United States Court of Appeals

Fifth Circuit



## FILED

July 13, 2004

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

___________________



### m 03-41497

Summary Calendar

___________________



### L ISA 

### R. R EZNICK



### , D OCTOR



### ,

Plaintiff-Appellant,

VERSUS



### A SSOCIATED 

### O RTHOPEDICS 

### & S PORTS 

### M EDICINE



### , P.A.,

Defendant-Appellee.

___________________

Appeal from the United States District Court

for the Eastern District of Texas

No 4:01-CV-92

___________________

Before S MITH , DeM OSS , and S TEWART

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Lisa Reznick sued her former employer,

Associated Orthopedics & Sports Medicine,

P.A. (“AOSM”), allegi ng violation of the

Equal Pay Ac t 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 appeal followed. Agreeing with the district court

that Reznick fails to est ablish a p rima facie

case for either claim, we affirm. * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.2 I.

In early 1997, Reznick, an orthopedic surgeon sp e cializing in hand, wrist, and elbow

care, contacted AOSM about possible employment. AOSM is a medical practice group specializing in orthopedic care and was founded

by p artners and sports medicine specialists,

Drs. Neal Small and Alex Glogau. Interested

in addin g a hand specialist to their practice

group, AOSM accepted Reznick’s resume and

set up an interview. Although receiving several negative recommendations from previous

employers regarding Reznick’s productivity

a nd ability to get along with other personnel,

AOSM offered her the po sition of associate

physician, and negotiations began between

AOSM and Reznick, who had the assistance of

counsel.

AOSM init ially offered Reznick nearly the

same three year employment contract t hat it

had made in June 1996 with Dr. Peter Kwong,

an associate doctor and spo rts medicine speciali st whose three-year employment agreement provided f

o r 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 included a provision for potential bonus compensation based on Kwong’s yearly collections.

AOSM’s first offer to Reznick included identical base pay and slightly more favorable bonus

compensation.

Reznick rejected this first offer and made a

cou nt eroffer that included several new economic 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 t he parties entered into an

agreement in July 1997. Reznick asserts that only a few short

months after she began her employment, Glogau made a crude, sexist comment to her in

the presence of two pharm aceutical salesmen

during lunch. 2 Afterwards, Reznick confronted Glogau about the statement. Although he

brushed her off, telling her she was being too

sensitive, he did regret “if he might have o ffended her.” Also that fall, Glogau allegedly

asked other employees whether they believed

that Reznick is a lesbian. After hearing this information second-hand, Rez n ick talked to

Glogau and assured him she was heterosexual.

Duri ng t his period, Glogau allegedly made

several comments to Reznick regarding her office 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 partner. During that time, AOSM entered into intense 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 o ffered Schwartz an

employment agreement substantially similar to

Reznick’s, both havi n g the same init ial base

salary of $125,000.

Schwartz, however, rejected this initial offer, maint a ining that he had other offers with

salaries in e xcess of $200,000. Faced with a

partner (Small) who w anted to phase out hi s

sports m e dicine practice, and desirous of

2 During the co ur se of the meal, one of the

salesmen asked Glog au when the practice would

begin advertising for Reznick. Glogau replied that

Reznick would receive advertising “when she gets

laid.”3

Schwartz’s alread y

proven abilities, AOSM acquiesced and reached a n 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, Rezn ick overheard a telephone conversation among Schwa r tz, Small,

and AOSM’s attor n ey, 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

mak e partner was based on her sex, not job

performance.

After Schwartz formally joined the practice

in September 1998, Kathy Star nes, AOSM’s

administrator since September 1997, suggested that AOSM hold an open house to advertise

Schwartz’s association with the group. Init ially skeptical of the suggestion, Glogau only

reluctantly agreed to host the party when

Starnes was able to assure him that th e pharmaceutical groups would foot most of the bill.

Despite the sending of over four hundred

invitations, the open house was very poorly attended, and AOSM again returned to its policy

of not hosting such eve nt s. When Dr. Greg

Powell joined the practic e 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 invitatio n 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 assigned 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 plaint iff 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 further evidence of AOSM’s discriminatory

behavior. In January 2000, however, AOSM

hired B o bbie Caldwell in response to Reznick’s complaints, and Caldwell worked for

Rez nick exclusively until Reznick’s resignation.

In March 2000, Reznick submitted her resignation 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 resignation 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 f r ustrated by Glogau’s absence, Reznick

determined that she coul d no longer remain

with AOSM.

II.

Su mmary judgment is appropriate only

where there are no genuine issues of material

fact and the moving pa r ty is entitled to judgment as a matter of law. See F ED . R. C IV . 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% i n excess of $500,000.

