Reznick v. Assoc Orthopedics

United States Court of Appeals
Fifth Circuit
F I L E D
July 13, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
m 03-41497
Summary Calendar
___________________
LISA R. REZNICK, DOCTOR,
Plaintiff-Appellant,
VERSUS
ASSOCIATED ORTHOPEDICS & SPORTS MEDICINE, P.A.,
Defendant-Appellee.
___________________
Appeal from the United States District Court
for the Eastern District of Texas
Nº 4:01-CV-92
___________________
Before SMITH, DeMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Lisa Reznick sued her former employer,
Associated Orthopedics & Sports Medicine,
P.A. (“AOSM”), alleging violation of the
Equal Pay Act and sex discrimination under
title VII of the Civil Rights Act of 1964.
AOSM filed a motion for summary judgment,
which the district court granted, and this ap-
peal followed. Agreeing with the district court
that Reznick fails to establish a prima facie
case for either claim, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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I.
In early 1997, Reznick, an orthopedic sur-
geon specializing in hand, wrist, and elbow
care, contacted AOSM about possible employ-
ment. AOSM is a medical practice group spe-
cializing in orthopedic care and was founded
by partners and sports medicine specialists,
Drs. Neal Small and Alex Glogau. Interested
in adding a hand specialist to their practice
group, AOSM accepted Reznick’s resume and
set up an interview. Although receiving sever-
al negative recommendations from previous
employers regarding Reznick’s productivity
and ability to get along with other personnel,
AOSM offered her the position of associate
physician, and negotiations began between
AOSM and Reznick, who had the assistance of
counsel.
AOSM initially offered Reznick nearly the
same three year employment contract that it
had made in June 1996 with Dr. Peter Kwong,
an associate doctor and sports medicine spe-
cialist whose three-year employment agree-
ment provided for a base pay in year one of
$125,000, in year two of $135,000, and in year
three of $145,000. The agreement also includ-
ed a provision for potential bonus compensa-
tion based on Kwong’s yearly collections.
AOSM’s first offer to Reznick included identi-
cal base pay and slightly more favorable bonus
compensation.
Reznick rejected this first offer and made a
counteroffer that included several new eco-
nomic terms and a maternity leave clause. The
counteroffer proposed a base pay of $125,000
for the first year, $140,000 in the second, and
$160,000 in year three. This counteroffer was
accepted, and the parties entered into an
agreement in July 1997.
Reznick asserts that only a few short
months after she began her employment, Glo-
gau made a crude, sexist comment to her in
the presence of two pharmaceutical salesmen
during lunch.2 Afterwards, Reznick confront-
ed Glogau about the statement. Although he
brushed her off, telling her she was being too
sensitive, he did regret “if he might have of-
fended her.” Also that fall, Glogau allegedly
asked other employees whether they believed
that Reznick is a lesbian. After hearing this in-
formation second-hand, Reznick talked to
Glogau and assured him she was heterosexual.
During this period, Glogau allegedly made
several comments to Reznick regarding her of-
fice attire, noting that he wished she wore
skirts more often.
In the spring of 1998, Kwong resigned
from AOSM because, according to Reznick,
he was informed that he would not make part-
ner. During that time, AOSM entered into in-
tense negotiations with Dr. Michael Schwartz
to join AOSM as an associate doctor. At the
time, Schwartz had just completed a one-year
fellowship in sports medicine with AOSM, and
Glogau and Small regarded him as an excellent
doctor. AOSM initially offered Schwartz an
employment agreement substantially similar to
Reznick’s, both having the same initial base
salary of $125,000.
Schwartz, however, rejected this initial of-
fer, maintaining that he had other offers with
salaries in excess of $200,000. Faced with a
partner (Small) who wanted to phase out his
sports medicine practice, and desirous of
2 During the course of the meal, one of the
salesmen asked Glogau when the practice would
begin advertising for Reznick. Glogau replied that
Reznick would receive advertising “when she gets
laid.”

