

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1418

               DIGNA SERRANO-CRUZ, HECTOR IRIZARRY,
         AND THE CONJUGAL SOCIETY COMPRISED BETWEEN THEM,

                     Plaintiffs - Appellants,

                                v.

                  DFI PUERTO RICO, INC., ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Campbell, Senior Circuit Judge,                                                         

                 and DiClerico,* District Judge.                                                         

                                           

     Javier A. Morales-Ramos for appellants.                                      
     Vicente J.  Antonetti, with  whom Ilsa Y.  Figueroa-Ar s and                                                                       
Goldman Antonetti &amp; C rdova were on brief for appellees.                                     

                                           

                          March 19, 1997
                                           

                                                  

*  Of the District of New Hampshire, sitting by designation.

          TORRUELLA,  Chief  Judge.     Plaintiff-appellant Digna                    TORRUELLA,  Chief  Judge.                                             

Serrano-Cruz  ("Serrano") formally  resigned  from  her job  with

defendant-appellee DFI  Puerto Rico,  Inc. ("DFI") on  August 22,

1994.   Four months later,  she and her  husband filed suit under

the  Age Discrimination in  Employment Act  of 1967  ("ADEA"), as

amended,  29 U.S.C.A.     621-634  (1985 &amp; Supp.  1996), claiming

damages   resulting   from   allegedly  discriminatory,   adverse

employment actions resulting in  her constructive dismissal.  She

and  her husband now appeal the district court's grant of summary

judgment  for her employer, DFI.  We affirm, finding that Serrano

failed to establish a prima facie case under the ADEA.

                            BACKGROUND                                      BACKGROUND

          In the summary judgment  context we relate all material

facts in genuine dispute in the light most favorable to the party

resisting summary  judgment, here Serrano.   S nchez v. Alvarado,                                                                          

101 F.3d 223, 225 n.1 (1st Cir. 1996).  Serrano  worked for DFI's

predecessor firm, Aeroboutiques, from 1984 until it was purchased

by  DFI in September 1992.   Aeroboutiques, and  later DFI, owned

and  operated several  stores  selling gifts  and other  consumer

merchandise  at Luis  Mu oz  Mar n International  Airport in  San

Juan.  At the time of  the change in ownership, Serrano served as

the "assistant  general manager"  of Aeroboutiques, and,  in that

position, assisted the general  manager, supervised the operation

of  the  airport stores,  oversaw  their  physical upkeep  (e.g.,

lighting, cleanliness) and their security systems,  and performed

                               -2-

some  accounting  functions.1   When  DFI took  over  the stores,

Serrano   was   offered,   and    accepted,   the   position   of

"comptroller."2  As comptroller  Serrano continued to perform her

previous   managerial  duties,  with  regular  duties  including:

maintaining  the   security  system  for   the  airport   stores,

supervising store employees and arranging employee vacation time,

having responsibility for the  keys to the stores,  and attending

security  and employee  management  meetings.   In addition,  she

assumed accounting  responsibilities such as  preparing quarterly

reports and keeping the payroll accounts.

          The events  giving rise to  her suit began  in February

1994,  when the general manager (Manny  Lozano) and the president

(Luis  Bared) of  DFI,  Serrano's superiors,  began reducing  her

responsibilities.  She lost  managerial control over the security

system  for the  stores,  as  well  as  control  over  the  keys.

Serrano's role in personnel selection was also decreased, and she

was excluded from meetings she had previously attended.  

          Through a letter  to Serrano dated June  21, 1994, Luis

Bared  indicated that  Serrano was on  a 90-day  probation period

effective that day.  The  letter cited DFI's dissatisfaction with

Serrano's "negligent"  handling of certain rent  payments for the

                                                  

1  Prior to being assistant general manager, Serrano had occupied
the position of "comptroller" at Aeroboutiques, in which she  was
responsible for all of the accounting functions of the company as
well  as for  general  supervision.   When  she became  assistant
general manager, her accounting responsibilities were reduced. 

2  The  record contains inconsistent references to  this position
as either "comptroller" or "controller." 

                               -3-

airport stores.   Bared indicated that during  the 90-day period,

he  and  Manny Lozano  would  be  evaluating her  performance  as

comptroller.  Serrano denies that she made mistakes in the course

of discharging her accounting duties as comptroller. 

