                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  April 13, 2007
                         FOR THE FIFTH CIRCUIT
                         _____________________               Charles R. Fulbruge III
                                                                     Clerk
                              No. 05-21069
                           (Summary Calendar)
                         _____________________


ROBERT L. WOODS,
                                                    Plaintiff-Appellant,

versus

SHELDON INDEPENDENT SCHOOL DISTRICT, ET AL,

                                                              Defendants,

SHELDON INDEPENDENT SCHOOL DISTRICT,

                                                     Defendant-Appellee.

                        ---------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                            (4:04-CV-2822)
                        ---------------------

Before SMITH, WIENER and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Robert Woods appeals the district court’s

grant of summary judgment in favor of Defendant-Appellee Sheldon

Independent School District (“SISD”) on Woods’s claims of race

discrimination under Title VII of the Civil Rights Act of 1964 and

age discrimination under the Age Discrimination in Employment Act

(“ADEA”).   We affirm.

                         I.   FACTS & PROCEEDINGS

     *
       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this opinion should not be published and is not precedent except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.
      Woods is a former special education teacher for the SISD.

During the 2003-04 school year, the principal of the high school at

which Woods taught informed him that her concerns about his job

performance and professional judgment would lead her to recommend

that the SISD Board of Trustees (“the Board”) not extend his

employment contract beyond its then-current term.1       SISD requires

its supervisors to make such contract recommendations for all

professional employees each February.       It is also common practice

for supervisors to inform teachers of recommendation decisions

before presenting them to the Board.

      In March 2004, the Board voted to accept the principal’s

recommendation not to extend Woods’s contract.         Two days later,

Woods submitted a letter to SISD indicating his intent to retire at

the end of the then-current academic year, 2003-04.

      In May of that year, Woods filed a discrimination charge with

the   Equal   Employment   Opportunity   Commission.   The   Commission

terminated its investigation of his complaint and issued a right-to-

sue letter later that month. Woods filed suit in the district court

the following month, alleging that SISD and several individual




      1
       Like many Texas ISDs, SISD’s teacher contracts have two-
year terms, which, if all goes as anticipated, are extended
annually and thus have a second year in place at all times,
unless the district does not extend the contract. In such a
case, the contract would expire at the end of the second or
following year, not the year in which non-renewal occurs.

                                   2
defendants had discriminated against him based on his age and race.2

Woods, an African-American, was 69 years old when he notified the

SISD of his intent to retire.       Several months later, the district

court dismissed Woods’s claims against the individual defendants.

SISD then filed a motion for summary judgment, which the district

court ultimately granted. Although the court granted Woods’s motion

for reconsideration, it ultimately confirmed its earlier decision.

Woods now appeals.

                              II.   ANALYSIS

A.    Standard of Review

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

applying the same standard as the district court.3 Summary judgment

is appropriate where no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law.4          Once

the   party   seeking   summary   judgment   makes   the   initial   showing

negating any disputed, material fact, the non-moving party must

offer evidence sufficient to demonstrate the existence of one or

more genuine issues of material fact.5         All facts and reasonable

inferences are viewed in the light most favorable to the nonmoving


      2
       On appeal, Woods has abandoned any claim of race
discrimination.
      3
          Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th. Cir 2006).
      4
          Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
      5
       Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507
(5th Cir.2003).

                                     3
party, but summary judgment may nevertheless issue when no discrete

facts are shown that raise a contested material fact issue.6

B.   Discussion

     To prove age discrimination in employment, the employee must

either     provide      direct     evidence     of    discrimination     or   show

discrimination by indirect or circumstantial evidence under the

burden-shifting mechanism established in McDonnell Douglas Corp. v.

Green and its progeny.7          Under that rubric, the employee must first

make a prima facie case of discrimination.8                   If he does so, the

burden of production shifts to the employer to offer one or more

legitimate, non-discriminatory reasons for the allegedly adverse

employment action it took against the plaintiff.9                  If the employer

produces such a reason or reasons for its purportedly adverse

employment action, the inference of discrimination drops from the

case,     and   the   employee    assumes      the   burden   of   proving,   by   a

preponderance of the evidence, that the employer’s explanation is

false      or    merely    a     pretext       for    discriminatory     animus.10

Alternatively, in a “mixed-motive” case, the employee may show that

the employer’s proffered reason for taking the adverse employment


     6
          Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970).
     7
          411 U.S.792 (1973).
     8
          Id. at 807.
     9
          Id.
     10
          Id.

