                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                                                          July 13, 2004
                                                  In the
                                                                                    Charles R. Fulbruge III
                         United States Court of Appeals                                     Clerk
                                       for the Fifth Circuit
                                         ___________________

                                             m 03-41497
                                           Summary Calendar
                                         ___________________



                                     LISA R. REZNICK, DOCTOR,

                                                              Plaintiff-Appellant,

                                                 VERSUS

                   ASSOCIATED ORTHOPEDICS & SPORTS MEDICINE, P.A.,

                                                              Defendant-Appellee.


                                         ___________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                           Nº 4:01-CV-92
                                       ___________________




Before SMITH, DeMOSS, and STEWART,                         Lisa Reznick sued her former employer,
  Circuit Judges.                                      Associated Orthopedics & Sports Medicine,
                                                       P.A. (“AOSM”), alleging violation of the
JERRY E. SMITH, Circuit Judge:*                        Equal Pay Act 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 ap-
    Pursuant to 5TH CIR. R. 47.5, the court has de-    peal followed. Agreeing with the district court
termined that this opinion should not be published
                                                       that Reznick fails to establish a prima facie
and is not precedent except under the limited cir-
                                                       case for either claim, we affirm.
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                         Reznick asserts that only a few short
                       I.                             months after she began her employment, Glo-
   In early 1997, Reznick, an orthopedic sur-         gau made a crude, sexist comment to her in
geon specializing in hand, wrist, and elbow           the presence of two pharmaceutical salesmen
care, contacted AOSM about possible employ-           during lunch.2 Afterwards, Reznick confront-
ment. AOSM is a medical practice group spe-           ed Glogau about the statement. Although he
cializing in orthopedic care and was founded          brushed her off, telling her she was being too
by partners and sports medicine specialists,          sensitive, he did regret “if he might have of-
Drs. Neal Small and Alex Glogau. Interested           fended her.” Also that fall, Glogau allegedly
in adding a hand specialist to their practice         asked other employees whether they believed
group, AOSM accepted Reznick’s resume and             that Reznick is a lesbian. After hearing this in-
set up an interview. Although receiving sever-        formation second-hand, Reznick talked to
al negative recommendations from previous             Glogau and assured him she was heterosexual.
employers regarding Reznick’s productivity            During this period, Glogau allegedly made
and ability to get along with other personnel,        several comments to Reznick regarding her of-
AOSM offered her the position of associate            fice attire, noting that he wished she wore
physician, and negotiations began between             skirts more often.
AOSM and Reznick, who had the assistance of
counsel.                                                  In the spring of 1998, Kwong resigned
                                                      from AOSM because, according to Reznick,
   AOSM initially offered Reznick nearly the          he was informed that he would not make part-
same three year employment contract that it           ner. During that time, AOSM entered into in-
had made in June 1996 with Dr. Peter Kwong,           tense negotiations with Dr. Michael Schwartz
an associate doctor and sports medicine spe-          to join AOSM as an associate doctor. At the
cialist whose three-year employment agree-            time, Schwartz had just completed a one-year
ment provided for a base pay in year one of           fellowship in sports medicine with AOSM, and
$125,000, in year two of $135,000, and in year        Glogau and Small regarded him as an excellent
three of $145,000. The agreement also includ-         doctor. AOSM initially offered Schwartz an
ed a provision for potential bonus compensa-          employment agreement substantially similar to
tion based on Kwong’s yearly collections.             Reznick’s, both having the same initial base
AOSM’s first offer to Reznick included identi-        salary of $125,000.
cal base pay and slightly more favorable bonus
compensation.                                            Schwartz, however, rejected this initial of-
                                                      fer, maintaining that he had other offers with
   Reznick rejected this first offer and made a       salaries in excess of $200,000. Faced with a
counteroffer that included several new eco-           partner (Small) who wanted to phase out his
nomic terms and a maternity leave clause. The         sports medicine practice, and desirous of
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            2
                                                            During the course of the meal, one of the
accepted, and the parties entered into an             salesmen asked Glogau when the practice would
agreement in July 1997.                               begin advertising for Reznick. Glogau replied that
                                                      Reznick would receive advertising “when she gets
                                                      laid.”