          On July  18, 1994,  before the 90-day  probation period

had  ended,  Lozano  informed Serrano  that  DFI  had  decided to

transfer  her  to  a  newly  created  position  entitled  "retail

manager."    Serrano refused the new position, stating that being

fired would  be preferable to the  new position.  In  a letter to

Serrano  dated July 21,  1994, Lozano  stated that  Serrano would

receive the same salary  and benefits in the new position  as she

had received as comptroller, and that she would be given two days

of  paid  leave  to reconsider  her  decision  to  turn down  the

position.  Lozano's July 21 letter further states that, as retail

manager,  Serrano "would  supervise  and be  responsible for  the

retail operation  of our San Juan  International Airport stores."

After taking a month of leave, Serrano formally resigned from DFI

on August  22, 1994, and now  claims she was forced  to resign by

DFI's unacceptable job transfer.

          Serrano  was 53 at the  time her suit  was initiated in

December  1994.  There is  no direct evidence  that DFI's actions

were taken because  of Serrano's  age.  Appellant  alleges a  few

facts  that might suggest  discriminatory animus on  the basis of

her age.   These are:  that she was  replaced by a  woman aged 25

with roughly  the same  qualifications and with  less experience;

that  she was treated  differently from younger  employees by DFI

                               -4-

management by  not receiving free lipstick samples  and not being

thrown a birthday party.

          The  district  court  granted  DFI's  summary  judgment

motion, ruling  that  Serrano failed  to  establish  constructive

dismissal as part of  her prima facie case of  age discrimination

because she  did not show that  there was a problem  with the new

position that would compel a reasonable person to resign.  Before

us on appeal  is Serrano's ADEA claim against DFI,  her state law

claims having been dismissed without prejudice.

                        STANDARD OF REVIEW                                  STANDARD OF REVIEW

          We  review  the  district  court's  grant   of  summary

judgment  de novo.  Mulero-Rodr guez  v. Ponte, 98  F.3d 670, 672                                                        

(1st Cir. 1996).  Summary judgment is properly granted where "the

pleadings,   depositions,   answers   to   interrogatories,   and

admissions on file, together  with affidavits, if any, show  that

there is  no genuine issue as  to any material fact  and that the

moving party is entitled to a judgment as a matter of law."  Fed.

R. Civ. P. 56(c). 

          Under Rule 56, once the moving party has pointed to the

absence of adequate evidence  supporting its opponent's case, the

onus is on the party resisting the motion for summary judgment to

respond  by presenting facts that  show that there  is a "genuine

issue  for trial."   LeBlanc v. Great  American Ins. Co.,  6 F.3d                                                                  

836, 841-42 (1st Cir.  1993) (quoting Anderson v. Liberty  Lobby,                                                                           

Inc.,   477  U.S.  242,  256  (1986)).    To  oppose  the  motion              

successfully,  the  nonmoving  party  "may  not  rest  upon  mere

                               -5-

allegations or denials of  his pleading."  Anderson, 477  U.S. at                                                             

256. "The nonmoving party must  establish a trial-worthy issue by

presenting  'enough  competent  evidence  to   enable  a  finding

favorable  to  the nonmoving  party.'"   LeBlanc,  6 F.3d  at 842                                                          

(quoting Anderson, 477 U.S. at 249).                           

                            DISCUSSION                                      DISCUSSION

          The  ADEA   makes  it  unlawful  for   an  employer  to

"discharge any  individual or otherwise discriminate  against any

individual with  respect to his compensation,  terms, conditions,

or privileges  of employment, because of  such individual's age."

29 U.S.C.A.    623(a)(1) (1985).   In  a wrongful  discharge case

under the  ADEA,  the  plaintiff  bears the  ultimate  burden  of

proving that  "he would  not have  been fired  but for his  age."

Freeman  v.  Package Mach.  Co., 865  F.2d  1331, 1335  (1st Cir.                                         

1988).   Where, as here, there is no direct evidence showing that

the  employer's  actions  were  motivated by  age,  the  familiar

McDonnell Douglas framework governs.  See McDonnell Douglas Corp.                                                                           