                                           4
action, while non-pretextual, is only one of the reasons for its

conduct, and that another “motivating factor” is the plaintiff’s

protected characteristic.11

     As Woods produced no direct evidence of age discrimination, he

was required to make a prima facie case of age discrimination by

showing that “(1) he was discharged; (2) he was qualified for the

position; (3) he was within the protected class at the time of

discharge; and (4) he was either i) replaced by someone outside the

protected class, ii) replaced by someone younger, or iii) otherwise

discharged because of his age.”12       In granting summary judgment and

dismissal, the district court ruled that Woods failed to prove that

he was discharged at all,13 so his ADEA claim failed.       We agree.

     None disputes that Woods was not terminated, but elected to

retire    or   resign.14   Woods   contends,    however,   that   he   was

constructively discharged because the actions of his supervisor, the

school’s principal, created a work environment so intolerable that

he had no choice but to resign. In determining whether a reasonable



     11
       See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004).
     12
          Id. at 309.
     13
       We note that an employee subject to adverse employment
action short of discharge can also make an ADEA claim, and we
limit our requirement for proof of “discharge” to cases such as
this, in which the adverse action alleged is loss of employment.
     14
       On appeal, Woods insists that he resigned, but his March
2004 letter to SISD indicates his intent to “retire.” The
distinction is of no moment to our analysis.

                                    5
employee would feel compelled to resign, courts typically consider

whether the employee has been subjected to (1) a demotion, (2) a

salary reduction, (3) a reduction in job responsibilities, (4)

reassignment to menial work, (5) reassignment to work under a

younger supervisor, or (6) badgering, harassment, or to humiliation

by the employer, that is calculated to encourage an employee’s

resignation; or has been offered early retirement or continued

employment on less favorable terms.15

     Woods does not discuss these factors specifically on appeal,

but the record makes clear that he (1) was not demoted, (2) actually

received salary increases each year of his employment, (3) did not

have his responsibilities reduced, (4) was not reassigned to menial

work or to a younger supervisor, and (5) was not offered “early”

retirement16 or less favorable employment terms.   As such, Woods’s

constructive discharge argument rests solely on his allegations that

his principal’s conduct forced him to choose either to “quit or be

fired.”   Specifically, Woods points to (1) correspondence in which

the principal expressed her concerns with his performance and her

desire to resolve his employment status prior to delivering her

recommendations to the Board, including one instance in which she

     15
       Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th
Cir. 1994).
     16
       In Texas, teachers are eligible for retirement if the sum
of the teacher’s age and years of service equals 80. See Tex.
Gov’t Code § 824.202. Under this formula, Woods had been
eligible to retire for more than five years when he notified SISD
of his intent to retire.

                                 6
stated that if he did not resign, she would terminate him,17 (2) the

principal’s increased scrutiny of Woods’s teaching and methods, (3)

remarks by the principal indicating her desire that Woods no longer

be employed at her school.

     The district court found that the principal’s correspondence

with Woods, in which she voiced her concerns about his performance

and her intent to recommend that his contract not be extended, was

merely an attempt to carry out her job responsibilities dutifully

and did not rise to the level of forced resignation.   Regarding the

single incident in which the principal mistakenly presented Woods

with the choice between resignation or retirement and “termination,”

the court ruled that, under the circumstances, a reasonable employee

who had yet to complete the first year of a two-year contract would

not have viewed resignation or retirement as his only alternative

to termination, but instead would have sought clarification of his

employment status.    Moreover, the district court noted Woods’s

admission that the principal, at an earlier meeting, had told him

that she was going to recommend that the Board take no action on his

contract, i.e., let it expire on its own terms, not terminate it.

We agree with the district court’s reasoning on this issue, and we

pause only to note further that Woods had 23 years of experience

working in Texas public schools and had to know that a school

principal cannot unilaterally terminate a teacher’s employment.

     17
       The principal acknowledges referencing “termination” in
one note to Woods, but claims that she did so only by mistake.

                                 7
                              III.   CONCLUSION

     We hold that the district court correctly determined that Woods

was not constructively discharged.        Consequently, he failed to make

a prima facie case of age discrimination under McDonnell Douglas.

Thus, his ADEA claim fails.           We need not address, therefore,

Woods’s “pretext” or “mixed-motive” arguments, except to note that

they are ably rebutted on appeal in SISD’s brief.         Accordingly, the

district    court’s   order   granting    summary   judgment   to   SISD   and

dismissing Woods’s action is, in all respects,

AFFIRMED.




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