                                                  2
Schwartz’s already proven abilities, AOSM ac-              her on the invitation to Schwartz’s are the
quiesced and reached an agreement with                     result of her sex.
Schwartz for $175,000 in year one, $185,000
in year two, and $195,000 in year three. The                  During 1998, Reznick was assigned Karen
bar required for Schwartz to be eligible for               Botte, a medical assistant/x-ray technician, to
bonuses, however, was set substantially higher             assist her during the two and one-half days she
than that set for Reznick.3                                spent at the clinic. After Schwartz started as
                                                           an associate doctor in September, he was as-
   In May 1998, Reznick overheard a tele-                  signed to Marilee Harden, a nurse whom he
phone conversation among Schwartz, Small,                  shared with Small.
and AOSM’s attorney, with Glogau on a
speaker phone. According to Reznick, she                       Later that year, Reznick began to complain
heard Glogau discussing that she would not be              about Botte’s competence, so AOSM offered
made a partner. Reznick believes her failure to            to switch plaintiff to Harden and allow her to
make partner was based on her sex, not job                 share Harden with Small, who worked in the
performance.                                               clinic only on Wednesday mornings. Reznick
                                                           maintains that AOSM’s request that she share
    After Schwartz formally joined the practice            an assistant while Schwartz had his own is fur-
in September 1998, Kathy Starnes, AOSM’s                   ther evidence of AOSM’s discriminatory
administrator since September 1997, suggest-               behavior. In January 2000, however, AOSM
ed that AOSM hold an open house to advertise               hired Bobbie Caldwell in response to Rez-
Schwartz’s association with the group. Ini-                nick’s complaints, and Caldwell worked for
tially skeptical of the suggestion, Glogau only            Reznick exclusively until Reznick’s resigna-
reluctantly agreed to host the party when                  tion.
Starnes was able to assure him that the phar-
maceutical groups would foot most of the bill.                In March 2000, Reznick submitted her res-
                                                           ignation letter, providing ninety days’ notice.
    Despite the sending of over four hundred               Reznick proceeded to fulfill her obligation and
invitations, the open house was very poorly at-            worked the ninety days despite AOSM’s offer
tended, and AOSM again returned to its policy              to pay her for the entire period if she wished to
of not hosting such events. When Dr. Greg                  leave earlier. Reznick alleges that her resig-
Powell joined the practice in January 2000,                nation was triggered by Glogau’s last-minute
AOSM did not host an open house. Reznick                   request that she see one of his patients because
alleges, however, that AOSM’s failure to host              he was unavailable. Unable to help the patient
an open house for her and its refusal to include           and frustrated by Glogau’s absence, Reznick
                                                           determined that she could no longer remain
                                                           with AOSM.
   3
     During her first year alone, Reznick became
eligible for a bonus equal to 10% of her collections                             II.
in excess of $276,000, 12.5% in excess of                     Summary judgment is appropriate only
$400,000, and 15% in excess of $500,000.                   where there are no genuine issues of material
Schwartz, on the other hand, was only eligible for         fact and the moving party is entitled to judg-
a bonus equal to 20% of his collections in excess of       ment as a matter of law. See FED. R. CIV. P.
$450,000.

