United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-20156
Summary Calendar
KAREN MOWBRAY
Plaintiff - Appellant
v.
AMERICAN GENERAL LIFE COMPANIES; AMERICAN GENERAL CORP; AMERICAN
INTERNATIONAL GROUP INC; AMERICAN INTERNATIONAL REALTY CORP,
American International Realty Corp; AMERICAN GENERAL LIFE
COMPANIES, doing business as American General Financial Group
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:03-CV-2648
Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
In this action pursuant to the Family and Medical Leave
Act, Plaintiff-Appellant Karen Mowbray appeals the district
court’s grant of summary judgment in favor of Defendants-
Appellees, who Mowbray claims took adverse employment action
against her in retaliation for her taking medical leave. For the
*
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that this opinion should not be published and is not precedent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.
reasons stated below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Defendants-Appellees in this action consist of American
General Life Companies (“AGLC”); AGLC’s parent corporation,
American General Corporation (“AGC”); AGC’s parent company,
American International Group, Inc. (“AIG”); and an AIG
subsidiary, American International Realty Group (“AIRC”)
(collectively, “Defendants-Appellees”). Until August 29, 2001,
Plaintiff-Appellant Karen Mowbray worked for AGLC in Houston,
Texas, as the Vice President for Administrative Services. On
August 29, 2001, AIG acquired AGC and its subsidiary AGLC; soon
thereafter, Mowbray was promoted to Senior Vice President and
Chief Procurement Officer and began reporting to Fred Wunschel,
an AIRC employee based in New York who oversaw procurement for
all AIG affiliates.
On September 10, 2001, Mowbray traveled to New York City on
a business trip and was in New York the next day when the
September 11 terrorist attacks occurred. Although she received
no physical injuries, Mowbray suffered post-traumatic stress
disorder as a result of the attacks. Mowbray continued to work
for several weeks on assignments related to the integration of
AGC and AIG until she suffered a nervous breakdown at work, which
she claimed was related to her September 11 experience.
On November 29, 2001, she informed AGLC’s human resources
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department of her post-traumatic stress disorder diagnosis,
requested a leave of absence, and submitted a claim to AGLC for
workers’ compensation benefits. AGLC granted Mowbray a leave of
absence, extended it three times at Mowbray’s request, and
granted Mowbray short-term disability benefits. Mowbray also
sent Wunschel an e-mail and left a voice message informing him of
her leave, but did not tell him the reason for her leave or that
she would be receiving workers’ compensation benefits. While
Mowbray was on leave, her subordinates performed her duties.
During this time, her promotion compensation package was
approved, and Mowbray received a $40,000 raise to $170,000 per
year and a $30,000 bonus.
On or about March 20, 2002, after sixteen weeks of leave,
Mowbray returned to work in the midst of organizational changes
related to the post-merger integration of AGC and AIG. Mowbray
quickly became dissatisfied with a number of the changes related
to her job, specifically Wunschel’s decision to transfer the
“business continuity” and “business function” components of
Mowbray’s position to another employee charged with managing
those functions on behalf of the merged organization. Although
Mowbray immediately called Wunschel upon her return regarding
these concerns, he did not return her call, and Mowbray felt that
he was cold and unfriendly in her subsequent interactions with
him.
In early July 2002, Mowbray learned that Wunschel had hired
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executive Patrick Eagan to oversee all international procurement
functions from the company’s New York office; Wunschel then
informed Mowbray that she should “start planning [her] exit from
the organization.” Memorandum and Order, Mowbray v. Am. Gen.
Life Cos., No. H-03-2648, at 4 (Jan. 24, 2005) [hereinafter
“Dist. Ct. Order”]. Later that month, Wunschel gave Mowbray
three options: (1) accept a position as a manager in Houston and
report to Eagan, a position that paid less and that Mowbray
considered a demotion; (2) seek another executive position within
ACG or AIG, which Mowbray believed would have been difficult
given the cutbacks related to the integration; or (3) end her
employment with the company and accept a severance package of
over $240,000. Mowbray chose to accept the severance package and
terminate her employment, effective August 23, 2002.
Mowbray filed a lawsuit in Texas state court alleging that
Defendants-Appellees retaliated against her in violation of state
law for taking medical leave and receiving workers’ compensation.
Defendants-Appellees moved for arbitration pursuant to AGLC’s
Employment Dispute Resolution Plan, and the state court ordered
that only AGLC was entitled to arbitration because it was the
only one that was a party to the arbitration agreement with
Mowbray. While the arbitration proceeded, Mowbray added federal
claims under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601 et seq., and the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001 et seq. Defendants-Appellees
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removed the case to federal court. The district court stayed the
case pending the outcome of the arbitration.
