Robinson v. Waste Mgmt of Texas ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 23, 2004
Charles R. Fulbruge III
_______________________ Clerk
Summary Calendar
No. 04-40293
_______________________
BETESTIA ROBINSON,
Plaintiff-Appellant,
versus
WASTE MANAGEMENT OF TEXAS, doing business as
Texas Waste Management Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas, Tyler Division
Civil Action No. 3:02-0059
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Robinson appeals the district court’s award of
partial summary judgment to Appellee Waste Management of Texas
(“Waste Management”). For the reasons discussed below, we AFFIRM
the judgment of the district court.
*
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opinion should not be published and is not precedent except under the limited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.
I. Background
Waste Management hired Robinson as a “helper” in November
1999. “Helpers” assist the drivers of waste collection trucks by
riding along and picking up trash left at the curb by customers.
In hopes of higher pay (and most likely a more desirable work
experience), Robinson wished to become a driver for Waste
Management. After inquiring about this position, Robinson learned
that drivers had to have a commercial driver’s license and pass a
physical examination, including a drug test. However, internal
policy changes within Waste Management later added the requirement
of one year’s experience for all driver applicants. Robinson does
not dispute the fact of this policy change.
Robinson asserts that she spoke to her immediate
supervisor, Jason Stephens, numerous times about being promoted to
driver. According to Robinson, Stephens routinely promised that he
would schedule Robinson for the requisite physical examination, but
never actually did so. Robinson’s threats to report Stephens to
his superiors were allegedly met with threats from Stephens that he
would inform authorities of instances when Robinson failed to
appear at work without a valid excuse. Robinson also states that
several male employees were scheduled for and received physical
examinations promptly after being hired, and were authorized to
work as drivers even without the requisite year of experience.
Understandably, Robinson was very upset by this course of events.
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However, before ever formally applying for a driver
position, Robinson confronted Stephens and told him she was going
to quit because she suffered discrimination in seeking the driver
position. She then quit her position at Waste Management and,
after completing the EEOC administrative process, filed suit.
On November 27, 2002, Robinson sued Waste Management,
alleging that her former employer violated Title VII of the Civil
Rights Act of 1964 through gender discrimination and constructive
discharge. Waste Management moved for summary judgment on both
claims. On September 18, 2003, the district court awarded summary
judgment to Waste Management on the constructive discharge claim,
but denied the motion as to the gender discrimination claim. The
jury returned a verdict in favor of the plaintiff. After clerical
errors were corrected, judgment was entered in Robinson’s favor for
$54,096 for past lost income from the date of the adverse action to
resignation. The court then granted Waste Management’s motion for
judgment notwithstanding the verdict. Final judgment awarded
Robinson $1,056. She then appealed the summary judgment award to
this court.1
II. Constructive Discharge Claim
We review a district court’s summary judgment decision de
novo, using the same standard as that court. See Gowesky v.
1
Robinson does not challenge the award of judgment notwithstanding the
verdict to Waste Management, so that claim is waived and we do not address it.
See N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003).
3
Singing River Hosp. Sys., 321 F.3d 503, 506 (5th Cir. 2003); FED.
R. CIV. P. 56.
Under Title VII, a resignation is actionable only where
that resignation amounts to constructive discharge. See Brown v.
Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). Demon-
strating constructive discharge imposes a high burden. To carry
this burden, the plaintiff “must offer evidence that the employer
made the employee’s working conditions so intolerable that a
reasonable employee would feel compelled to resign.” Faruki v.
Parsons, 123 F.3d 315, 319 (5th Cir. 1997). This approach comports
with precedent and this court’s long-held policy view that “society
and the policies underlying Title VII will be best served if,
wherever possible, unlawful discrimination is attacked within the
context of existing employment relationships.” Boze v. Branstetter,
912 F.2d 801, 805 (5th Cir. 1990) (quoting Bourque v. Powell Elec.
Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980)).