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3
Schwartz’s already proven abilities, AOSM ac-
quiesced and reached an agreement with
Schwartz for $175,000 in year one, $185,000
in year two, and $195,000 in year three. The
bar required for Schwartz to be eligible for
bonuses, however, was set substantially higher
than that set for Reznick.3
In May 1998, Reznick overheard a tele-
phone conversation among Schwartz, Small,
and AOSM’s attorney, with Glogau on a
speaker phone. According to Reznick, she
heard Glogau discussing that she would not be
made a partner. Reznick believes her failure to
make partner was based on her sex, not job
performance.
After Schwartz formally joined the practice
in September 1998, Kathy Starnes, AOSM’s
administrator since September 1997, suggest-
ed that AOSM hold an open house to advertise
Schwartz’s association with the group. Ini-
tially skeptical of the suggestion, Glogau only
reluctantly agreed to host the party when
Starnes was able to assure him that the phar-
maceutical groups would foot most of the bill.
Despite the sending of over four hundred
invitations, the open house was very poorly at-
tended, and AOSM again returned to its policy
of not hosting such events. When Dr. Greg
Powell joined the practice in January 2000,
AOSM did not host an open house. Reznick
alleges, however, that AOSM’s failure to host
an open house for her and its refusal to include
her on the invitation to Schwartz’s are the
result of her sex.
During 1998, Reznick was assigned Karen
Botte, a medical assistant/x-ray technician, to
assist her during the two and one-half days she
spent at the clinic. After Schwartz started as
an associate doctor in September, he was as-
signed to Marilee Harden, a nurse whom he
shared with Small.
Later that year, Reznick began to complain
about Botte’s competence, so AOSM offered
to switch plaintiff to Harden and allow her to
share Harden with Small, who worked in the
clinic only on Wednesday mornings. Reznick
maintains that AOSM’s request that she share
an assistant while Schwartz had his own is fur-
ther evidence of AOSM’s discriminatory
behavior. In January 2000, however, AOSM
hired Bobbie Caldwell in response to Rez-
nick’s complaints, and Caldwell worked for
Reznick exclusively until Reznick’s resigna-
tion.
In March 2000, Reznick submitted her res-
ignation letter, providing ninety days’ notice.
Reznick proceeded to fulfill her obligation and
worked the ninety days despite AOSM’s offer
to pay her for the entire period if she wished to
leave earlier. Reznick alleges that her resig-
nation was triggered by Glogau’s last-minute
request that she see one of his patients because
he was unavailable. Unable to help the patient
and frustrated by Glogau’s absence, Reznick
determined that she could no longer remain
with AOSM.
II.
Summary judgment is appropriate only
where there are no genuine issues of material
fact and the moving party is entitled to judg-
ment as a matter of law. See FED. R. CIV. P.
3 During her first year alone, Reznick became
eligible for a bonus equal to 10% of her collections
in excess of $276,000, 12.5% in excess of
$400,000, and 15% in excess of $500,000.
Schwartz, on the other hand, was only eligible for
a bonus equal to 20% of his collections in excess of
$450,000.

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4
56(c). In determining whether there is a gen-
uine issue of material fact, evidence and infer-
ences must be drawn in the light most favor-
able to the non-moving party. Daniels v. City
of Arlington, Tex., 246 F.3d 502 (5th Cir.
2001). The party seeking summary judgment
carries the burden of demonstrating that there
are no actual disputes as to any material fact.
If the nonmovant then fails to set forth spe-
cific facts to support its allegations, summary
judgment is appropriate. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The non-
movant must “go beyond the pleadings . . . and
designate specific facts showing that there is a
genuine issue for trial.” Id. at 324. Summary
judgment is proper even if the nonmovant
brings forth evidence in support of his allega-
tions, so long as the evidence is insufficient for
a reasonable jury to find for that party as
“[t]he mere existence of a scintilla of evidence
in support of plaintiff’s position” is insuffi-
cient. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). We review a summary
judgment de novo. Meditrust Fin. Serv. Corp.
v. Sterling Chem., Inc., 168 F.3d 211, 213
(5th Cir. 1999).
III.
