Doherty v. Ctr for Assisted

*Circuit Judge of the Ninth Circuit, sitting by designation.
**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this opinion should not be published and is not precedent except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.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10875
_____________________
DENISE DOHERTY,
Plaintiff-Appellant,
versus
CENTER FOR ASSISTED REPRODUCTION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth Division
_________________________________________________________________
June 18, 2001
Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:**
Appellant Denise Doherty appeals the district court’s grant of
summary judgment for Appellee Center For Assisted Reproduction
(“the Center”) on her claim of discriminatory discharge under Title
VII, 42 U.S.C. § 2000e. Because the record reflects that Doherty
failed to present evidence sufficient to support a claim of

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discriminatory constructive discharge, we AFFIRM.
Doherty was employed as an embryologist at the Center, an
infertility clinic owned and operated by Drs. Kevin and Kathy
Doody. Doherty, who supervised the in-vitro fertilization and
andrology labs, was responsible for monitoring lab activities,
scheduling hours for numerous lab employees, overseeing training,
and assisting the Doodys in making hiring and salary decisions.
In March 1997, Doherty informed the Center that she was
pregnant. While the Center had no official paid maternity leave
policy, the Center authorized Doherty to take paid maternity leave
from August 1997 to November 1997. When Doherty returned to work
in December 1997, the Center informed her that she would not
receive a Christmas bonus because she had received an equivalent
amount in paid maternity leave. At the same time, the Center told
Doherty that she would no longer have knowledge of, or provide
input as to, the raises or bonuses given lab employees. According
to Doherty, the Center also began auditing her time cards.
During this period Doherty contacted a former supervisor at
the Center, now working at Presbyterian Hospital, to inquire about
possible embryologist openings at Presbyterian. Doherty was
informed in January 1998 that there was an opening, but she did not
apply for the position at that time.
In February 1998, Doherty and other Center managers were asked
to sign a confidentiality agreement. Doherty alleges that she was

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asked by Dr. Doody at that time to work part-time with a pay
reduction, and was encouraged to spend more time with her child.
Doherty claims that Dr. Doody became angry when she refused to work
part-time.
On March 2, 1998, Martin Langley, a co-employee of Doherty’s,
informed the Center that he was leaving to join the in-vitro
fertilization lab at Presbyterian. The Center, believing that
Langley’s departure would have a negative impact on its operations,
negotiated with Langley and offered him a co-supervisor position in
the in-vitro lab with Doherty. On March 12, the Center officially
announced its restructuring move, under which Langley would take
over responsibility for the lab’s day-to-day operations while
Doherty retained some responsibilities over the in-vitro lab and
all responsibilities over the andrology lab.
Doherty immediately contacted Presbyterian and expressed
interest in the job opening with Presbyterian. She received and
accepted an offer from Presbyterian within a week of the Center’s
restructuring move. On March 24, 1998, Doherty voluntarily
resigned from her position at the Center. She filed suit in
December 1998 against the Center, alleging that she was
discriminated against on the basis of sex and pregnancy under Title
VII and was not paid overtime wages in violation of the FLSA. The
district court granted summary judgment for the Center on both
claims, and Doherty appealed only the denial of her discharge claim

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under Title VII. The record reflects that, as a matter of law, the
evidence presented by Doherty fails to support a claim of discharge
in violation of Title VII. We therefore affirm the judgment of the
district court.
To establish a termination prohibited by Title VII, a
plaintiff must first make a prima facie case by showing that she:
1) is a member of a protected class; 2) was discharged; 3) was
qualified for the position from which she was discharged; and 4)
was replaced by a member of an unprotected class. Faruki v.
Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997). Once
established, the prima facie case creates a presumption of
discrimination, which the defendant can rebut by articulating a
legitimate, non-discriminatory reason for its action. Once the
defendant proffers such a reason, the plaintiff must prove that it
is not the true reason for the employment decision and that
unlawful discrimination was a pretext for the defendant’s action.
Id. at 319.
When an employee resigns, she may satisfy the discharge
requirement of prong two by establishing constructive discharge.
To prove constructive discharge, a plaintiff must show that
“working conditions were so intolerable that a reasonable employee
would feel compelled to resign.” See id. The factors we consider
in analyzing a claim of constructive discharge include: 1)
demotion; 2) reduction in salary; 3) reduction in job

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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; or 7) offers of early retirement or
continued employment on terms less favorable than the employee’s
former status. See Brown v. Kinney Shoe Corp., 237 F.3d 556, 565
(5th Cir. 2001).
The district court found that Doherty failed to make a prima
facie case of discriminatory discharge because she did not
establish that she was “discharged” by the Center. Specifically,
the court noted that Doherty failed to establish that she was
demoted or constructively discharged when she voluntarily sought
out and accepted employment with Presbyterian. Doherty argues on
appeal that the evidence established that she was constructively
discharged from her position by the Center’s reorganization of the
in-vitro lab and the alleged harassment she endured following her
return to work from maternity leave.
The record reflects that, as a matter of law, Doherty failed
to establish that neither the new conditions of her job nor the
negative attitudes toward her by management created a situation so
intolerable that a reasonable person would be compelled to resign.
The evidence shows that Doherty did not receive a reduction in
salary as a result of the reorganization. While the Center does
not deny that Doherty’s job responsibilities were reduced, there is

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no evidence that she was reassigned to menial or degrading work–-
only that some of her prior responsibilities were given to Langley.
Furthermore, as co-supervisors of the in-vitro lab, Doherty and
Langley were asked by the Center to “cooperate” with one another in
running the lab operations. The fact that Langley had less
experience than Doherty does not support constructive discharge;
Doherty was not assigned to work under Langley--she was assigned to
work with him. Finally, the fact that Langley was given a higher
salary than Doherty in order to prevent him from leaving the Center
and joining Presbyterian also does not create an “intolerable”
working environment. As we have noted, Doherty’s salary was not
reduced by the reassignment of duties. Moreover, management
asserted a valid non-discriminatory reason for Langley’s higher
salary and Doherty has not shown that the reason was a pretext for
unlawful discrimination.
Doherty also points to a series of events beginning in
February 1998 during which she was allegedly badgered, harassed,
and encouraged to work part-time or take on fewer responsibilities
as supporting her constructive discharge claim. Doherty’s claim
that Dr. Doody asked her to work part-time weeks before the
reorganization and mentioned that she “regretted not spending more
time with her child” is insufficient to create an environment in
which any objectively reasonable person would feel compelled to
resign. The other evidence presented by Doherty, while perhaps

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revealing that she was not treated fairly or with the empathy she
might expect, fails to show that she was ever threatened or
humiliated in an “intolerable” way such that a reasonable person
would have been “compelled” to quit. Constructive discharge
requires more than merely being dissatisfied with the job--indeed,
it requires a showing of harassment greater than that necessary to
establish a hostile work environment claim. See Brown, 237 F.3d at
565. Finally, we note that the fact that Doherty had inquired
about a job at Presbyterian in December 1997, three months before
the reorganization of duties at the Center, suggests that Doherty’s
decision to quit and accept a job at Presbyterian was not
altogether dictated by the events of February and March of 1998
that form the basis of her claim.
Because Doherty failed to raise a genuine issue of material
fact regarding constructive discharge under Title VII, the judgment
of the district court is
A F F I R M E D

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