* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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 DefendantsAppellees, who Mowbray claims took adverse employment action

against her in retaliation for her taking medical leave. For the
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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
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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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
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 interrelationship 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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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, . . .
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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
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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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
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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 DefendantsAppellees 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.