           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 1, 2008

                                     No. 07-30449                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SHELLEY CHANDLER

                                                  Plaintiff-Appellant
v.

LA QUINTA INNS INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:06-cv-266


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Shelley Chandler (“Chandler”) appeals the district
court’s order granting summary judgment in favor of Defendant-Appellee La
Quinta Inns, Inc. (“La Quinta”). For the following reasons, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Chandler began working as the general manager of the La Quinta Inn in
Shreveport, Louisiana, in 2002. In December 2004, she requested a medical


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                         No. 07-30449

leave of absence under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601-2654 (2000). Before beginning her leave, she assigned various tasks to
several of her employees and wrote a memo detailing those assignments to Rob
Cowan (“Cowan”), her supervisor and the Regional-Vice President.
       While Chandler was on leave, on January 25, 2005, La Quinta’s corporate
office conducted a random audit of the Shreveport La Quinta Inn. Under the
corporation’s guidelines, a property will pass an audit if it scores a seventy or
higher out of a total ninety-five possible points. The hotel failed the audit,
receiving a score of 40.5, or 42.6%. This was in stark contrast to the previous
audit on March 18, 2003, when the facility earned a score of 85.5, or 93.2%. The
district court noted that some of the deficiencies found in the January 2005 audit
were attributable to Chandler’s performance before she went on leave while
others arose during her absence and were beyond her control.
       Upon Chandler’s return from FMLA leave, Cowan notified her of the
failing score on the audit and told her that the property had to score a ninety or
above on the re-audit or she would face disciplinary action, which could include
termination.1 Cowan stated that he created this goal pursuant to an informal
corporate policy requiring the average of an audit and re-audit after failure to
be near 70%.2 Chandler began to work on correcting some of the problems and
sent Cowan an email on her progress. Cowan offered to visit the property to help
or send another manager to assist, but Chandler never took Cowan up on his
offer. Two weeks later, on March 25, 2005, Chandler submitted her resignation.
She claims that achieving a score of ninety on any audit is impossible and that



       1
           It is not clear if Cowan meant that she needed to score a ninety out of ninety-five or
90%.
       2
         To achieve the goal of an average of 70%, the facility actually would have needed to
score a 98% on the re-audit, but Cowan stated that he lowered the score Chandler needed to
achieve to assist her.

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the threat of disciplinary action for failing to achieve this goal amounted to a
constructive discharge.
      Chandler brought suit against La Quinta pursuant to the FMLA.3 She
argues that La Quinta placed a new condition on her employment when she
returned from leave and retaliated against her for taking FMLA leave by
creating an unachieveable goal based on an audit that occurred while she was
away, especially given that she had successfully managed the hotel when it
passed the previous audit in March 2003. The district court rejected her
arguments and granted La Quinta’s motion for summary judgment. Chandler
appeals. We have jurisdiction over the district court’s final order granting
summary judgment pursuant to 28 U.S.C. § 1291.
                          II. STANDARD OF REVIEW
      This court reviews a district court’s summary judgment order de novo.
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005). We will
affirm the district court’s decision to grant summary judgment if “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Richardson, 434 F.3d at 332.
In conducting this inquiry, we must “consider the evidence in a light most
favorable” to Chandler, the non-moving party. Richardson, 434 F.3d at 332.
                                 III. DISCUSSION
A.    La Quinta did not Change the Conditions of Chandler’s
      Employment in Violation of the FMLA
      Under the FMLA, an employer must restore an employee who takes FMLA
leave to the same position as the employee previously held or a comparable
position with equivalent pay, benefits, and terms and conditions of employment.




      3
         Chandler also sued Cowan and another La Quinta employee, Charles Johnson, but
the district court dismissed them from this case. Chandler does not appeal that dismissal.

