* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50434

LAUREN BROWNING

Plaintiff - Appellant

v.

SOUTHWEST RESEARCH INSTITUTE

Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:05-CV-245

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

Lauren Browning appeals the summary judgment dismissal of her wage

discrimination,failure to promote, retaliation, and constructive discharge claims

based on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq., and of her wage discrimination and retaliation claims based on the Equal

Pay Act (“EPA”), 29 U.S.C. §§ 206(d), 215(a)(3). We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2008

Charles R. Fulbruge III

Clerk
No. 07-50434

1 The Institute is a non-profit institution that conducts broad-based scientific and

engineering research, development, analysis, and exploration across many disciplines. The

Institute is organized into divisions, with each division handling a distinct area of research or

analysis. During the period of Browning’s employment, Division 20, the Center for Nuclear

Waste Regulatory Analysis, was devoted exclusively to projects sponsored by the U.S. Nuclear

Regulatory Commission.

2 The Institute’s technical staff is organized progressively along the following career

ladder: Scientists, Research Scientists, Senior Research Scientists, Principal Scientists, Staff

Scientists, and Institute Scientists.

3 The district court referred all pretrial matters, including summary judgment

proceedings, to a magistrate judge. The magistrate judge issued a Memorandum and

2

I.

Lauren Browning was employed by the Southwest Research Institute (“the

Institute”) from December 7, 1998, to May 21, 2004. She was initially hired as

a one-year contract employee in the Institute’s Center for Nuclear Waste

Regulatory Analyses.1 This limited-term contract was extended in December

1999, and Browning was retained as a Research Scientist on a regular basis

beginning October 14, 2000.2 On May 10, 2004, Browning resigned from her

position with the Institute. Her resignation took effect on May 21.

It is undisputed that Browning was a productive and valuable employee.

Her performance evaluations, the testimony of her supervisors, and her

accomplishments while employed at the Institute reflect this fact. What is

disputed is whether, despite her abilities, the Institute discriminated against

Browning in the terms of her employment and retaliated against her in response

to her complaints about such alleged discrimination. Browning alleges that the

Institute discriminated against her because of her gender by paying her less

than male employees with similar positions were paid, by failing to promote her,

by retaliating against her because of her complaints about such discrimination,

and by constructively discharging her.

The district court granted summary judgment in favor of the Institute as

to each of these claims.3 Browning now appeals. After stating the appropriate
No. 07-50434

Recommendation on the Institute’s motion for summary judgment. The district court, after

reviewing theMemorandum andRecommendationandBrowning’s objections to it, adopted the

Memorandum and Recommendation in its entirety and granted the Institute’s motion for

summary judgment. Consistent with this, we reference the arguments and conclusions

presented in the Memorandum and Recommendation as those of the district court.

3

standard of review, we address her arguments, bringing additional specificity to

the factual background of this case as required to address each claim.

II.

We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. Rachid v. Jack in the

Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004). Summary judgment is appropriate

when “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

The burden is on the moving party to show that “there is an absence of evidence

to support the nonmoving party’s case.” Freeman v. Tex. Dep’t. of Crim. Justice,

369 F.3d 854, 860 (5th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986)). Once the moving party meets its initial burden, the nonmoving

party “must . . . set out specific facts showing a genuine issue for trial.” FED. R.

CIV. P. 56(e). The nonmoving party, however, “cannot satisfy this burden with

conclusory allegations, unsubstantiated assertions, or only a scintilla of

evidence.” Freeman, 369 F.3d at 860 (citation omitted). Further, a fact is

material only “if its resolution could affect the outcome of the action.” Wyatt v.

Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002). We review all facts

in the light most favorable to the non-moving party. Rachid, 376 F.3d at 308.

III.

