United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-30007
MARILYN HALEY,
Plaintiff-Appellant,
versus
ALLIANCE COMPRESSOR LLC and COPELAND CORP.,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiff-Appellant Marilyn Haley (“Haley”) appeals the
district court’s grant of final judgment in favor of Defendants-
Appellees Alliance Compressor LLC and Copeland Corp. (together,
“Alliance”), based on its finding that Haley did not present a
genuine issue of material fact supporting her constructive
discharge, the basis for her Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq., claims. For the reasons stated below, we
AFFIRM.
BACKGROUND
Starting May 11, 1999, Haley was employed in the Human
Resources (“HR”) Department at Alliance Compressors LLC, a joint
venture manufacturer of air-conditioning compressors located in
Natchitoches, Louisiana. Copeland Corp. is one company involved in
the joint venture. The other key personnel involved in this case
are: Jeff Risinger (“Risinger”), HR manager and Haley’s immediate
boss for most of her time there; Mark Schuller (“Schuller”), a
fellow HR leader; Steve Hokky (“Hokky”), Plant Manager; and Bob
Anderson (“Anderson”), Vice-President of the HR Department at
Copeland Corp.
When Alliance hired Haley, she was assigned as leader of the
machining business unit while Schuller was responsible for the
assembly business unit. Haley’s responsibilities for her unit
included staffing, employee relations, training, and all daily
activities in those areas. On performance evaluations conducted by
Risinger in 1999 and 2000, Haley was evaluated as meeting or
exceeding job expectations. In October 2000, an employee survey
was conducted by Emerson Electric Co., the parent company of
Copeland Corp. These results came out in December 2000 and showed
employee misgivings about the HR department, including some
individual negative comments directed toward both Haley and
Schuller. Around January or February 2001, Alliance conducted
feedback sessions with employees at the plant. From these,
2
Alliance developed a plan of action to improve the performance of
the HR group. Risinger reorganized the department, with Schuller
to be in charge of training and Haley to oversee recruitment. At
the time, another HR employee, Joanna Deloch, was handling employee
relations.
About April 23, 2001, Risinger met with Haley to discuss some
deficiencies in her performance. At the time, Risinger documented
the meeting with informal, handwritten notes. About June 18, 2001,
Haley completed a temporary disability claim form; the next day she
saw her physician who diagnosed a stress/anxiety disorder, which
Haley claimed arose from her employment. Haley’s doctor
recommended that Haley take a leave of absence from work from June
25, 2001, until August 20, 2001. Haley then completed and
submitted an employee request for medical leave form, requesting
leave for the time period stated by her doctor. On June 22, 2001,
Alliance approved Haley’s request for leave under the FMLA; Haley
commenced her leave on June 25, 2001. While Haley was out on
leave, Risinger approved a merit increase in her salary, effective
August 6, 2001.
Risinger, Hokky, and Anderson felt frustrated that Haley was
out on leave. Sometime in July 2001, about three weeks into
Haley’s leave, Anderson contacted Risinger about the alignment of
the HR department. Issues relating to Haley’s return were
discussed – Anderson claims they talked about preparations for
Haley’s return and what performance issues she still needed to work
3
on. Risinger presents a different version. He stated that
Anderson told him to call Haley while she was on leave and inform
her that her job had been eliminated, “that she didn’t have a job
to come back to, basically.” Risinger said he objected because
firing Haley might be considered discriminatory and in violation of
the FMLA. Anderson agreed. Risinger stated that Anderson called
him again after consulting an employment attorney and asked him for
written documentation of Haley’s work performance.
Risinger prepared the requested memo documenting the April 23,
2001, meeting he had with Haley and submitted it to Anderson on
July 29, 2001. This memo included nine specific areas of
improvement for Haley to work on. Risinger stated none of these
areas was an issue anymore and Haley had left for leave in good
standing, while Anderson claims not all the performance issues had
been resolved. On August 10, 2001, Risinger submitted his letter
of resignation, effective August 24, 2001. Haley returned to work
on August 20, 2001. Her doctor recommended she resume no more than
40-hour work weeks, and Alliance changed her status from salaried,
exempt to salaried, full-time. In the meantime, Schuller had also
resigned and Steve Ritcheson had been brought on as HR manager of
employee relations. Hokky and Anderson assumed Risinger’s
supervision of the HR department; Risinger’s role in management
became insubstantial and disengaged after he submitted his
resignation.