Schwartz, on the other hand, was only eligible for

a bonus equal to 20% of his collections in excess of

$450,000.4

56(c). In determining whether there is a genuine issue of material fact, evidence and inferences must be dra wn in the light most favorable to the non-moving party. D aniels 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 specific facts to support its allegations, summary

judgment is appropriate. C elotex Co rp. v.

Catrett , 477 U.S. 317, 325 (1986). The nonmovant must “go beyond the pleadings

. . . and

designate specific facts showing that there is a

genuine issue for trial.” I

d. at 324. Summary

judgment is proper even if the nonmovant

brings forth evidence in support of his allegations, so long as the evidence is insufficient for

a rea so nable jury to find for that party as

“[t]he mere existence of a scint illa of evidence

in sup p ort of plaint iff’s position” is insufficient. Anderson v. Liberty Lobby, Inc

., 477

U.S. 242, 252 (1986). We review a summary

judgment de novo

. M

editrust Fin. Serv. Corp.

v. Sterling Chem., Inc.

, 168 F.3d 211, 213

(5th Cir. 1999).

III.

Reznick makes two independe n t accusations against her former employer. She maint ains that AOSM violated the Equal Pay Act

by paying Schwartz a substantially higher salary, desp it e t he fact that he held an identical

po sition and performed similar duties. Additionally, she argues that AOSM’s, and specifically Glogau’s, sexist behavior and sex-based

discrimination resulted in her constructive discharge, thereby violating title VII.

A.

Under the Equal Pay Act, an employer is

prohi b ited from sex-based discrimination where the jobs performed require equal skill,

effort, and responsibility and are perfo r med

under simil ar condi ti ons. 29 U.S.C. § 206-

(d)(1). To establish a p rima facie case, Reznick 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 c onditions; 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 pr o vided it can demonstrate

one of the four affirmativ e defenses specified

under the Act. 4

AOSM contends that Reznick fails to establish element two in her claim. To prove

that her posit io n is “substantially equal” to

Schw artz’s, Reznick must show that her job

requirements and perf

o rmance were substant ially equal, though not necessarily identical, to

those of a male employee. 29 C.F.R. § 1620.-

1 3(e). Reznick argues that this issue is a

question of fact for the jury a nd that because

she and Schwartz were trained orthopedic surgeons, and were required to perform surgery

and work in the clinic, Schwartz’s job is substantially similar to hers.

Schwartz, however, was trained in the subspecia lit y of sports medicine, while Reznick

was trained as a hand surgeon. AOSM maintains that sports medicine specialists generate

more revenue than do hand surgeons and that

4 Disparities in salary are allowed wher e payment is made pursuant to “(1) a seniority system;

(2) a merit system; (3) a system which measures

ea r nings by quantity or quality of production ; or

(4) a differential based

on any other factor other

t han sex.” P lemer v. Parsons-Bilbane

, 713 F.2d

1127, 1136 (5th

Cir. 1983).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, w ho does

not dispute this fact. Because Reznick and

Schwartz specia lized in different areas of orthopedic 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 Reznic k can make a p rima facie case.

The disparity between Reznick’s and

Schwartz ’s salaries is primarily a result of

Schwartz’s higher production, and this reason

f alls under exception three of the Equ al Pay

Act. 5 The remainder of the differential can be

explained by separate and dist inct circumstances that led to differences in their emp l oyment

contracts (which may be said to fall under the

“catch all” exception four). Thus, AOSM can

make out valid affirmative defenses to the salar y disparit y between Reznick and

Schwartz.

Reznick and Schwartz negotiated independ ent contracts. In this arms’ length transaction, Reznick was assisted by counsel and successfully negotiated her own terms, which put

her in a better financial position than th a t of

the male associate curre nt ly working at

AOSM. When AOSM accepted her counteroffer, Reznick got exactly what she asked for.

Although she maintains that she was expected

to st ay in line with Kwong’s salary, but

Schwartz was not bound by hers, her willingness 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 fo rce i t to

offer better terms, but instead she was satisfied

enou gh with her counteroffer to accept employment.

Negotiating h is own contract a y ear later,

Schwartz was more successful than was Reznick in negotiating favorable terms for a variety of reasons that have nothing to do with his

sex. Firstly, as discussed above, Schwartz, a

sports medicine physician, could b e expected

to generate higher revenue. Secondly, he had

spent his internship with AOSM, which thus

already knew him and wa s familiar with his

work. Reznick, on the other hand, had never

worked for AOSM and came with some negative recommendations from her pr evious employer. 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. Reznick had no other offers to press for higher pay

and was not emplo yed at the time. Reznick 5 Let us compare Schwartz’s salary with Reznick’s from approx imately 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, mad e approximately

$160,000 that year, only $19,000 or so coming

from bonuse s. T hus, the disparity of over

$100,000 in gross yearly income comes almost

wholly from

a bonus structure that r ewards produ ctivity . Had Reznick equaled her associate in

collections, her salary would have been approximately $253,000 in year two of her contract.6

ar g ues 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 o f fact regarding the

legitimacy of these de fenses, all of which are

valid exceptions under the Act; therefore, even

if she wer e able to m ake out a p rima facie

case, she could not prevail.