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29 U.S.C. § 2614(a)(1). Chandler argues that the goal of scoring a ninety on the
re-audit changed the conditions of her employment in violation of the FMLA.
      Upon returning from FMLA leave, Chandler continued in her former
position as the general manager of the Shreveport La Quinta Inn. She had the
same “pay, benefits and working conditions, including privileges, perquisites and
status” as when she left. 29 C.F.R. § 825.215(a). Her position after returning
from leave also involved “the same or substantially similar duties and
responsibilities, which [] entail[ed] substantially equivalent skill, effort,
responsibility, and authority.” Id. At most, the requirement of scoring a ninety
on the re-audit or facing disciplinary action was a new performance goal, and
Chandler presents no authority for her contention that a performance goal can
serve as a new condition of employment. We have previously held that “[d]e
minimis, intangible changes in the employee’s position do not . . . violate the
FMLA.” Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650, 651 (5th Cir.
2006). The performance goal of scoring a ninety did not amount to any change
in Chandler’s position or condition of employment, let alone a de minimis one,
particularly given that Cowan created the goal pursuant to an informal policy
that required an average around 70% for two audits if a facility fails the first
audit. Therefore, La Quinta did not violate the FMLA in creating a new
performance goal upon Chandler’s return from leave.
B.    Chandler Failed to Make a Prima Facie Showing that La Quinta
      Retaliated Against Her in Violation of the FMLA
      Chandler contends that La Quinta retaliated against her for taking FMLA
leave by creating an unattainable goal that amounted to a constructive
discharge. To make a prima facie showing of retaliation under the FMLA, the
plaintiff must show that (1) she was protected under the FMLA; (2) she suffered
an adverse employment decision; and (3) either (a) she was treated less favorably
than an employee who had not requested leave under the FMLA, or (b) the


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employer made the adverse decision because she took FMLA leave. See Hunt v.
Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2002). The district court
granted summary judgment for La Quinta after ruling that Chandler failed to
make this prima facie showing.
      Although Chandler meets the first prong of a prima facie case of
retaliation because she took approved FMLA leave and therefore is covered
under the FMLA, our inquiry ends at the second prong because Chandler did not
suffer an adverse employment action. We have previously held that “only
‘ultimate employment decisions,’ such as hiring, granting leave, discharging,
promoting, and compensating, satisfy the ‘adverse employment action’ element
of a prima facie case of retaliation.” Id. at 769 (internal citations omitted). An
employment action that does not affect job duties, compensation, or benefits is
not an “ultimate employment decision.” Id.
      Chandler’s argument that the goal of scoring a ninety on the re-audit was
an adverse employment decision because it amounted to a constructive discharge
is unavailing. “A constructive discharge occurs when the employer makes
working conditions so intolerable that a reasonable employee would feel
compelled to resign.” Id. at 771. The test for whether an employer has created
conditions that amount to a constructive discharge is objective, and we consider
several factors, including whether the employee faces (1) demotion; (2) reduction
in salary; (3) reduction in job responsibilities; (4) reassignment to menial or
degrading work; (5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (6) offers of early
retirement that would make the employee worse off whether the offer was
accepted or not. Id. at 771-72.
      Chandler fails to demonstrate that any of these factors are present. La
Quinta did not demote her, reduce her salary, reduce her job responsibilities,
reassign her, badger, harass, or humiliate her, or offer early retirement.

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Instead, La Quinta merely notified her of a new performance goal, which does
not fall into any of these categories. Even if La Quinta told her she definitely
would be fired if she did not reach the goal (a threat it did not make), this would
be insufficient to establish an adverse employment action because a threat of
termination does not constitute a constructive discharge. See Hargray v. City of
Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (stating that “resignations can
be voluntary even where the only alternative to resignation is facing possible
termination”). This is because Chandler still had the choice to remain in her
position and try to achieve the goal of scoring a ninety; indeed, Cowan stated
that it was possible that La Quinta would not have terminated her even if she
had not met the goal. See Hunt, 277 F.3d at 772; cf. Hillman v. Safeco Ins. Co.
of Am., 190 F. Supp. 2d 1029, 1038 (N.D. Ohio 2002) (“While not reaching the
required goals of the plan would put Hillman’s employment in jeopardy, under
the circumstances, a reasonable person likely would not conclude that
termination was inevitable. Rather, termination was only one possible option
for failing to satisfy the requirements of the performance plan.”). Chandler also
did not present any evidence that La Quinta created the goal of scoring a ninety
on the re-audit to encourage her to resign or to make her work conditions
intolerable, especially given that Cowan offered his assistance in fixing the
problems at the facility. In short, Chandler presented no evidence that the goal
of scoring a ninety on the re-audit would have made a reasonable employee feel
compelled to resign.      Because she cannot demonstrate that La Quinta
constructively discharged her and because La Quinta did not impose any other
adverse employment decision, Chandler fails to establish the second prong of a
prima facie case of retaliation under the FMLA.
                              IV. CONCLUSION
      La Quinta did not change the conditions of Chandler’s employment in
violation of the FMLA. Chandler also failed to present a prima facie case of

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retaliation under the FMLA because she pointed to no action that qualifies as
an “adverse employment decision.” Therefore, we affirm the district court’s
order granting summary judgment for La Quinta.
     AFFIRMED.




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