1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-60144

DOUGLAS BROWN,

Plaintiff-Appellant,

v.

BUNGE CORPORATION; CLAUDE ROSE,

individually and as operations

manager, Vicksburg Facility,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

March 28, 2000

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Douglas Brown, the plaintiff/appellant, filed suit against

Bunge Corporation (Bunge) alleging discrimination on the basis of

his age in violation of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621 et seq.

, and alleging state law tort claims

of negligent and intentional infliction of emotional distress and

breach of contract. The district court granted Bunge’s motion for

summary judgment and dismissed Brown’s claims with prejudice. For

the reasons assigned, we affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brown began working for Bunge ’s Soybean Processing Plant in1 The Anderson Clayton Company owned the Vicksburg plant when

Brown became an employee in 1966; Bunge subsequently purchased the

Vicksburg plant from the Anderson Clayton Company.

2 Vicksburg, Mississippi in 1966. 1 The Vicksburg plant has three

departments – maintenance, processing, and shipping and receiving

– each of which is managed by a superintendent. In 1975, Brown was

promoted to the position of superintendent of the shipping and

receiving department. He served in this capacity until January

1997.

Claude Rose served as operations man ager of Bunge’s South

Central region where he was responsible for monitoring four of

Bunge’s soybean processing facilities including the Vicksburg

plant. The Vicksburg plant was the least profitable of Bunge’s

soybean processing facilities. In 1996, Rose became operations

manager of the Vicksburg plant and was directed to improve plant

operations. As operations manager, Rose supervised the three

superintenden ts at the Vicksburg plant: Brown; Roger Blades,

superintendent of th e processing department; and Paul Buford,

superintendent of the maintenance department.

Rose stated that he regularly met with Brown, Bla des and

Buford concerning problems at the Vicksburg plant. Rose concluded

that Brown’s department was the most poorly managed department at

the plant because of Brown’s inability to solve problems, train and

supervise employees, and deal with uncooperative employees.

According to Rose, he held individual meetings with Brown where he

informed Brown of the need to correct these deficiencies. Rose

kept no documentation of these meetings, however.3

During a meeting on January 22, 1997, Rose met with Brown to

implement a Performance Improvement Plan (PIP), a d isciplinary

program for salaried Bunge employees who were experiencing

performance problems. Brown received a PIP letter listing his

performance deficiencies and directing him to prepare a written

response with suggestions for correcting each deficiency. The PIP

letter stated that if Brown failed to show “immediate and sustained

improvement in all areas of [his] performance” he might be unable

to cont inue working at Bunge. The PIP letter also stated that

Brown and Rose were to meet on Ja nuary 27 to discuss Brown’s

response to the PIP.

Brown was shocked when he received the PIP letter because he

was unaware that Rose had any problems with his performance prior

to this meeting. While Brown acknowledged that he had discussed

problems in the shipping and receiving department with Rose, Brown

believed the problems were caused by insufficient financial

resources rat her than deficiencies in his management skills.

Ac cording to Brown, the problems could not be corrected without

additional staff and equipment but Bunge had rejected his requests

for more resources.

Brown was also surprised that the PIP letter foc used on

problems with his management skills because he had received a raise

in January 1996 a nd January 1997. The last increase was awarded

several weeks before Brown received the PIP letter. In addition,

Rose praised Brown at a Bunge function honoring long-term employees

in December 1996. Brown stated that Rose would not have4

recommended that he receive a raise or publicly compliment him if

Rose was displeased with his performance.

Brown was aware that a similar letter had been given to

another Bunge employee who had ultimately been terminated. Brown

believed that PIP letters were used by Bunge to “get rid of”

employees and that he had received a PIP letter because the company

wanted to humiliate him in an effort to coerce him to retire or

resign. Brown became very upset after meeting with Rose on January

22 because he believed he was incapable of correcting the problems

in his department without additional resources which Bunge failed

to provide. The next day, Brown gave Rose a letter announcing his

retirement. Rose told Brown that the PIP letter was not designed

to lead to Brown’s retirement and that he was willing to help Brown

become a more effective manager. Despite Rose’s assurances, Brown

requested permission to take a four week vacation and reiterated

his decision to retire. Rose granted Brown’s leave request and

began to process his written request to retire.

Brown went into a deep depression during his four week

vacation which required psychological therapy. When the vacation

ended, Brown was unable to return to work given his emotional

condition. Brown’s psychologist notified Rose that Brown was

suffering from major depression which rendered him unable to work

so Bunge placed Brown on paid disability leave. Brown’s extended

absence left the shipping and receiving department wi thout a

superintendent from January 27, 1997 to April 1, 1997. Bunge

management decided that the department needed a superintendent so5

Rose appointe d Joe Branch as temporary superintendent in April

1997. Branch was named permanent superintendent of the shipping

and receiving department in June 1997; Rose said he made this

appointment since he did not know if Brown would be able to return

to work. According to Brown, Rose knew he was going to return to

work when Branch became the permanent superintendent. Bunge had a

policy of terminating any employee who was unable to work after 26

weeks of d isability during any 52 week period. Brown’s 26 week

period was scheduled to expire on September 5, 1997; if he did not

return to work by that date, he would be forced to either retire or

face termination. Brown’s wife stated that she informed a Bunge

manager that Brown was going to return to work by September 5. She

assert s that this conversation took place before Rose appointed

Branch as permanent superintendent.

