     Case: 14-10219      Document: 00513001582         Page: 1    Date Filed: 04/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-10219                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
AUTUMN K. BROWN,                                                            April 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellant,                                            Clerk

v.

LIBERTY MUTUAL GROUP, INCORPORATED,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-1196


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Autumn Brown (“Brown”) filed this suit alleging
employment discrimination, hostile work environment, retaliation, and
interference with leave benefits after she resigned from her position as a lead
sales representative for Defendant–Appellee Liberty Mutual Group (“Liberty
Mutual”). The district court determined that Brown had offered insufficient




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 14-10219
evidence to support her claims and granted summary judgment for Liberty
Mutual. We agree and will AFFIRM the district court’s decision.
                                      I.
      The pertinent facts are largely undisputed, but where they differ we
construe the facts and inferences in the record on appeal in the light most
favorable to Brown. See Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
Brown began working as a sales representative for Liberty Mutual on October
18, 2004.    She performed very well and was promoted to lead sales
representative. As lead sales representative, Brown received the assistance of
a sales associate, although this benefit was contingent upon Brown meeting
certain sales goals.
      When Brown notified her supervisor, Lynn Peters (“Peters”), of her
pregnancy on January 11, 2011, Peters told Brown that she had never had a
pregnant person in her office before and that it would be a new experience for
her. Shortly thereafter, Peters began to question Brown’s sales performance
and admonished Brown that she risked losing the assistance of a sales
associate if Brown failed to meet her sales expectations. After Brown missed
work due to a pregnancy-related health issue, Peters suggested that Brown
take leave under the Family and Medical Leave Act (“FMLA”).              Brown,
however, declined to take leave at that time.
      During the first week of January 2011, Brown was selected for an audit
of her insurance sales by an auditor who was unaware of Brown’s pregnancy.
Peters was not involved in the decision to audit Brown. The auditor discovered
a number of insurance policies in which the information that Brown had
entered did not match the information provided by the policyholders. The
auditor thereafter asked Peters to look into the discrepancies. On February
14, 2011, Peters told Brown to come to a meeting, which Brown expected to be
a routine discussion between her and Peters about an insurance policy that
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                                 No. 14-10219
Brown had sold. When she arrived in the conference room, however, Brown
found Peters, Peters’s supervisor, and an HR representative, who asked Brown
a series of questions regarding her sales practices.            Brown became
overwhelmed and left the meeting before it was complete.           The meeting
resumed the next day, and Brown received no disciplinary action as a result of
the audit.
      From February 18 through 27, 2011, Brown went on a previously
scheduled vacation to South Africa. She did not return to work on February
28, 2011, however, because she was not feeling well due to stress.           On
recommendations from her therapist and doctor, she requested and received
short-term disability and medical leave under the FMLA. On April 15, 2011,
before the end of her medical leave, Brown resigned from her position with
Liberty Mutual.
      Approximately one year after resigning, Brown filed the instant suit,
alleging that Liberty Mutual had subjected her to pregnancy-based
discrimination, a hostile work environment, and retaliation in violation of Title
VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e
et seq. Additionally, she alleged that Liberty Mutual had interfered with her
leave rights in violation of the FMLA. Brown claimed that she had been
constructively discharged from her position when she resigned.
      Thereafter, Liberty Mutual filed a motion for summary judgment on all
of Brown’s claims. The district court granted Liberty Mutual’s motion, holding
that Brown had failed to support prima facie cases for any of her claims
because she did not suffer an adverse employment decision, the “harassment”
she alleged was not severe or pervasive, and there was no evidence that Liberty
Mutual interfered with her FMLA benefits. This timely appeal followed.
      Brown’s evidence, viewed in the light most favorable to her, cannot
establish that she suffered an adverse employment action nor that Liberty
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Mutual interfered with her FMLA leave. Accordingly, as a matter of law, she
is unable to make out a prima facie case for discrimination, harassment,
interference with FMLA benefits, or retaliation. Thus, we AFFIRM summary
judgment on all claims.
                                         II.
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Richard v. Wal-Mart Stores, Inc., 559 F.3d 341,
344 (5th Cir. 2009). Summary judgment is appropriate where, taking the
evidence in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a); Vuncannon v. United States, 711 F.3d
536, 538 (5th Cir. 2013) (per curiam).
                                         III.
                                         A.
      To establish a prima facie case for discrimination based on pregnancy
under Title VII, the plaintiff must show, inter alia, that she was the subject of
an adverse employment action. See Urbano v. Cont’l Airlines, Inc., 138 F.3d
204, 206 (5th Cir. 1998), abrogated on other grounds by Young v. United Parcel
Serv., Inc., No. 12-1226, 2015 WL 1310745 (U.S. Mar. 25, 2015). Although
Brown voluntarily resigned, a resignation may still constitute an adverse
employment action “if the resignation qualifies as a constructive discharge.”
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). “To prove a
constructive discharge, a plaintiff must establish that working conditions were
so intolerable that a reasonable employee would feel compelled to resign.” Id.
(internal quotation marks omitted).