                                                       3
56(c). In determining whether there is a gen-            where the jobs performed require equal skill,
uine issue of material fact, evidence and infer-         effort, and responsibility and are performed
ences must be drawn in the light most favor-             under similar conditions. 29 U.S.C. § 206-
able to the non-moving party. Daniels v. City            (d)(1). To establish a prima facie case, Rez-
of Arlington, Tex., 246 F.3d 502 (5th Cir.               nick must offer proof (1) that AOSM is subject
2001). The party seeking summary judgment                to the Equal Pay Act; (2) that she performed
carries the burden of demonstrating that there           work in a position requiring equal skill, effort,
are no actual disputes as to any material fact.          and responsibility under similar working condi-
                                                         tions; and (3) that she was paid less than a
    If the nonmovant then fails to set forth spe-        male employee in that position. Peters v. City
cific facts to support its allegations, summary          of Shreveport, 818 F.2d 1148, 1153 (1987). If
judgment is appropriate. Celotex Corp. v.                Reznick makes a prima facie case, AOSM
Catrett, 477 U.S. 317, 325 (1986). The non-              may still prevail provided it can demonstrate
movant must “go beyond the pleadings . . . and           one of the four affirmative defenses specified
designate specific facts showing that there is a         under the Act.4
genuine issue for trial.” Id. at 324. Summary
judgment is proper even if the nonmovant                     AOSM contends that Reznick fails to es-
brings forth evidence in support of his allega-          tablish element two in her claim. To prove
tions, so long as the evidence is insufficient for       that her position is “substantially equal” to
a reasonable jury to find for that party as              Schwartz’s, Reznick must show that her job
“[t]he mere existence of a scintilla of evidence         requirements and performance were substan-
in support of plaintiff’s position” is insuffi-          tially equal, though not necessarily identical, to
cient. Anderson v. Liberty Lobby, Inc., 477              those of a male employee. 29 C.F.R. § 1620.-
U.S. 242, 252 (1986). We review a summary                13(e). Reznick argues that this issue is a
judgment de novo. Meditrust Fin. Serv. Corp.             question of fact for the jury and that because
v. Sterling Chem., Inc., 168 F.3d 211, 213               she and Schwartz were trained orthopedic sur-
(5th Cir. 1999).                                         geons, and were required to perform surgery
                                                         and work in the clinic, Schwartz’s job is sub-
                       III.                              stantially similar to hers.
   Reznick makes two independent accusa-
tions against her former employer. She main-                Schwartz, however, was trained in the sub-
tains that AOSM violated the Equal Pay Act               speciality of sports medicine, while Reznick
by paying Schwartz a substantially higher sal-           was trained as a hand surgeon. AOSM main-
ary, despite the fact that he held an identical          tains that sports medicine specialists generate
position and performed similar duties. Addi-             more revenue than do hand surgeons and that
tionally, she argues that AOSM’s, and specifi-
cally Glogau’s, sexist behavior and sex-based
discrimination resulted in her constructive dis-            4
                                                              Disparities in salary are allowed where pay-
charge, thereby violating title VII.                     ment is made pursuant to “(1) a seniority system;
                                                         (2) a merit system; (3) a system which measures
                    A.                                   earnings by quantity or quality of production; or
   Under the Equal Pay Act, an employer is               (4) a differential based on any other factor other
prohibited from sex-based discrimination                 than sex.” Plemer v. Parsons-Bilbane, 713 F.2d
                                                         1127, 1136 (5th Cir. 1983).

                                                     4
Schwartz’s higher pay was a reflection of his          salary disparit y    between     Reznick     and
greater economic value. Evidence provided by           Schwartz.
AOSM’s office manager confirms this.
                                                          Reznick and Schwartz negotiated indepen-
   In 1999, during Schwartz’s first full year as       dent contracts. In this arms’ length transac-
an associate, he generated nearly twice the            tion, Reznick was assisted by counsel and suc-
amount of revenue as did Reznick, who does             cessfully negotiated her own terms, which put
not dispute this fact. Because Reznick and             her in a better financial position than that of
Schwartz specialized in different areas of or-         the male associate currently working at
thopedic medicine, and Schwartz generated far          AOSM. When AOSM accepted her counter-
more revenue for AOSM than did Reznick, the            offer, Reznick got exactly what she asked for.
two cannot be said to have held “substantially         Although she maintains that she was expected
equal” positions, so element two of Reznick’s          to stay in line with Kwong’s salary, but
claim fails as a matter of law.                        Schwartz was not bound by hers, her willing-
                                                       ness to accept this indicates only the success of
    Let us assume, arguendo, that Reznick and          AOSM’s bargaining power. After all, Reznick
Schwartz performed substantially similar jobs,         could have held out for more, hoping AOSM’s
and Reznick can make a prima facie case.               desire for a hand surgeon would force it to
The disparity between Reznick’s and                    offer better terms, but instead she was satisfied
Schwartz’s salaries is primarily a result of           enough with her counteroffer to accept em-
Schwartz’s higher production, and this reason          ployment.
falls under exception three of the Equal Pay
Act.5 The remainder of the differential can be            Negotiating his own contract a year later,
explained by separate and distinct circumstanc-        Schwartz was more successful than was Rez-
es that led to differences in their employment         nick in negotiating favorable terms for a varie-
contracts (which may be said to fall under the         ty of reasons that have nothing to do with his
“catch all” exception four). Thus, AOSM can            sex. Firstly, as discussed above, Schwartz, a
make out valid affirmative defenses to the             sports medicine physician, could be expected
                                                       to generate higher revenue. Secondly, he had
                                                       spent his internship with AOSM, which thus
   5
      Let us compare Schwartz’s salary with Rez-       already knew him and was familiar with his
nick’s from approximately September 1998 to            work. Reznick, on the other hand, had never
September 1999 (roughly Schwartz’s first year as       worked for AOSM and came with some nega-
an associate and Reznick’s second). Based on the       tive recommendations from her previous em-
data provided by AOSM, Schwartz’s salary would         ployer. Schwartz’s potential value to AOSM
have been roughly $265,000, of which nearly            was therefore less of an unknown variable than
$90,000 would have come from bonuses alone.
                                                       was Reznick’s.
Reznick, comparatively, made approximately
$160,000 that year, only $19,000 or so coming
from bonuses. T hus, the disparity of over                Thirdly, Schwartz was in greater demand
$100,000 in gross yearly income comes almost           and was able to use outside offers with higher
wholly from a bonus structure that rewards pro-        base salaries as leverage against AOSM. Rez-
ductivity. Had Reznick equaled her associate in        nick had no other offers to press for higher pay
collections, her salary would have been approxi-       and was not employed at the time. Reznick
mately $253,000 in year two of her contract.