Reznick makes two independent accusa-
tions against her former employer. She main-
tains that AOSM violated the Equal Pay Act
by paying Schwartz a substantially higher sal-
ary, despite the fact that he held an identical
position and performed similar duties. Addi-
tionally, she argues that AOSM’s, and specifi-
cally Glogau’s, sexist behavior and sex-based
discrimination resulted in her constructive dis-
charge, thereby violating title VII.
A.
Under the Equal Pay Act, an employer is
prohibited from sex-based discrimination
where the jobs performed require equal skill,
effort, and responsibility and are performed
under similar conditions. 29 U.S.C. § 206-
(d)(1). To establish a prima facie case, Rez-
nick must offer proof (1) that AOSM is subject
to the Equal Pay Act; (2) that she performed
work in a position requiring equal skill, effort,
and responsibility under similar working condi-
tions; and (3) that she was paid less than a
male employee in that position. Peters v. City
of Shreveport, 818 F.2d 1148, 1153 (1987). If
Reznick makes a prima facie case, AOSM
may still prevail provided it can demonstrate
one of the four affirmative defenses specified
under the Act.4
AOSM contends that Reznick fails to es-
tablish element two in her claim. To prove
that her position is “substantially equal” to
Schwartz’s, Reznick must show that her job
requirements and performance were substan-
tially equal, though not necessarily identical, to
those of a male employee. 29 C.F.R. § 1620.-
13(e). Reznick argues that this issue is a
question of fact for the jury and that because
she and Schwartz were trained orthopedic sur-
geons, and were required to perform surgery
and work in the clinic, Schwartz’s job is sub-
stantially similar to hers.
Schwartz, however, was trained in the sub-
speciality of sports medicine, while Reznick
was trained as a hand surgeon. AOSM main-
tains that sports medicine specialists generate
more revenue than do hand surgeons and that
4 Disparities in salary are allowed where pay-
ment is made pursuant to “(1) a seniority system;
(2) a merit system; (3) a system which measures
earnings by quantity or quality of production; or
(4) a differential based on any other factor other
than sex.” Plemer v. Parsons-Bilbane, 713 F.2d
1127, 1136 (5th Cir. 1983).

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5
Schwartz’s higher pay was a reflection of his
greater economic value. Evidence provided by
AOSM’s office manager confirms this.
In 1999, during Schwartz’s first full year as
an associate, he generated nearly twice the
amount of revenue as did Reznick, who does
not dispute this fact. Because Reznick and
Schwartz specialized in different areas of or-
thopedic medicine, and Schwartz generated far
more revenue for AOSM than did Reznick, the
two cannot be said to have held “substantially
equal” positions, so element two of Reznick’s
claim fails as a matter of law.
Let us assume, arguendo, that Reznick and
Schwartz performed substantially similar jobs,
and Reznick can make a prima facie case.
The disparity between Reznick’s and
Schwartz’s salaries is primarily a result of
Schwartz’s higher production, and this reason
falls under exception three of the Equal Pay
Act.5 The remainder of the differential can be
explained by separate and distinct circumstanc-
es that led to differences in their employment
contracts (which may be said to fall under the
“catch all” exception four). Thus, AOSM can
make out valid affirmative defenses to the
salary disparit y between Reznick and
Schwartz.
Reznick and Schwartz negotiated indepen-
dent contracts. In this arms’ length transac-
tion, Reznick was assisted by counsel and suc-
cessfully negotiated her own terms, which put
her in a better financial position than that of
the male associate currently working at
AOSM. When AOSM accepted her counter-
offer, Reznick got exactly what she asked for.
Although she maintains that she was expected
to stay in line with Kwong’s salary, but
Schwartz was not bound by hers, her willing-
ness to accept this indicates only the success of
AOSM’s bargaining power. After all, Reznick
could have held out for more, hoping AOSM’s
desire for a hand surgeon would force it to
offer better terms, but instead she was satisfied
enough with her counteroffer to accept em-
ployment.