In December 2003, AGLC moved in the arbitration for summary
judgment. The arbitrator issued an order granting summary
judgment for AGLC on all claims on February 2, 2004.1 The
district court subsequently granted AGLC’s motion to confirm the
arbitration award. On October 15, 2004, the remaining
Defendants-Appellees filed a motion in district court for summary
judgment. The district court granted summary judgment on behalf
of Defendants-Appellees on all of Mowbray’s claims on January 24,
2005. With regard to Mowbray’s FMLA claim, the district court
held that, as a matter of law, Mowbray could not prove causation
or adverse employment action on the part of the remaining
1
After considering the summary judgment evidence, the
arbitrator found the following facts:
(1) AGLC was Mowbray’s employer; (2) AGLC paid Mowbray’s
salary; (3) Mowbray’s job titles indicate she was an
employee of AGLC and she was promoted by AGLC; (4)
Mowbray applied for and received through AGLC, and AGLC’s
human resources department, workers’ compensation
benefits, FMLA leave, and short-term disability leave;
(5) Wunschel was not employed by AGLC, but was employed
by AIRC, a subsidiary of AIG; (6) Mowbray did not tell
Wunschel about her [medical] condition, the reason for
her leave, or that she received workers’ compensation
benefits; (7) Mowbray did not believe that Wunschel or
AGLC interfered with her benefits; and (8) Mowbray
requested and received a severance package from AGLC.
Dist. Ct. Order at 13 (summarizing the arbitrator’s factual
findings).
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Defendants-Appellees.2 Mowbray filed this timely appeal,
challenging the grant of summary judgment on her FMLA claim.3
II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court. Chaplin v. NationsCredit
Corp., 307 F.3d 368, 371 (5th Cir. 2002). Summary judgment is
appropriate when the moving party establishes that, based on the
“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, . . .
2
The arbitrator found that AGLC was Mowbray’s actual
employer, and the district court held that this factual
determination is entitled to preclusive effect under the doctrine
of collateral estoppel. Dist. Ct. Order at 18. However, the
district court correctly recognized that the FMLA definition of
“employer” is not limited to a plaintiff’s actual employer.
Under the FMLA, an action can be brought against an actual
employer or “any person who acts, directly or indirectly, in the
interests of [an] employer,” 29 U.S.C. § 2611(4)(A)(ii)(I). The
district court found that, given this broad definition of
“employer,” Mowbray had created a fact issue as to the identity
of her employer for FMLA purposes because of the inter-
relationship of operations among the parent corporations and
their various subsidiaries. Dist. Ct. Order at 26. Therefore,
for the purpose of Mowbray’s FMLA claim, the district court
assumed, without deciding, that Mowbray was “employed” by
Defendants-Appellees collectively. Id. at 26. For the same
reasons, we will likewise assume, without deciding, that Mowbray
was employed by Defendants-Appellees collectively for FMLA
purposes.
3
Mowbray assigns as error only the grant of summary
judgment on her FMLA claim; she does not challenge the district
court’s grant of summary judgment on her ERISA or state-law
claims. Accordingly, we will not consider these issues on
appeal. See FED. R. APP. P. 28(a)(9); 5TH CIR. R. 28.3(j).
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there is no genuine issue as to any material fact and that [it]
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). The party moving for summary judgment “bears the burden
of identifying those portions of the record it believes
demonstrate the absence of an issue of material fact.” Lincoln
Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the non-moving party to “show the existence
of a genuine fact issue for trial.” Reyna, 401 F.3d at 349; see
also Celotex, 477 U.S. at 324. To decide whether a genuine fact
issue exists, we view the evidence and all reasonable inferences
from the evidence in the light most favorable to the non-moving
party. Reyna, 401 F.3d at 350.
B. Analysis
The FMLA prohibits an employer from retaliating against an
employee for taking a leave of absence pursuant to the FMLA. 29
U.S.C. § 2615. To make a prima facie case of retaliation under
the FMLA, Mowbray must show that: (1) she was protected under the
FMLA; (2) she suffered an “adverse employment action”; and (3)
either (a) she was treated less favorably than an employee who
had not taken FMLA leave, or (b) the adverse decision was made
because she took FMLA leave. Hunt v. Rapides Healthcare Sys.,
LLC, 277 F.3d 757, 768 (5th Cir. 2001). Based on our review of
the undisputed factual record, we hold that Defendants-Appellees
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are entitled to summary judgment because Mowbray did not suffer
an adverse employment action as a matter of law.4
“[O]nly ‘ultimate employment decisions,’ such as hiring,
granting leave, discharging, promoting, and compensating, satisfy
the ‘adverse employment action’ element of a prima facie case of
retaliation.” Id. at 769 (citing Watts v. Kroger Co., 170 F.3d
505, 512 (5th Cir. 1999)). Neither verbal threats of termination
nor merely being at risk of termination constitutes an adverse
employment action. Breaux v. City of Garland, 205 F.3d 150, 158
(5th Cir. 2000) (holding that criticism and threats of
termination did not rise to the level of adverse employment
action); Mattern v. Eastman Kodak Co., 104 F.3d 702, 709 (5th
Cir. 1997) (holding that the plaintiff’s resignation, which
preempted a possible termination, was insufficient to prove
adverse employment action). Moreover, not “every unpopular
employment decision following FMLA leave [is] a retaliatory
adverse employment decision”; there must be some “evidence that,
viewed objectively, the [employment decision] amounted to a form
of discipline, a demotion, or a reduction in pay or benefits.”