v.  Green, 411 U.S. 792,  802-05 (1973); Greenberg  v. Union Camp                                                                           

Corp., 48 F.3d 22, 26-27 (1st Cir. 1995).  Under   the  McDonnell                                                                           

Douglas framework, the employee  must initially come forward with                 

sufficient evidence  to  establish  a  prima facie  case  of  age                                                            

discrimination.  Here,  Serrano needed to establish that: (i) she

is  over forty  years  of  age;  (ii)  her  job  performance  was

sufficient to  meet DFI's legitimate job  expectations; (iii) she

was constructively discharged; and  (iv) DFI sought a replacement

with  roughly similar  skills or  qualifications.   Greenberg, 48                                                                       

                               -6-

F.3d at 26.    Once the plaintiff  has met this modest burden,  a

presumption of discrimination arises that  shifts the onus to the

employer  to  come forward  with a  legitimate, nondiscriminatory

reason for  its actions.    Id.   If the  employer  does so,  the                                         

presumption of age discrimination  vanishes and the burden shifts

back to the plaintiff  to show that the employer's  justification

is  pretextual.   The  burden of  persuasion,  as opposed  to the

burden of production, rests with the plaintiff throughout.

          The district court found  that although there may exist

a factual dispute between  the parties as to whether  Serrano met

DFI's legitimate job expectations  (the second prong of McDonnell                                                                           

Douglas),  or indeed  as  to whether  DFI's reasons  for reducing                 

Serrano's  duties  or  transferring  her job  were  pretexts  for

improper age discrimination, Serrano  failed to establish a prima

facie case  because, on undisputed  facts, she did  not establish

constructive dismissal (prong three).  On appeal Serrano contends

that there  is  a triable  issue  as to  constructive  dismissal,

making  summary  judgment  improper,  and also  contends  that  a

finding of  "adverse employment actions" may  provide grounds for

relief  even  if  a  finding of  constructive  dismissal  is  not

supported by the record.  We assess each argument in turn.

I.  Constructive Dismissal          I.  Constructive Dismissal

          We must consider de  novo whether, as a matter  of law,                                             

Serrano failed  to make  a prima  facie  showing of  constructive

discharge.    We have  long  applied an  "objective  standard" in

determining whether an employer's actions have forced an employee

                               -7-

to resign.  See, e.g., Calhoun v. Acme Cleveland Corp., 798  F.2d                                                                

559, 561 (1st Cir. 1986).  For the transfer proposed by DFI to be

deemed  a constructive  discharge,  "'the trier  of fact  must be

satisfied  that the  new working  conditions would  have  been so

difficult  or   unpleasant  that  a  reasonable   person  in  the

employee's shoes  would have  felt compelled  to  resign.'"   Id.                                                                           

(quoting Alicea Rosado v. Garc a Santiago, 562 F.2d 114, 119 (1st                                                   

Cir. 1977)).   An  employee may not,  therefore, be  unreasonably

sensitive to a change in job responsibilities.  

          It  is  undisputed  that  Serrano,   when  offered  the

position of  "retail manager," was  promised the same  salary and

benefits she  enjoyed as comptroller.   Salary considerations are

important in  determining whether  a job  transfer can support  a

claim  of constructive dismissal.   See Greenberg, 48  F.3d at 27                                                           

(noting  no change in salary in course of finding no constructive

dismissal)  (collecting cases);   Stephens  v. C.I.T.  Group, 955                                                                      

F.2d  1023, 1027 (5th Cir.  1992) (noting reduction  of salary in

course  of finding constructive  dismissal); Pe a  v. Brattleboro                                                                           

Retreat,  702 F.2d  322 (2d Cir.  1983) (finding  no constructive                 

discharge where  job responsibilities  were  changed without  any

reduction in  pay); cf. N  ez-Soto  v. Alvarado,  918 F.2d  1029,                                                         

1030-31  (1st Cir.  1990) (in  political demotion  case, demotion

without   salary   cut   found   insufficient   for  constructive

dismissal).    Although  important,  the  fact  that  salary  and

benefits  have not been  decreased has  never been  held to  be a

conclusive  factor;   courts applying  the objective  standard in

                               -8-

ADEA  constructive dismissal  cases consider  a variety  of often

case-specific  factors.     See  Greenberg,  48   F.3d  at  27-29                                                    

(discussing salary in addition to assessing new work conditions);

Stetson v. NYNEX Serv.  Co., 995 F.2d 355, 360-62  (2d Cir. 1993)                                     

(noting  no decrease in  salary, but  focusing mainly  on working

conditions);   see also Flaherty  v. Gas Research  Inst., 31 F.3d                                                                  

451, 457 (7th Cir. 1994) ("[A]n employer does not insulate itself

from liability  for discrimination simply by  offering a transfer

at the same salary and benefits.").  Common sense suggests that a

job transfer  without a  reduction  in salary  and benefits  may,

under certain  circumstances,  be unacceptable  to  a  reasonable

person  who  is  overqualified   and  humiliated  by  an  extreme

demotion, or underqualified and essentially "set up to fail" in a

new position.  With this in mind, we turn to Serrano's situation.