Because Browning presents no direct and express evidence of unlawful

discrimination, her claim is analyzed using the framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wallace v. Methodist
No. 07-50434

4

Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). Under this framework, a plaintiff

must first create a presumption of intentional discrimination by establishing a

prima facie case. Id. The burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its actions. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The burden on the employer at

this stage “is one of production, not persuasion; it ‘can involve no credibility

assessment.’” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509

(1993)). If the employer sustains its burden, the prima facie case is dissolved,

and the burden shifts back to the plaintiff to establish either: (1) that the

employer’s proffered reason is not true but is instead a pretext for

discrimination; or (2) that the employer’s reason, while true, is not the only

reason for its conduct, and another “motivating factor”is the plaintiff's protected

characteristic. Rachid, 376 F.3d at 312.

A.

Browning argues that the district court erred in granting summary

judgment on her Title VII and EPA claims for wage discrimination.

Both Title VII and the EPA prohibit employers from discriminating in

compensation based on sex. See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 206(d)(1).

Under both Title VII and the EPA, if a plaintiff establishes a prima facie case of

wage discrimination, which for the sake of argument we will assume Browning

has done, then the employer can respond with evidence that the disparate wage

payments were made “pursuant to (i) a seniority system; (ii) a merit system; (iii)

a system which measures earnings by quantity or quality of production; or (iv)

a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1);

Jones v. Flagship Intern., 793 F.2d 714, 723 n.8 (5th Cir. 1986) (noting that Title

VII incorporates the EPA’s four defenses to a wage discrimination claim).

Factors other than sex include, among other things, employees’ “[d]ifferent job

levels, different skill levels, previous training, and experience.” Pouncy v.
No. 07-50434

4

In her objections to the magistrate judges’s Memorandum and Recommendation,

Browning reasserted her broad argument that her pay was generally and discriminatorily

disparate in relation to all male Research Scientists, Senior Research Scientists, and Principal

Scientists. She also, however, for the first time mentioned several individuals—both Research

5

Prudential Ins. Co., 668 F.2d 795, 803 (5th Cir. 1982). If an employer responds

with legitimate, non-discriminatory reasons for an alleged pay disparity, the

plaintiff must then show that the purported reason is a pretext for

discrimination. See Plemer v. Parsons-Gilbane, 713F.2d 1127, 1137 n.8 (5th Cir.

1983) (applying Title VII pretext standard to EPA cases).

In its motion for summary judgment, the Institute referenced testimony

and other evidence that demonstrated that Browning’s salary reflected her prior

work experience, seniority, job title, field of study, and contributions to the work

of the Institute. Having made this showing, Browning was required to raise a

genuine issue of fact as to whether the purported reasons were pretextual.

As to this,the Institute argues as a threshold matter that Browning is now

introducing, for the first time, arguments regarding certain male employees of

the Institute and that, consequently, these arguments were not preserved for

appellate review. Browning contends that these arguments and the related

evidence were properly before the district court and therefore were preserved for

appellate review. However, a careful review of the record shows that Browning

did not provide the Institute an opportunity to address nor the district court an

opportunity to rule on the arguments she now presents. We therefore hold that

Browning waived any argumentthat she might have as to those male employees

of the Institute who are now so thoroughly discussed in her briefs to this Court.

See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (noting that if a “litigant

desires to preserve an argument for appeal, the litigant must press and not

merely intimate the argument during the proceedings before the district court.

If an argument is not raised to such a degree that the district court has an

opportunity to rule on it, we will not address it on appeal”).4
No. 07-50434

Scientists and Senior Research Scientists—who received a higher salary than she did. Her

arguments regarding these individuals are vague and insufficient to raise a general issue of

material fact regarding whether the Institute’s offered reasons for her salary were pretextual.

Indeed, her arguments were not even directed at showing that the Institute’s offered reasons

were pretextual. Moreover, the district court did not address Browning’s arguments regarding

these individuals, and Browning has presented no argument that the district court’s failure to

address these arguments was an abuse of discretion. See Requena-Rodriguez v. Pasquarell,

190 F.3d 299, 307 n.27 (5th Cir. 1999) (noting that a district court has power “to decide that

legal arguments not raised before a magistrate judge are waived”). Finally, we are further

confirmed in our belief that Browning presented only a vague argument regarding all male

Research Scientists, Senior Research Scientists, and Principal Scientists by her reply to the

Institute’s response to her objections, which once again reasserted this argument and, in a

footnote, objected to any requirement that she must name, with specificity, male employees

whom she contends received higher pay. While it may be true that Browning was not required

to name, with specificity, male employees who received higher pay to establish her prima facie

case, she did need to present some evidence, by way of comparison with male employees or

otherwise, that the Institute’s offered reasons for her salary were pretextual—and she did not.