4
Anderson and Hokky confronted Haley with the memo and the
alleged job deficiencies on August 20, 2001, and advised her of the
importance of making improvements in her performance. Haley did
not know where this had come from, so she went to Risinger to ask
him about the circumstances of this meeting. Risinger told her
about Hokky and Anderson not being happy that she had taken leave
and about Anderson’s aborted plan to have Risinger tell her that
her job had been eliminated. On August 23, 2001, Anderson and
Hokky met with Haley to discuss Alliance’s expectations about her
work performance and informed her that she needed to improve in the
outlined areas of concern or she faced termination. They gave her
a letter to that effect and a performance plan.
Haley stated that any and all of her attempted actions at work
were now closely monitored and micromanaged by Hokky and his
secretary Donna Pearce, who Haley says was proposed to replace her.
Haley stated that she observed at least three HR department
meetings that took place without her; she could see this because
the meeting room had glass walls. On one occasion, she received
very late notice of a scheduled telephone conference with Anderson.
When she arrived to find the meeting in progress, Hokky said
sarcastically, “Oh, did we fail to tell you about the meeting?” and
everyone sniggered.
Haley submitted her letter of resignation on September 11,
2001. Haley filed this suit in district court on September 6,
2002, alleging that Alliance had violated the FMLA, by (1) denying
5
or interfering with her protected FMLA right to be restored to her
pre-leave job and (2) retaliating against her for using approved
leave under the FMLA. Haley sought back pay. Alliance filed its
motion for summary judgment on August 22, 2003. The district court
entered a final judgment on December 8, 2003, in favor of Alliance,
finding there was no genuine issue of material fact as to
constructive discharge and Alliance was entitled to judgment as a
matter of law. The court’s written ruling made clear it did not
consider evidence of Alliance’s intent. Haley timely appealed.
DISCUSSION
This Court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. Priester v. Lowndes County, 354 F.3d 414, 419 (5th Cir.
2004); see also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956
(5th Cir. 1993) (holding same in employment discrimination case).
Under Federal Rule of Civil Procedure 56(c), summary judgment is
proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). When making its determination, the court must draw
6
all justifiable inferences in favor of the nonmoving party.
Bodenheimer, 5 F.3d at 956.
Under the FMLA, an eligible employee is entitled to take up to
12 work weeks of leave in a 12-month period when, e.g., the
employee has a serious health condition that makes her unable to
perform the duties of her position. 29 U.S.C. § 2612(a)(1)(D);
Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.
1998). After a qualifying absence, the employer must restore the
employee to the same position previously held by the employee
before taking leave under the FMLA or a comparable position, with
equivalent pay, benefits, and working conditions. 29 U.S.C. §
2614(a)(1); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319
(5th Cir. 1999). These comprise the prescriptive or substantive
FMLA rights; claims for violations of these rights invoke
entitlement or interference theories and are brought under §
2615(a)(1). The proscriptive FMLA rights include an employee’s
right not to be discriminated or retaliated against for having
exercised the right to take FMLA leave. Claims for violations of
these rights are brought under § 2615(a)(2). Bocalbos, 162 F.3d at
383. These proscriptive FMLA provisions create a cause of action
analogous to the actions for discrimination and for retaliation
that are found in Title VII and the other discrimination statutes.
Haley asserted claims for both prescriptive and proscriptive FMLA
violations in her complaint.
7
Here, Alliance did not refuse to reinstate Haley to her pre-
leave position nor did it terminate her after she returned. What
Haley alleged is that Alliance’s interference with her working
conditions upon her return from leave (alleged prescriptive
violation) and Alliance’s retaliation against her for taking such
leave (alleged proscriptive violation) compelled her to resign.
Thus, constructive discharge is the basis for Haley’s FMLA claims.
The district court granted summary judgment for Alliance because it
found Haley did not provide material evidence of constructive
discharge.
Constructive discharge occurs when an employee has quit her
job under circumstances that are treated as an involuntary
termination of employment. Young v. Southwestern Sav. & Loan
Ass’n, 509 F.2d 140, 144 (5th Cir. 1975). This Court has
explained:
The general rule is that if the employer deliberately
makes an employee’s working conditions so intolerable
that the employee is forced into an involuntary
resignation, then the employer has encompassed a
constructive discharge and is as liable for any illegal
conduct involved therein as if it had formally discharged
the aggrieved employee.
Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990) (citation
omitted). Whether an employee would feel forced to resign is case-
and fact-specific, but this Court considers the following factors
relevant, singly or in combination:
(1) [D]emotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
8
degrading work; (5) reassignment to work under a younger
[or less experienced/qualified]1 supervisor; (6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee's resignation; or
(7) offers of early retirement [or continued employment
on terms less favorable than the employee’s former
status].