Negotiating his own contract a year later,
Schwartz was more successful than was Rez-
nick in negotiating favorable terms for a varie-
ty of reasons that have nothing to do with his
sex. Firstly, as discussed above, Schwartz, a
sports medicine physician, could be expected
to generate higher revenue. Secondly, he had
spent his internship with AOSM, which thus
already knew him and was familiar with his
work. Reznick, on the other hand, had never
worked for AOSM and came with some nega-
tive recommendations from her previous em-
ployer. Schwartz’s potential value to AOSM
was therefore less of an unknown variable than
was Reznick’s.
Thirdly, Schwartz was in greater demand
and was able to use outside offers with higher
base salaries as leverage against AOSM. Rez-
nick had no other offers to press for higher pay
and was not employed at the time. Reznick
5 Let us compare Schwartz’s salary with Rez-
nick’s from approximately September 1998 to
September 1999 (roughly Schwartz’s first year as
an associate and Reznick’s second). Based on the
data provided by AOSM, Schwartz’s salary would
have been roughly $265,000, of which nearly
$90,000 would have come from bonuses alone.
Reznick, comparatively, made approximately
$160,000 that year, only $19,000 or so coming
from bonuses. T hus, the disparity of over
$100,000 in gross yearly income comes almost
wholly from a bonus structure that rewards pro-
ductivity. Had Reznick equaled her associate in
collections, her salary would have been approxi-
mately $253,000 in year two of her contract.

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argues that these reasons were not the true
motivating factors behind AOSM’s decision to
make Schwartz’s pay substantially higher than
hers; Reznick, however, offers no evidence to
raise a genuine issue of fact regarding the
legitimacy of these defenses, all of which are
valid exceptions under the Act; therefore, even
if she were able to make out a prima facie
case, she could not prevail.
B.
A plaintiff alleging sex discrimination under
title VII in the absence of direct evidence must
make out a prima facie case for discrimina-
tion. Molnar v. Ebasco Constructors, Inc.,
986 F.2d 115, 118 (5th Cir. 1993). Reznick
can establish a prima facie case if she shows
that she (1) was a member of a protected class;
(2) was qualified for the position; (3) suffered
adverse employment action; and (4) was re-
placed by someone outside the protected class
or that similarly situated individuals outside the
protected class were treated more favorably.
Urbano v. Cont’l Airlines, Inc., 138 F.3d 204,
206 (5th Cir. 1998).
Under the framework of McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802 (1973),
once Reznick has established a prima facie
case, the burden of production is on AOSM to
“articulate some legitimate, nondiscriminatory
reason” explaining its conduct. If AOSM is
able to articulate such a reason, Reznick must
make a showing sufficient for a jury to find
that the reason was mere pretext and discrimi-
nation was the true motivation. Bodenheimer
v. P.P.G. Indus., Inc., 5 F.3d 955, 957 (5th
Cir. 1994). If Reznick fails to satisfy her bur-
den of proof in the first or third step, her claim
fails as a matter of law.
The parties dispute only Reznick’s ability to
prove element three, that she suffered an
adverse employment action, and the district
court found for AOSM and granted summary
judgment accordingly. This court does not
recognize interim measures to be adverse em-
ployment actions; rather, we look to ultimate
employment decisions such as termination.
Mattern v. Eastman Kodak Co., 104 F.3d 702,
708 (5th Cir. 1997). To qualify as an adverse
employment action, the decision must effect a
material change in the terms or conditions of
the employment. Eugene v. Rumsfeld, 168
F. Supp. 2d 655, 671 (S.D. Tex. 2001).
In light of these considerations, Rez-
nickSSbecause she was not firedSSmust show
that she was constructively discharged. To
prove her claim, she must demonstrate that
working conditions were “so intolerable that a
reasonable person would feel compelled to
resign.” Faruki v. Parson S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997). The following
factors must be considered: (1) demotion;
(2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work un-
der a younger supervisor; (6) badgering, har-
assment, or humiliation by the employer cal-
culated to encourage the employee’s resigna-
tion; and (7) offers of early retirement on
terms that would make the employee worse
off. Barrow v. New Orleans SS. Ass’n, 10
F.3d 292, 297 (5th Cir. 1994).
Reznick offers the following nineteen facts
to support her claim of constructive discharge:
(1) Glogau’s humiliating public statement
conditioning advertising for Reznick upon her
“getting laid.”
