*Circuit Judge of the Ninth Circuit, sitting by designation.

 

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this opinion should not be published and is not precedent except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

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-10875

_____________________

DENISE DOHERTY,

Plaintiff-Appellant,

versus

CENTER FOR ASSISTED REPRODUCTION,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas, Fort Worth Division

_________________________________________________________________

June 18, 2001

Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:**

Appellant Denise Doherty appeals the district court’s grant of

summary judgment for Appellee Center For Assisted Reproduction

(“the Center”) on her claim of discriminatory discharge under Title

VII, 42 U.S.C. § 2000e. Because the record reflects that Doherty

failed to present evidence sufficient to support a claim of
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discriminatory constructive discharge, we AFFIRM.

Doherty was employed as an embryologist at the Center, an

infertility clinic owned and operated by Drs. Kevin and Kathy

Doody. Doherty, who supervised the in-vitro fertilization and

andrology labs, was responsible for monitoring lab activities,

scheduling hours for numerous lab employees, overseeing training,

and assisting the Doodys in making hiring and salary decisions.

In March 1997, Doherty informed the Center that she was

pregnant. While the Center had no official paid maternity leave

policy, the Center authorized Doherty to take paid maternity leave

from August 1997 to November 1997. When Doherty returned to work

in December 1997, the Center informed her that she would not

receive a Christmas bonus because she had received an equivalent

amount in paid maternity leave. At the same time, the Center told

Doherty that she would no longer have knowledge of, or provide

input as to, the raises or bonuses given lab employees. According

to Doherty, the Center also began auditing her time cards.

During this period Doherty contacted a former supervisor at

the Center, now working at Presbyterian Hospital, to inquire about

possible embryologist openings at Presbyterian. Doherty was

informed in January 1998 that there was an opening, but she did not

apply for the position at that time.

In February 1998, Doherty and other Center managers were asked

to sign a confidentiality agreement. Doherty alleges that she was
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asked by Dr. Doody at that time to work part-time with a pay

reduction, and was encouraged to spend more time with her child.

Doherty claims that Dr. Doody became angry when she refused to work

part-time.

On March 2, 1998, Martin Langley, a co-employee of Doherty’s,

informed the Center that he was leaving to join the in-vitro

fertilization lab at Presbyterian. The Center, believing that

Langley’s departure would have a negative impact on its operations,

negotiated with Langley and offered him a co-supervisor position in

the in-vitro lab with Doherty. On March 12, the Center officially

announced its restructuring move, under which Langley would take

over responsibility for the lab’s day-to-day operations while

Doherty retained some responsibilities over the in-vitro lab and

all responsibilities over the andrology lab.

Doherty immediately contacted Presbyterian and expressed

interest in the job opening with Presbyterian. She received and

accepted an offer from Presbyterian within a week of the Center’s

restructuring move. On March 24, 1998, Doherty voluntarily

resigned from her position at the Center. She filed suit in

December 1998 against the Center, alleging that she was

discriminated against on the basis of sex and pregnancy under Title

VII and was not paid overtime wages in violation of the FLSA. The

district court granted summary judgment for the Center on both

claims, and Doherty appealed only the denial of her discharge claim
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under Title VII. The record reflects that, as a matter of law, the

evidence presented by Doherty fails to support a claim of discharge

in violation of Title VII. We therefore affirm the judgment of the

district court.

To establish a termination prohibited by Title VII, a

plaintiff must first make a prima facie case by showing that she:

1) is a member of a protected class; 2) was discharged; 3) was

qualified for the position from which she was discharged; and 4)

was replaced by a member of an unprotected class. Faruki v.

Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997). Once

established, the prima facie case creates a presumption of

discrimination, which the defendant can rebut by articulating a

legitimate, non-discriminatory reason for its action. Once the

defendant proffers such a reason, the plaintiff must prove that it

is not the true reason for the employment decision and that

unlawful discrimination was a pretext for the defendant’s action.

Id. at 319.

When an employee resigns, she may satisfy the discharge

requirement of prong two by establishing constructive discharge.

To prove constructive discharge, a plaintiff must show that

“working conditions were so intolerable that a reasonable employee

would feel compelled to resign.” See id. The factors we consider

in analyzing a claim of constructive discharge include: 1)

demotion; 2) reduction in salary; 3) reduction in job
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responsibilities; 4) reassignment to 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; or 7) offers of early retirement or

continued employment on terms less favorable than the employee’s

former status. See Brown v. Kinney Shoe Corp., 237 F.3d 556, 565

(5th Cir. 2001).

The district court found that Doherty failed to make a prima

facie case of discriminatory discharge because she did not

establish that she was “discharged” by the Center. Specifically,

the court noted that Doherty failed to establish that she was

demoted or constructively discharged when she voluntarily sought

out and accepted employment with Presbyterian. Doherty argues on

appeal that the evidence established that she was constructively

discharged from her position by the Center’s reorganization of the

in-vitro lab and the alleged harassment she endured following her

return to work from maternity leave.

The record reflects that, as a matter of law, Doherty failed

to establish that neither the new conditions of her job nor the

negative attitudes toward her by management created a situation so

intolerable that a reasonable person would be compelled to resign.

The evidence shows that Doherty did not receive a reduction in

salary as a result of the reorganization. While the Center does

not deny that Doherty’s job responsibilities were reduced, there is
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no evidence that she was reassigned to menial or degrading work–-

only that some of her prior responsibilities were given to Langley.

Furthermore, as co-supervisors of the in-vitro lab, Doherty and

Langley were asked by the Center to “cooperate” with one another in

running the lab operations. The fact that Langley had less

experience than Doherty does not support constructive discharge;

Doherty was not assigned to work under Langley--she was assigned to

work with him. Finally, the fact that Langley was given a higher

salary than Doherty in order to prevent him from leaving the Center

and joining Presbyterian also does not create an “intolerable”

working environment. As we have noted, Doherty’s salary was not

reduced by the reassignment of duties. Moreover, management

asserted a valid non-discriminatory reason for Langley’s higher

salary and Doherty has not shown that the reason was a pretext for

unlawful discrimination.

Doherty also points to a series of events beginning in

February 1998 during which she was allegedly badgered, harassed,

and encouraged to work part-time or take on fewer responsibilities

as supporting her constructive discharge claim. Doherty’s claim

that Dr. Doody asked her to work part-time weeks before the

reorganization and mentioned that she “regretted not spending more

time with her child” is insufficient to create an environment in

which any objectively reasonable person would feel compelled to

resign. The other evidence presented by Doherty, while perhaps
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revealing that she was not treated fairly or with the empathy she

might expect, fails to show that she was ever threatened or

humiliated in an “intolerable” way such that a reasonable person

would have been “compelled” to quit. Constructive discharge

requires more than merely being dissatisfied with the job--indeed,

it requires a showing of harassment greater than that necessary to

establish a hostile work environment claim. See Brown, 237 F.3d at

565. Finally, we note that the fact that Doherty had inquired

about a job at Presbyterian in December 1997, three months before

the reorganization of duties at the Center, suggests that Doherty’s

decision to quit and accept a job at Presbyterian was not

altogether dictated by the events of February and March of 1998

that form the basis of her claim.

Because Doherty failed to raise a genuine issue of material

fact regarding constructive discharge under Title VII, the judgment

of the district court is

A F F I R M E D