6

Thus, Browning’s wage discrimination claims fail because Browning failed

to raise a genuine issue of material fact as to whether the Institute’s purported

legitimate, non-discriminatory reasons for her allegedly disparate wage

payments were a pretextfor discrimination. The Institute offered testimony and

other evidence that demonstrates that Browning’s salary reflected her prior

work experience, seniority, job title, field of study, and contributions to the work

of the Institute; and Browning offers no evidence–beyond conclusory

allegations—that raises a genuine issue of fact as to whether these purported

reasons were pretextual. Moreover, the Institute referenced testimony and other

evidence that demonstrates that any pay disparities between Browning and

those individuals she had identified in her deposition testimony as occupying a

comparable position at the Institute were the product of legitimate, nondiscriminatory reasons; and Browning does not challenge these arguments. We

therefore hold that the district court appropriately dismissed Browning’s Title

VII and EPA wage discrimination claims.

B.
No. 07-50434

5 The position Browning sought was eventually filled by a female. Although relevant

to whether the Institute had a discriminatory intent, this fact is insufficient to defeat

Browning’s prima facie case. See Nieto v. L & H Packing Co., 108 F.3d 621, 624 n.7 (5th

Cir.1997) (“While the fact that one’s replacement is of another national origin ‘may help to

raise an inference of discrimination, it is neither a sufficient nor a necessary condition.’”

(quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).

6 The Institute annually evaluates each employee’s performance and assigns one of five

possible ratings: Clearly Outstanding, Exceeds Expectations, Meets Expectations, Needs

Improvement, or Unsatisfactory. Pluses and minuses are attached to these ratings to indicate

that an employee’s performance is within an intermediate range. While employed at the

7

Browning also argues that the district court erred in granting summary

judgment on her Title VII failure to promote claim.

To establish a prima facie case for a failure to promote claim, a plaintiff

must establish that: (1) she is a member of the protected class; (2) she applied

for a position for which she was qualified; (3) she was rejected for the position;

and (4) after she was rejected, the employer continued to seek applicants with

the employee’s qualifications or filled the position with someone outside the

protected class. See Celestine v. Petroleos de Venezuella, S.A., 266 F.3d 343, 354-

55 (5th Cir. 2001). A plaintiff must establish that she meets objective promotion

criteria at the prima facie stage of her case. See Medina v. Ramsey Steel Co.,

Inc., 238 F.3d 674, 681 (5th Cir.2001). If a plaintiff makes out a prima facie

case, we analyze the claim under the familiar McDonnell Douglas

burden-shifting framework described above. Id.

The Institute argues that Browning failed to establish a prima facie case

on her failure to promote claim because she failed to offer evidence that she was

qualified for the position she sought and failed to offer evidence that the

Institute sought applicants with similar qualifications.5 As to each of these

arguments, the Institute relies only on the fact that Browning did not receive

two “Clearly Outstanding” ratings on her annual performance evaluations and

that, as a matter of policy, the Institute does not promote employees who have

not received two such ratings.6 The Institute argues that the relevant
No. 07-50434

Institute, Browning received the following ratings: 1999, Exceeds Expectations; 2000, Exceeds

Expectations; 2001, Exceeds Expectations; 2002, Exceeds Expectations Minus; 2003, Meets

Expectations Minus; 2004, Meets Expectations Minus.

8

performance criteria are objective and that because Browning failed to meet

them she cannot establish a prima facie case. 

In response, Browning argues thatthe Institute’s performance evaluations

are wholly subjective and that, consequently, the Institute’s arguments do not

defeat the second and fourth elements of her prima facie case.