(2) Glogau’s questioning Reznick’s sexual
orientation.
(3) Glogau’s statements questioning Rez-

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nick’s selection of apparel;
(4) AOSM’s unwillingness to advertise for
Reznick;
(5) AOSM’s hosting an open house for
Schwartz when it did not host one for Rez-
nick;
(6) Glogau’s refusal to include Reznick on
Schwartz’s open house invitation;
(7) AOSM’s failure to provide Reznick
with a solely assigned assistant;
(8) AOSM’s hiring a PA for Schwartz six
months into his position;
(9) AOSM’s citing Kwong’s contract as a
reason for its inability to offer more compensa-
tion to Reznick, but not telling Schwartz that
his salary must take Reznick’s compensation
into consideration;
(10) AOSM’s decision to pay Schwartz sig-
nificantly more than it paid Reznick;
(11) Starnes’s inactions as AOSM’s Equal
Pay Act compliance officer;
(12) AOSM’s decision that Reznick would
not be considered for partner;
(13) AOSM’s financial arrangement where-
by Small referred patients to Schwartz and not
to Reznick;
(14) Small’s and Glogau’s refusal to refer
hand cases to Reznick;
(15) Small’s weekly physician basketball
games to which Reznick was not invited;
(16) Glogau’s significant social interaction
with Schwartz as compared to Reznick;
(17) Glogau’s refusal to meet with Reznick
unless someone else was present;
(18) Glogau’s inclusion of Schwartz as an
associate in business decisions; and
(19) Glogau’s sharing of professional op-
portunities with Schwartz but not with Rez-
nick.
Reznick did not experience a demotion6 or
reduction in salary or job responsibilities. Fur-
thermore, she was not assigned to either de-
grading work or a younger supervisor, and
early retirement was not an issue. Therefore,
the only factor relevant to Reznick’s claim of
constructive discharge is (6), “badgering, har-
assment or humiliation by the employer calcu-
lated to encourage the employee’s resigna-
tion.” Barrow, 10 F.3d at 297.
The nineteen facts offered by Reznick, even
when construed in a light most favorable to
her, do not support the finding that she was
6 Reznick argues that failure to be made partner
constituted a de facto demotion. Firstly, by de-
finition a demotion cannot be considered a failure
to be promoted. Reznick remained in the same
position to which she was hired for her entire
tenure at AOSM. Additionally, Reznick was never
promised that making partner was a guarantee
should she become an associate.
Furthermore, Kwong, a male physician, was al-
so not selected to become a partner, indicating that
Reznick was not excluded from the partnership
based on sex alone. A reading of the employment
contract suggests that joining the partnership was
left wholly up to the discretion of the existing part-
ners and was in no way automatic.

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badgered, harassed, or humiliated into quitting.
Above all, she is unable to establish a causative
link between AOSM’s allegedly discriminatory
actions and her resignation. Facts one through
thirteen all occurred two to three years before
Reznick’s resignation, and constructive dis-
charge cannot be based on facts that are re-
mote in time. See Hill v. K-Mart Corp., 699
F.2d 776, 779 (5th Cir. 1983). Events that
occurred several years before resignation
cannot be said to have been “so intolerable” as
to force a reasonable person to leave. See
Faruki at 319.
The rest of Reznick’s allegations deal more
with favorable treatment of Schwartz than
with treatment of her, and this disparate treat-
ment alone cannot constitute constructive dis-
charge. See Brown v. Kinney Shoe Corp., 237
F.3d 556, 566 (5th Cir 2001). Preferential
treatment of Schwartz alone, without other
events occurring during the period leading up
to Reznick’s resignation, do not create a fact
issue that she was subjected to an intolerable
work environment that compelled her to re-
sign. Because she is unable to establish a pri-
ma facie case, and thereby satisfy her initial
burden of production under McDonnell Doug-
las, we need not explore the question whether
AOSM has an adequate defense to Reznick’s
allegations, nor the question whether she can
demonstrate that AOSM’s reasons are mere
pretext.
AFFIRMED.

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