                                                             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opinion should not be published and is not precedent except under the limited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))).

                                        5
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,

                                           6
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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