          In the present case,  the fact that after  her transfer

Serrano  would remain  the  second highest  salaried employee  in

DFI's  airport organization  takes on  great importance,  for the

simple reason  that this  is one  of few  concrete facts  we have

regarding the position  that she  was offered.   Serrano, by  not

trying  out,  or  finding  out  more  about,  the  newly  created

position, cannot possibly muster  proof that, in the course  of a

trial, could lead a jury to find that the newly created  position

                               -9-

would compel a  reasonable person with  her background to  refuse

the offer and resign.3  

          The precise contours of the new position, which appears

to  have been  created  for Serrano,  are  unclear.   In  view of

Lozano's  characterization of the  new position, in  his July 21,

1994  letter to Serrano, as one in which Serrano "would supervise

and  be  responsible for  the retail  operation  of our  San Juan

International Airport stores," it  is impossible to conclude that

the position would compel a  reasonable person in Serrano's shoes

to quit.  Based on Serrano's  own sworn statements, she had  held

general supervisory  duties  over the  stores  for  Aeroboutiques

(DFI's   predecessor),   and   continued  to   hold   supervisory

responsibilities while also assuming  accounting responsibilities

in  her position as comptroller  for DFI.   Serrano considers the

move  from comptroller  to "retail  manager" to be  a devastating

change  in  status, but  cannot point  to specific  problems that

would  arise,  other than  the fact  that  she is  unqualified to
                                                  

3   Appellant's basic  contention regarding  the new  position --
that it involved sales tasks she was not qualified or experienced
enough  to carry  out --  rests on  bare allegations  that simply
cannot be verified, because the  position of "retail manager" did
not exist before it  was specially created for Serrano.   It also
follows that  plaintiff's argument that the  district court erred
by  not determining the exact nature of her duties as comptroller
are misdirected.  No additional precision regarding the nature of
her  position as comptroller could help  her, in view of the lack
of evidence regarding her proposed position.  Moreover, Serrano's
background included  a broad variety of  managerial tasks besides
strictly financial ones,  having served  previously as  assistant
general  manager as  well as  comptroller.   When we  do consider
Serrano's  description  of her  duties,  we find  that  the fluid
nature of managerial responsibilities  in DFI's organization only
makes  speculation about  the position  of "retail  manager" more
unreliable.

                               -10-

"push" merchandise.   She cannot prove,  however, that the  newly

created position  of "retail manager" would  involve a sufficient

amount  of daily,  hands-on  sales work  to  compel a  reasonable

person in  Serrano's position to resign.   Serrano's constructive

discharge claim,  therefore, rests on  speculations regarding the

new position,  as well as  on her sworn statements  to the effect

that  supervising retail sales would  harm her dignity.   Loss of

prestige  in a  job transfer,  standing  alone, cannot  support a

finding of constructive  discharge.  See Alicea  Rosado, 562 F.2d                                                                 

at 119-20 ("[A]  limited blow to one's pride or prestige does not

provide reason  enough to  resign during  whatever period  may be

required to seek judicial relief.").  

          Of course we cannot  state with absolute certainty that

the position offered to Serrano  would not have turned out to  be

strongly  objectionable  to  a   reasonable  person,  as  Serrano

suggests.  But,  in the summary judgment context, we  need not do

so.   The decisive consideration  here is that,  by not accepting

the newly created and  ambiguous position, Serrano foreclosed the

possibility  of presenting  concrete  evidence, rather  than mere

assertions, to a  jury regarding  the nature of  her new  working

conditions.   See Fed. R. Civ.  P. 56(e);  Anderson,  477 U.S. at                                                             

257 (to oppose  summary judgment motion, plaintiff cannot rely on

assertions in pleadings and must come forward  with evidence that

a jury could  consider).   We have long  expected that those  who

seek to initiate ADEA claims will do so while still employed, and

the  instant case reminds us  of the wisdom  of this expectation.

                               -11-

See, e.g., Cazzola  v. Codman &amp; Shurtleff, Inc.,  751 F.2d 53, 55                                                         

(1st Cir. 1984)  ("Even the victim of  unlawful discrimination is

expected  to  seek  legal  redress while  still  employed  unless

actually fired,  or constructively  discharged due to  a 'drastic

reduction in the quality of working conditions.'" (quoting Alicea                                                                           

Rosado,  562 F.2d  at  119-20)).   Here,  with no  evidence of  a                

drastic  reduction  in  work  conditions  sufficient  to  support

Serrano's resignation, summary judgment is appropriate.