                                                   5
argues that these reasons were not the true              adverse employment action, and the district
motivating factors behind AOSM’s decision to             court found for AOSM and granted summary
make Schwartz’s pay substantially higher than            judgment accordingly. This court does not
hers; Reznick, however, offers no evidence to            recognize interim measures to be adverse em-
raise a genuine issue of fact regarding the              ployment actions; rather, we look to ultimate
legitimacy of these defenses, all of which are           employment decisions such as termination.
valid exceptions under the Act; therefore, even          Mattern v. Eastman Kodak Co., 104 F.3d 702,
if she were able to make out a prima facie               708 (5th Cir. 1997). To qualify as an adverse
case, she could not prevail.                             employment action, the decision must effect a
                                                         material change in the terms or conditions of
                         B.                              the employment. Eugene v. Rumsfeld, 168
    A plaintiff alleging sex discrimination under        F. Supp. 2d 655, 671 (S.D. Tex. 2001).
title VII in the absence of direct evidence must
make out a prima facie case for discrimina-                 In light of these considerations, Rez-
tion. Molnar v. Ebasco Constructors, Inc.,               nickSSbecause she was not firedSSmust show
986 F.2d 115, 118 (5th Cir. 1993). Reznick               that she was constructively discharged. To
can establish a prima facie case if she shows            prove her claim, she must demonstrate that
that she (1) was a member of a protected class;          working conditions were “so intolerable that a
(2) was qualified for the position; (3) suffered         reasonable person would feel compelled to
adverse employment action; and (4) was re-               resign.” Faruki v. Parson S.I.P., Inc., 123
placed by someone outside the protected class            F.3d 315, 319 (5th Cir. 1997). The following
or that similarly situated individuals outside the       factors must be considered: (1) demotion;
protected class were treated more favorably.             (2) reduction in salary; (3) reduction in job
Urbano v. Cont’l Airlines, Inc., 138 F.3d 204,           responsibilities; (4) reassignment to menial or
206 (5th Cir. 1998).                                     degrading work; (5) reassignment to work un-
                                                         der a younger supervisor; (6) badgering, har-
    Under the framework of McDonnell Doug-               assment, or humiliation by the employer cal-
las Corp. v. Green, 411 U.S. 792, 802 (1973),            culated to encourage the employee’s resigna-
once Reznick has established a prima facie               tion; and (7) offers of early retirement on
case, the burden of production is on AOSM to             terms that would make the employee worse
“articulate some legitimate, nondiscriminatory           off. Barrow v. New Orleans SS. Ass’n, 10
reason” explaining its conduct. If AOSM is               F.3d 292, 297 (5th Cir. 1994).
able to articulate such a reason, Reznick must
make a showing sufficient for a jury to find                 Reznick offers the following nineteen facts
that the reason was mere pretext and discrimi-           to support her claim of constructive discharge:
nation was the true motivation. Bodenheimer
v. P.P.G. Indus., Inc., 5 F.3d 955, 957 (5th                (1) Glogau’s humiliating public statement
Cir. 1994). If Reznick fails to satisfy her bur-         conditioning advertising for Reznick upon her
den of proof in the first or third step, her claim       “getting laid.”
fails as a matter of law.
                                                            (2) Glogau’s questioning Reznick’s sexual
   The parties dispute only Reznick’s ability to         orientation.
prove element three, that she suffered an
                                                            (3) Glogau’s statements questioning Rez-