Here, Browning has the better side of the argument. The Institute’s

internal documents indicate that “some of these criteria [used in staff

evaluations] are subjective.” Moreover, deposition testimony of the individuals

who performed the evaluations relevant here indicates that no objective criteria

control the evaluations and that no objective measures distinguish one rating

from another. As one of the evaluators testified, the evaluators simply “have a

pretty good idea of the break point” between ratings. The evidence, then,

indicates that the performance evaluations are subjective, as Browning argues.

Further, and “[a]s we have indicated before, an employer may not ‘utilize wholly

subjective standards by which to judge its employees’ qualifications and then

plead lack of qualification when its promotion process . . . is challenged as

discriminatory.’” Medina, 238 F.3d at 681 (alteration in original) (quoting

Crawford v. West. Elec. Co., 614 F.2d 1300, 1315 (5th Cir.1980)). This is true

because “‘the criteria . . . may be pretext for . . . discrimination.’” Id.

Consequently, we hold that Browning has established a prima facie case for her

failure to promote claim. 

Because Browning has established a prima facie case, the burden shifts to

the Institute to articulate a legitimate, non-discriminatory reason for its actions.

Here, the Institute’s subjective performance evaluations are sufficient to

establish a legitimate, non-discriminatory reason for its failure to promote
No. 07-50434

9

Browning to the position she sought. See Alvarado v. Tex. Rangers, 492 F.3d

605, 616 (5th Cir. 2007) (“An employer’s subjective reason for not selecting a

candidate, such as a subjective assessment of the candidate’s performance in an

interview, may serve as a legitimate, nondiscriminatory reason for the

candidate’s non-selection.”); Manning v. Chevron Chem. Co., 332 F.3d 874, 882

(5th Cir. 2003) (affirming grant of summary judgment because employee did not

raise genuine issue of fact that subjective hiring criteria were pretext for

discrimination). But because subjective reasons can be a pretext for

discrimination, such “reason[s] will satisfy the employer’s burden of production

. . . only if the employer articulates a clear and reasonably specific basis for its

subjective assessment.” Alvarado, 492 F.3d at 616. Browning’s performance

evaluations and the testimony of the individuals who evaluated her performance

reference clear and reasonably specific bases for the Institute’s subjective

assessments. Browning’s performance evaluations, for instance, indicate, among

other things,that she made gratuitous, negative comments about her colleagues;

discussed internal Institute matters with clients; failed to follow Institute

procedures; made an unauthorized business trip; failed accurately to report her

time; and was reluctant to participate in certain Institute initiatives.

Because the Institute has articulated a legitimate, non-discriminatory

reason for not offering Browning a promotion, her prima facie case is dissolved

and the burden shifts back to her to establish either: (1) that the employer's

proffered reason is nottrue butis instead a pretextfor discrimination; or (2)that

the employer’s reason, while true, is not the only reason for its conduct, and

another “motivating factor” is the plaintiff's protected characteristic. See

Rachid, 376 F.3d at 312.

Browning has attempted to establish that the Institute’s asserted

justifications are pretextual in several ways. First, Browning argues that the

subjective nature of the Institute’s performance evaluations allowed the
No. 07-50434

10

Institute to suppress her rating. We have held, however, that “[t]he mere fact

that an employer uses subjective criteria is not . . . sufficient evidence of

pretext.” Manning, 332 F.3d at 882. Second, Browning testified that the alleged

failure accurately to report her time was a pretextual motive manufactured by

the Institute. She does not, however, offer any evidence beyond her conclusory

allegation to this effect, nor does she challenge the other asserted inadequacies

that are noted in her performance evaluations. Third, Browning asserts that the

Institute more strictly judged her performance than that of male employees. Her

citations to the record, however, demonstrate exactly the contrary. She first

directs the Court to the performance evaluations of a male employee who

received better evaluations than she did. These evaluations also indicate that

the employee had time management issues, but these issues were hardly of the

sort referenced in Browning’s evaluations. Indeed, the evaluators urged the

employee, for instance, “to try to achieve a better balance between devotion to

his career and attention to his personal health.” Browning also directs the court

to the performance evaluations of a second male employee. This employee’s

evaluations demonstrate some interpersonal problems; the evaluators, for

instance, note that “he often creates the perception that he is the single oraclelike source of . . . knowledge in the program” and “needs to develop an image of

quiet, confident technical competence.” Fatal to Browning’s comparison,

however, is that this employee did not receive more favorable evaluations. 

