimination.
Browning also alleges that the Institute retaliated against her by
badgering, harassing, and humiliating her. Here, Browning first alleges that
when she confronted a supervisor about her allegedly unequal pay, he responded
by threatening to fire her. Her deposition testimony indicates the supervisor
told her that he could fire her for cause and that Texas is a right to work state.
Her notes from that meeting, however, also indicate that the supervisor made
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No. 07-50434
this comment in relation to a discussion of whether Browning would soon be
receiving a significant pay increase. According to Browning’s notes, the
supervisor praised her performance but also noted that her violations of
Institute policies—violations which were sufficient grounds to fire her with
cause—suppressed her overall performance rating, which of course affected
whether she would be promoted and whether her pay would be increased.
Browning even notes that the supervisor “offered [her] a carrot” by indicating
that if her attitude improved her performance evaluations would also improve.
Given Browning’s testimony and the evidence she presented about this
conversation, we are also certain that this alleged threat would not dissuade a
reasonable worker from making or supporting a charge of discrimination.
Indeed, there is no indication that this conversation was anything other than an
attempt to discuss Browning’s concerns about her pay.
Next, Browning alleges that another supervisor reacted to her with verbal
abuse and threatened her employment when she confronted him about her
allegedly unequal pay. As Browning presents the argument in her brief, the
supervisor told her she was “crazy,” which was “a humiliating, demeaning form
of badgering,” and then threatened her employment. Browning’s notes from this
conversation, however, show the nature of the exchange between the two of
them. According to Browning, the supervisor responded to her complaint by
saying: “If you or anyone else thinks that something unethical is going on around
here, then I suggest that you avail yourselves of the free psychiatric services
provided by the Institute.” And then, in discussing her performance evaluations,
said: “What you have to realize is that . . . [w]e are management, you are the
employee. We make the rules, and you follow them. It’s as simple as that. And
if you don’t think that what we are doing is fair, then there is the door.” Again,
Browning’s evidence indicates that this heated exchange of words in a work
place confrontation presents no set of facts that constitute retaliation. This
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alleged verbal abuse, like that discussed above, amounts at best to nothing more
than the “petty slights” or “minor annoyances” that all employees face from time
to time. White, 548 U.S. at 68.
Finally, Browning alleges that the Institute retaliated against her by:
attempting to hire an employee to take her position and by forcing her to
interview and evaluate job applicants as a part of this process; suppressing her
performance evaluations; and subjecting her to extra scrutiny. Browning,
however, presents nothing but conclusory allegations to support these
assertions. Browning offered no evidence that indicates that the Institute was
attempting to hire her replacement, nor any evidence that her performance
evaluations were suppressed, nor any evidence that she was subjected to extra,
oppressive scrutiny. Browning’s “[c]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy” her summary judgment
burden. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996) (en banc) (citation omitted).
Thus, we hold that Browning has not established a prima facie case for her
Title VII and EPA retaliation claims because she has not created a genuine issue
of fact regarding whether she suffered an adverse employment action. Further,
and consequently, the district court did not err in granting summary judgment
on these claims.
D.
Finally, Browning argues that the district court erred in granting
summary judgment on her Title VII constructive discharge claim. As we have
earlier said, Browning decided to resign from the Institute and did so in May of
2004. She argues that her resignation was compelled by the hostile conduct of
the Institute toward her.
In determining whether an employer’s actions constitute a basis to support
a constructive discharge, we ask whether “working conditions [became] so
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No. 07-50434
intolerable that a reasonable person in the employee’s position would have felt
compelled to resign.” Penn. State Police v. Suders, 542 U.S. 129, 141 (2004); see
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007) (stating same
standard). “Mere harassment, alone, is insufficient; rather, the plaintiff must
show ‘aggravating factors’ to justify departure.” Hockman v. Westward
Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004). In determining whether a
reasonable employee would feel compelled to resign, we consider the relevancy
of the following factors: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment
to work under a younger supervisor; (6) badgering, harassment, or humiliation
by the employer calculated to encourage the employee’s resignation; and (7)
offers of early retirement on terms that would make the employee worse off. Id.(citation omitted).
The record makes clear that Browning was not demoted, actually received
salary increases from 2000 through 2004, was not reassigned to menial work or
to a younger supervisor, and was not offered early retirement or less favorable
employment terms. Browning argues, however, that she was constructively
discharged. Her argument to this effect references the allegedly retaliatory
treatment that we have discussed above. But for the reasons discussed above,
we hold that Browning’s working conditions were not so intolerable that a
reasonable person in her situation would have felt compelled to resign. The
district court did not therefore err in granting summary judgment on this claim.
IV.
For the reasons assigned above, the judgment of the district court is
AFFIRMED.
AFFIRMED.
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