In the constructive discharge inquiry, the court examines
the working environment as a whole, and, to find for the plaintiff,
must conclude that the resignation was reasonable under all the
circumstances. Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297
(5th Cir. 1994). This holistic review of the workplace takes into
account only the specific conditions imposed by the employer; the
subjective state of mind of the employee is irrelevant. See Epps
v. NCNB Tex., 7 F.3d 44, 46 (5th Cir. 1993). More specifically,
this court looks to seven factors to help determine whether a
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reasonable employee in the plaintiff’s shoes would feel compelled
to resign: (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 supervisor; (6) badgering,
harassment, or humiliation by the employer calculated to encourage
the employee’s resignation;2 and (7) offers of early retirement
that would make the employee worse off regardless whether the offer
is accepted. See Barrow, 10 F.3d at 297.
Considering the facts presented by Robinson at the
summary judgment stage,3 we conclude that the district court
properly awarded judgment to Waste Management as to this claim.
Assuming the truth of Robinson’s allegations about the conduct of
Stephens and the company’s willingness to hire males who had not
met the one year work experience requirement, she still cannot meet
the high bar required to prove constructive discharge. In her
depositions, Robinson conceded that she quit because she was
frustrated at not obtaining the promotion to driver. Additionally,
Robinson never formally applied for the job. Without officially
2
With respect to this factor, we have held that proving constructive
discharge requires a greater degree of harassment than that required by a hostile
work environment claim. See Brown v. Kinney Shoes, 237 F.3d at 566.
3
Robinson repeatedly cites to evidence produced at trial in her brief.
This, of course, is wholly beyond the scope of our review of a summary judgment
motion. See Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1327 (5th Cir. 1996)
(“Our review of a granted motion for summary judgment is limited to the evidence
available to the district court at the time it ruled on the motion.”); 7547
Corporation v. Parker & Parsley Development Partners, L.P., 38 F.3d 211, 220 (5th
Cir. 1994) (“In reviewing a grant of summary judgment to determine whether the
law was applied correctly, this court only considers papers that were before the
trial court.” (quoting Topalian v. Ehrman, 954 F.2d 1125, 1131-32 n.10 (5th Cir.
1992))).
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seeking the position which she was supposedly denied, neither
Robinson nor this court has any way of knowing whether Waste
Management ever intended to deny her the promotion based on her
gender. Furthermore, Robinson declined to pursue other avenues to
lodge complaints about her supervisor. A reasonable employee
would, at the very least, formally seek the position before
resigning, or at least seek to remedy the situation with the
employer.
Additionally, Robinson alleges only 1 of the 7 factors
used in the constructive discharge analysis. Prong 6 — the
“humiliation factor” — is certainly alleged (and reflects poorly on
Waste Management if true), but falls far short of the legal
standard for demonstrating constructive discharge. Numerous cases
in this circuit have held that even repeated denials of promotions
do not, in and of themselves, demonstrate that a reasonable
employee would feel compelled to resign. See, e.g., Brown v.
Kinney Shoe Corp., 237 F.3d at 566; Landgraf v. USI Film Products,
968 F.2d 427, 429-30 (5th Cir. 1992). Robinson’s allegations as to
gender harassment inform, but are not dispositive to, this inquiry,
which is limited solely to whether a reasonable employee would feel
compelled to resign if she were in Robinson’s shoes. Cf. Landgraf,
968 F.2d at 429 (concluding that even where evidence is sufficient
to prove sexual harassment and a hostile work environment,
plaintiff had been unable to prove constructive discharge).
However, assuming the alleged threats by Jason Stephens took place,
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these incidents are not sufficient to make out a constructive
discharge claim. Cf. Webb v. Cardiothoracic Assocs. of North
Texas, P.A., 139 F.3d 532,539-40 (5th Cir. 1998) (affirming an
award of summary judgment to the employer on a constructive
discharge claim, in spite of the alleged fact that the plaintiff
was harassed, demeaned, and publicly humiliated by a supervisor).
Furthermore, Robinson has not put forward sufficient evidence to
demonstrate that her boss’s actions were calculated to encourage
her resignation.
For all of these reasons, the judgment of the district
court is AFFIRMED.
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