Based on the evidence offered by Browning, no trier of fact reasonably can

infer that the Institute is dissembling to cover up a discriminatory purpose.

Indeed, Browning has offered no evidence of discriminatory intent: she does not

offer evidence that any Institute employee made sexist comments, that the

Institute has a pattern or practice of discriminating against females, or that the

individuals who evaluated her performance have ever been accused of

discrimination based on sex or ever behaved in a manner that evidences such a
No. 07-50434

11

possibility. Indeed, her only arguments that the Institute’s asserted

justifications are pretextual are those noted above, and there is little in the way

of record evidence in support of these arguments. Thus, Browning has failed to

carry her burden of establishing that the Institute’s asserted justifications for

not offering her the promotion she sought are pretextual. The district court did

not therefore err in granting summary judgment on this claim.

C.

Browning also argues that the district court erred in granting summary

judgment on her Title VII and EPA retaliation claims.

Both Title VII and the EPA—through the Fair Labor Standards Act

(“FLSA”)— prohibit employers from retaliating against employees who engage

in activity protected under the respective acts. See 42 U.S.C. § 2000e-3(a); 29

U.S.C. § 215(a)(3). To establish either a Title VII or an EPA retaliation claim,

a plaintiff must establish, among other things, that she suffered an adverse

employment action. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th

Cir. 2002); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008)

(applying the same requirement in an FLSA case). 

The Institute argues that Browning cannot establish a prima facie case of

retaliation because she suffered no adverse employment action. The Supreme

Court recently clarified that a retaliation claim may rest on an action that “a

reasonable employee would have found . . . [to be] materially adverse, which in

this context means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotation marks

omitted). This standard, as the Supreme Court noted, is phrased “in general

terms because the significance of any given act of retaliation will often depend

upon the particular circumstances. Context matters.” Id. at 69. Context

matters because “‘[t]he real social impact of workplace behavior often depends
No. 07-50434

12

on a constellation of surrounding circumstances, expectations, and relationships

which are not fully captured by a simple recitation of the words used or the

physical acts performed.’” Id. at 69 (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81–82 (1998)). Further, the Supreme Court noted that

the materiality requirement reflects the importance of separating “significant

from trivial harms.” Id. at 68. With this standard in mind, we examine the

incidents of retaliatory conduct alleged by Browning.

Browning alleges that the Institute engaged in a pattern of retaliation

against her. Browning’s strongest allegation is that the Institute retaliated

against her by reducing her job responsibilities. It is undisputed that the

Institute removed Browning from the Principal Investigator position of the

Quantity and Chemistry Integrated Subissue. The loss of job responsibilities

can in some circumstances constitute an adverse employment action. But as the

Institute argues and as Browning admits, the Institute periodically rotates its

scientists into and out of lead roles like the one Browning held. Indeed,

Browning’s deposition testimony references several examples of this. As noted

above, we have been instructed to consider the “particular circumstances” and

the “real social impact of workplace behavior.” Under these circumstances, we

are certain that Browning’s seemingly normal rotation out of the Principal

Investigator position, with no specific association with protected activity, would

not dissuade a reasonable worker from making or supporting a charge of

discrimination. 

Browning also alleges that the Institute retaliated against her by

badgering, harassing, and humiliating her. Here, Browning first alleges that

when she confronted a supervisor about her allegedly unequal pay, he responded

by threatening to fire her. Her deposition testimony indicates the supervisor

told her that he could fire her for cause and that Texas is a right to work state.

Her notes from that meeting, however, also indicate that the supervisor made
No. 07-50434

13

this comment in relation to a discussion of whether Browning would soon be

receiving a significant pay increase. According to Browning’s notes, the

supervisor praised her performance but also noted that her violations of

Institute policies—violations which were sufficient grounds to fire her with

cause—suppressed her overall performance rating, which of course affected

whether she would be promoted and whether her pay would be increased.