      The district court found that Brown has failed to create a genuine
dispute of material fact as to whether she was constructively discharged. We
agree.   Brown argues that Peters’s exhortations to improve her sales
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                                  No. 14-10219
performance and threats to take away her sales associate constituted a
constructive discharge by forcing Brown to resign.           However, informal
criticisms of an employee’s work rarely suffice to support a finding of
constructive termination. See, e.g., Haley v. Alliance Compressor LLC, 391
F.3d 644, 650, 653 (5th Cir. 2004) (holding that plaintiff was not constructively
discharged in spite of her employer “fabricating deficiencies in [her] work
performance and setting an overly strict performance plan for her; threatening
to fire her if she did not meet her teamwork goals; micromanaging her;
excluding her from HR Department meetings; and ridiculing her in front of her
coworkers”). Because having the assistance of a sales associate was contingent
upon Brown’s sales performance, the threat of taking the sales associate away
due to Brown’s lack of sales was simply a reminder of the policy to which Brown
had agreed. Despite this reprimand, Brown was never formally disciplined,
and no supervisor at Liberty Mutual threatened to terminate her employment.
Thus, because the uncontested facts indicate that Brown was not
constructively discharged, the district court did not err in granting summary
judgment to Liberty Mutual on Brown’s pregnancy discrimination claim.
                                       B.
      To establish a hostile work environment claim under Title VII, a plaintiff
must prove that the harassment complained of was “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th
Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In the
instant case, Brown argues that she was harassed by comments about her sales
numbers, threats of penalties if Brown did not meet her sales goals, and the
meeting with her supervisor and other managers following the audit. Brown’s
counsel acknowledged at oral argument that neither Peters nor any other
employees made any derogatory comments regarding Brown’s pregnancy,
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other than Peters’s initial observation that she had not had a pregnant
employee before Brown. The types of job-related criticisms Brown complains
of are unlikely to support a hostile work environment claim. See Kang v. Bd.
of Supervisors of La. State Univ., 75 F. App’x 974, 976-77 (5th Cir. 2003) (per
curiam) (holding that receiving a poor performance evaluation, being unjustly
criticized in front of peers, and being written up were not enough to make out
a prima facie case of hostile work environment).         More importantly, the
treatment Brown experienced was not so severe as to create an abusive
working environment. See Hockman v. Westward Commc’ns, LLC, 407 F.3d
317, 326-29 (5th Cir. 2004) (concluding that male coworker’s conduct did not
affect a term, condition, or privilege of employment where, inter alia, he
brushed against plaintiff’s breasts and behind, once slapped her behind with a
newspaper, and once attempted to kiss plaintiff); Shepherd v. Comptroller of
Pub. Accounts of State of Tex., 168 F.3d 871, 872, 875 (5th Cir. 1999) (holding
that employee’s work environment was not rendered objectively hostile by co-
worker remarking that plaintiff’s “elbows are the same color as [her] nipples,”
repeatedly attempting to look down plaintiff’s clothing, rubbing one of his
hands from plaintiff’s shoulder down to her wrist, and patting his lap and
remarking “here’s your seat” at meetings).     Brown has not created a fact
dispute regarding whether she was subjected to severe or pervasive
harassment because of her pregnancy. Thus, Brown cannot establish a prima
facie case of hostile work environment, and the district court did not err in
granting summary judgment to Liberty Mutual on this claim.
                                      C.
      As with a discrimination claim, a Title VII retaliation claim requires an
adverse employment decision. See Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376,
385 (5th Cir. 2003). Retaliation claims may be proven by a wider range of
adverse actions than discrimination claims. See Burlington N. & Santa Fe Ry.
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Co. v. White, 548 U.S. 53, 67 (2006). To support a claim for retaliation, “a
plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which . . . means [the adverse action]
well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.”    Id. at 68 (internal quotation marks omitted).
Brown’s supervisors’ actions do not meet the standard for retaliation; their
allegedly retaliatory behavior was limited to counseling Brown to improve her
performance, reminding Brown of the consequences of poor performance, and
conducting a meeting to ask questions raised by Brown’s audit. Mere work-
related reprimands are generally insufficient to rise to the level of being
“materially adverse.” See Mendoza v. Bell Helicopter, 548 F. App’x 127, 130
(5th Cir. 2013) (per curiam) (holding that employee did not suffer an adverse
employment action where he was verbally counseled at least three times for
taking too long on assignments and once for riding an electric buggy at work);
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (same
where employee was, among other things, chastised by superiors for
performance issues). The district court properly granted summary judgment
on this claim.
                                      D.
      Lastly, to present an interference claim under the FMLA, a plaintiff
must show, inter alia, that the defendant denied or interfered with benefits to
which she was entitled under the FMLA. 29 U.S.C. § 2615(a)(1); Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Brown argues that by
constructively discharging her, Liberty Mutual interfered with her ability to
take additional FMLA leave once her child was born. As discussed supra,
Brown has not offered sufficient summary-judgment evidence to support a
finding of constructive discharge, and therefore her interference claim fails as
a matter of law.
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                              No. 14-10219
                                   IV.
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in full.




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