Brown was 55 years old in 1997. Branch, who replaced him as

superintendent of the shipping and receiving departmen t, was 41

years old at the time of his appointment. After Branch was named

permanent superintendent, Brown filed an age discrimination charge

with the Equal Employment Opportunity C ommission (EEOC). Brown

returned to work on Friday, September 5 and was given the job of a

supervisor in the processing department under the direction of

Blades. According to Bunge managers, they thought Brown might be

overwhelmed by the responsibilities and str ess associated with

managing a department so they selected a less taxing position.

Brown’s new position involved a reduction in responsibilities but

not in salary or benefits.6

On the morning of September 5, shortly after Brown returned to

work following an eight month absence, he had a meeting with Rose.

Rose informed him that he was still subject to the terms of the PIP

letter he had received in January 1997, which would be revised to

reflect his new duties in the processing department. Brown

completed his assignments that day but had di fficulty eating and

sleeping that weekend. Brown was unable to return to work on

Monday, Septe mber 8 because the symptoms associated with his

depression returned. Brown believed he suffered a relapse as a

result of his meeting with Rose which was designed to intimidate

him into retiring. Following a three week absence, Brown notified

Bunge in writing that he was retiring on September 29, 1997.

In N ovember 1997, Brown filed an additional charge with the

EEOC alleging that Bunge and Rose retaliated against him when he

returned to work on September 5. Brown sued Bunge and Rose and the

district court granted Bunge’s motion for summary judgment. After

the district court entered a final judgment, Brown appealed.

II. STANDARD OF REVIEW

Thi s court reviews a district court’s grant of summary

judgment de novo

, applying the same standard as the district court.

See Dutcher v. Ingalls Shipbuilding

, 53 F.3d 723, 725 (5 t h Cir.

1995). Summary judgment is proper when there is no genuine issue

of material fact and the movant is entitled to judgment as a matter

of law. Questions of fact are viewed in the light most favorable

to the nonmovant while questions of law are reviewed de novo

. I d.

III. DISCUSSION7

Title VII prohibits an employer from failin g or refusing to

hire or discharge an individual “because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). The ADEA proscribes similar treatment on the basis of

age. 29 U.S.C. § 623(a)(1). The same evidentiary procedure for

allocating burdens o f production and proof applies to

discrimination claims under both statutes. See Meinecke v. H & R

Block

, 66 F.3d 77, 83 (5 th Cir. 1995) (per curiam). Initially, the

plaintiff must establish a prima facie case of discrimination. S ee

McDonnell Douglas Corp. v. Green

, 411 U.S. 79 2, 802, 93 S. Ct.

1817, 1824, 36 L.Ed.2d 668 (1973). To establish this prima facie

case, the plaintiff must prove that he is a member of a protected

cla ss, he was qualified for the position that he held, he was

discharged, and after his discharge was replaced with a person who

is not a member of the protected class. M einecke , 66 F.3d at 83

(citation omitted). The first three elements of a p rima facie case

of age discrimination under the AEDA and discrimination under Title

VI I are identical. S ee Bodenheimer v. PPG Indus., Inc.

, 5 F.3d

955, 957 (5 th Cir. 1993). For the fourth element in an age

discrimination case, the plaintiff must show that “he was either i)

replaced by someone outside the protected class, ii) replaced by

someone younger, or iii) otherwise discharged because of his age.”

Id.

Establishing a prima facie case creates a presumption that the

employer unlawfully discr iminated against the employee. S ee St.

Mary’s Honor Center v. Hicks , 509 U.S. 502, 525, 113 S.Ct. 2742,8

125 L.Ed.2d 407 (1993); Texas Dept. of Community Affairs v.

Burdine

, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981);

Rhodes v. Guiberson Oil Tools

, 75 F.3d 989, 992 (5 th Cir. 1996) (en

banc). This presumption places on the defendant the burden of

producing evidence that the challenged employment action was taken

for a legitimate, nondiscriminatory reason. S ee Hicks

, 509 U.S. at

507, 113 S. Ct. 2 742; B urdine

, 450 U.S. at 254, 101 S. Ct. 1089;

Rhodes , 75 F.3d at 992-93. The defendant must clearly set forth,

through the introduction of admissible evidence, reasons for its

actions which, “ if believed by the trier of fact ,” would support a

finding that unlawful discrimination was not th e cause of the

e mployment action. H icks

, 509 U.S. at 507, 113 S. Ct . 2742;

Burdine

, 450 U.S. at 254-55, 101 S. Ct. 1 089; R hodes

, 75 F.3d at

993.