Browning even notes that the supervisor “offered [her] a carrot” by indicating

that if her attitude improved her performance evaluations would also improve.

Given Browning’s testimony and the evidence she presented about this

conversation, we are also certain that this alleged threat would not dissuade a

reasonable worker from making or supporting a charge of discrimination.

Indeed, there is no indication that this conversation was anything other than an

attempt to discuss Browning’s concerns about her pay.

Next, Browning alleges that another supervisor reacted to her with verbal

abuse and threatened her employment when she confronted him about her

allegedly unequal pay. As Browning presents the argument in her brief, the

supervisor told her she was “crazy,” which was “a humiliating, demeaning form

of badgering,” and then threatened her employment. Browning’s notes from this

conversation, however, show the nature of the exchange between the two of

them. According to Browning, the supervisor responded to her complaint by

saying:“If you or anyone else thinks that something unethical is going on around

here, then I suggest that you avail yourselves of the free psychiatric services

provided by the Institute.” And then, in discussing her performance evaluations,

said: “What you have to realize is that . . . [w]e are management, you are the

employee. We make the rules, and you follow them. It’s as simple as that. And

if you don’t think that what we are doing is fair, then there is the door.” Again,

Browning’s evidence indicates that this heated exchange of words in a work

place confrontation presents no set of facts that constitute retaliation. This
No. 07-50434

14

alleged verbal abuse, like that discussed above, amounts at bestto nothing more

than the “petty slights” or “minor annoyances”that all employees face from time

to time. White, 548 U.S. at 68.

Finally, Browning alleges that the Institute retaliated against her by:

attempting to hire an employee to take her position and by forcing her to

interview and evaluate job applicants as a part of this process; suppressing her

performance evaluations; and subjecting her to extra scrutiny. Browning,

however, presents nothing but conclusory allegations to support these

assertions. Browning offered no evidence that indicates that the Institute was

attempting to hire her replacement, nor any evidence that her performance

evaluations were suppressed, nor any evidence that she was subjected to extra,

oppressive scrutiny. Browning’s “[c]onclusory allegations, speculation, and

unsubstantiated assertions are inadequate to satisfy” her summary judgment

burden. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.

1996) (en banc) (citation omitted). 

Thus, we hold that Browning has not established a prima facie case for her

Title VII and EPA retaliation claims because she has not created a genuine issue

of fact regarding whether she suffered an adverse employment action. Further,

and consequently, the district court did not err in granting summary judgment

on these claims.

D.

Finally, Browning argues that the district court erred in granting

summary judgment on her Title VII constructive discharge claim. As we have

earlier said, Browning decided to resign from the Institute and did so in May of

2004. She argues that her resignation was compelled by the hostile conduct of

the Institute toward her.

In determining whether an employer’s actions constitute a basis to support

a constructive discharge, we ask whether “working conditions [became] so
No. 07-50434

15

intolerable that a reasonable person in the employee’s position would have felt

compelled to resign.” Penn. State Police v. Suders, 542 U.S. 129, 141 (2004); see

McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007) (stating same

standard). “Mere harassment, alone, is insufficient; rather, the plaintiff must

show ‘aggravating factors’ to justify departure.” Hockman v. Westward

Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004). In determining whether a

reasonable employee would feel compelled to resign, we consider the relevancy

of the following factors: (1) demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignmentto 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; and (7)

offers of early retirement on terms that would make the employee worse off. Id.

(citation omitted).

The record makes clear that Browning was not demoted, actually received

salary increases from 2000 through 2004, was not reassigned to menial work or

to a younger supervisor, and was not offered early retirement or less favorable

employment terms. Browning argues, however, that she was constructively

discharged. Her argument to this effect references the allegedly retaliatory

treatment that we have discussed above. But for the reasons discussed above,

we hold that Browning’s working conditions were not so intolerable that a

reasonable person in her situation would have felt compelled to resign. The

district court did not therefore err in granting summary judgment on this claim.

IV.

For the reasons assigned above, the judgment of the district court is

AFFIRMED.

AFFIRMED.