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)
(citations omitted and second alteration in original). The test
that Haley must meet is an objective, “reasonable employee” test:
whether a reasonable person in the plaintiff’s shoes would have
felt compelled to resign. Barrow v. New Orleans S.S. Ass’n, 10
F.3d 292, 297 n.19 (5th Cir. 1994). “Proof is not required that
the employer impose these intolerable working conditions with the
specific intent to force the employee to resign.” Jurgens, 903
F.2d at 390. However, “[c]onstructive discharge requires a greater
degree of harassment than that required by a hostile environment
claim.” Brown, 237 F.3d at 566. Aggravating factors used to
support constructive discharge include hostile working conditions
or the employer’s invidious intent to create or perpetuate the
intolerable conditions compelling the resignation. Jurgens, 903
F.2d at 393 n.10; see also Brown, 237 F.3d at 566 (noting that
“[d]iscrimination alone, without aggravating factors, is
insufficient for a claim of constructive discharge”). The
1
Original factor reads “a younger supervisor”; however, this is
not an age discrimination case, so we add language to this factor
to fit a more general working context.
9
resigning employee bears the burden to prove constructive
discharge. Jurgens, 903 F.2d at 390-91.
Whether the district court erred in granting summary judgment in
favor of Alliance.
Haley’s main contention is that the district court erred in
its assessment of the summary judgment evidence, which consisted of
various sworn affidavits and depositions, because it refused to
properly consider evidence which demonstrated Alliance’s intent to
remove Haley from her HR position either by plan of outright
termination or constructive discharge, when it was applying the
reasonable employee test. Haley argues that knowledge of employer
intent is relevant to whether a reasonable person in Haley’s
position would have felt pushed into resignation.
Haley also maintains she produced sufficient evidence that
Alliance, acting through Hokky and Anderson, created a work
environment designed specifically either to set her up for
termination or to compel her to resign by altering the terms and
conditions of her employment. Haley submits Alliance manifested
its intent to bring about her removal by its discriminatory
treatment of her through hostile working conditions. These
conditions included Alliance management fabricating deficiencies in
Haley’s work performance and setting an overly strict performance
plan for her; threatening to fire her if she did not meet her
teamwork goals; micromanaging her; excluding her from HR Department
meetings; and ridiculing her in front of her coworkers. Thus,
10
Haley argues her claims should not have been dismissed because
material questions of fact remain as to whether she was
constructively discharged from her position at Alliance.
Alliance agrees with the district court, which found “none of
the evidence presented by plaintiff satisfies the objective test
for a constructive discharge.” Alliance argues the district court
correctly precluded evidence of employer intent because it was
analyzing Haley’s claims at the stage of the reasonable employee
test, and Haley had not advanced to the stage where the court would
consider aggravating factors such as invidious intent. Moreover,
the district court correctly decided that the actions Haley claimed
Alliance perpetuated would not have made a reasonable employee in
her situation involuntarily resign.
Alternatively, if this Court does choose to accept as true
evidence that the district court did not consider when looking at
whether there is a genuine issue of material fact under the
reasonable employee test, Alliance stresses it never terminated
Haley or followed through on any plan to eliminate her position.
Nor can it be faulted for documenting Haley’s ongoing deficiencies
and forming a performance plan for her when the entire HR
department was in a time of reorganization following the Emerson
survey and report. Haley’s subjective belief that she was a victim
of retaliatory discrimination by Alliance does not create any
material fact dispute. And Alliance completely discounts any of
Haley’s evidence regarding any difficulties she had upon returning
11
from leave in terms of training, expansion of job duties, and
miscommunication about meetings because they were only business
decisions in a time of reorganization where many HR employees were
affected by changes.
Whether the reasonable employee test may consider employer
intent.
Here, the district court interpreted FMLA law and concluded
that “evidence of the employer’s intent is not relevant if the
plaintiff does not satisfy its burden to prove the objective
inquiry of whether a reasonable person would feel compelled to
resign.” This is a facially incorrect application of the
reasonable employee test; the district court thus erred by
excluding all evidence of Alliance’s intent when considering
whether Haley had presented a genuine issue of material fact on
constructive discharge. This Court stated in Jurgens: “[A]lthough
we have adopted a reasonable-employee analysis, manifestations of
the apparent intent of the employer are relevant to this analysis.”
903 F.2d at 393 n.10. This statement plainly contemplates
considering evidence of employer intent when the court determines
whether a reasonable employee would have felt compelled to resign.
Determining whether supporting aggravating factors exist is not a
separate analysis from the reasonable employee test; it is part and
parcel of the same inquiry. See id.
Therefore, the correct question to ask here is whether a
reasonable employee who received similar information of what events
12
had transpired while she was on leave, including the excluded
evidence construed as showing employer intent, and otherwise
experienced what Haley did after her return to work at Alliance
would have felt compelled to quit.