Hunt, 277 F.3d at 770, 771 (holding that transfer of the
plaintiff from the day shift to the night shift after she took
FMLA leave was not an adverse employment action); see also
4
Because our holding that Mowbray did not suffer an adverse
employment action as a matter of law disposes of Mowbray’s
retaliation claim, we need not address the remaining elements of
that claim.
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Mattern, 104 F.3d at 709 (holding that a visit by a supervisor to
the employee’s home, a verbal threat of termination, a reprimand,
and placing the employee on “final warning” did not constitute an
adverse employment decision).
In this case, Mowbray did not suffer an adverse employment
action because she opted to resign and collect her severance
package before Defendants-Appellees made an ultimate employment
decision regarding her position in the wake of the merger. Cf.
Mattern, 104 F.3d at 709 (noting that the plaintiff “preempted a
possible ultimate employment decision--she resigned”). Moreover,
it is undisputed that, prior to her resignation, Mowbray did not
suffer a decrease in salary, a change in title, or a demotion.
Although Wunschel told her to “start planning [her] exit from the
organization” in July 2002, this threat of future termination
does not rise to the level of an ultimate employment decision,
particularly in light of his subsequent offer to Mowbray,
allowing her to choose whether to remain with the organization or
to collect severance pay. See Breaux, 205 F.3d at 158.
Despite having this choice, however, Mowbray argues that she
was forced to resign because Defendants-Appellees’ actions
amounted to a constructive discharge, which qualifies as an
adverse employment action. “A constructive discharge occurs when
the employer makes working conditions so intolerable that a
reasonable employee would feel compelled to resign.” Hunt, 277
F.3d at 771. In determining whether an employer’s actions
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constitute a constructive discharge, this court examines the
following relevant factors:
(1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
degrading work; (5) badgering, harassment, or humiliation
by the employer calculated to encourage the employee’s
resignation; or (6) offers of early retirement that would
make the employee worse off whether the offer were
accepted or not.
Id. at 771-72; see also Haley v. Alliance Compressor LLC, 391
F.3d 644, 650 (5th Cir. 2004). This inquiry is an objective,
“reasonable employee” test under which we ask “whether a
reasonable person in the plaintiff’s shoes would have felt
compelled to resign.” Haley, 391 F.3d at 650.
The summary judgment evidence, even when considered in a
light most favorable to Mowbray, reveals that a reasonable
employee in Mowbray’s position would not have felt compelled to
resign. Mowbray has presented no evidence establishing a genuine
issue of material fact as to whether she was demoted, suffered a
reduction in salary or job responsibilities, was reassigned to
menial or degrading work, was subjected to badgering or
harassment, or received an offer of early retirement that would
have made her worse off; indeed, the record reflects that none of
these things occurred. See Hunt, 277 F.3d at 772 (affirming the
district court’s grant of summary judgment on constructive
discharge where the employee felt demeaned by her reassignment to
the night shift upon her return from medical leave); Brown v.
Bunge Corp., 207 F.3d 776, 782-83 (5th Cir. 2000) (affirming a
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grant of summary judgment for the employer even where employee
had been demoted and received a reduction in job responsibilities
upon his return to work); McKethan v. Tex. Farm Bureau, 996 F.2d
734, 741 (5th Cir. 1993) (affirming a summary judgment grant to
the employer where the employee claimed he had been publicly
ridiculed and admonished but failed to allege any of the other
constructive discharge factors). Moreover, that Mowbray had a
choice of three viable options concerning her post-merger
employment with Defendants-Appellees indicates that a reasonable
employee would not necessarily have felt compelled to resign
given that the other two options would have allowed her to remain
employed with the organization. See Haley, 391 F.3d at 652
(noting that no constructive discharge occurred where the
employee had options other than resigning); Bozé v. Branstetter,
912 F.2d 801, 805-06 (5th Cir. 1990) (affirming the district
court’s grant of summary judgment to the employer on constructive
discharge where the employee had options other than resigning,
including using an internal grievance process). Based on the
summary judgment record before us, Mowbray has failed to
establish any genuine issue of material fact, and Defendants-
Appellees are entitled to judgment as a matter of law because the
evidence does not support a finding of retaliation within the
meaning of the FMLA.
III. CONCLUSION
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For the foregoing reasons, we AFFIRM the judgment of the
district court.
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