          Moreover,  other  factual   circumstances  tending   to

strengthen  a case  for constructive  dismissal were  not present

here.  There was no evidence, for  example, of suggestions by the

management  of DFI that Serrano  take an early  retirement.4  Cf.                                                                           

Calhoun,  798  F.2d  at   564  (jury's  finding  of  constructive                 

discharge bolstered by evidence  of repeated inquiries  regarding

early  retirement).   There was  also very little  in the  way of

evidence showing animosity toward Serrano on account of her age.5

Cf.  Greenberg,  48  F.3d  at  28  (finding  of  no  constructive                        

                                                  

4  Serrano's  contention that DFI's grant of a  48-hour period to
reconsider the offered job  transfer -- one that she  had already
turned down -- was a "humiliating action" designed to lead her to
resign is  very difficult to  accept.  The  July 21, 1994  letter
from   Lozano    to   Serrano   which   describes   the   48-hour
reconsideration period also states, "I want to make it absolutely
clear  to you that no one in  the Company (DFI Puerto Rico, Inc.)
intends or desires to fire you as an employee of DFI."

5  On appeal, Serrano places great emphasis on the assertion that
she  was replaced, in her  capacity as comptroller,  by a younger
woman.  Assuming this is correct,  she does not contend that this
occurred prior to  her resignation.   Therefore, while this  fact
may be  related to  issues  of pretext,  it is  unrelated to  our
finding  that Serrano  fails to  satisfy the  third (constructive
discharge) part of the McDonnell Douglas prima facie case.                                                  

                               -12-

discharge  "buttressed  by the fact  that [the employee]  couples

his  allegation  of  constructive  discharge  with  virtually  no

evidence that [the employer's]  motives stemmed from an animosity

towards  age.").   All  of these  considerations  lead us  to the

conclusion that  the district  court properly found  that Serrano

failed to establish a prima facie case. 

II.  Adverse Employment Actions          II.  Adverse Employment Actions

          Serrano  contends  that  the district  court  erred  by

failing to  consider whether  she had  established a  prima facie

case of  "adverse employment actions," as  distinguished from the

issue  of constructive  dismissal.   Based on  the recitation  of

damages  in Serrano's  amended  complaint, however,  her suit  is

plainly  one seeking a remedy for improper dismissal, and not one

seeking a remedy for adverse employment actions.  Her allegations

regarding  damages  consist of  the  following:  lost income  and

benefits  from the  date she  was forced  to resign,  and various

other  damages she and her  husband have incurred  arising out of

the economic hardship brought about by her dismissal.  All     of

Serrano's alleged economic  harms would not  have come about  had

Serrano accepted the position, which  offered the same salary and

benefits.  See  Shealy v. Winston, 929  F.2d 1009, 1012  n.2 (4th                                           

Cir. 1991)  (finding no constructive discharge  and holding there

is no further ground  for relief on theory of  adverse employment

action, because "appellant would then face the barrier of proving

any damages when he clearly would have been employed . . . at the

same salary and benefits.").  For example, the removal of various

                               -13-

responsibilities  from  Serrano  in   the  months  preceding  the

proposed  transfer,  if  they  are seen  as  separable  from  her

resignation, cannot, even if proven to be discriminatory, support

this  suit for lost income  and benefits.   Given the way Serrano

has framed this lawsuit,  relief cannot stem from a  finding that

the  actions  of DFI,  short of  leading  to her  dismissal, were

discriminatory adverse employment actions.6

                            CONCLUSION                                      CONCLUSION

          For the  reasons stated  in this opinion,  the district

court's grant of summary judgment is affirmed.                                                       

                                                  

6  In fact,  for substantially the reasons discussed  with regard
to  constructive dismissal,  Serrano fails  to establish  a prima
facie case under  the ADEA  of adverse employment  action on  the
basis  of the  proposed job transfer.   See Flaherty,  31 F.3d at                                                              
457;  Crady v. Liberty Nat'l Bank &amp; Trust Co., 993 F.2d 132, 135-                                                       
36 (7th Cir.  1993) (finding failure to make prima  facie case of
adverse employment action where employee, claiming adverse change
in job responsibilities, did not accept transfer position at same
salary  and therefore  could not  substantiate claims  about that
position).

                               -14-