If the defendant succeeds in carrying its bu rden of

production, the presumption, having fulfilled its role of forcing

the defendant to come forward with some response, simply drops out

o f the picture, and the trier of fact proceeds to dec ide the

ultimate question of whether the plaintiff has proved that the

defendant intentionally discriminated against him. S ee Hicks

, 509

U.S. at 511, 113 S. Ct. 2742; Burdine

, 450 U.S. at 253, 101 S. Ct.

1089; Rhodes

, 75 F.3d at 993. The plaintiff now must have “‘the

full and fair opportunity to demonstrate,’ through presentation of

his own case and through cross-examination of the defendant’s

witnesses, ‘that the proffered reason was not the true reason for

the employment decision’”, and that unlawful discrimination w as.9

Hicks , 509 U.S. at 507-08, 113 S. Ct. 2742 (quoting B urdi ne , 450

U.S. at 256, 101 S. Ct. 1089); see Rhodes , 75 F.3d at 993.

Bunge argues that Brown did not establish his prima facie case

of age discrimination because neither Bunge nor Ros e discharged

Brown. Brown submitted a letter of resignation in January 1997

after meeting with Rose to discuss some deficiencies in his

performance. Although Rose attempted to assure Brown that the

company did not want him to resign, Brown refused to withdraw his

resignation. Following an eight month leave of absence, Brown

returned to work for one day before taking three additional weeks

of leave and announcing his retirement for a second time. We agree

with Bunge that Brown did not meet the elements of his prima facie

case because he was not discharged by the company.

Although Brown was unable to prove that Bunge fired him, the

fact that he resigned does not end our analysis. When an employee

resigns, he may satisfy the disch arge requirement by proving

constructive discharge. S ee Barrow v. New Orleans Steamship Ass’n

,

10 F.3d 292, 297 (5 th Cir. 1994). To prove constructive discharge:

an employee must offer evidence that the employer made

the employee’s working conditions so intolerable that a

reasonable employee would feel compelled to resign.

Stated more simply, [Brown’s] resignation must have been

reasonable under all the circumst ances. Whether a

reasonable employee would feel compelled to resign

depends on the facts of each case, but we consider the

following factors relevant, singly or in combination: (1)

demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading

w ork; (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 ear ly retirement [or

continued employment on terms less favorable than the

employee’s former status] . . . .10

Id.

According to Barrow

, the constructive discharge factors are

considered “singly or in combination.” Brown clearly proved two of

the constructive discharge factors: when he returned to work as a

supervisor in the processing d epartment, this represented a

demotion and involved fewer job responsibilit ies than serving as

superintendent of a department. On the other hand, four of the

constructi ve discharge factors were not present. Brown did not

experience a reduction in salary or benefits in his new position.

Brown’s reassignment did not involve menial or degrading work; he

still supervised staff although fewer people reported to him.

Although Brown was assigned to w ork under a younger supervisor,

this factor lacks any substantial weight under the particular

circumstances of this case. In his new position, Brown was

supervised by Blades, who was three years younger than him. Blades

was essentially Brown’s peer given that he was 52 years old and he

was also a personal friend of Brown. Because Brown was not forced

to report to a much younger supervisor but to a peer and friend of

longstanding, this factor was not significant in affecting Brown’s

working conditions. C f. Guthrie v. Tifco Industries

, 941 F.2d 374,

377 (5 th Cir. 1991), cert. denied

, 503 U.S. 908 (1 992) (stating

employee proved prima facie case by showing constructive discharge

where he was demoted, his salary was cut and he was reassigned to

work for a man 17 years younger whom he had helped train).

Brown argues that because of Rose’s harassment he was forced

to choose between alternatives that were both less favorable than11

his former status. Brown contends that Rose met with him the day

he returned from an extended leave of absence in order to harass

him into resigning. Although the timing of Rose’s actions may have

been insensitive, there is no objective evidence that Rose intended

to badger, harass or humiliate Brown. The original PIP letter

noted problems with Brown’s ability to supervise his subordinates.

Since his new position involved supervising several employees, Rose

reminded Brown that the problems noted in January 1997 would still

need to be correc ted, as modified by the demands of his new

position. The evidence of record does not support a reasonable

inference that the discussion bet ween Rose and Brown constituted

haras sment or humiliation. After considering the record, briefs

and the parties’ oral arguments, we canno t conclude that Brown’s

working conditions were so intolerable that a reasonable employee

would have felt compelled to resign.

IV. CONCLUSION

For the foregoing reasons, the district court’s ju dgment is

AFFIRMED.