Whether Haley has presented a genuine issue of material fact
on constructive discharge.
After considering all the summary judgment evidence, even
construing all inferences in Haley’s favor, we determine the answer
is no. The evidence Haley presented, even including that which the
district court incorrectly excluded, does not establish a genuine
issue of material fact on constructive discharge based on the
various factors of the reasonable employee test.
This Court has applied the reasonable employee test several
times. In Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757,
772 (5th Cir. 2001), a FMLA case, we affirmed the district court’s
grant of summary judgment to the employer on constructive
discharge, where the resigning employee had been placed on a
different shift accompanied by a loss in compensation and benefits.
In Brown v. Bunge Corp., 207 F.3d 776, 782-83 (5th Cir. 2000), we
affirmed the district court’s grant of summary judgment to the
employer on constructive discharge, where the resigning employee
showed he was demoted and had fewer job responsibilities. In
McKethan v. Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993),
we affirmed the district court’s grant of summary judgment to the
employer, where the resigning employee’s embarrassment after being
13
singled out and admonished at an awards banquet was not sufficient
to show constructive discharge. In McKethan, even if the awards
incident was part of a “scheme to force [the resigning employee] to
retire,” a reasonable employee “would have demanded an apology or
otherwise attempted resolution.” Id. In Bozé v. Branstetter, 912
F.2d 801, 805-06 (5th Cir. 1990), we affirmed the district court’s
grant of summary judgment to the employer on constructive
discharge, where the resigning employee suffered a poor performance
evaluation and loss of responsibilities similar to a demotion.
Again, in Bozé, we noted a reasonable employee had other options,
such as pursuing an internal grievance process, before choosing to
leave his job. Id. at 805. In Jurgens, 903 F.2d at 392-93, we
affirmed the district court’s grant of summary judgment to the
employer on constructive discharge, where the resigning employee
was demoted as part of a nondiscriminatory reorganization, even
though the employer had previously discriminatorily denied him a
promotion.
In contrast, in Stephens v. C.I.T. Group/Equipment Financing,
Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992), we affirmed a jury
verdict on constructive discharge, where the resigning employee had
not only been demoted, but also faced significant reductions in
salary and responsibilities, and was repeatedly questioned by his
younger successor (and current supervisor) as to when he was going
to quit.
14
Haley’s situation is analogous to those cases where this Court
has affirmed summary judgment for the employer on constructive
discharge. Haley contends she faced humiliation and ostracization
from her peers, in addition to an overly severe performance plan
and micromanagement by her superiors. She also produced evidence,
which the district court incorrectly excluded, tending to show her
superiors’ intent to remove her from her job while she was on
leave. However, upon her actual return from FMLA leave, Haley (1)
was not demoted; (2) received a three percent merit salary increase
approved while she was on leave; (3) had similar, more focused job
responsibilities; (4) was not assigned menial or degrading work;
(5) was reassigned to Hokky and Anderson because Risinger had
resigned; and (6) was favorably accommodated when Alliance changed
her schedule to 40-hour work weeks. Therefore, the only factor
Haley can rely on to meet the reasonable employee test is
“badgering, harassment, or humiliation by the employer calculated
to encourage the employee’s resignation.” Brown, 237 F.3d at 566.
While Haley may have been embarrassed by Hokky’s sarcastic
comment and her peers’ response during the late-noticed meeting,
similar to the resigning employee singled out in McKethan, 996 F.2d
at 741, this treatment does not constitute the type of badgering or
harassment designed to encourage the employee’s resignation that is
required for constructive discharge. Also, having one’s work
micromanaged may be unpleasant but does not constitute a “greater
15
degree of harassment than that required by a hostile environment
claim.” Brown, 237 F.3d at 566. Plus, a reasonable employee who
genuinely felt these working conditions were upsetting to the point
of intolerable would have attempted resolution of these concerns
before choosing to quit after just over two weeks back on the job.
See McKethan, 996 F.2d at 741; Bozé, 912 F.2d at 805. Moreover,
there is no evidence that anyone at Alliance ever inquired of Haley
when she was going to quit.
Although the district court erred in excluding evidence of
Alliance’s intent, the court ultimately correctly concluded the
lack of a genuine issue of material fact on constructive discharge.
We affirm on that ground.2
CONCLUSION
Having carefully reviewed the record and the parties’
respective briefing and arguments, and for the reasons set forth
above, we conclude the district court was correct to grant
Alliance’s motion for summary judgment and dismiss Haley’s FMLA
claims. Therefore, we AFFIRM.
AFFIRMED.
2
See Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258
(5th Cir. 2001) (“We may affirm a summary judgment on any ground
supported by the record, even if it is different from that relied
on by the district court.”).
16