                                                     6
nick’s selection of apparel;                              (16) Glogau’s significant social interaction
                                                       with Schwartz as compared to Reznick;
  (4) AOSM’s unwillingness to advertise for
Reznick;                                                  (17) Glogau’s refusal to meet with Reznick
                                                       unless someone else was present;
   (5) AOSM’s hosting an open house for
Schwartz when it did not host one for Rez-                (18) Glogau’s inclusion of Schwartz as an
nick;                                                  associate in business decisions; and

  (6) Glogau’s refusal to include Reznick on              (19) Glogau’s sharing of professional op-
Schwartz’s open house invitation;                      portunities with Schwartz but not with Rez-
                                                       nick.
   (7) AOSM’s failure to provide Reznick
with a solely assigned assistant;                      Reznick did not experience a demotion6 or
                                                       reduction in salary or job responsibilities. Fur-
  (8) AOSM’s hiring a PA for Schwartz six              thermore, she was not assigned to either de-
months into his position;                              grading work or a younger supervisor, and
                                                       early retirement was not an issue. Therefore,
   (9) AOSM’s citing Kwong’s contract as a             the only factor relevant to Reznick’s claim of
reason for its inability to offer more compensa-       constructive discharge is (6), “badgering, har-
tion to Reznick, but not telling Schwartz that         assment or humiliation by the employer calcu-
his salary must take Reznick’s compensation            lated to encourage the employee’s resigna-
into consideration;                                    tion.” Barrow, 10 F.3d at 297.

   (10) AOSM’s decision to pay Schwartz sig-              The nineteen facts offered by Reznick, even
nificantly more than it paid Reznick;                  when construed in a light most favorable to
                                                       her, do not support the finding that she was
  (11) Starnes’s inactions as AOSM’s Equal
Pay Act compliance officer;
                                                          6
                                                             Reznick argues that failure to be made partner
   (12) AOSM’s decision that Reznick would             constituted a de facto demotion. Firstly, by de-
not be considered for partner;                         finition a demotion cannot be considered a failure
                                                       to be promoted. Reznick remained in the same
   (13) AOSM’s financial arrangement where-            position to which she was hired for her entire
by Small referred patients to Schwartz and not         tenure at AOSM. Additionally, Reznick was never
to Reznick;                                            promised that making partner was a guarantee
                                                       should she become an associate.
   (14) Small’s and Glogau’s refusal to refer              Furthermore, Kwong, a male physician, was al-
hand cases to Reznick;                                 so not selected to become a partner, indicating that
                                                       Reznick was not excluded from the partnership
  (15) Small’s weekly physician basketball             based on sex alone. A reading of the employment
games to which Reznick was not invited;                contract suggests that joining the partnership was
                                                       left wholly up to the discretion of the existing part-
                                                       ners and was in no way automatic.

                                                   7
badgered, harassed, or humiliated 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 resignation, and constructive dis-
charge cannot be based on facts that are re-
mote 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 force a reasonable person to leave. See
Faruki at 319.

   The rest of Reznick’s allegations deal more
with favorable treatment of Schwartz than
with treatment of her, and this disparate treat-
ment alone cannot constitute constructive dis-
charge. See 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 subjected to an intolerable
work environment that compelled her to re-
sign. Because she is unable to establish a pri-
ma facie case, and thereby satisfy her initial
burden of production under McDonnell Doug-
las, we need not explore the question whether
AOSM has an adequate defense to Reznick’s
allegations, nor the question whether she can
demonstrate that AOSM’s reasons are mere
pretext.

   AFFIRMED.




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