B.

A plaint iff alleging sex discrimination under

title VII in the absence of direct evidence must

make out a prima facie case for discri m ination. M oln ar v. Ebasco Constructors, Inc

. , 986 F.2d 115, 118 (5th Cir. 1993). Rezni ck

can establish a prima facie c ase if she shows

that she (1) was a member of a protected class;

(2) was qualified for the position; (3) suffered

adve r se employment action; and (4) was replaced 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 Douglas Corp. v. Green

, 411 U.S. 792, 802 (1973),

once Reznick has established a prima facie

case, the burden of producti on is on AOSM to

“articulate some legitimate, nondiscriminatory

reason” explaining its co nduct. 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 discrimination 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 burden of proof in the first or third step, her claim

fails as a matter of law.

The parties dispute only Reznick’s abilit y to

prove ele ment three, that she suffered an adverse employment a ct ion, and the district

court found for AOSM and granted summary

judgment acco rdingly. This court does not

recognize interim measures to be adverse employment actions; rather, we look to ult ima t e

employment decisions suc h 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 t erms or conditions of

the emp lo yment. E ugene v. Rumsfeld

, 168

F. Supp. 2d 655, 671 (S.D. Tex. 2001).

In light of these considerations , Reznick 

### SS because she was not fired 

### SS must show

th a t she was constructively discharged. To

prove her claim, she must demonstrate that

working conditions were “so intolerable that a

reasonable p erson would feel compelled to

re sign.” F

aruki 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 under a younger supervis o r; (6) badgering, harassment, or humilia t io n by the employer calculated to encourage the employee’s resignation; and (7) offers of early retireme n t on

terms that would make the employee worse

off. B arrow v. New Orl eans 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) Glog a u’s humiliat ing public statement

conditioning advertising for Reznick upon her

“getting laid.”

(2) Glogau’s questioning Reznick’s sexual

orientation.

(3) Glogau’s statements q uestioning Rez-7

nick’s selection of apparel;

(4) AOSM’s unwillingness to advertise for

Reznick;

(5) AO SM’s hosting an open house for

Schwartz when it did not host one for Reznick;

(6) Glogau’s refusal to include Reznick on

Schwartz’s open house invitation;

(7) AOSM’s failure to p r ovide 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 contra ct as a

reason for its inabilit

y to offer more compensation to Reznick, but not telling Schwartz that

his salary must take Reznick’s compen s ation

into consideration;

(10) AOSM’s decision to pay Schwartz significantly 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 whereby Small referred patients to Schwartz and not

to Reznick;

(14) Small’s and Glogau’s refusal to refer

hand cases to Reznick;

(15) Sm all’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;

( 1 8) Glogau’s inclusion of Schwartz as an

associate in business decisions; and

(19) Glogau’s sharing of professional opportunit ies with Schwartz but not with Reznick.

Rezn ick did not experience a demotion 6 or

reduction in salary or job responsibilities. Furthermore, she was not assigned to ei ther degrading work or a

yo unger supervisor, and

early retirement was not an issue. Therefore,

the only factor relevant to Reznick’s claim of

constructive discharge is (6), “badgering, harassment or humiliation by the employer calculated to encourage the employee’s resignation.” Barrow , 10 F.3d at 297.

The nineteen facts offered by Reznick, even

when construed in a light most fa vorabl e to

her, do not support t he finding that she was

6 Reznick argues that failure to be made partner

constituted a de facto demotion. Firstly, by definition a demotion cannot be considered a failure

to be promoted. Reznick remained in the same

p osition to which she was hired for her e ntire

tenure at AOSM. Additionally, Reznick was never

p romised that making partner was a guarante e

should she become an associate.

Furthermore, Kwong, a male physician, was also 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 partners and was in no way automatic.8

badgered, harassed, or hum i l iated 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 resignat io n, and constructive discharge cannot be based on facts t hat are remote 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 for ce a reasonable person to leave. S ee

Faruki at 319.

The rest of Reznick’s allegations deal more

with favorable treatment of Schwartz than

with treatment of her, and this disparate treatment alone cannot constitute constructive discharge. S ee 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 subject ed t o an intolerable

workenvironment that compelled her to resign. Because she is unable to establish a p rima facie case, and t hereby satisfy her initial

burden of producti on under McDonnell Douglas

, we need not explore the question whether

AOSM has an adequate defense to Reznick’s

allegations, nor the question whether she can

d emonstrate that AOSM’s reasons are mere

pretext.

AFFIRMED.